Supreme Court

R. v. Whitford, 2004 NWTSC 36
Date: 20040713
Docket: S-1-CR-2004000012

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

IN THE MATTER OF:


HER MAJESTY THE QUEEN


- V -


ANNETTE NADINE WHITFORD


Transcript of the Reasons for Judgment and Sentence by The Honourable Justice J. Z. Vertes, sitting in Hay River, in the Northwest Territories, delivered orally on the 30th day of June, A.D., 2004.


APPEARANCES:

Ms. S. Tkatch   Counsel for the Crown:

Mr. H. Latimer:   Counsel for the Defence


THE COURT:   In this case the accused is charged with possession of cocaine for the purpose of trafficking. Possession is the only issue. I am satisfied, having regard to the quantity of crack cocaine seized, and the nature of the trafficking business in crack cocaine, that if the accused had this in her possession then it was for the purpose of trafficking. There is no other reasonable conclusion to draw.

But, as I said, the issue is possession. Possession means knowledge and control. And it is the element of knowledge that is critical in this case.

The police, acting on a tip, intercepted a vehicle. Inside the vehicle were the accused, a male driver, and another female passenger. The accused was in the rear passenger seat. All individuals were arrested and removed from the vehicle. The vehicle was secured and then towed away to a police compound. There it was searched. In the rear seat the police located a purse, admitted to be the accused's purse. Inside the purse they found 48 grams of crack cocaine, packaged in two baggies, and $3,070 in cash.

The accused said she did not know where the crack cocaine came from or how it got into her purse. She did not even know how her purse got into the back seat because she had left it in the front seat.

Now, proof of knowledge is no more or less

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difficult than proof of intent in any criminal prosecution, or indeed proof of purpose in this one. Knowledge, like intent or purpose, is a state of mind. It cannot, generally speaking, be proved as a fact by direct evidence. Accused persons rarely say what their state of knowledge, intent or purpose is. It must be inferred from facts that are proven. And it must be the only reasonable inference to draw in order to support a conviction.

With respect to the money, the accused had an explanation. Her ex-spouse gave her $3,000 in cash just a day before to settle some old debts. The ex-spouse testified and corroborated her evidence. The ex-spouse was not challenged on the reliability of his evidence.

But this is really, in my opinion, a tangential issue. The ex-spouse may have given the accused $3,000, and I have no reason to not accept Mr. Salahub's evidence, but that does not help to decide whether the crack cocaine belonged to the accused. These are separate questions.

The accused said she and the other two were going to Edmonton. But, at High Level, they decided to turn back because of car trouble. She said there were no drugs in her purse at that time. On the way back, she sat in the front seat and slept. At one point they stopped and she and the other female passenger

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switched seats. She said she left her purse in the front.

I ask myself, why would she do that? Especially when it contained $3,000, an unusual amount of money for her, as she said.

The accused testified that, as they continued to drive along, she noticed the police car and noticed it following them for some time.

So, I ask myself, how is it possible, if someone placed the drugs in her purse and then put her purse in the back seat beside her, that she did not notice that? She said she was awake at that time.

Yet, when the police stopped the car, the officer said she appeared to be sleeping. But, more significantly, the occupants were removed from the car and arrested. The car was secured. I am satisfied that no one could have moved the purse or placed the drugs in it between the time of the arrest and the search.

As I noted during argument, if I accept the accused's statement that she does not know where the cocaine came from, then there are only two logical explanations for the physical evidence revealed by the search.

One is that the police planted the drugs. This is too preposterous to consider any further, and there was no evidence to even suggest this.

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The other is that the other two occupants of the vehicle, both of who are friends of the accused, the female being a childhood friend, planted the cocaine. But how could they do that without the accused knowing about it?

It is true that she said that she fell asleep for awhile but that was before any sight of the police. And it still would not explain how the purse got in the back seat.

The accused's evidence simply defies common sense.

Neither of the other two occupants of the car testified at this trial. So I cannot speculate as to what they would say in response to the accused's evidence.

It is true, as Mr. Latimer said, that there was no evidence that the accused received anything from anyone in High Level. It is also worthwhile noting, as Mr. Latimer did, that it would have been preferable if the police had at least took photos of the state of the vehicle at the time it was first stopped. But I am satisfied that it was adequately secured and the state of the vehicle when it was searched was the same state as when the occupants were arrested.

There is the uncontested fact that the crack cocaine was in the accused's purse and the purse was located beside the spot where she was sitting in the

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vehicle. The only reasonable inference is that she had possession of the crack cocaine and she had control of it. Her protestations that she did not know are simply unbelievable and fail to raise a reasonable doubt.

I am convinced by the totality of the evidence that the accused is guilty as charged and I convict the accused.

(AT THIS TIME SUBMISSIONS MADE ON SENTENCE)

THE COURT:   I must say, counsel, I find sentencing in this case to be difficult, not because of the nature of the crime but because of the personal circumstances of the accused.

The nature of the crime would ordinarily warrant a penitentiary sentence. But, the circumstances of the accused, notwithstanding the nature of the crime, compel me to exercise some restraint.

The accused was convicted of possession of cocaine for the purpose of trafficking. The cocaine was crack cocaine. She was found in possession of 48 grams of crack cocaine, which the expert witness in this case estimated to have a value of between $3,400 and $4,000. Of course, if that crack cocaine is sold by the gram or as “chips”, its value is more than double that amount.

The evidence in this case and evidence from other cases has clearly demonstrated that crack cocaine is a

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highly powerful and dangerously-addictive drug. Its proliferation in the Northern communities is notorious. Indeed, the expert witness in this case, whose police experience comes from Yellowknife, described it as a scourge in that city, affecting both young and old.

For that reason, in dealing with hard drugs such as this, Courts all across the country take a very heavy approach. The primary emphasis on sentencing must be deterrence, deterrence not only for the individual offender but deterrence to others.

There are three broad categories of traffickers that we see in the Courts. There are those who sell in order to support their own personal habit. These are usually small-time street corner dealers. In many situations they are more to be pitied than censured. In those situations Courts have taken a more rehabilitative approach because they are selling due to their own addiction.

There is no evidence in this case that this accused was addicted to cocaine. There was evidence that this accused, particularly in the past three and a half years, had significant emotional difficulties and has a serious problem with alcohol abuse.

Another broad category of trafficker is the individual who sees it as an opportunity to make some money. These people are often driven due to economic

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circumstances or shortsightedness.

The accused in this case fits more, in my opinion, to this category. I have heard about how she had financial difficulties, she had no money. So even this relatively small amount of profit would no doubt be significant.

The third broad category, of course, are the criminal operations behind this whole trade in narcotics, the major distributors and dealers who are in it for big profit. There is no evidence that the accused is anywhere close to this category.

But with respect to both of these latter categories, the significant point is that there is this commercial aspect to trafficking. It is a highly profitable business, unfortunately, and it is usually this profit motive that compels people to take part in this, even if it is only once or twice.

For that reason, again, sentencing judges have been instructed by higher Courts to take a serious approach and to emphasize deterrence and denunciation.

But, as I said earlier, the sentence that would normally be called for in this case must be moderated due to the personal circumstances of the accused. I cannot ignore that completely, even in a trafficking case.

The accused is 30 years old, she has two children. She, by all accounts, had no difficulties

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prior to three and a half years ago. And then in 2001, after the breakup of her relationship, and from what I was told a miscarriage, there seemed to be a downward spiral.

The criminal record of the accused shows 11 convictions in the past three years. In addition to those 11 there were two other convictions imposed after she was arrested on this offence.

Several of the convictions are impaired driving of fences, which simply point to the fact that she had a problem with alcohol abuse. There is a conviction for assault with a weapon. But she has served a relatively significant period of time in jail in the past three and a half years.

She has also some significant medical problems. I was told that in the past year she had developed gallstones. She has been kept in remand since her arrest on August 16th, 2003, for this offence. I am told that at the remand facility she is confined to her room because of her illness. She has difficulty eating. She is on medication.

She is a lifelong resident of this community; she has family here, supportive family. I have heard from her mother about the accused's difficulty and about the support that she is prepared to provide her. I can see she has children who are extremely concerned about her. She is a status First Nation person, and I

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have to take that into consideration as well.

In my opinion, the absolute minimum sentence for this offence that I can impose is 24 months imprisonment. The Crown suggested two to three years. I think that is the minimum range for this type of offence, considering the type of drug and the quantity of it.

I do, however, take into account the amount of time that the accused has spent on remand. She has been in remand for ten and a half months. Of those ten and a half months, two months were credited toward a three-month sentence that was imposed for the two other offences that I mentioned that do not appear among the convictions as yet on her formal record.

So eight and a half months out of those ten and a half months were remand time. The general rule of thumb is that remand time is credited at two for one. In this particular case, Crown Counsel has submitted that the remand time should not be double credited, particularly because during the period of remand, even though she is confined in many of her activities because of her illness, she still has had access to counselling programs, to AA programs, and also in particular because of the type of facility that the women's correctional centre is in this jurisdiction.

One would be, as Crown Counsel put it, hard pressed to describe the facility as hard time. It is

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more in the nature of a residential centre than a jail. The inmates reside in bedrooms as opposed to cells, there are dining facilities and kitchen facilities. Certainly one would be hard pressed to describe as a normal jail any facility, as I heard this one is, where the doors are locked to prevent people from getting in from outside but that anybody inside can open the doors. So I think in the ordinary case Crown Counsel might have a very good point.

In this case, though, defence counsel submitted that the remand time is still hard time. She gets no credit for it. Her illness restricts her ability to participate in all of the activities. So, under these circumstances, I see no cause for differentiating from the general rule of thumb.

I will, therefore, credit the time spent in pretrial custody as the equivalent of 17 months, and deduct that from the 24-month sentence I would normally impose.

Stand up, Ms. Whitford. Ms. Whitford, it seems obvious to me that you have people who love you and care about you and are waiting for you to come back home. I wish you luck and encourage you to take advantage of that and whatever programs are available so that you can put your life back together again.

You are still a young woman, your children are still young, and they will need you in the future, and

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they will need you to be straight and sober. I am sure you know that.

The sentence is seven months imprisonment. In addition, I will direct that the accused be on probation for a period of one year starting from the date of her release. The conditions of that probation will be that she is to be under the supervision of the probation officer and report to the probation officer as directed, she is to attend any and all counselling and treatment programs that may be recommended by the probation officer, she is to abstain absolutely from the possession or consumption of alcohol or nonprescription drugs, and she is restricted from entering any premises where alcohol is served. By that I mean any bar or other such place.

You may have a seat. Under the circumstances there will be no victim of crime fine surcharge. Have I neglected anything, Ms. Tkatch?

MS. TKATCH:   Yes, Your Honour. Actually I would be asking for an order of forfeiture of the exhibits seized, in particular the drugs.

THE COURT:   What about the money?

MS. TKATCH:   And the money. Thank you.

THE COURT:   The exhibits seized by the police will be forfeited to the Crown and disposed of at the expiry of the appeal period. Anything else, Mr. Latimer?

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MR. LATIMER:  No. I believe that's it, Your Honour.

THE COURT:   Very well. Thank you, counsel.


Certified to be a true and accurate transcript, pursuant to Rules 723 and 724 of the Supreme Court Rules

Joel Bowker
Court Reporter

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