R. v. Higgins, 2011 ONCJ 653

Information No. 998-11-25051-01 Citation: R. v. Higgins , 2011 ONCJ 653 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. TERRY HIGGINS REASONS FOR SENTENCE BEFORE THE HONOURABLE MISTER JUSTICE P.L. BELLEFONTAINE on NOVEMBER 16, 2011, at OSHAWA , Ontario

APPEARANCES : T. D’Eri Counsel for the Crown S. Proudlove Counsel for Terry Higgins WEDNESDAY, NOVEMBER 16, 2011 REASONS FOR SENTENCE BELLEFONTAINE, J. (Orally): I can give at this time my reasons for sentence in the matter of Mr. Terry Higgins, who has been convicted after trial of possession of cocaine for the purpose of trafficking, for possessing approximately 14 grams of cocaine and crack cocaine, possession of marijuana, which amounted to approximately 70 grams, and possession of eight pills of ecstasy.

In addition, he has been convicted of having an unloaded prohibited firearm, being a .25 calibre handgun, pursuant to s. 95(1) of the Criminal Code with readily available ammunition, and as well, possession of the gun knowing he had no licence, careless storage of that handgun, and as well, a s. 91(1) charge which can be stayed pursuant to R. v. Kienapple , as well, convicted of possessing that firearm while his ability to do so was prohibited by law, and as well breaching a recognizance that he was on at the time of the commission of these offences.

With respect to the circumstances of the offence, I have rejected the defence s. 8 application and permitted evidence to be permitted that flowed from the search of the home that Mr. Higgins paid the rent for, and which he was in at the time of the search. Located therein were an unloaded .25 calibre pistol with related ammunition located inside a camera box which was wrapped in a cloth and inside a bag, all of which was located under the bed, about one and a half feet under from the side of the bed, and towards the head of it.

Also inside a blue shirt pocket hanging on a clothes rack was cash in the amount of $930. Inside a black dress jacket was an additional sum of $2950 and two cell phones. A bottle of dextrose powder used for cutting cocaine was located in a bag on the bedroom dresser, along with a further four grams of cocaine, and a red dress shirt in the same living room area of the bedroom also contained nine ecstasy pills and $125.

In an upstairs bedroom, $1000 in cash was located, and on a display platter on the living room coffee table, two packages of cocaine weighing 4.6 grams each and a third package containing four smaller bags of cocaine totalling 4.8 grams was located. Nearby was approximately 70 grams of marijuana, digital weigh scales, and sandwich baggies suitable for packaging drugs. With respect to the circumstances of the offender, Mr. Higgins is 37 years of age, and I am told by way of the evidence, was employed as a bouncer and jack of all trades at a local bar.

He appears to have been regularly employed over the years, and letters of support from his mother and a common-law partner attest to his affection towards the children in his life, and the support he has given to others in his family units. Their continued support in this matter speaks well for Mr. Higgins. Mr.

Higgins has a previous record which is as follows: in 1998 he was convicted of possession of property obtained by crime and failing to attend court, and received a suspended sentence and one year probation; in the year 2000 he was convicted of communication for the purpose of prostitution and received a fine and probation; in 2001 on a count of possession of a

schedule one substance for the purpose of trafficking he received a nine-month conditional jail sentence and probation for 18 months, along with a mandatory prohibition order under s. 109 being for a period of 10 years from that date, which he was obviously on at the time of these offences; as well, in 2001 on a charge of possession of a

schedule one substance and failing to comply with probation, he received an $800 fine and a further probation order. As I have indicated, he was at the tail end of his 10-year weapons prohibition order for his 2001 possession of drugs for the purpose of trafficking charge at the time of the offence with which we are dealing with. He was also on release for a possession of marijuana charge at the time of these offences, and in breach of a recognizance requiring him to reside at another location at the time of the offence.

The crown has submitted a five-year and one-month sentence is appropriate, to be reduced by credit for pre-sentence custody of ninemonths and six days. The defence have submitted a three-year sentence in addition to the pre-sentence custody that he has served isappropriate. Of significance, the possession of cocaine for the purpose of trafficking charge makes Mr. Higgins liable for a life sentence, and the s.95(1) possession of a prohibited weapon with readily available ammunition charge carries a three-year minimum sentence along with a10-year maximum sentence.

One issue in dispute is whether a sentence above the three-year minimum is required for the prohibitedweapon with readily available ammunition charge because of the aggravating features of this offence. The case law is currently inconsistent as the courts adjust to the new and lengthy minimum sentences that are being imposed byparliament.

Some courts have held the new regime should be seen to inflate the floor or bottom of the range, and reserve the minimumsentence for the best offenders, who have little record, have pled guilty, and have committed a version of the offence that has nosignificant aggravating features. Other courts have determined the fit sentence for the offence and the offender based on the traditionalranges and principles and would impose the minimum sentence if the fit sentence was determined to be below or up to the minimum. R. v. McAnuff

(2011) ONSC 4051 is a carefully considered decision by Justice Spies of the Ontario Superior Court that adopts the latterposition and imposed the minimum sentence on an offender notwithstanding a number of aggravating features. While I am sympatheticto that approach, given the lengthy minimum sentence, I respectfully consider the correct approach to be articulated by Justice Quigley inR. v. D.A.J. 2011 ONSC 5330 , [2011] OJ No. 4026 (SCJ) and Justice Code in R. v. Nur [2011] OJ No. 38 (SCJ). Those decisions applied Justice Arbour’s obiter dicta in R. v.

Morrissey [2000] SCC 39, and found the minimum to push up the floor fora best offender, and increase above the minimum penalty to reflect the aggravating features of the case. In my view, to do otherwisewould undermine the intention of parliament and create an incoherent sentencing regime, where the best offender possessing significantmitigating features, receives the same penalty as an individual who commits it, and has no mitigating qualities, and potentially a numberof significant aggravating features associated with the offence.

To not elevate the penalty above the minimum for aggravating featureswould breach one of our principles of sentencing under s. 718.2(

b) that like offenders committing like offences should receive a similarpunishment as disparate offenders would receive the very same minimum. The principles of sentencing to be applied in this situation were concisely set out by Justice Spies in the McAnuff decision, and just forthe sake of completeness, I will read in her

summary of the principles at paragraphs 30 through 32. She indicated; “The fundamental purpose of sentencing, as set out in s. 718 of the Criminal Code, is to ensure respect for the law and the maintenanceof a just, peaceful and safe society. The imposition of just sanctions requires me to consider the sentencing objectives referred to in thatsection, which the sentence I impose should attempt to achieve.

These are denunciation, deterrence; both specific and general, separationof offenders from society when necessary, rehabilitation, reparation for harm done and the promotion of a sense of responsibility inoffenders and acknowledgement of the harm which criminal activity brings to our community. In addition, in imposing sentence I musttake into account the principle of proportionality and the applicable aggravating and mitigating circumstances relating to the offencesthat are set out in s. 718.2. In applying these principles to the facts of this case, Ms. Malik referred to the case of R. v.

Brown 2010ONCA 745 , [2010 OJ No. 4707 (Ont. C.A.), and the statement by the Ontario Court of Appeal at paragraph 14, that‘[h]andguns are an all too prevalent menace in the Greater Toronto Area. First and foremost, the sentences imposed for firearmsoffences must further the sentencing goals of denunciation, deterrence and protection of the public.’ To the same effect are the words ofNordheimer, J. in R. v. Grant [2005] OJ No. 4599 (Ont.

S.C.J.) where Nordheimer, J. commented that the objectives of denunciation anddeterrence are of primary importance when dealing with firearms offences and that citizens in Toronto are ‘understandably appalled atwhat appears to be a proliferation of handguns in the city.’ I am also mindful of the Court of Appeal’s decision in R. v. Grant (ON CA), [2006] OJ No. 2179 (Ont. C.A.) at paragraph 82, where the court refers to the ‘deadly type of combination’ ofpossession of drugs and a loaded firearm.

Although I agree that the principles of denunciation and deterrence are of primary importancein this case, I should not lose sight of the prospect of the rehabilitation of Mr. McAnuff.” Similarly here, I agree that Mr. Higgins’ rehabilitation and consequently totality are factors for me to be considering. There are anumber of mitigating factors in this case. Mr. Higgins has a supportive family, and apart from his criminality, appears to be a goodfamily man. He has a strong work ethic, and appears to have been regularly employed.

He is willing to address the rehabilitation needsthat his drug usage appears to require. As well, I note there is a 10-year gap since he received the nine-month conditional sentence forhis previous possession for the purpose of trafficking charge, and really no significant convictions since that time, creating a verysignificant and meaningful gap in his record. The offence does not attract the aggravation that would be associated with the quick breach of the prohibition order which was imposed,

as I have noted, over 10 years before. The aggravating features in this matter are the previous significant record for possession for the purpose of trafficking; his being on recognizance for another drug charge at the time and breaching a specific term of that recognizance; as well, the combination of guns with drugs such as cocaine creates a strong need for denunciation and deterrence, given the level of drug-related violence in the Greater Toronto Area. Next, the offence was committed by an individual on a weapons prohibition order in relation to a previous drug trafficking offence at the time.

Also, the quantity of cocaine here is significant and merits a midterm reformatory sentence in its own right. I have to note the highly criminogenic nature of cocaine, it is responsible for a very large amount of crime in the community, firstly by addicts themselves who are required to resort to crime in order to obtain the money to purchase the drugs, as well as the significant violence which appears to be associated with the cocaine trade.

Cocaine is, quite frankly, destroying a lot of lives in our community, and the courts have a strong obligation, from my perspective, in strongly discouraging individuals who are involved in the trafficking of it. I note here as well that the large accumulation of cash and the quantity of drugs shows Mr. Higgins to be a commercial trafficker as opposed to one who is primarily motivated at a very low level to be trafficking to support a drug addiction need. I have carefully considered all of the factors in this matter, Mr.

Higgins, and I do consider that the crown’s position in this matter fully accounts for the mitigating factors for which you are to be credited with, and as well to keep into account the principle of totality in these circumstances. Accordingly, with respect to the possession of the unloaded prohibited firearm with readily available ammunition, there will be a sentence of three years and three months. On the companion charge of possessing that gun knowing that you had no licence, there will be an 18-month concurrent penalty imposed. On the careless storage of a firearm charge, there will be four months concurrent.

With respect to the possession while prohibited charge, there will be a nine-month consecutive sentence. On the possession of cocaine for the purpose of trafficking, I will impose a sentence which is going to be effectively 12 months, but I will do that by way of noting your nine months and six days of pre-sentence custody and give you credit for it on a 1:1 basis, and impose a sentence remnant of two months and 24 days consecutive to the sentences previously imposed. On the possession of marijuana charge, there will be a three-month concurrent sentence, and on the possession of the ecstasy, one month concurrent.

With respect to the breach of the officer in charge undertaking, there will be a one-month consecutive sentence. The total sentence in this matter, sir, is one of four years, three months, and 24 days, by way of the remnant in addition to the pre-sentence custody. There will on the possession of cocaine for the purpose of trafficking charge as well, and any of the relevant firearms charges, be an order under s. 109 of the Criminal Code preventing you from having any firearm, ammunition, or any of the related items listed in the Criminal Code in your possession for a period of 10 years from today’s date.

As well, I will require that you provide a sample of your bodily substances to the Durham Regional Police Service here at the courthouse for the purpose of DNA typing, and Mr. Higgins, I will attach a number of terms and conditions to that order to make sure the sample is taken in a safe and sterile fashion and a fashion that respects your personal privacy and integrity as much as we can.

I will grant the forfeiture order in this matter and return order in the terms that everyone has agreed upon, seizing all of the drugs and related paraphernalia and cash in this matter, and returning the cell phones as requested. MATTER ADJOURNED FORM 2 CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2)) Evidence Act

I, Jessica Sabiston, certify that this document is a true and accurate transcript of the recording of R. v. Higgins in the Ontario Court of Justice, held at 150 Bond Street East, Oshawa , Ontario , taken from Recording No. 2811-404-400753-20111116-090522.dcr, which has been certified in Form 1. November 21, 2011 _______________________________ _____________________________________ Date Jessica Sabiston, Court Reporter Certificate of Transcript (rev. 03/04) * This certification does not apply to the (Rulings, Reasons, charge) which was/were judicially edited. Transcript Ordered: November 16, 2011 Transcript Completed: November 21, 2011