Court File and Parties

COURT FILE NO.: CR-18-9108

DATE: 20220613

CORRIGENDA: 20220614

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ANDRE MARCO TULLY

Defendant

T. Hamilton, for the Crown

No one appearing for the Defendant

HEARD: May 13, 2022

REASONS FOR SENTENCE

(TEXT OF ORIGINAL DECISION HAS BEEN AMENDED – CHANGES APPENDED)

CHARNEY J.:

[1] On March 28, 2022, Andre Tully was convicted of the following charges:

1. While operating a motor vehicle and being pursued by a peace officer operating a motor vehicle, did in order to evade the peace officer fail without reasonable excuse to stop his vehicle as soon as was reasonable in the circumstances contrary to Section 249.1 of the Criminal Code.

2. Operating a motor vehicle in a manner that was dangerous to the public, contrary to Section 249(2) of the Criminal Code.

3. Possession of a loaded prohibited firearm, contrary to Section 95(2) of the Criminal Code.

4. Possession of a prohibited device (over capacity magazine), contrary to Section 92(3) of the Criminal Code.

5. Possession a firearm while he was prohibited from doing so by reason of an order made pursuant to Section 109(1) of the Criminal Code, contrary to Section 117.01(3) of the Criminal Code.

6. Possession of a substance, namely Diacetylmorphine (Heroin), for the purpose of trafficking, contrary to Section 5 of the Controlled Drugs and Substances Act.

[2] On April 8, 2022, Crown counsel advised the Court that on March 30, 2022, Mr. Tully cut his ankle bracelet and absconded, and his whereabouts were not known. On March 31, 2022 a Canada-wide warrant was issued for Mr. Tully for breaching his bail.

[3] Defence counsel applied to be removed from the record because they were not able to communicate with Mr. Tully and could not obtain instructions. The application was granted: R. v. Garofoli, 1988 3270 (ON CA), at para. 117.

[4] Crown counsel applied for an Order under s. 475(1)(b)(i) of the Criminal Code for an Order for the trial to continue for sentencing submissions and to impose a sentence in the accused’s absence. The evidence clearly demonstrated that Mr. Tully deliberately absconded for the purposes of avoiding his penalty for the crimes for which he has been convicted. I found that in these circumstances it is in the interest of justice that Mr. Tully be sentenced in his absence. Given that he has absconded he has clearly waived his right to be present at the sentencing hearing as stated in s. 475(1)(a) of the Code. The Crown’s application to proceed under s. 475(1)(b)(i) was granted, and sentencing submissions were scheduled for May 13, 2022.

[5] On May 13, 2022, Mr. Tully’s whereabouts were still unknown and the Court heard the Crown’s sentencing submissions. No one appeared for Mr. Tully.

Circumstances of the Offence

[6] The details of the offence are set out in my decision in relation to the Charter application reported at R. v. Tully, 2022 ONSC 1852. In that decision I found that the police had infringed Mr. Tully’s rights under Charter ss. 9 and 10(b), but concluded that the evidence found would not be excluded under Charter s. 24(2).

[7] Briefly, on November 2, 2018, Mr. Tully was stopped by the police in a public parking lot while on his way to a concert. The police stopped his car in order to conduct a “sobriety check”. Mr. Tully was driving and had a female passenger. While speaking with Mr. Tully, the police noticed a bag between Mr. Tully’s feet and saw Mr. Tully moving his feet in an effort to move the bag under the seat. The police told Mr. Tully not to touch the bag. As the bag was moved it opened and the police officer could see what he believed was the handle of a handgun. The police officer yelled “Gun” and “Do not touch the bag”. At that point Mr. Tully moved his hand to the gear shift and put the car in gear.

[8] The police had thought that the car’s engine was off, but the car “fired up” and Mr. Tully fled the scene.

[9] One of the police officers was between Mr. Tully’s car and another car in the parking lot. In order to get away Mr. Tully’s car went forward and to the left. As the car turned, the police officer was knocked over by Mr. Tully’s car. Fortunately, the officer sustained only minor injuries – a cut hand and a bruise on his hip.

[10] The police called for back up, and a police chase ensued. After less than two minutes Mr. Tully’s car stopped, and he was arrested.

[11] The police conducted a search of the surrounding area and found a loaded handgun in the area near where Mr. Tully’s car had travelled. A clear baggy with 23 grams of heroin (Diacetylmorphine) and ammunition were also located inside the vehicle.

[12] A DNA swab was taken from the grip of the gun. The police obtained a DNA warrant, got a sample of Mr. Tully’s DNA, and sent the two samples in for testing. The DNA testing confirmed that the DNA from the gun originated with Mr. Tully (one trillion times more likely that the profile originates from Mr. Tully than from an unknown person unrelated to Mr. Tully).

[13] The handgun was a Glock Model 27, .40 Smith and Wesson caliber pistol with a loaded 22 cartridge capacity magazine. This firearm is a prohibited firearm as defined in the Criminal Code. There was a bullet loaded in the chamber. All bullets were live, functional ammunition. The police also found a Glock brand magazine loaded with 13 bullets in the center console of the vehicle.

[14] At the time of this incident, Mr. Tully was bound by 3 lifetime s. 109 orders which banned him from possessing prohibited weapons for life.

[15] While Mr. Tully pled not guilty to all of the charges, the case for the Crown depended on the admissibility of the evidence sought to be excluded. When the evidence was admitted, the accused adduced no evidence and accepted the case for the Crown, and a finding of guilt on all charges was made. Because he pled not guilty, Mr. Tully preserved the right to challenge the evidentiary ruling on appeal: R. v. Anderson, 2021 ONCA 333, at para. 53.

Crown Position

[16] The Crown seeks the following sentences and ancillary orders:

Count 1 – Flight from police – 1-year jail consecutive to all other sentences

Count 2 – Dangerous driving – 1-year jail consecutive to all other sentences

Count 3 – Loaded restricted firearm – 10-year jail sentence consecutive to all other sentences

Count 4 – Prohibited device (over capacity magazine) – 3-year sentence concurrent to count 3

Count 5 – Breach of s. 109 order – 4-year jail sentence consecutive to all other sentences

Count 6 – Trafficking Heroin – 9-year jail sentence consecutive to all other sentences

[17] The total sentence suggested by the Crown is therefore a global sentence of 25 years jail. To account for the principle of totality, the Crown suggests the sentence be reduced to 23 years jail by making the Flight from Police and Dangerous Driving concurrent to the other counts.

[18] Mr. Tully was arrested on November 3, 2018. He remained in custody until May 4, 2020, when he was released on bail following a contested hearing. This amounts to 549 days in custody. With pretrial detention credit at a rate of 1.5 to 1, this amounts to a credit of 824 days.

Previous Convictions

[19] The Crown acknowledges that this is an extraordinary sentence, but notes that this is Mr. Tully’s fourth conviction for offences relating to possession of firearms and trafficking drugs.

[20] Mr. Tully was first convicted of possession of a prohibited loaded firearm, possession of ammunition and possession of a Schedule I substance for the purpose of trafficking in 2006 for an offence that occurred in 2004. He received an effective three year sentence (one year plus the equivalent of 24 months pre-sentence custody) and a s. 109 firearms prohibition.

[21] He was next convicted in 2009 of possession of a prohibited loaded firearm, possession of a Schedule I substance for trafficking, and violation of the s. 109 firearms prohibition. He received an effective 40 month sentence (13 months and 15 days plus the equivalent of 26 months and 15 days for pre-sentence custody) and another mandatory s. 109 firearms prohibition.

[22] Mr. Tully was then convicted in 2014 of possession of a prohibited loaded firearm, possession of ammunition, possession of a Schedule II substance for trafficking, and violation of the two previous s. 109 firearms prohibitions. He received an effective sentence of 9 years (4 years and 10 months plus the equivalent of 4 years and two months for pre-sentence custody) and another mandatory s. 109 firearms prohibition. This sentence was comprised of 6.5 years for the possession of a loaded firearm, and two consecutive 15 month sentences for each of the two breaches of the s. 109 firearms prohibitions. His sentence for trafficking was made concurrent to the other sentences.

[23] In delivering his sentence in 2014 (R. v. Tully, 2014 ONSC 382), Corrick J. set out the following aggravating factors applicable to that case, at para. 34:

1. Mr. Tully is not a youthful offender, but a 28-year-old man with a criminal record for precisely the same crimes for which he is being sentenced.

2. Not only was the firearm fully loaded with an over-capacity magazine, there was a bullet in the chamber ready to be fired.

3. The gun was carried in a car that was being driven on the public streets of Toronto, creating a dangerous situation for members of the public.

4. Mr. Tully has demonstrated a repeated disregard for court orders prohibiting him from possessing weapons. In May 2006, he was sentenced to serve one year in jail for possessing a loaded firearm, and ordered not to possess weapons. In January 2008, he was charged with possession of a loaded firearm. In February 2009, he was sentenced to serve 13½ months for that and other offences, and again ordered not to possess weapons. According to a letter written by his mother, which is marked as Exhibit #2A on the sentencing hearing, he was released in November 2009. He was arrested in April 2011, again in possession of a loaded firearm.

5. This is his third conviction in six years for possessing a loaded firearm, his third conviction in six years for possession of a controlled substance for the purpose of trafficking, and his third conviction in six years for possessing a firearm when expressly prohibited by court orders from doing so.

6. Even giving Mr. Tully the benefit of the doubt that the gun and marijuana were not his, he was transporting them to someone he knew was in the business of selling drugs and was using the firearm in that endeavour, thereby increasing the risk of violence and harm to the community.

[24] Each of these aggravating factors applies with even greater force to this fourth conviction.

[25] Corrick J. gave the following reasons for imposing an effective sentence of 9 years in that case, at paras. 39 - 43:

In the circumstances of this case, the protection of the public, denunciation, and deterrence, both general and specific, are of paramount importance.

As Justice Doherty indicated in R. v. Nur, 2013 ONCA 677, at para. 206: “Individuals who have loaded restricted or prohibited firearms that they have no business possessing anywhere or at any time, and who are engaged in criminal conduct or conduct that poses a danger to others should continue to receive exemplary sentences that will emphasize deterrence and denunciation.”

Notwithstanding this, rehabilitation cannot be abandoned altogether.

Mr. Tully is a repeat firearms offender. His conduct in transporting a loaded firearm to a known drug dealer in a car on the streets of Toronto posed a danger to the safety of members of the public. He has not been deterred by two previous sentences of incarceration or by two weapons prohibition orders. Accordingly, before crediting him for the time he has spent in pre-sentence custody, I am of the view that a sentence of 6½ years for the possession of the firearm is required to adequately address the sentencing principles of deterrence and denunciation, and is in keeping with sentences imposed on similar offenders in similar circumstances.

With respect to the two convictions for possession of a firearm in breach of a prohibition order, consecutive sentences must be imposed. The intentional violation of court orders that are made to protect the public must attract additional sanctions. Mr. Tully has violated two separate orders. This is Mr. Tully’s third conviction for breaching a weapons prohibition order. It is particularly aggravating that both previous orders were made following two separate convictions for possession of loaded firearms. He has not been deterred by two prior twelve months sentences for the same offence. Mr. Tully will be sentenced to 15 months on each count consecutive to each other and to the sentence imposed on the firearm offences.

[26] Again, these comments apply with even greater force to this fourth conviction.

Possession of a Loaded Firearm

[27] The Crown is seeking the maximum 10 year sentence for possession of a loaded prohibited firearm.

[28] There are a number of aggravating circumstances:

• Mr. Tully is not a youthful first offender, but is a 36-year-old man with a lengthy criminal record with convictions for three prior firearm-related offences.

• This was a Glock style handgun with a loaded 22 cartridge magazine. All bullets were live, functional ammunition.

• The magazine of the firearm was itself a prohibited device, in that it was an over-capacity magazine.

• a Glock brand magazine loaded with 13 bullets was also found in the center console of the vehicle

• Mr. Tully was carrying the gun in his car while in a crowded public area on his way to a concert.

• Mr. Tully threw the gun out of the car while he was being pursued by the police.

[29] I have not considered two important features of this case as aggravating in relation to the s. 95 offence, namely, its association with drug trafficking and its commission in breach of three prior s. 109 firearms prohibition orders. That is because I am of the view that these further offences require consecutive sentences: R. v. Graham, 2018 ONSC 6817, at para. 26.

[30] The Crown has listed a multitude of cases describing the gravity of gun crimes and the particular danger posed by loaded handguns in public places.

[31] A recent decision is the Ontario Court of Appeal’s decision in R. v. Morris, 2021 ONCA 680, where the Court stated, at para. 68:

Gun crimes involving the possession of loaded, concealed firearms in public places pose a real and immediate danger to the public, especially anyone who interacts with the gun holder. When the person with the gun is confronted by the police, who are engaged in the lawful execution of their duties, the risk increases dramatically. It increases yet again when the gun holder flees, and still again when the gun holder discards the weapon in a public place. A person who carries a concealed, loaded handgun in public undermines the community’s sense of safety and security. Carrying a concealed, loaded handgun in a public place in Canada is antithetical to the Canadian concept of a free and ordered society: see Nur (ONCA), at paras. 82, 206; R. v. Felawka, 1993 36 (SCC), [1993] 4 S.C.R. 199, at pp. 214-15.

[32] The summary of factors set out in that paragraph are directly applicable to the offence at issue in this case.

[33] The Court also stated, at para. 71 of Morris:

Apart from the specific provisions in the Criminal Code, Canadian courts have long recognized that the gravity of certain kinds of offences requires sentences emphasizing denunciation and general deterrence. Gun crimes involving the unlawful possession of loaded handguns in public places fall squarely within that category. McLachlin C.J., in Nur (SCC), at para. 82, observed that a three-year sentence may be appropriate “for the vast majority of offences” under s. 95: see also Nur (ONCA), at para. 206; R. v. Mansingh, 2017 ONCA 68, at para. 24; R. v. Marshall, 2015 ONCA 692, 340 O.A.C. 201, at paras. 47-49; and R. v. Danvers (2005), 2005 30044 (ON CA), 199 C.C.C. (3d) 490 (Ont. C.A.), at para. 77.

[34] I could quote from any of the myriad of cases cited by the Crown to support the proposition that gun crime is a serious threat to the public, and a particular danger in the Greater Toronto Area where it has become all too common.

[35] The following analysis by Campbell J. in R. v. St. Clair, 2018 ONSC 7028, at paras. 47-49 is particularly relevant because the facts are strikingly similar to the present case:

The courts have repeatedly noted that the possession of loaded handguns remains an all too prevalent threat to the people of Toronto, and to others in the Greater Toronto Area. Such firearms are frequently employed in connection with other kinds of serious criminal activity. Often, as illustrated by the facts in the present case, individuals engaged in the business of drug-trafficking have loaded firearms as one of the tools of their illicit trade. In any event, the possession and use of loaded firearms tragically results, all too frequently, in serious bodily harm or death to others. The unlawful possession of firearms remains a menace to society. To combat this serious social problem, these offences must be met with exemplary custodial sentences that proportionally reflect the sheer gravity of the crime, and which appropriately stress the need to denounce and deter such crimes. In the absence of such sentences, these offences and their disastrous consequences will only continue unabated. The public must be adequately protected. This can only be accomplished by sentences that ensure that potential offenders know that their illegal possession of loaded handguns will almost invariably be accompanied by serious penal consequences. Some of the authorities in support of this position are collected in R. v. Mark, 2018 ONSC 447, at para. 24.

This is especially true in cases, such as the present one, where the accused has been previously convicted of the same type of firearms offence, and yet has been undeterred by the imposition of a lesser term of imprisonment.

The firearm-related offences in the present case are, to be sure, no mere “regulatory” matters. Rather, the accused was, once again, engaged in true criminal activity in relation to a firearm. He was in unlawful possession of a fully loaded, semi-automatic Ruger nine-millimeter handgun. This firearm was fitted with an over-capacity magazine that permitted the gun to be loaded with a total of 16 bullets (one in the chamber and 15 in the magazine). His unlawful possession of this loaded firearm, the over-capacity magazine, and the ammunition, amounted to a very serious criminal offence, which created a very substantial public safety risk, and which merits the imposition of at least a five-year term of imprisonment. See R. v. Nur, 2013 ONCA 677, at paras. 4, 6, 51-53, 107-109, 144, 206, affirmed, 2015 SCC 15, at paras. 5, 82, 120; R. v. Smickle, 2014 ONCA 49, at para. 19. [Emphasis added]

[36] In St. Clair, Campbell J. imposed an effective global penitentiary sentence of eight years imprisonment: five years imprisonment for his various firearm-related offences, two years imprisonment (consecutive) for his two drug-related offences, and one year imprisonment (consecutive) for his breach of the two lifetime weapons prohibition orders. Campbell J. concluded at para. 60:

The total global sentence of eight years imprisonment is unquestionably a long sentence for the accused – but it is justifiably so. Gun-toting drug dealers, with significant criminal records, who chose to ignore weapons prohibition orders, and who thereby create great danger to members of the public, must realize that they will invariably be subject to such lengthy penitentiary sentences. There is simply no other way for the courts to realistically, effectively and proportionally address, denounce and deter the commission of this type of inherently dangerous crime.

[37] Mr. Tully’s efforts to flee from the scene soon after he was stopped by the police is another aggravating factor. As the Court of Appeal stated in Morris, at para. 170:

First, fleeing from the police while in possession of a loaded handgun increases the risk of a confrontation, during which the weapon may be discharged deliberately, or even accidentally. Either substantially increases the risk to the public. Second, Mr. Morris’s decision to run while armed with a loaded handgun endangered the safety of the police officers who were engaged in the lawful execution of their duty. Doing so aggravates the seriousness of the offence.

[38] Moreover, Mr. Tully discarded the gun in a public place while fleeing from the police. The gun was found in a grassy area adjacent to the parking lot where Mr. Tully stopped his car. Throwing the gun into a public place, where it would be easily accessible to a passerby if it had not been found by the police, is another significant aggravating factor: Morris at para. 172: “[L]eaving a loaded firearm anywhere in a public space is clearly a significant aggravating factor”.

[39] The mitigating circumstances of this case include the following considerations:

• There is no evidence that the accused ever actually shot his loaded firearm.

• There is no evidence that the firearm found in his possession has been traced back to the commission of any other earlier offences.

[40] Whether these two factors are properly described as mitigating factors, or more properly described as the absence of aggravating factors, the sentence for someone who never actually fired the loaded firearm should be less than for someone who did actually fire it. It is for this reason that I reject the Crown’s position that the maximum 10 year sentence is appropriate in this case.

Effect of Absconding

[41] I have not taken into account the fact that the accused has absconded as an aggravating factor. It is a separate offence committed after the offence at issue for which Mr. Tully may receive a separate punishment (R. v. Singh, 2015 ONSC 904, at para. 19; R. v. Al-Hussaini, [2017] O.J. No 7235).

[42] His absconding does, however, negate certain mitigating factors such as remorse (Singh at para. 19). It is clear that, by absconding immediately after the verdict, Mr. Tully is not prepared to accept responsibility for his conduct or to acknowledge the harm done to the community.

[43] The fact that the accused has absconded indicates that the prospect of rehabilitation is remote: R. v. P.M., 2022 ONCA 408, at para. 22. This, coupled with the fact that this is Mr. Tully’s fourth conviction, indicates that the prospect of rehabilitation should not play a significant role in the sentencing analysis.

[44] Since this case proceeded under s. 475 of the Criminal Code, I did not receive any submissions on behalf of Mr. Tully. That was a choice that he made when he decided to abscond. I have no additional information (other than the two factors set out at para. 38, above) that I would consider a mitigating factor given the facts and circumstances of this offence.

[45] Finally, by breaching his bail conditions by absconding Mr. Tully has negated any potential Downes credit he might have received for time spent on strict bail. As Clark J. stated in R. v. Bayani, 2011 ONSC 5808, at paras. 54-55:

There is no condition more fundamental to bail than that the accused appear before the court as and when required…

Therefore, having absconded, Mr. Bayani is not entitled to any reduction in sentence based on bail conditions. At the risk of stating the obvious, Bayani was only able to abscond by virtue of having been on pre-trial release… In these peculiar circumstances, to reduce the sentence that should otherwise be imposed in recognition of the hardship of enduring bail conditions would make a mockery of the bail system and would, with respect, be an affront to the administration of justice.

Range for s. 95 offences/Parity

[46] Sentences for s. 95 recidivists range from six to nine years in the penitentiary:

• R. v. McNichols, 2020 ONSC 6499: Akhtar J. imposed a sentence of 8.5 years jail on an offender with two prior s. 95 convictions.

• R. v. Owusu, 2019 ONCA 712: the Court of Appeal upheld a sentence of 6 years jail for a 19-year-old offender with a prior s. 95 finding of guilt under the YCJA.

• R. v. David, 2019 ONSC 3758: Monahan J. imposed a sentence of 8 years jail on a s. 95 recidivist.

• R. v. Brown, [2019] O.J. No. 2846 (S.C.J.): Kelly J. indicated that but for the presence of mitigating factors, she would have imposed 9 years imprisonment on a s. 95 recidivist who breached s. 109 orders. A sentence of 7 years jail was imposed.

• R. v. Slack, 2015 ONCA 94: the Court of Appeal upheld a sentence of 8 years jail for a s. 95 recidivist.

• R. v. Omar, 2015 ONCA 207: the Court of Appeal upheld a sentence of 6 years jail for a s. 95 recidivist who pled guilty. The sentencing judge acknowledged that the 8 years sought by the Crown was “not unreasonable” but found that a lesser sentence was warranted considering the “jump” principle and the offender’s family support. The Court of Appeal found that the sentence was “well within the range” (para. 8).4

• R. v. Hector, 2014 ONSC 1970 at paras. 22 and 38: MacDonnell J. accepted the Crown’s position that the range of six to nine years jail is appropriate in cases involving s. 95 recidivists who breach court orders.

• R. v. Graham, 2018 ONSC 6817 at para. 35: Code J. concluded that the “upper end” of the range was eight to ten years for s. 95 recidivists who breach s. 109 orders and went on to impose an eight-year sentence on an offender with a lengthy record (aff’d 2020 ONCA 692).

[47] Similar sentences should be imposed on similar offenders for similar offences committed in similar circumstances.

[48] In R. v. Dawkins, 2021 ONSC 4526, Monahan J. reviewed the sentences for unauthorized possession of a loaded firearm contrary to s. 95(1) of the Code. He stated, at para. 25:

I also take note of the fact that in cases where courts have imposed sentences at the upper end of the six-to-nine year range identified above, it has involved offenders with much more extensive criminal records than Mr. Dawkins’. For example, in R. v. Prince, the offender had three prior firearms convictions and 9 breaches of s. 109 orders and received a sentence of eight years. In R. v. David I imposed a global sentence of eight years on an offender with two prior firearms offences and over 40 other convictions.

[49] See also the range of sentences reviewed by Akhtar J. in R. v. McNichols, 2020 ONSC 6499, at paras. 20 – 29 and the range of sentences reviewed by Monahan J. in R. v. David, 2019 ONSC 3758, at paras. 27 – 28.

Breach of s. 109 Prohibition Order (s. 117.01)

[50] Sentences for breaches of s. 109 orders should be served consecutively to any substantive offence: R. v. Ellis, 2013 ONSC 3092, at para. 30, aff’d 2016 ONCA 598:

In the absence of a consecutive sentence, the accused effectively receives no greater punishment as a result of his clear violation of a previous court order. The intentional violation of an unequivocal court order requires some effective additional sanction. Offenders must understand that court orders governing their conduct must be followed or there will be real consequences for their violation.

[51] See also: Graham at para. 41:

I am of the view that the sentences for breach of the two s.109 orders should be consecutive to the sentence for the s.95 offence. I adopt the reasoning of the leading authorities in this Court, to the effect that separate punishment is required if court orders are to have real meaning. See: R. v. Manning [2007] O.J. No. 1205 (S.C.J.); R. v. Ellis 2013 ONSC 3092, [2013] O.J. No. 2409 (S.C.J.) aff’d, 2016 ONCA 598; R. v. Carrol, supra.

[52] See also: R. v. Chambers, 2013 ONCA 680, at paras. 20 – 22.

[53] The range for such offences appears to be 6 month to 2 years, consecutive to the sentence for the s. 95 offence.

[54] In this case Mr. Tully was subject to three s. 109 firearms prohibitions.

[55] I note that in 2014 Mr. Tully was sentenced to two consecutive 15 month sentences (a total of 30 months) for each of the two breaches of the s. 109 firearms prohibitions at that time. Given this prior sentence, the appropriate sentence for a repeat offence is a total of 36 months.

Possession of Heroin for the Purposes of Trafficking – CDSA s. 5

[56] Mr. Tully was convicted of having 23 grams of heroin (just under one ounce). The Crown submits that sentences for possession of that quantity of heroin for the purposes of trafficking generally attracts sentences in the 8-12 year range, although my review of the cases submitted by the Crown indicate that they relate to substantially larger quantities (one-half kilogram or more): R. v. DiBenedetto, 2016 ONCA 116, at para. 9: “The case law establishes a range of sentence from 6 to 12 years for offences involving trafficking of between approximately 0.5 to 1 kilograms of heroin”.

[57] It appears from my analysis that sentences for trafficking less than one ounce of heroin generally falls within the 3 – 6 year range: R. v. Elvira, 2018 ONSC 7008, at para. 28; R. v. Zamani (1999), 1999 2521 (ON CA), 125 O.A.C. 358 (C.A.); R. v Dhillon, 2017 ONSC 258; aff’d on appeal 2018 ONCA 281; R. v. Chang, 2018 ONSC 5952; R. v. Young, 2020 ONSC 1394, at para. 23 and Appendix A.

[58] In R. v. Sidhu, 2009 ONCA 81, [2009] 242 CCC (3d) 273, the Ontario Court of Appeal stated “time and again, this court and the Supreme Court of Canada had made it clear that heroin is the most pernicious of the hard drugs – it is the most addictive, the most destructive and the most dangerous. Heroin trafficking has been described as a “despicable” crime and one that “tears at the very fabric of our society”.”

[59] The expert report filed by the Crown indicates that 23 grams of heroin has a bulk value of approximately $2,800 and a street value of approximately $4,140.

[60] As this is a separate offence, the case law supports the position that the drug sentence should be consecutive to the firearms sentences: Graham at para. 26.

Jump Principle

[61] Another factor to be considered in this case is the application of the “jump principle”. The jump principle was explained by the Court of Appeal in R. v. Green, 2021 ONCA 932, at para. 11:

The jump principle stands for the proposition that a subsequent sentence imposed on an offender should not be disproportionate to sentences imposed for prior offences, provided the subsequent offence is not significantly more serious than the prior offence. Essentially, a subsequent sentence for an offence should have an incremental increase proportionate to the frequency of the repeated offence…The application of this principle is contextual to the level of seriousness of the subsequent offences.

[62] In the present case, Mr. Tully last received an effective sentence of 9 years for his conviction in 2014. This sentence was comprised of 6.5 years for the possession of a loaded firearm, and two consecutive 15 month sentences for each of the two breaches of the s. 109 firearms prohibitions. The one year sentence for trafficking cannabis was made concurrent with the other sentences.

[63] The sentence proposed by the Crown in this case – a global sentence of 23 years – is more than double the previous sentence for similar offences.

[64] The Crown argues that the jump principle does not apply in this case, relying on the following statement from Green at para. 12:

As noted by Rosenberg J.A. in Borde, at para. 39, the jump principle “has little application where the severity of the offender’s crimes shows a dramatic increase in violence and seriousness”. The same is true when dealing with multiple convictions for an offender with a lengthy criminal record, or where previous sanctions have been ineffective in deterring the offender.

[65] The Crown argues that since Mr. Tully is an offender with multiple convictions it is clear that previous sanctions have been ineffective in deterring his conduct. In addition, in 2014, Mr. Tully was convicted of trafficking cannabis, and the present conviction for trafficking heroin is much more serious. In addition, the present proceeding includes a conviction for flight from the police and dangerous driving. As such, the jump principle has no application.

[66] While I accept that the application of the jump principle is more attenuated in these circumstances, the Court of Appeal has indicated that the application of the principle “is contextual to the level of seriousness of the subsequent offences”. Thus, I don’t agree that this is an “all or nothing” scenario, and the jump principle is still one consideration that I will factor into the global sentence.

[67] That said, as Corrick J. recognized in his sentencing of Mr. Tully in 2014, at para. 45: “The application of the jump principle cannot lead to the imposition of a sentence that does not adequately address the gravity of these offences and Mr. Tully’s persistent disregard for court orders.”

Totality Principle

[68] Section 718.2 (c) of the Code provides as follows:

A court that imposes a sentence shall also take into consideration the following principles:

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

[69] Chief Justice Lamer, speaking for the court in R. v. M.(C.A.), 1996 SCC 230, described the totality principle at para. 42:

In the context of consecutive sentences, this general principle of proportionality expresses itself through the more particular form of the “totality principle”. The totality principle, in short, requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender. As D. A. Thomas describes the principle in Principles of Sentencing (2nd ed. 1979), at p. 56:

The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate sentence is “just and appropriate”.

Clayton Ruby articulates the principle in the following terms in his treatise, Sentencing, supra, at pp. 44-45:

The purpose is to ensure that a series of sentences, each properly imposed in relation to the offence to which it relates, is in aggregate “just and appropriate”. A cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of a sentence for the most serious of the individual offences involved, or if its effect is to impose on the offender “a crushing sentence” not in keeping with his record and prospects.

Conclusion

[70] Section 718 of the Criminal Code provides that, in sentencing a person convicted of offences, the following objectives must be considered:

(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.

[71] In arriving at the sentence I have given consideration to all of these factors, although, as noted by the Ontario Court of Appeal in Morris, denunciation and general deterrence are primary objectives influencing sentencing in firearms cases.

[72] In addition, there is a strong need for specific deterrence in this case, given Mr. Tully’s persistent recidivism.

[73] Putting aside issues of the totality principle, I would impose a 9 year sentence for possession of a firearm, a consecutive 5 year sentence for possession of heroin for the purposes of trafficking, a consecutive 3 year sentence for breach of the s. 109 orders, and a consecutive 1 year sentence for flight from the police/dangerous driving, since it resulted in an injury to a police officer. This would result in a total sentence of 18 years, which is still twice Mr. Tully’s 2014 sentence. I would reduce the sentence by three years by making the one year sentence for flight from the police a concurrent sentence and reducing the trafficking heroin sentence from 5 to 3 years, to reflect the totality principle. This results in a total sentence of 15 years, less 824 days credit for pretrial custody.

[74] In my view, this sentence imposed with deductions for the totality principle does not violate the jump principle given Mr. Tully’s lengthy record, the seriousness of the offences and the lack of mitigating factors.

[75] In conclusion, the sentences imposed are as follows:

a. On Count 1, flight from police contrary to Section 249.1 of the Criminal Code, one year concurrent – I have made this term concurrent rather than consecutive for reasons of the totality principle;

b. On Count 2, dangerous driving contrary to Section 249 (2) of the Criminal Code, one year concurrent;

c. On Count 3, possession of a loaded prohibited firearm, contrary to Section 95 (2) of the Criminal Code, 9 years imprisonment consecutive;

d. On Count 4, possession of a prohibited device (over capacity magazine), contrary to s. 92(3) of the Criminal Code, 3 years concurrent;

e. On Count 5, possession of a firearm while he was prohibited from doing so by reason of an order made pursuant to Section 109(1) of the Criminal Code, contrary to Section 117.01(3) of the Criminal Code, 3 years imprisonment consecutive;

f. On Count 6, possession of Diacetylmorphine (Heroin), for the purpose of trafficking, contrary to Section 5 of the Controlled Drugs and Substances Act, 3 years imprisonment consecutive (I have reduced the 5 year sentence to 3 years for reasons of the totality principle).

g. Pre-trial custody credit of 824 days.

h. Four ancillary orders are granted: a three year driving prohibition for Counts 1 and 2, a mandatory lifetime s. 109 order prohibiting weapons for Counts 3 - 6; a DNA order for Counts 3 - 6; and forfeiture of seized property.

Justice R.E. Charney

Released: June 13, 2022

Amendments

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

ANDRE MARCO TULLY

Defendant/Applicant

REASONS FOR SENTENCE

Justice R.E. Charney

Released: June 13, 2022

Amendments

1. A new paragraph has been added which is now Paragraph [18] which reads: Mr. Tully was arrested on November 3, 2018. He remained in custody until May 4, 2020, when he was released on bail following a contested hearing. This amounts to 549 days in custody. With pretrial detention credit at a rate of 1.5 to 1, this amounts to a credit of 824 days.

2. Former Paragraph [72] which is now Paragraph [73] has been amended. The final sentence of that paragraph from its original text: This results in a total sentence of 15 years.

To now read as follows: This results in a total sentence of 15 years, less 824 days credit for pretrial custody.

3. Former Paragraph [74] which is now Paragraph [75] has been amended with the addition of new subparagraph g. which reads: Pre-trial custody credit of 824 days.