Supreme Court

R. v. Woledge, 2005 NWTSC 55
Date: 20050616
Docket: S-1-CR-2004000118

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

IN THE MATTER OF:


HER MAJESTY THE QUEEN


-and-


NEIL MICHAEL WOLEDGE


Transcript of the Oral Reasons for Sentence by the Honourable Justice V.A. Schuler, sitting at Yellowknife, in the Northwest Territories, on June 13th, A.D. 2005.


APPEARANCES:

Mr. J. Burke:   Counsel for the Crown

Mr. H. Latimer:   Counsel for the Accused


(Charges under s. 5(2) CDSA and s. 88 Criminal Code)


THE COURT:   I must now sentence Mr. Woledge for the offences of which the jury found him guilty on May 20, 2005. Those offences are possession of cocaine for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act and possession of a weapon for a purpose dangerous to the public peace contrary to section 88 of the Criminal Code.

The events the jury heard about took place in the early morning hours of July 8th, 2004. The facts briefly are that some individuals I will refer to as the Sabourins went to Mr. Woledge's home in Hay River to get some cocaine from him on a front, a pay later basis. There was an altercation between Mr. Woledge and one of the Sabourins resulting in Eugene Sabourin being taken to the hospital. Mr. Woledge was acquitted by the jury of the aggravated assault charge arising from that incident.

That incident, however, led the police to obtain a search warrant for Mr. Woledge's home. They arrived at the home three or four hours after the incident involving the Sabourins; therefore, just after 5 a.m. They had information that Mr. Woledge had video surveillance outside the house and firearms in

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the house, so they considered it a high risk search.

On arrival, they banged on the outer door and announced that they were the police and that they had a search warrant. They received no answer and began to use an axe on the door, although they were not able to get it to open.

Constable Linaker observed through the window in the outer door that Mr. Woledge had come to the inner door of the house. They made eye contact. Constable Linaker drew his pistol, identified himself as a police officer, said he had a warrant and demanded that Mr. Woledge get down. Mr. Woledge simply replied, “Take it easy. Take it easy,” and then closed the inner door and went back inside. Although Constable Carter could not see Mr. Woledge, he testified that he observed Constable Linaker draw his side-arm and yell, “Police search warrant. Get down.”

Mr. Woledge testified that he had been smoking crack and then sleeping and was groggy and did not remember this incident. I am satisfied beyond a reasonable doubt based on the police officers' evidence that it did occur.

After Mr. Woledge closed the inner door the police got the door open using a sledge hammer. They were concerned at this point for their own

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safety and the safety of those in the house, as they had observed people in the upstairs windows.

The officers went along the hallway through the inner door and to the end of the hall. They had their guns drawn. At that point they observed Mr. Woledge walking across the living-room towards them carrying a shotgun in what they called the ready carry position with the barrel pointing up and towards the side wall. It was not pointed at them. Constable Carter yelled at Mr. Woledge to stop and get down, which Mr. Woledge did immediately.

Constable Carter testified that he observed Mr. Woledge to be intoxicated by something, that he appeared docile, slow moving, glassy-eyed and non-talkative.

The shotgun was examined and found to be loaded with one round in the chamber and three in the magazine. Mr. Woledge testified that he got the shotgun from his bedroom where it was stored and that it was already loaded when he picked it up. Those are the circumstances of the section 88 offence.

In convicting Mr. Woledge, the jury clearly did not believe Mr. Woledge's testimony that he thought the Sabourins were coming back to get him and grabbed the gun only to protect him and his

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family.

After Mr. Woledge was on the floor he was searched. The police found in his pants pocket a baggy containing five individually wrapped pieces of cocaine with a total weight of two grams worth about $600 on the street in Hay River. They also found $875 in cash in Mr. Woledge's pants pocket.

Drug paraphernalia and a number of weapons, guns and knives, were found in the home when the police searched it. What was described as a machete was taped to the side of a dresser in the master bedroom. Curiously, Mr. Woledge was never asked about that at the trial.

The house itself was equipped with three video cameras providing surveillance of the outside main door and driveway area and connected to a live feed monitor in the master bedroom. The police officers during the search observed that the monitor showed their own vehicles parked outside. Apart from the cocaine found on Mr. Woledge, no other drugs were found in or around the house.

The jury heard evidence from Sergeant Crowther, who was qualified as an expert in the area of cocaine trafficking and gave the opinion that the evidence of what was found in the home and on Mr. Woledge, the high level of security,

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the preoccupation with security, the way the crack cocaine was packaged are all indicative of Mr. Woledge being a user of crack cocaine and conducting a storefront selling operation from his residence. Those are essentially the facts relevant to the drug offence.

In convicting Mr. Woledge of the section 88 offence, the jury was obviously satisfied that he had the weapon for a purpose dangerous to the public peace. Crown counsel, Ms. Tkatch, argued, that after seeing the police and telling them to take it easy, Mr. Woledge must have then retreated back inside the house and got the shotgun, indicating that there was planning and premeditation on his part.

Mr. Latimer, on the other hand, argued that the fact that Mr. Woledge would tell the police to take it easy indicates that he was not really focused on what was happening. He points out that he was not verbally threatening the police, that he had just been involved in the violent altercation with the Sabourins and that this was, Mr. Latimer submitted, a spontaneous reaction.

In my view, the initial encounter through the door when Constable Linaker saw him, the fact that the video monitor in the bedroom, which is where Mr. Woledge got the shotgun from, which

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showed the police vehicles out there, all lead to the inescapable conclusion that Mr. Woledge knew that it was the police entering the house. He may have been trying to buy some time when he told them to take it easy. However, once he picked up the shotgun his intention could only have been to confront the police officers or scare them or try to hold them off with it. The consequences could, as Crown counsel points out, have been tragic.

I take into account that Mr. Woledge did put the gun down and get down on the ground when told to and that he did not point the gun directly at the officers or make any verbal threats. I also take into account Constable Carter's description of him as docile.

The time space between Constable Linaker seeing Mr. Woledge at the inner door and then both officers coming upon him in the living-room appears from the evidence to have been very short. Because of the initial encounter at the doorway, I am satisfied that there must have been some thought given to picking up the shotgun. So in that sense there was premeditation, although for a very short period of time.

This is not a case of someone who was armed lying in wait for the police. Still, to take up

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a firearm in response to police action is a very serious matter, not only because of the risk it puts all involved in, but also because it indicates some intention to, at the very least, impede the officers in the lawful execution of their duty.

I do not see any mitigation, as suggested by defence counsel, in the fact that this was Mr. Woledge's home, that he was defending it, and that is because the home was being used to carry out illegal activity. In my view, it is also aggravating that Mr. Woledge chose to react this way to the police when there were other people in his home whose safety was also at risk because of the situation. The evidence was that his two daughters and a number of other young adults were in the house when this occurred.

With respect to the possession of cocaine for the purpose of trafficking charge, while the amount found in Mr. Woledge's possession was not large, the surrounding circumstances indicate that he was carrying on a storefront trafficking operation from his home, and I accept Sergeant Crowther' s evidence in that regard.

The type of trafficking an offender engages in is a relevant consideration in sentencing, as may be seen in many of the cases; for example,

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the Rahime case from the Alberta Court of Appeal cited in Mr. Latimer's memorandum. In my view, it is extremely aggravating that Mr. Woledge was doing this in the home where his teenage children were living, setting a terrible example for them and exposing them to a lifestyle that can only cause them harm and bring them to grief.

Other than the fact that Mr. Woledge complied with the police officers' command when they found him with the shotgun - and I note, of course, at that point he was facing two officers with their own guns drawn - there are really no mitigating factors in relation to the offences themselves.

Mr. Woledge is 63 years of age. He testified at trial that he has lived in the southern part of the Northwest Territories for 28 years. At the time of the trial, he and his wife were separated, but it appears there has been a reconciliation. They were also separated at the time of the events underlying these offences, They have three children, aged 18, 15 and 14, who were living with Mr. Woledge at the time of the events. Mr. Woledge has training as a heavy equipment operator and his journeyman's ticket as a heavy-duty mechanic. He has been employed with various companies and also operated his own

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business.

From January 7 of 2005 until the trial in May he worked for NWT Rock Services in Yellowknife as a heavy-duty mechanic. The general manager of that company, Mr. Herd, testified that he was a hard worker, did not miss any work, put in extra time and was dependable with excellent workmanship. He said the company would be glad to take him back on.

Mr. Woledge has a criminal record, although much of it is dated. He was convicted of simple possession of an unspecified narcotic in 1981 and 1989 and uttering a forged document in 1987. In October, 2004 he was convicted of assault for an incident that occurred prior to the events that I am now sentencing him for.

I do take into account Mr. Woledge's age, 63. In my view, the only real significance of his age is this: At the age of 63, Mr. Woledge should know better than to get involved in the drug trade, and, in particular, he should have had more regard for the harm he was doing his children by using the family home. He was not some young naive kid who falls in with the wrong people.

The Crown said at the sentencing hearing that he is an addict. His counsel said he is

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somewhere between a user and an addict. So the extent of his cocaine use is unclear. At trial, he testified that by the time of these events he had been using crack for a few months. In any event, there is no evidence that Mr. Woledge was trafficking only to support his own habit. In my view, the circumstances, especially the way the house was set up with the video surveillance, suggests that he was also doing it to make money. There was evidence that at the time of the events he was only working now and then as a mechanic.

As Justice Vertes said in the Whitford case that counsel referred to, crack cocaine is a highly powerful and dangerously addictive drug. We heard evidence about that from Sergeant Crowther. Its proliferation in the northern communities is notorious. It is a terrible problem in Yellowknife. From the evidence I heard in this case, it is clear that it has also become a problem in Hay River. Courts here and elsewhere have taken a hard line on sentencing in cases involving crack cocaine or cocaine. The guiding principles are denunciation, to show how society condemns this conduct, and deterrence, both of the offender and others.

We have cases come into court all the time of people whose lives have been devastated by

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cocaine, either because they are users themselves or because they have suffered violence or family breakdown because of someone else using it. The only people who want cocaine here in the north are the people who want to make money from it, which really means making money off other people's tragedy and misfortune.

I take into account that Mr. Woledge has spent approximately one month in pre-sentence custody when the one week before trial and the three weeks since trial are considered. I will credit that as two months.

When Mr. Woledge spoke at the sentencing hearing, he indicated that he is done with that part of his life that has led him to be here in court; that it caused him and his family a lot of suffering. I am satisfied that he is remorseful, although I hope he realizes that the suffering extends beyond him and his family. The community as a whole suffers from this activity.

I have to make findings about some of the exhibits because of the orders sought by the Crown. With respect to the forfeiture order, Mr. Latimer objected to anything other than the vial containing cocaine and the drug paraphernalia consisting of pipes, hoses, et cetera as set out in points 2 and 3 of the draft order being

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characterized as offence related property. Under section 16(1) of the Controlled Drugs and Substances Act, to make the mandatory forfeiture order I have to be satisfied on a balance of probabilities that the property is offence related property and that the drug offence was committed in relation to that property.

“In relation to” is a very wide encompassing term. If I am not satisfied that the drug offence was committed in relation to the property, but I am satisfied beyond a reasonable doubt that the property is offence related property, under section 16(2) I may make an order of forfeiture.

For purposes of this case, offence related property under the definition in the CDSA means any property by means of or in respect of which the drug offence is committed, any property that is used in any manner in connection with the commission of the drug offence, or it can be any property that is intended for use for the purpose of committing the drug offence.

The drugs found are clearly offence related property, and the drug offence of which Mr. Woledge has been convicted was committed in relation to that property, so section 16(1) is

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satisfied for the drugs.

The remaining items are the drug paraphernalia, the video cameras and the video monitor, the latter two being, without any doubt, the security measures taken by Mr. Woledge to assist him in keeping his operation secure from the police and others; also, the six cell phones and satellite phones which were seized from the master bedroom where the other drug paraphernalia was found.

I am satisfied that these are all items used in Mr. Woledge's drug trafficking operation and, therefore, also satisfied that the offence of possession of the cocaine for the purpose of trafficking was committed in relation to that property. I order them forfeited on the basis of section 16(1). I am also satisfied beyond a reasonable doubt that it is all offence related property, so would have ordered them forfeited on the basis of 16(2) as an alternative.

I also have to deal with the cash, the $875 found in Mr. Woledge's pants pocket by the police when they arrested him. Constable Carter testified it was folded in one stack in denominations of four 100s, one five, one ten and twenty-three $20 bills.

The evidence from Mr. Woledge was that it

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was his children's money. There was evidence from the administrator of the Fort Resolution Band that the three children were paid a benefits payment of $450 each by cheque. There was evidence that the cheques were cashed. Mr. Woledge and the children testified that they gave him the money for safekeeping. One of the children had a bank account at the time. The other two did not. They testified that they would draw on it as they needed it for junk food or clothes or lunches.

The cheques were cashed on July 2nd. On July 8th Mr. Woledge was still walking around with all that money in his pocket. Instead of the children keeping it somewhere in the house, which, after all, was secured and video-monitored, or in their father's bank account or, in the case of the one daughter in her own bank account, Mr. Woledge kept it in his pants pocket even when he was simply at home visiting with friends, which, according to his testimony, is what he was doing that night.

I do not believe that the money in the pocket was the money the children got from the Band. The explanation for why their father was carrying the money in his pocket made no sense to me and I found their evidence about that

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contradictory. I am satisfied beyond a reasonable doubt that it was money related to Mr. Woledge's drug dealings. It will be forfeited, as well, under section 16(1)

I should add, I am also satisfied on a balance of probabilities that the requirements of section 16(1) have been otherwise satisfied. So that order has been signed, Madam Clerk.

THE COURT CLERK:  Yes, ma'am.

THE COURT:   The next issue is the gun order. The Crown seeks a firearm prohibition order under the discretionary provisions of section 110 of the Criminal Code, as well as forfeiture of all the firearms in Mr. Woledge's possession pursuant to section 115 which operates unless the order I make specifies otherwise.

In my view, because of the circumstances of the section 88 charge, a firearm prohibition order is necessary and desirable in the interests of public safety. Mr. Woledge was running a drug business keeping two loaded guns and many other guns on the property. Even if some of those guns were used for hunting at times, drugs and guns are a dangerous mix.

There will be an order prohibiting him from possession of the items enumerated in section 110 for a period commencing today and expiring 10

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years from his release from imprisonment. I decline to specify otherwise within the language of section 115, so everything prohibited by the order which is in Mr. Woledge's possession as at today will be forfeited. However, none of the items are to be destroyed or otherwise disposed of before the expiry of 60 days from today to allow a section 117 application by Daniel Lafferty with respect to any item or items in which he claims ownership.

As far as the actual sentences go, counsel are quite far apart in their submissions. The Crown asked for a sentence of two to two and a half years imprisonment on each offence consecutive. The defence asks that I consider the entire range from probation to territorial time and probation, including a conditional sentence.

Mr. Latimer argued that the sentences should be concurrent. However, I disagree with that. Although the offences occurred during the same time frame, they are very separate and distinct offences, and, in my view, consecutive sentences are required, although totality will be taken into account.

The range for possession for the purposes of trafficking in cocaine where the accused is a low

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or mid-level trafficker is two to three years jail as per the Whitford and Rahime cases. There seems to be no particular accepted range for the weapons charge. Each case really depends on its own facts.

Because of the length of the sentence I am going to impose on the drug charge, a conditional sentence cannot be imposed. In my view, because of the aggravating circumstances and the seriousness of the charges, a conditional sentence would not be appropriate in any event in this case for either charge. Something more severe, I believe, is needed to deter Mr. Woledge and others who might be tempted to get involved in the cocaine business in Hay River and elsewhere.

Stand up, please, Mr. Woledge. Taking into account totality, the sentence on count 2, the charge of possession for the purpose of trafficking, will be two years' imprisonment. On count 3, the weapons charge, I would have imposed a sentence of 12 months, but I will credit the two months' remand time, so the sentence on that will be 10 months' consecutive, which is a total 34-month sentence. You may sit down.

The victim surcharge will be waived in the circumstances. Is there anything further?

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MR. BURKE:   Not from the Crown, Your Honour.

THE COURT:   All right. That's fine, then. We will close court.


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

Jill MacDonald, CSR(A), RPR
Court Reporter

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