r v. CHARLOTTE LOUISE TOOMEY, 2021 QCCQ 4993

R. c. Toomey 2021 QCCQ 4993 COURT OF QUEBEC Criminal and Penal Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL No.: 500-73-004617-185 DATE: June 9, 2021 ______________________________________________________________________ BEFORE THE HONOURABLE ANDRÉ PERREAULT, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v. CHARLOTTE LOUISE TOOMEY Accused SENTENCE Introduction [ 1 ] Charlotte Louise Toomey pleaded guilty to four counts of conspiracy to traffic in cocaine (s. 465(1)(

c) Cr. C .), for laundering the proceeds of crime obtained or derived as a result of the trafficking of a substance referred to in s. 5(1) of the Controlled Drugs and Substances Act ( CDSA ) (s. 462.31(1)(

a) Cr. C .), to wit: $194,846.87, having in her possession property obtained by crime, to wit: Canadian currency of a value of $843,530 (s. 355(

a) Cr. C .) and having in her possession 16 pills of LSD (s. 4(1) CDSA ). [ 2 ] The four offences took place between April 23, 2016, and March 21, 2018. [ 3 ] This judgment will determine the sentences to be imposed. Background [ 4 ] In May 2017, the Royal Canadian Mounted Police (RCMP) Federal Serious and Organized Crime (FSOC) Unit in St. John’s, Newfoundland and Labrador, began an investigation into the illicit activities of Jonathan Mahon and his associates. Source information had been received and corroborated that Mahon was a significant cocaine trafficker in the St. John’s area.

Mahon was believed to obtain cocaine directly from Quebec and possibly Ontario. [ 5 ] Michael Smith was the main cocaine supplier to Mahon and Charlotte Toomey, Smith’s girlfriend. At the time, Smith was incarcerated in the province of Quebec, and he still is. Toomey continued to arrange cocaine shipments on Smith’s behalf. [ 6 ] Surveillance was also established of Brown, who police were able to identify as Mahon’s “ right-hand man”.

Brown apparently conducted the majority of drug transactions on Mahon’s behalf, including meeting couriers, collecting money, and traveling to Montreal to meet with Toomey and other drug suppliers. Like Mahon, Brown was never observed by surveillance to have any source of legal employment. [ 7 ] As the investigation progressed, it became clear to police that Mahon’s primary supplier of cocaine was Smith. Smith and Mahon had previously been linked as associates during a 2016 Combined Forces Special Enforcement Unit (CFSEU) investigation termed “Project Tailwind”.

During that investigation, Smith was identified as a supplier of cocaine to several individuals in Newfoundland and Labrador. Smith was subsequently arrested, convicted, and sentenced to a custodial sentence, which he is currently serving in Quebec. [ 8 ] On January 29, 2018, police received judicial authorization to intercept the private communications of several individuals including but not limited to Mahon, Brown, Noseworthy, Smith and Toomey.

The intercepted communications, in addition to the other evidence already gathered, clearly established that Mahon, Brown, Smith and Toomey were directly engaged in a joint criminal enterprise to transport drugs from Quebec and redistribute them in Newfoundland and Labrador. [ 9 ] During Smith’s incarceration, he had been providing instructions to his girlfriend Toomey on how to continue supplying Mahon with cocaine. Investigators were able to establish Smith and Toomey’s method of supplying Mahon. Smith and Toomey had two sources that provided them with cocaine:

(

a) Bryan Jonathan Thomas was identified as the primary supplier to Smith and Toomey. (

b) Ibrahim Nassar was identified as the secondary supplier to Smith and Toomey, and he resided in the Montreal area. [ 10 ] Smith and Toomey used two methods to distribute cocaine to Mahon. In both cases, Mahon would communicate what he wanted through Toomey. Toomey would discuss this request with Smith and make arrangements with either Thomas or Nassar, depending on availability. Thomas provided a better-quality product at a better price than Nassar. The majority of the communication took place through Pretty Good Privacy (PGP) Blackberry devices. The two methods of distribution were:

a) If Thomas was supplying the cocaine, Smith would have money sent via Toomey to Thomas in the Peterborough, Ontario, area. Thomas would send a courier with the cocaine to Newfoundland and Labrador. The courier would then meet someone working for Mahon, likely Brown.

b) If Nassar was supplying the cocaine, Brown would drive to Montreal in his Infiniti and meet Toomey in person. Toomey would then make the arrangements for Brown and Nassar to meet and conduct a cash-for-product exchange. Brown would provide Toomey with the cash and she would flip the cash to Nassar after she took her fee, usually between $6,000 and $8,000 per kilogram. Police observed two occasions that were consistent with each method. [ 11 ] On October 25, 2017, Brown traveled to Montreal, Quebec, in his Infiniti.

Brown booked into a hotel in Vaudreuil-Dorion, Quebec, approximately 40 minutes outside Montreal. Surveillance was established. [ 12 ] On October, 30, 2017, Brown and Toomey met in the hotel parking lot. At the time, Toomey was with her daughter. The meeting was brief. Following the meeting, Toomey went to the Drummondville Penitentiary where she had a pre-arranged “family visit” scheduled with Smith. During this meeting, Toomey was observed driving her 2014 white Mazda 6.

She used this vehicle to transport drugs/cash to and from her meeting with Brown. [ 13 ] Between January 29, 2018, and March 28, 2018, police intercepted private communications between Toomey and Smith. These conversations were directly related to the drug trafficking and related financial transactions of Smith and Toomey. It was clear from the calls that Smith and Toomey supplied Mahon with cocaine that they themselves obtained from third parties. [ 14 ] On January 31, 2018, police intercepted a call between Smith and Toomey. Smith and Toomey were discussing packs of money that came from Mahon.

Toomey said that every “10 pack” was off by one bill or two. The term “10 pack” is a reference to a $10,000 bundle of cash. Smith said to Toomey, “that’ll be all your profits too that Jon has to give you”. Toomey told Smith that she told Jon to get a new spinner, as “this is like the seventh time that this has happened”. “Spinner” is a slang term for a money counter. The reference to the ”seventh time” means that, on seven different occasions, Toomey had received cash from Mahon that was short. Toomey told Smith that Jon suspected one of his runners was stealing from him.

Both Toomey and Smith agreed that it was off by quite a bit, and Smith said, “probably off a few thousand bucks”. Toomey talked about transferring “18” ($18,000) right away, and Smith confirmed. [ 15 ] Previously seized and analyzed burner phones confirmed that there was an argument between Mahon and Brown in which Mahon accused Brown of stealing from him. Toomey told Smith that Bryan Thomas would have “new ones” (bricks of cocaine) in a couple of weeks, but that Mahon would not be ready for at least three weeks. Toomey talked about her bank accounts and not being linked.

This is in reference to Toomey’s Bank of Nova Scotia accounts not being linked to her Trade account. She said she was going to the bank to pay all the bills and see her advisor to sign papers to transfer more than $10,000. [ 16 ] On February 3, 2018, police intercepted a call between Smith and Toomey. Toomey told Smith that she counted up everything on the bed and that she had to change the sheets because it was “gross”. Smith asked if she had sealed everything, and she said yes, but she said she needed to buy a new one as it was not sealing properly.

When warrants were executed at Toomey’s residence, investigators also found $199,490 on the spare bed, a vacuum sealer, and a money counter. [ 17 ] On February 15, 2018, Brown traveled from St. John’s to Montreal in his Infiniti. Upon arriving in Montreal on February 17, 2018, Brown booked a room in a hotel in downtown Montreal. [ 18 ] On February 18, 2018, surveillance observed Toomey carrying a backpack and entering the room with her eight-year-old daughter. A short time later, Toomey, carrying the same backpack, exited the room and returned home.

A call later intercepted between Smith and Toomey confirmed that the meeting with Brown was for the purpose of conducting a drug transaction. Toomey was supposed to supply Brown with one to two kilograms of cocaine. However, she had not been able to obtain it. She informed Smith that Brown had the money and that she was going to put him in contact with one of her own suppliers, Bob, as she would be unavailable for a few days. Toomey was scheduled to have a three-day family visit with Smith at the Drummondville Penitentiary. [ 19 ] Surveillance was unable to stay on Brown.

However, calls later identified between Brown and Mahon suggest that Brown was meeting someone at a residence in Montreal. [ 20 ] Brown remained in Montreal until February 21, 2018, when he drove back to St. John’s. Upon returning, Brown visited Mahon’s residence before going to Elizabeth Towers with a small duffel bag. Brown stopped at Elizabeth Towers, where he was observed entering with a duffel bag.

Brown left shortly afterwards with the bag and went to Mahon’s residence. [ 21 ] Intercepted communications between Smith and Toomey following this event confirmed that Brown had been able to secure cocaine from Bob. [ 22 ]

Section 11 CDSA and

section 487 Cr. C . search warrants were obtained and executed at the residence of Toomey and her daughter in Pierrefonds, Montreal. Police seized a total of $843,530 Canadian Currency related to drug trafficking and sixteen blotters of LSD.

[ 23 ] Smith provided a cautioned statement. The following is a synopsis of the information provided: i. Smith would split whatever was left after expenses with the guys; ii. Mahon was the only guy Smith was supplying in Newfoundland and Labrador; iii. Mahon was selling between five and seven kilograms a month; iv. Smith thought they sent four kilograms this time; v. The courier would meet Toomey to exchange money when passing through Montreal; vi. Smith’s monthly salary from selling cocaine was $20,000 on a good month and $10,000 on a slow month; vii.

Smith believes that ¾ of the seized money was from the first time he was arrested; viii. He believes he had between $800,000 and $900,000 at the time of his arrest; [ 24 ] Toomey provided two statements to police. i. She and Michael Smith supplied cocaine to Jonathan Mahon; ii. Mahon would send her a text with what he needed and she relayed a message to someone; iii. Sometimes she was involved with the transport, sometimes not; iv. Mahon usually got cocaine every one to two months, and the last time was four kilograms; v. It cost them $1,500 for the courier per trip; vi.

Per kilogram, they got approximately $8,000 from Mahon. After expenses, they usually netted $4,000; vii. Since Smith was in custody, she had added $100,000 to their profits; viii. The money found on the bed was from Thomas Brown. The rest was profits from before, when Michael went to jail the first time; ix. The money was vacuum sealed in St. John’s and transported to her; x. She did not have a job and the hair salon was a front; xi. She would make regular cash deposits into the account and pay taxes in order to appear legitimate. [ 25 ] The offender is 30 years old. She has no prior convictions.

She does not use drugs and she has no addictions. Her parents live in England. She fell in love with Smith when she was 17 years old, and they are still together. She had her daughter when she was 18 years old. Smith has been incarcerated since 2016. Her daughter knows. [ 26 ] The offender explains that she had not realized the consequences of her actions before her arrest. She says that she fully understands them now.

She knew that she was breaking the law, but not to what degree. [ 27 ] She gave her statement recounting all the details two days after her arrest, hoping that this would allow her to be with her daughter. [ 28 ] In April 2018, she moved to Ontario, where she found a job as a manager of a clinic, which she still does full time.

Her employer likes her and is aware of her legal troubles. [ 29 ] The offender explains that she acted the way she did simply because her spouse asked her to. [ 30 ] Contrary to the submissions made by the defence, the evidence adduced does not show that the offender merely carried out her spouse’s orders. There is nothing indicating that she could not simply refuse his requests. [ 31 ] She states that she believed that she had no choice but to help him while he was serving a prison sentence of more than eight years.

Nevertheless, because he has told her that he has changed and she believes him, she now wants to give him a chance and live with him again once he is released. [ 32 ] She explains that she is never going to do something again because Smith asks her to do it. [ 33 ] She was perfectly aware that the trafficked substance was cocaine and that the amounts of money were significant. [ 34 ] She admits that she carried out transactions while having her daughter with her on two occasions.

She emphasizes that there was never any cocaine in front of her. [ 35 ] The prosecution has claimed that the offender acted out of greed, while the defence has submitted that this was not the case. [ 36 ] In this regard, the evidence reveals that the offender’s involvement earned her $100,000 in profit, at $4,000 net per kilogram of cocaine, while she was unemployed and her hair salon was a front. It can therefore be inferred that she trafficked approximately 25

kilograms of cocaine. [ 37 ] The offender has had a house for the last two years. She is the only one who provides for the needs of her daughter, who is still entirely unaware of her mother’s legal situation. The offender decided not to tell her anything on the advice of her daughter’s therapist. She became emotional when she testified that her daughter is her whole life. [ 38 ] The offender began therapy in 2019. She stopped because of the pandemic.

The offender began therapy again in the summer of 2020, and she adds that she will continue for as long as she is told that it will help her. [ 39 ] In April or May 2020, the offender’s physician detected lesions in her brain that in his view could be possible signs of multiple sclerosis. Since then, the neurologist has observed that the lesions have not worsened. This could mean one of several things. The offender is waiting for evaluations in June and July 2021. [ 40 ] The offender had an automobile accident on October 3, 2020.

Her daughter was not hurt, but the offender fractured a vertebra in her neck and some ribs. She is still in pain and is receiving physiotherapy and massages. [ 41 ] The offender says that she now understands that she hurt people and contributed to some people’s addiction and mental health issues.

She says that every day she feels ashamed of what she did. [ 42 ] She is involved in her daughter’s curling club. [ 43 ] She relies on a good network of friends. [ 44 ] Since her arrest, the offender has complied with the conditions of the release order, including by reporting to the police station once every two weeks. [ 45 ] She begs the Court to consider her daughter and decide not to send her to prison. She understands, however, that she deserves punishment. [ 46 ] She acknowledges that she made a huge mistake, and she is trying to completely rehabilitate herself.

She would like the Court to order 240 hours of community service, since she takes pleasure in helping people. She says she is prepared to comply with a curfew outside of her working hours, with the usual exceptions.

POSITIONS OF THE PARTIES [ 47 ] The prosecution seeks a total of 4 years’ imprisonment. [ 48 ] The defence asks for a 90-day sentence of imprisonment to be served intermittently on the count of conspiracy and a suspended sentence on the counts of laundering the proceeds of crime, possession of property obtained by crime, and possession of LSD. [ 49 ] The defence defers to the Court to determine whether the evidence establishes on a balance of probabilities that the proceeds of crime subject to the forfeiture order under

section 462.37(1) consists of $1,038,377.87, as concluded by the forensic accountant in the report filed by the prosecution. ANALYSIS [ 50 ] Conspiracy to traffic in cocaine is punishable by imprisonment for life. The minimum one-year mandatory sentence of imprisonment under section 5(3)(a)(

i) CDSA is of no force or effect. [1] [ 51 ] The counts of laundering the proceeds of crime and of property obtained by crime are both punishable by a maximum term of 10 years. [ 52 ] The count of possession of LSD is punishable by a maximum term of 3 years, not 7 years, because it is a

Schedule III substance, not a

Schedule I substance, as the count erroneously states. [ 53 ] The offender pleaded guilty, which is a mitigating factor.

She acted out of greed for the personal gain it would bring her. [ 54 ] The Court does not believe the offender’s claim that she had an erroneous perception of the seriousness of her acts, given the amounts of money involved and the fact that she acted at her spouse’s request, when he was serving a prison sentence of more than 8 years for cocaine trafficking and possession of the proceeds of crime. [ 55 ] The Court finds that she was involved in the trans-provincial trafficking of a significant number of kilos of cocaine. [ 56 ] The apologies and sincere remorse expressed by the offender and her efforts to reintegrate society through employment, psychotherapy, and community involvement should be taken into account as mitigating circumstances. [ 57 ] Her cooperation with the police investigation when she was arrested and with the preparation of the presentence report that was filed should also be taken into consideration. [ 58 ] The officer who wrote the presentence report found that the offender presents a suitable candidate for community supervision should the Court consider this as part of its disposition.

[ 59 ] According to the case law, in criminal structures for conspiracy or trafficking in cocaine that generate significant profits, the range of sentences is from 3 to 5 years for the key persons and 20 months to 3 years for those playing more secondary roles. [2] [ 60 ] In matters involving the laundering of the proceeds of crime and, in cocaine trafficking cases, possession of property obtained by crime that are motivated by greed, the primary sentencing objectives are deterrence and denunciation. [3] [ 61 ] Sentences for laundering the proceeds of crime range from conditional sentences of imprisonment to custodial sentences of 15 months to 5 years.

The role of those who help traffickers hide the amounts obtained from trafficking in narcotics must not be minimized. A clear message must be sent to those who cross the line. Trivializing this role would undermine public confidence in the administration of justice. [4] [ 62 ] While general deterrence is a prime consideration in narcotics trafficking cases, the criterion of rehabilitation may become dominant when it is established through particularly persuasive proof, even where the offender has taken

part in the trafficking out of greed and not to support a drug addiction. [5] [ 63 ] Brown pleaded guilty to the count of conspiracy to traffic in cocaine. He was 33 years old. He had no prior convictions. He had developed an opiate addiction. After his arrest, he took steps to deal with his drug habit. [ 64 ] Brown was at the fourth level of the organization, as Mahon’s right-hand man. He was more than a mid-level courier in the conspiracy. [ 65 ] He was a trusted and integral player who filled a necessary and multi-faceted role.

He was sentenced to 44 months’ imprisonment, and a forfeiture order sought in respect of certain property and cash seized was granted. [ 66 ] Mahon pleaded guilty to various charges, including conspiracy to traffic in cocaine and possession of a firearm. [6] [ 67 ] In the hierarchy, Mahon was between Brown, who was at the fourth level, and Smith and Toomey, who, as a couple, were at the second level.

Mahon was sentenced to 5 years’ imprisonment for conspiracy to traffic in cocaine and two years’ imprisonment for the firearms charge. [ 68 ] Smith was sentenced to seven years’ imprisonment. [ 69 ] On several occasions over several months, the offender was involved in relaying orders and was sometimes involved in transportation, twice in the company of her daughter. [ 70 ] In some very specific circumstances, the consequences of a sentence on the family may constitute a mitigating factor in sentencing. [ 71 ] Although the courts generally tend to assign relative importance to negative consequences on the family, it may be a factor influencing the decision to inflict a sentence of incarceration as opposed to one served in the community. [7] [ 72 ] The offender may not invoke her status as the sole parent supporting her daughter, however, since she should have been aware of her parental responsibilities when she took

part in the criminal conduct at issue. [8] [ 73 ] In this case, not only was the offender the only source of support for her daughter when she committed the offences, but this was the case precisely because her spouse was serving a long penitentiary sentence for cocaine trafficking and possession of the proceeds of crime. [ 74 ] She begs the Court to think about her daughter, but she herself brought her daughter with her to some of the meetings organized as part of the conspiracy. [ 75 ] That said, the situation of the offender’s daughter and the possibility of both her parents being incarcerated for a long period of time were at the forefront of the Court’s mind when considering the sentence to be imposed on the mother. [ 76 ] The Court bears it in mind in its consideration of all the factors to be weighed in imposing a fit sentence. [ 77 ] The Court finds that, in this case, the offender’s first experience with arrest and the court process has had a significant deterrent effect with respect to any possible recidivism on her part. [ 78 ] The evidence shows that, since her arrest more than three years ago, she has been living an exemplary life. [ 79 ] The offender’s convincing rehabilitation, which has made her an asset to society, along with the exceptional circumstances presented to the Court, are sufficient to justify a sentence that would otherwise appear too lenient. [9] [ 80 ] The Court may reduce the quantum of the sentence, but does not rely on a mathematical calculation or rigid formula, considering that the particularly difficult conditions of detention related to COVID-19 may in some cases constitute indirect consequences of the sentence, although they are not a mitigating factor per se . [10] This is how the Court intends to direct itself in this case.

CONCLUSION FOR THESE REASONS, THE COURT: IMPOSES the following sentences:

- 30 months’ imprisonment on the count of conspiracy to traffic in cocaine; - 24 months’ imprisonment to be served concurrently on each of the counts of laundering the proceeds of crime and possession of property obtained by crime; - 10 days’ imprisonment to be served concurrently on the count of possession of LSD. ORDER PROHIBITING THE POSSESSION OF WEAPONS UNDER SECTION 109(1)(

c) Cr. C. On the first three counts, the Court prohibits the offender from having in her possession any firearm, other than prohibited firearm or a restricted firearm, and any cross-bow, restricted firearms, restricted weapon, ammunition and explosive substance during a period of ten years beginning on the day the order is made and ending 10 years after her release, and prohibited firearms, restricted firearms, prohibited devices and prohibited ammunition for life. ORDER OF FINE INSTEAD OF AN ORDER OF FORFEITURE OF THE PROCEEDS OF CRIME UNDER SECTIONS 462.37(1) and

(3) Cr. C . AND

SECTION 462.37(4) (a)(

v) Cr. C . On the count of laundering the proceeds of crime, the defence agrees with the Court’s order for an additional fine of $194,846.87 instead of an order of forfeiture, under

section 462.37(3)(

a) Cr. C. if the Court is satisfied on a balance of probabilities that this amount constitutes the proceeds of crime and that an order forfeiture should have been made. In this case, the defence asks to be granted a period of 10 years to pay the fine, to allow the offender to reimburse the $194,846.87 while also providing for the needs of her daughter for whom she is the primary source of support. The parties submit that the $843,530 seized should also be forfeited.

Section 462.37(4)(a)(

v) requires the court imposing such a fine instead of an order of forfeiture to impose a term of imprisonment of 2 to 3 years in default of payment of the fine. I note that recently,

section 462.37(4) passed the constitutional test under sections 7 and 12 of the Canadian Charter of Rights and Freedoms . [11] It is up to the Court to establish the time period for payment. The time period for payment is not meant to inflict a life of servitude in punishment.

It is to guarantee that crime does not pay, with the knowledge that an additional period may be granted if appropriate in the circumstances, and that the considerations are taken into account at the hearing of the application for imprisonment in default of payment to determine whether the failure to pay is the result of an unreasonable refusal. [12] The evidence satisfies the Court on a balance of probabilities that the $1,038,376.87 admitted by the defence as Ms.

Toomey’s net worth that cannot be accounted for by funds from known sources according to the analyses by Catherine Lynch, Senior Forensic Accountant, constitute the proceeds of crime, and that the Court should have rendered such an order for full forfeiture if this amount could have been forfeited. The amount is huge. The offender was not employed. The Senior Forensic Accountant performed a thorough analysis of the exhibits justifying the funds from known sources and total spending.

The offender has offered no explanation whatsoever to suggest that this amount from unknown sources could be attributed to anything else. Since the $1,038,376.87 constitute the proceeds of crime regarding which the Court would have been obliged to order forfeiture, it may impose the fine instead of forfeiture. The Court finds that the fine instead of forfeiture of $194,846.87 reflects the profit margin from which the offender benefited in the context of her criminal activity, beyond the $843,530 seized.

On count 2, the Court orders that the offender pay a fine of $194,846.87 instead of making an order to forfeit that amount. The Court imposes on the offender a sentence of 3 years’ imprisonment in default of payment of the fine within a period of 10 years. ORDER IN RESPECT OF PROPERTY OBTAINED BY CRIME UNDER

SECTION 491.1 Cr. C .

On count 3, the Court orders that the $843,530 seized be forfeited to Her Majesty, to be disposed of as the Attorney General directs or otherwise dealt with in accordance with the law. __________________________________ ANDRÉ PERREAULT, J.C.Q. Mtre Marie-Ève Moore Public Prosecution Service of Canada Mtre S. Zalman Haouzi Counsel for the Accused