Decision Content
R v Tobac, 2018 NWTSC 20 S-1-CR-2017-000101
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN
- v -
TONY LYNETTE MARIE TOBAC
_________________________________________________________ Transcript of the Reasons for Sentence held before The Honourable Justice S. H. Smallwood, sitting in Yellowknife, in the Northwest Territories, on the 16th day of March, 2018.
_________________________________________________________
APPEARANCES:
Ms. M. Zimmer: Counsel for the Crown
Mr. P. Harte: Counsel for the Accused
(Charges under s. 5(1) of the Criminal Code)
1 THE COURT: Good afternoon.
2 MS. ZIMMER: Good afternoon, Your Honour.
3 MR. HARTE: I'll have my client join me,
4 if I may, Your Honour.
5 THE COURT: Yes, that's fine.
6 Tony Tobac has pleaded guilty
7 to trafficking in cocaine contrary to Section
8 5(1) of the Controlled Drugs and Substances Act.
9 She entered her plea on August 21, 2017, and a
10 presentence report was ordered. The matter was
11 subsequently scheduled for January 22, 2018, and
12 I heard sentencing submissions at that time. It
13 was adjourned to February 5, 2018, when it was
14 again adjourned to March 2, 2018, for further
15 submissions following the release of the reasons
16 and the decision of the Court of Appeal in R v
17 Joe, 2018 NWTCA 1. It is now my task to sentence
18 Ms. Tobac for this offense.
19 The facts of the offense are
20 that between March 9 and 17, 2017, the RCMP in
21 Yellowknife were conducting a drug trafficking
22 investigation called Project Glacier. The
23 project focused primarily on investigating
24 suspected dial a dope phone numbers. On March
25 13th, 2017, at approximately 4:05, an undercover
26 officer called the suspected dial a dope number
27 to purchase cocaine. The officer spoke briefly
1 to a male and a female who said that they would
2 call back. About a minute later the officer
3 received a call and he was advised to go to the
4 side door of an apartment building in
5 Yellowknife.
6 At approximately 4:27 p.m. the
7 officer arrived at the apartment building and
8 called the number. A male answered and said that
9 he would be right down, and shortly after
10 Ms. Tobac opened the side door of the apartment
11 building and walked with the officer to the base
12 of the stairwell. She told the officer that her
13 name was "Tony" and that "he sent me down".
14 Ms. Tobac then sold the officer one piece of
15 crack cocaine weighing 0.4 grams for $80. After
16 the transaction Ms. Tobac ran up the stairs and
17 met a male at the next landing.
18 On March 16th the RCMP
19 executed a search warrant at a unit in the
20 apartment building, which was the apartment that
21 Ms. Tobac shared with Russel Hamilton. A number
22 of items were seized, including cell phones,
23 score sheets, and a scale with white residue.
24 The Crown is seeking a
25 sentence of 10 months imprisonment and the
26 defence is urging the Court to consider a
27 sentence of 90 days incarceration to be served
1 intermittently, followed by a period of
2 probation.
3 There have been many cases in
4 this jurisdiction in which offenders have been
5 sentenced for trafficking in cocaine or crack
6 cocaine. There are a range of sentences that can
7 be imposed, and for the most part they're now
8 sentences of imprisonment based on the appellate
9 case law applicable in this jurisdiction. The
10 cases provide some guidance for an appropriate
11 range of sentence and demonstrate the consistent
12 approach of the Courts in sentencing those who
13 traffic in cocaine.
14 Courts in this jurisdiction
15 have consistently imposed sentences meant to
16 denounce and to deter offenders who are
17 trafficking cocaine. And it has been said in
18 many of those cases that the drug trade
19 trafficking in cocaine and crack cocaine has had
20 a devastating effect on the people in Yellowknife
21 and elsewhere in the Northwest Territories.
22 Cocaine destroys lives and families. People who
23 are addicted to this drug commit other offenses
24 to get money to purchase cocaine. They traffic
25 in cocaine to fund their own addictions. And
26 nowhere is this more evident than in this case.
27 Ms. Tobac sold cocaine because she is an addict
1 who needed money to buy cocaine and alcohol and
2 needed money to get by.
3 Ms. Tobac is of Slavey descent
4 from the Sahtu community in Fort Good Hope.
5 Section 718.2(e) requires me to consider
6 available sanctions other than imprisonment that
7 are reasonable in the circumstances paying
8 particular attention to the circumstances of
9 aboriginal offenders.
10 The Supreme Court of Canada in
11 the cases of Gladue and Ipeelee have considered
12 the application of Section 718.2(e) in the
13 context of sentencing aboriginal offenders. One
14 of the impetuses behind Section 718.2(e) was the
15 overrepresentation of aboriginal people in
16 Canadian penitentiaries. The Supreme Court of
17 Canada in Gladue noted that in 1997 aboriginal
18 people constituted close to 3 percent of the
19 population of Canada, but amounted to 12 percent
20 of all federal inmates. In Gladue the Court
21 noted at paragraph 64 and 65:
22 It is reasonable to assume that
23 Parliament in singling out aboriginal
24 offenders for distinct sentencing
25 treatment in Section 718.2(e)
26 intended to attempt to address the
27 social problem to some degree. The
1 provision may properly be seen as
2 Parliament's direction to members of
3 the judiciary to inquire into the
4 causes of the problem and to endeavor
5 to remedy it to the extent that a
6 remedy is possible through the
7 sentencing process.
8 It is clear that sentencing
9 innovation by itself can not remove
10 the causes of aboriginal offending
11 and the greater problem of aboriginal
12 alienation from the criminal justice
13 system. The unbalanced ratio of
14 imprisonment for aboriginal offenders
15 flows from a number of sources,
16 including poverty, substance abuse,
17 lack of education, and the lack of
18 employment opportunities for
19 aboriginal people.
20 The Supreme Court of Canada
21 emphasized that sentencing Courts have a role to
22 play in addressing this problem, but acknowledged
23 that this is not something that can be dealt with
24 by the Courts alone. Crimes by aboriginal
25 offenders will not end simply because Courts
26 consider alternatives to incarceration for them.
27 Indeed, the statistics
1 provided by counsel for Ms. Tobac and the
2 submissions reveal that the problem of aboriginal
3 overrepresentation in prisons has not gotten any
4 better. In fact, it's gotten much worse.
5 Aboriginal people represent approximately 3
6 percent of the population, but in 2015/2016
7 aboriginal adults accounted for 28 percent of
8 admissions to federal corrections services and 27
9 percent of provincial and territorial custodial
10 admissions. For aboriginal women, the
11 overrepresentation was even more pronounced.
12 Aboriginal females accounted for 38 percent of
13 female admissions to provincial and territorial
14 sentence custody in comparison to 26 percent of
15 aboriginal males.
16 What is required is an attempt
17 to deal with the root causes of crime by
18 aboriginal offenders. Factors like poverty,
19 substance abuse, unemployment, poor housing, lack
20 of education, et cetera. Most of these factors
21 are outside of the Court's control and require
22 steps by Government and society to address these
23 problems. The Courts cannot build houses, give
24 someone a job, educate someone. While there are
25 some limited tools at the Court's disposal, many
26 times they are not enough. But we continue to
27 see aboriginal offenders before this Court on a
1 daily basis and we have to impose sentences
2 taking into account Section 718.2(e) and do what
3 we can to give effect to the principle and
4 guidance referred to in Gladue and Ipeelee.
5 As stated in Gladue, what I am
6 required to do is:
7 Give attention to the unique
8 background and systemic factors which
9 may have played a part in bringing
10 the particular offender before the
11 Courts. In cases where such factors
12 have played a significant role it is
13 incumbent upon the sentencing judge
14 to consider these factors in
15 evaluating whether imprisonment would
16 actually serve to deter or to
17 denounce crime in a sense that would
18 be meaningful to the community of
19 which the offender is a member.
20 In this case I have the
21 benefit of a presentence report, which provides
22 information about Ms. Tobac's background and
23 circumstances, as well as I've heard from counsel
24 for Ms. Tobac in his submissions. And what I've
25 heard reflects many of the factors referred to in
26 Gladue and Ipeelee. Ms. Tobac has had a
27 difficult upbringing and has had a difficult
1 life. She was raised by her mother after her
2 parents separated. Her mother abused alcohol.
3 And Ms. Tobac moved between her mother's home and
4 her grandparents' home in Fort Good Hope where
5 she grew up. Her grandparents drank as well and
6 Social Services were often involved in
7 Ms. Tobac's life. She was in foster homes while
8 growing up. She was exposed to violence and was
9 physically abused by her mother. And when living
10 with her mother there was often no food in the
11 house.
12 Ms. Tobac began using alcohol
13 at 13 or 14 years old and when the presentence
14 report was prepared she stated that she used
15 alcohol regularly and often drank to the point
16 that she blacked out. Ms. Tobac said to the
17 writer of the presentence report that she had
18 drunk alcohol on a daily basis and did so up
19 until she was four months pregnant with her
20 second child. She has two children, she was
21 unable to care for her oldest child, who was
22 adopted by her mother. However, her mother
23 continues to struggle with alcohol abuse and that
24 child was in foster care at the time of the
25 preparation of the report.
26 Ms. Tobac is now 27 years old.
27 She moved to Yellowknife when she was 22 and her
1 time in Yellowknife has been marked with
2 drinking, drugs, homelessness, and fighting.
3 She's often been homeless while living in
4 Yellowknife, although that situation has recently
5 changed. Ms. Tobac began using crack cocaine a
6 few years ago and used it initially twice a week
7 while drinking alcohol daily. Eventually she
8 used crack cocaine daily and did so throughout
9 her pregnancy. She's been in several
10 relationships, which have been marked by the
11 abuse of alcohol and violence. She was in a
12 relationship for several years, where there was
13 the abuse of alcohol and in which she was abused.
14 When that relationship ended Ms. Tobac was in
15 another relationship which also involved
16 violence. And she's now in another relationship
17 which both she and her partner have abused
18 alcohol and drugs. She has a child as a result
19 of this relationship. At the time of the offense
20 she was pregnant with her son. Ms. Tobac
21 acknowledged using alcohol and crack cocaine
22 throughout her pregnancy and said to the preparer
23 of the presentence report that she engaged in
24 trafficking to support her addiction and to get
25 by. Social Services has been involved with
26 Ms. Tobac since the birth of her son and they
27 continue to monitor her situation.
1 Ms. Tobac has been unemployed
2 and lives on income support. With the money that
3 she receives it is difficult to pay her monthly
4 expenses. And I'm sure the added cost of buying
5 alcohol and drugs only adds to that burden.
6 Money spent on crack cocaine or alcohol is money
7 that is not being used to buy food or pay for
8 other necessities.
9 Ms. Tobac learned traditional
10 skills from her grandmother and attended cultural
11 events in Fort Good Hope. Since she's moved to
12 Yellowknife she has not kept up with those
13 activities.
14 One thing that was noted in
15 the presentence report was that Ms. Tobac does
16 not display any insight as to how her actions
17 have affected others in the community. And
18 counsel for Ms. Tobac addressed this in his
19 submissions saying that this was not surprising
20 because Ms. Tobac is herself an addict and is not
21 looking at this from the perspective of the
22 effect on the community or society, but looking
23 at it in the context of herself as an addict.
24 And I think that approach does explain it to an
25 extent.
26 Life has not been easy for
27 Ms. Tobac and it will not become easier just like
1 that. Without some positive changes, your life
2 will continue as it has, marked by violence,
3 alcohol, and drug abuse, having your child taken
4 from your care. It is a difficult cycle to break
5 when that is how you have been raised and that is
6 what you know. But for your child's sake, and
7 for yours, Ms. Tobac, I hope that you take the
8 opportunity that's given to you by this sentence
9 to make some changes. Particularly as you have
10 another child along the way. Don't make your
11 child go through the same stuff that you did
12 while growing up. You didn't deserve it, and
13 your children do not deserve it.
14 Counsel have provided cases
15 which deal with sentencing offenders for
16 trafficking in cocaine, and I don't intend to
17 review all of them, but I have read them and I
18 have read quite a few other sentencing decisions
19 of this Court dealing with trafficking in
20 cocaine. And I've observed that there is a
21 considerable range in sentence depending on, for
22 example, the offender, their personal
23 circumstances, their criminal record, whether
24 there was a guilty plea, whether there was a
25 trial, the number of transactions involved, the
26 amount of drugs involved, the nature of the drugs
27 involved, the role of the offender in a criminal
1 organization, if any, and their motivation for
2 trafficking in drugs.
3 A recent case by the Northwest
4 Territories Court of Appeal in R v Joe dealt with
5 sentencing for an aboriginal female offender who
6 was found guilty of possession of cocaine for the
7 purpose of trafficking and possession of
8 marijuana for the purpose of trafficking. The
9 amount of marijuana in that was 236 and a half
10 grams and 8 grams of crack cocaine. As well
11 there were a number of marijuana joints that were
12 seized and over $5,000 in cash. In that case the
13 offender had entered a guilty plea, although it
14 was noted that it was not at an early
15 opportunity. There had been a pretrial
16 application with respect to the search prior to
17 the guilty plea. The offender in that case had
18 no criminal record and was 37 years of age.
19 There was a presentence report before the Court
20 which indicated that the offender was a user of
21 cocaine and the report was overall considered
22 somewhat positive. The sentencing judge in that
23 case imposed a sentence of probation but did not
24 include any other sentencing disposition with it
25 and the matter was appealed on this basis. Both
26 Crown and defence agreed that imprisonment should
27 have been imposed, however, defence sought that
1 the sentence be stayed. The Court of Appeal
2 noted that the sentencing objectives are
3 deterrence and denunciation and that they should
4 not be undermined. In discussing the Gladue
5 factors applicable to the offender, the Court did
6 not refer to them extensively but stated:
7 In relation to Gladue and Ipeelee
8 considerations, we accept that the
9 respondent's upbringing in a home
10 marked by violence and alcohol abuse
11 leading to her being raised in foster
12 care for a period of time impacts
13 moral culpability for these offenses
14 as an aboriginal offender. However,
15 these considerations support the
16 imposition of a minimal sentence of
17 12 months. They do not justify the
18 imposition of a stay of what is
19 otherwise a fit and proper sentence.
20 The situation in Joe is
21 distinguishable from this case. In that case
22 both the Crown and defence agreed on appeal that
23 a sentence of one year imprisonment was
24 appropriate. As well, the amount of drugs
25 involved in that case were significantly more
26 than in this case. This case involved one
27 transaction of 0.4 grams of crack cocaine.
1 As stated by Justice
2 Charbonneau in R v Grandjambe, 2018 NWTSC 3 at
3 page 7:
4 For any given offense there is never
5 just one appropriate sentence. There
6 is always a range. Usually in this
7 jurisdiction people who traffic in
8 cocaine can expect even on a guilty
9 plea to receive sentences that are
10 close to the two year mark.
11 In saying this, this is not a
12 starting point sentence or a guideline, but an
13 observation by Justice Charbonneau of the
14 sentencing practices in this jurisdiction. A
15 review of the case law demonstrates that
16 sentencing for cases involving trafficking in
17 cocaine can involve penitentiary sentences and
18 can also involve sentences as low as in the 7 to
19 10 month range. So the sentence of 10 months
20 proposed by the Crown is certainly reasonable.
21 Looking to the factors that
22 are applicable in this case. In mitigation,
23 Ms. Tobac has entered a guilty plea and she did
24 so at an early opportunity. There was no
25 preliminary inquiry in this matter. The case was
26 not overly complicated and would not likely have
27 been a difficult case for the Crown to prove.
1 But the guilty plea avoided the need for a trial
2 and reflects Ms. Tobac's acceptance of
3 responsibility for her actions, so she should
4 receive full credit for the guilty plea.
5 Ms. Tobac does have a criminal
6 record. She has 11 convictions from 2005 in
7 youth court through to 2011. There are
8 convictions for property offenses, but the bulk
9 of her criminal record consists of convictions
10 for offenses against the administration of
11 justice.
12 Looking at the circumstances
13 of the offense, while trafficking in cocaine is a
14 serious offense, and as I've said, the Courts
15 treat this type of offense seriously, this
16 offense is not the most serious of offenses that
17 have come before this Court. It involved one
18 transaction of selling 0.4 grams of crack cocaine
19 to an undercover officer. Ms. Tobac's
20 involvement is at the lower end of culpability.
21 Certainly her situation is different from many of
22 the offenders this Court has seen recently who
23 were involved in Project Green Manalishi.
24 There's no evidence that she is involved in a
25 criminal organization. And her role can be
26 described as someone who assists and participates
27 in a dial a dope operation. She was motivated by
1 money to the extent that selling drugs allowed
2 her to be able to buy her own cocaine and it
3 allowed her to get by to buy things for her child
4 and to pay bills.
5 Dealing first with the
6 ancillary orders that were requested by the
7 Crown, Section 5(1) of the Controlled Drugs and
8 Substances Act is a secondary designated offense
9 pursuant to Section 487.04. And there will be an
10 order pursuant to Section 487.051 for the taking
11 of Ms. Tobac's DNA for the DNA data bank.
12 Pursuant to Section 109 of the Criminal Code, a
13 firearms prohibition order is mandatory and
14 Ms. Tobac will be prohibited from possessing
15 firearms for a period of 10 years following her
16 release from imprisonment. There will also be
17 the victim of crime surcharge of $200 payable in
18 accordance with the regulations.
19 I have considered what an
20 appropriate sentence might be given the
21 circumstances of the offense, the applicable
22 sentencing principles, and Ms. Tobac's personal
23 circumstances. As I said, the sentence that the
24 Crown is proposing is reasonable and in another
25 similar case I would have no hesitation in
26 imposing that sentence. I believe that Ms.
27 Tobac's personal circumstances fall within what
1 is referred to in Gladue and Ipeelee. There are
2 significant factors in Ms. Tobac's life which
3 justify the use of restraint in sentencing and in
4 the circumstances I'm going to exercise even more
5 restraint than I might otherwise. I cannot
6 impose a sentence as low as what is being sought
7 by defence counsel because I cannot ignore the
8 sentencing principles of deterrence and
9 denunciation.
10 But I am taking a chance,
11 Ms. Tobac, that things in your life have begun to
12 change and the prospects of rehabilitation need
13 to be emphasized. So I am considering that in
14 sentencing you. Please stand up.
15 For the offense of trafficking
16 in cocaine I sentence you to a period of
17 imprisonment of 6 months. This will be followed
18 by a period of probation of 18 months which will
19 include the statutory conditions and additional
20 conditions. So you'll be required to keep the
21 peace and be of good behaviour, to appear when
22 required do to so by the Court, to notify the
23 Court or the probation officer in advance of any
24 change of name or address, notify the Court or
25 the probation officer of any change of employment
26 or occupation. You will also have to report to
27 the probation officer within two days of your
1 release and thereafter as directed, and if you
2 agree and subject to the programs available and
3 your acceptance in that program, take and
4 participate actively in a treatment program. You
5 will take any counselling as directed by your
6 probation officer, including any programs that
7 are deemed by your probation officer to be
8 suitable, including programs addressing alcohol
9 and drug abuse, violence and trauma, parenting
10 and pre or postnatal programs.
11 Do you understand those
12 conditions?
13 THE ACCUSED: Yeah.
14 THE COURT: Okay, thank you. You may sit
15 down.
16 I have considered imposing
17 conditions with respect to the abstention from
18 alcohol or non-prescription drugs, but I have
19 decided not to impose those conditions as I think
20 it ignores the reality of how difficult it is to
21 overcome these addictions and it may set Ms.
22 Tobac up to fail.
23 All right, counsel, is there
24 anything else we need to address?
25 MR. HARTE: I think I'm missing something,
26 Your Honour, but at this point not that I can --
27 not that I can think of.
1 THE COURT: Okay.
2 MR. HARTE: Thank you.
3 MS. ZIMMER: Sorry, Your Honour, I was just
4 checking and I don't think there's anything else
5 from the Crown's perspective.
6 THE COURT: Okay. All right, thank you,
7 counsel, for your submissions and your
8 cooperation when I requested to have additional
9 submissions following the release of the Court of
10 Appeal decision. Thank you. It's been very
11 helpful.
12 MR. HARTE: Thank you for the opportunity
13 to make further submissions, Your Honour.
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1 CERTIFICATE OF TRANSCRIPT
2
3 I, the undersigned, hereby certify that the
4 foregoing pages are a complete and accurate
5 transcript of the proceedings taken down by me in
6 shorthand and transcribed from my shorthand notes
7 to the best of my skill and ability.
8 Dated at the City of Edmonton, Province of
9 Alberta, this 20th day of March, 2018. 10
11 Certified Pursuant to Rule 723
12 Of the Rules of Court 13
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17 __________________________
18 Allison Willard
19 Court Reporter
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