R v Johnstone, 2014 ABQB 647

Court of Queen ’ s Bench of Alberta Citation: R v Johnstone, 2014 ABQB 647 Date: 20141022 Docket: 110398195Q2 Registry: Edmonton Between: Her Majesty the Queen Crown - and - James Brian Johnstone Accused _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice V.O. Ouellette _______________________________________________________ I. Introduction . 2 II. Facts . 2 III. Issues . 3 IV. Position of the Crown . 3 V. Position of the Accused . 3 VI. Analysis . 3 A. Has the accused proven on a balance of probabilities that he committed the offences under duress? 3 i.

Was there an explicit or implicit threat of present or future death or bodily harm directed to the accused or a third party? . 5 ii. Did Mr. Johnstone reasonably believe that the threat would be carried out? . 6 iii. Was there no safe avenue of escape? . 6 iv. Did Mr. Johnstone receive compensation? . 7 B. If yes, is duress a mitigating factor in sentencing? . 7 i. General Sentencing Principles . 8

C. If yes, what is an appropriate sentence? . 10 i. Appropriate Sentence without Duress Mitigation . 10 ii. Appropriate Sentence with Duress Mitigation . 11 VII. Appropriate Sentence in this case . 11 I. Introduction [ 1 ] Brian James Johnstone pled guilty to trafficking drugs at the Edmonton Remand Centre while employed as a guard. He states that he committed the offences under duress and as a result, his sentence should be reduced. II. Facts [ 2 ] Mr.

Johnstone pled guilty to the following counts: • Between October 1 and December 14, 2010 - trafficking in controlled substances contrary to s 5(1) of the Controlled Drugs and Substances Act , SC 1996, c 19 ( CDSA ); • On March 31, 2011 - possession of marijuana in an amount not exceeding 3 kg for the purpose of trafficking contrary to s 5(2) of the CDSA ; and • On March 31, 2011 - possession of cocaine for the purpose of trafficking contrary to s 5(2) of the CDSA . [ 3 ] The uncontested facts are as contained in an Agreed Statement of Facts (Exhibit S-1), a master

summary report (Exhibit S-2), text messages (Exhibit S-7), and an interview of James Brian Johnstone on March 31, 2011 (Exhibit S-11). In

summary, an investigation involving Mr. Johnstone and several inmates at the Edmonton Remand Centre disclosed through phone conversations that Mr. Johnstone brought packages containing controlled substances into the Edmonton Remand Centre on two separate occasions. On the first occasion, between October 11 and 14, 2010, Mr. Johnstone was provided with a package containing an unknown quantity of controlled substance, which he delivered to the Edmonton Remand Centre.

On the second occasion, between October 25 and 31, 2010, he was again provided with a package containing five half-pound bags of marijuana and an unknown quantity of hashish, which he delivered to the Edmonton Remand Centre. [ 4 ] On March 31, 2011, Mr. Johnstone was arrested and a search of his vehicle disclosed four sandwich baggies of marijuana, weighing a total of 84.9 grams, and eight spit balls of cocaine, weighing a total of 2.2 grams.

The contents of the package were intended to be brought into the Edmonton Remand Centre for the purposes of trafficking. [ 5 ] In his interview to the police upon arrest on March 31, 2011, and again under oath at his August, 2014 sentencing hearing, Mr. Johnstone stated that the reason he trafficked the drugs into the Edmonton Remand Centre was because he had been threatened by one of the inmates. This inmate stated that he not only knew Mr. Johnstone’s phone number, but also Mr. Johnstone’s mother’s address. This likely occurred in early fall, 2010. Mr.

Johnstone also consistently stated in his interview to the police upon his arrest and also at the sentencing hearing that he did not receive any form of payment or compensation for making these deliveries into the Edmonton Remand Centre. [ 6 ] Mr. Johnstone’s position is that he did not smuggle the drugs into the Edmonton Remand Centre by choice, but, rather that he did so out of fear after being threatened by members of the Hell’s Angels. He indicated that he feared that he or his mother would suffer physical harm if he d id not bring the drugs into the prison. III.

Issues [ 7 ] This case raises the following issues: A. Has the accused proven on a balance of probabilities that he committed the offences under duress? B. If yes, is duress a mitigating factor in sentencing? C. If yes, what is an appropriate sentence? IV. Position of the Crown [ 8 ] The Crown argues that a sentence of 5 years would be appropriate in this particular case. In addition, the Crowns seeks: forfeiture under s 16 of the CDSA of various items seized from Mr.

Johnstone, a lifetime weapons prohibition under s 109(3) of the Criminal Code of Canada , RSC 1985, c C-46 [ Criminal Code ] and a DNA order under s 487.051 of the Criminal Code. [ 9 ] The Crown concedes that Mr. Johnstone appeared forthright and unshaken on cross-examination. However, it is the Crown’s

position that Mr. Johnstone’s testimony and the agreed facts, even as contained in the interview on the day of his arrest, should belooked at with skepticism. First, Mr. Johnstone admitted to lying during a training session. He was absent for part of his training andfalsely indicated that somebody in his family had died. Second, although Mr. Johnstone provided an explanation as to why the firstAgreed Statement of Facts (Exhibit S-1) appears to disclose that he received payment for his services, that he did provide an explanationregarding this. [10] The Crown also concedes that if Mr.

Johnstone proves on a balance of probabilities that he acted under duress, this becomes amitigating factor in sentencing. However, the Crown takes the position that notwithstanding duress, the sentencing principles of generaldeterrence and denunciation are overriding and as a result, the mitigating effect of duress should be limited. V. Position of the Accused [11] Counsel for Mr. Johnstone accepted the various ancillary orders sought by the Crown. [12] Mr.

Johnstone takes the position that, first, the evidence proves on a balance of probabilities that he acted under duress inbringing the drugs in question into the Edmonton Remand Centre. Second, he did not receive any form of compensation or benefits fromcommitting these crimes. Last, he takes the position that duress is considered a mitigating factor in sentencing and that in thecircumstances of this case, it should have a meaningful effect on sentencing. VI. Analysis A.

Has the accused proven on a balance of probabilities that he committed the offences under duress? [13] The Supreme Court recently clarified the defence of duress in Canadian criminal law in R v Ryan, 2013 SCC 3, [2013] 1 SCR14 [Ryan]. Lebel and Cromwell JJ held for the majority at para 2 that “the defence of duress is available when a person commits anoffence while under compulsion of a threat made for the purpose of compelling him or her to commit it”.

In other words, duress is anavailable defence when an accused is threatened for the purpose of compelling an offence and commits the offence in order to avoid thethreatened harm: Ryan, at para 33; see also R v Hibbert, (SCC), [1995] 2 SCR 973 at para 50, 99 CCC (3d) 193. [14] The defence of duress rests on the premise that society is willing to excuse the accused’s conduct for being morallyinvoluntary.

In other words, “the act remains wrong, but the author of the offence will not be punished because it was committed incircumstances in which there was realistically no choice”: Ryan, at para 23. [15] The defence of duress, in both its statutory and common law form, was summarized by Lebel and Cromwell JJ at para 81 ofRyan: • There must be an explicit or implicit threat of present or future death or bodily harm. This threat can be directed at the accused or athird party. • The accused must reasonably believe that the threat will be carried out. • There is no safe avenue of escape.

This element is evaluated on a modified objective standard. • A close temporal connection between the threat and the harm threatened. • Proportionality between the harm threatened and the harm inflicted by the accused. The harm caused by the accused must beequal to or no greater than the harm threatened. This is also evaluated on a modified objective standard. • The accused is not a party to a conspiracy or association whereby the accused is subject to compulsion and actually knew thatthreats and coercion to commit an offence were a possible result of this criminal activity, conspiracy or association [16] Mr.

Johnstone entered guilty pleas to the counts in question because the fourth element of the defence of duress, whichrequires proof of “a close temporal connection between the threat and the harm threatened”, could not be met.

Evidence of duress isrecognized as a mitigating factor in sentencing despite the fact that the threats or coercion fall short of establishing a full defence: R vBasit, 2014 BCSC 868 at para 29, 113 WCB (2d) 473 [Basit]. [17] For the purposes of sentencing, however, the issues to be decided are whether there is proof on a balance of probabilities of (i)an explicit or implicit threat of present or future death or bodily harm directed to the accused or a third party; (ii) that the accusedreasonably believed that the threat would be carried out and (iii) that there was no safe avenue of escape. [18] The evidence before the Court to determine the above issues is contained in an Agreed Statement of Facts which was entered

before the Court and which included Mr. Johnstone’s statement to the police on the day of his arrest, March 31, 2011. In addition to the Statement, there are text messages between various inmates, who were part of a conspiracy to traffic drugs into the Edmonton Remand Centre. Lastly, Mr. Johnstone testified under oath in the sentencing hearing. [ 19 ] Mr. Johnstone’s statement to the police on the day of his arrest, as well as his testimony at the sentencing hearing, are consistent and not contradicted by any other evidence put before the Court.

The evidence of the threats, whether they would be carried out, and whether there were other safe avenues of escape, come entirely from Mr. Johnstone. i. Was there an explicit or implicit threat of present or future death or bodily harm directed to the accused or a third party? [ 20 ] Mr. Johnstone testified that while he was doing a security check on an inmate’s cell (initials JMC), he was cornered by JMC, who said he had information on Mr. Johnstone, including his address, phone number, his family’s address, and his mother’s address. He told Mr.

Johnstone to smuggle him in a package or else he would be paying Mr. Johnstone and his mother a visit. Mr. Johnstone knew that JMC had a criminal history and that he was violent. Further, he knew that JMC worked with the Hell’s Angels. [ 21 ] Mr. Johnstone testified that he was not comfortable disclosing this to his supervisor immediately after the threats were made, because he had a “history” with his supervisor and other staff. He indicated that in hindsight, it may have been the right thing to do but that he was in a state of panic at the time. [ 22 ] Mr.

Johnstone indicated that upon arriving at his home after completing his shift on the day of the threat, he was contacted by an individual, as JMC stated would happen. The contact was in relation to the pickup of a package. At that point, Mr. Johnstone realized that JMC did in fact have his phone number. Mr. Johnstone further indicated that the threat suddenly became all the more real and at that point, he did not know who he could trust. [ 23 ] Mr. Johnstone further testified that he took steps to delay making the deliveries and that this disobedience angered JMC and the other conspirators.

He further testified that at some point his vehicle was vandalized on three occasions; his passenger window and driver window were smashed, and on one occasion, all of his belongings were stolen from inside the vehicle. [ 24 ] Mr. Johnstone also testified that he was approached by a stranger outside of his home while he was having a smoke on his patio. The stranger indicated that he had moved in across the street and made it clear that he had connections with the Hell’s Angels. He bragged about the fights he had been in and indicated that somebody bought the house across the street from him. [ 25 ] Mr.

Johnstone testified that he did not thereafter go to his supervisor or to the police because he knew that JMC had ties to organized crime and could carry out his threats before the authorities could intervene. [ 26 ] The Crown stated in its submissions that Mr. Johnstone appeared to be truthful in his testimony and was not shaken under cross-examination. However, the Crown properly suggested that there should be some concern with the accused’s testimony, in light of the fact that he admitted to lying to his trainers, indicating that he had a family tragedy when that was untrue.

However, the evidence is not limited to the accused’s testimony. [ 27 ] In that regard, the text messages as between the inmates confirm that Mr. Johnstone received a call from an individual and subsequently delayed the delivery of the package. The text messages from one inmate also confirm that Mr. Johnstone was given a look of death by one of the inmates while he was on duty: Exhibit S-2. [ 28 ] In addition to the text messages corroborating Mr. Johnstone’s testimony, a video obtained from his condo corporation depicts an individual who appears to be vandalizing Mr.

Johnstone’s vehicle, on three occasions: Exhibit S-20. [ 29 ] It is also important to note that the Agreed Statement of Facts discloses a conspiracy to traffic drugs between named inmates, RFC, NMA, JMC, JWC and DTR. These inmates would contact individuals outside of the Edmonton Remand Centre, who then assembled the packages of drugs to be delivered into the Edmonton Remand Centre. The inmates and other individuals who dealt with Mr.

Johnstone were charged with conspiracy to traffic drugs and have either pled guilty or were found guilty of conspiracy. [ 30 ] As a result, I am satisfied on a balance of probabilities that Mr. Johnstone was in fact threatened with death or bodily harm by JMC in the manner he described. In this regard, I found Mr. Johnstone to be credible and reliable and as stated earlier, his evidence is supported by corroborating evidence. ii. Did Mr. Johnstone reasonably believe that the threat would be carried out? [ 31 ] To determine whether or not Mr.

Johnstone subjectively believed that the inmates and their associates outside of prison would in fact cause him or his mother significant harm or death, and, whether they would react more quickly than the authorities is supported in part upon review of the inmates’ criminal records . JMC, who made the threat, has a criminal record with 33 entries dating from 1987 to 2011: Exhibit S-15.

Of importance are convictions for the following offenses: (1) assault with a weapon, (2) uttering threats, (3) assault, (4) obstruction of a peace officer, (5) assault, (6) obstruction of a peace officer, (7) possession of a weapon and (8) possession of a weapon. In addition to violent crimes are a significant number of drug related offences, including one of conspiracy to commit the indictable offence of trafficking in 2011. [ 32 ] The criminal record of RFC dates from 1995 to and including 2012, and also contains 33 entries: Exhibit S-16.

In addition to the significant number of convictions relating to drug trafficking and conspiracy to traffic drugs, are violence related offences. They include the following: (1) assault, (2) carrying a concealed weapon, (3) obstruction of peace officer, (4) assault causing bodily harm, (5) assault with a weapon, (6) trafficking in weapons and (7) assault causing bodily harm. [ 33 ] The criminal record of NMA is not as significant as JMC’s and RFC’s, but also has a number of drug related convictions

including conspiracy as well as a conviction for uttering threats: Exhibit S-17. [ 34 ] The criminal record of DTR also has drug related offences and a conviction for possession of a weapon: Exhibit S-18. [ 35 ] The record of JWC has drug related offences, including a conviction for the conspiracy to commit an indictable offence in relation to the matters in this sentencing, as well as convictions for being a parole violator: Exhibit S-19. [ 36 ] As a result, I am satisfied on a balance of probabilities that Mr.

Johnstone truly believed the threats made against him would be carried out; this is borne out not only by the inmates’ criminal records but also the damage done to his vehicle, in addition to the neighbor moving in across the street indicating that he had connections to the Hell’s Angels. iii. Was there no safe avenue of escape? [ 37 ] I am satisfied on a balance of probabilities that Mr. Johnstone had no safe avenue of escape when considering it on the modified objective standard of the reasonable person similarly situated. In this particular case, JMC stated that he knew Mr.

Johnstone’s phone number and where he lived. This proved to be true, as confirmed by the text messages. Further, Mr. Johnstone knew that these inmates had connections to organized crime and the Hell’s Angels, and specifically, that JMC was violent. This, of course, is borne out by the criminal records of these individuals. It is true that in hindsight, perhaps a safer avenue of escape may have been to go to the authorities. However, the evidence discloses that when the inmates said things were going to happen, they did happen. Therefore, it would not be unreasonable for Mr.

Johnstone to believe that the inmates, because of who they were and their connections, could in fact act more swiftly to cause the harm they had threatened than could the police. In short, I am of the view that Mr. Johnstone believed that there was no safe avenue of escape and that a reasonable person, in the same situation, would have felt the same. iv. Did Mr. Johnstone receive compensation? [ 38 ] The other issue to be determined is whether or not Mr. Johnstone received payment, or some other form of compensation, for his services. As stated earlier, I found Mr.

Johnstone to be credible and reliable and I accept his testimony that he did not receive any form of compensation or payment. He stated on the day of his arrest that he did not receive payment and maintained that through this sentencing hearing. [ 39 ] However, when Mr. Johnstone entered his guilty plea before the Court on October 25, 2013, the Agreed Statement of Facts indicated he had at one time charged $1,000 for his services. It would appear that the authors of the Agreed Statement of Facts put before the Court relied on the Master

Summary Report (Exhibit S-2) and more particularly on the investigator’s notes regarding his

interpretation of the various text messages or exchange of phone messages. The reference to what could be $1,000 occurred on November 19, 2010. In that exchange, which did not involve the accused, there was mention of “g”, which was interpreted to mean $1,000. It should be noted that the letter “g” was used in a number of other text messages, and clearly was not referring to money. But even if the “g” in this case meant $1,000, the text messaging would imply it was a co-conspirator who was waiting for the “g”.

Other than this one-time reference in the text messaging, there is no other evidence pointing to the accused having received payment or charging for his services. [ 40 ] As I stated earlier, I am satisfied on a balance of probabilities that the accused never in fact received any form of compensation in whatever manner when making the deliveries and that the reference to receipt of payment in the Agreed Statement of Facts was an error as a result of a misinterpretation of the text message. B.

If yes, is duress a mitigating factor in sentencing? [ 41 ] There is substantial authority that duress can be considered a mitigating factor in sentencing. In R v Hennessey , 2010 ABCA 274 , 490 AR 35 , the Court of Appeal held that the elements of the common law defence of duress should be applied when duress is advanced as a mitigating factor in sentencing: at para 107. Martin JA. in his dissenting reasons held at para 105: I agree that evidence of duress may be taken as a mitigating factor in sentencing where such evidence is proven by the offender on a balance of probabilities.

Duress may be evidenced by, among other things, direct threats, as well as steps taken by the offender to notify authorities once the presence of such threats are gone. It falls to the sentencing judge to weigh and balance such evidence when assessing the offender's level of culpability. i. General Sentencing Principles [ 42 ] The Alberta Court of Appeal in R v Arcand , 2010 ABCA 363 , 499 AR 1 [ Arcand ] , set out in paras 66-70 the importance of individualized sentencing: The sentencing process in Canada is an individualized one, and always has been.

Accordingly, to this day in Canada, sentences continue to be imposed on a case-by-case basis in the discretion of the sentencing court, subject to two limitations, that is where Parliament has prescribed a minimum sentence or a mandatory one. Four aspects of this individualized process, particularly as it relates to cases of serious sexual assault, merit special mention. First, though individualized to the case, the sentencing process is not exclusively about the offender. The process is also about the harm to the victim and the community from the crime.

Harm properly occupies a prominent place in the sentencing process, representing as it effectively does one of the central elements in the proportionality principle, the gravity of the offence.

Second, in the absence of any appellate guidance, the range of possible sentence for most crimes is theoretically broad and thus the margin for potential unwarranted disparity great. Third, there continues to be a wide divergence of judicial views in sentencing for serious sexual assaults. For many years, the extent of the harm caused by serious sexual assaults and the vulnerability of some members of society may not always have been fully recognized, leading therefore to an underestimation in the gravity of the offence.

That ought not to be the case today since the extent of the harms caused have been widely studied and publicized. And yet, the invisible hand of myths and stereotypes about victims of sexual assault still sometimes finds its way onto the sentencing scales, inappropriately diminishing the gravity of the offence or the offender's culpability, and tipping those scales against those victims. All courts have an affirmative duty to ensure that invalid considerations no longer affect sentencing in this area.

Fourth, to maintain confidence in the criminal justice system, an offender's sentence should be based on the facts of the case - and what he or she did - and not on the philosophy or preferences of the sentencing judge. Parliament has accepted that some differences in sentences will arise from the human factor. But wide disparities in sentencing untethered to valid distinctions between cases cause serious problems for the criminal justice system - and understandably so.

Such disparities undermine the public's trust that the criminal justice system, and the exercise of state power that it involves, will treat people fairly and equally. They also breed disrespect for the law. [ 43 ] Since Arcand , the Supreme Court summarized the principles of sentencing again, in R v Ipeelee , 2012 SCC 13 , [2012] 1 SCR 433, keeping with the statements at paras 66-70 of Arcand . In Ipeelee , the Supreme Court stated at paras 35-36: In 1996, Parliament amended the Criminal Code to specifically codify the objectives and principles of sentencing ...

According to s. 718, the fundamental purpose of sentencing is to contribute to “respect for the law and the maintenance of a just, peaceful and safe society”. This is accomplished by imposing “just sanctions” that reflect one or more of the traditional sentencing objectives: denunciation, general and specific deterrence, separation of offenders, rehabilitation, reparation to victims, and promoting a sense of responsibility in offenders and acknowledgement of the harm done to victims and to the community. ...

The fundamental principle of sentencing is that the sentence must be proportionate to both the gravity of the offence and the degree of responsibility of the offender. ... [ 44 ] Regarding proportionality, the Supreme Court stated at para 37: The fundamental principle of sentencing (i.e., proportionality) is intimately tied to the fundamental purpose of sentencing -- the maintenance of a just, peaceful and safe society through the imposition of just sanctions. ... First, the principle ensures that the sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. ...

Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender.

In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other. [ 45 ] The Supreme Court went on to discuss the discretion given to sentencing judges and stated at para 38: Despite the constraints imposed by the principle of proportionality, trial judges enjoy a broad discretion in the sentencing process. The determination of a fit sentence is subject to any specific statutory rules that have survived Charter scrutiny, a highly individualized process.

Sentencing judges must have sufficient manoeuverability to tailor sentences to the circumstances of the particular offence and the particular offender. Appellate courts have recognized the scope of this discretion and granted considerable deference to a judge’s choice of sentence. [emphasis added] [ 46 ] Of course, the principle of stare decisis states that I am bound by these rulings of the Supreme Court in Ipeelee . C. If yes, what is an appropriate sentence? i.

Appropriate Sentence without Duress Mitigation [ 47 ] As a general rule, the objectives of denunciation and general deterrence are primary considerations in sentencing corrections officers convicted of trafficking drugs into jails.

Incarceration in a Federal institution is usually the result. [ 48 ] The Crown and defence agree that the appropriate range of sentence as it relates to correctional officer’s trafficking drugs into prisons is a jail sentence in the range of four to six years. [ 49 ] Being a correctional officer and therefore occupying a position of trust is a significant aggravating factor in sentencing.

Moir JA for the Alberta Court of appeal in R v Oake , 1984 CarswellAlta 756 , [1984] AJ No 402 (Alta CA) held: 5 ...The facts indicate that the trafficking could only occur by reason of the respondent's breach of his trust to serve his master loyally and to keep drugs out of the institution. It is further aggravated by the fact that institutions in Alberta are troubled institutions and that a drug such as cocaine can only aggravate an already serious problem. ...

7 We must say that when one weighs the aggravating factors against the mitigating factors the aggravating factors far outweigh the mitigating factors. It is clear that [a] stern and denunciatory sentence is called for because of the breach of his employer's trust and the place where the cocaine was to be delivered. [ 50 ] The aggravating factor of breaching a position of trust is factored into the four to six year range.

Whether an accused will be at the lower end or the upper end of this range is often dependant on the nature of the drugs brought into the prison, the accused’s background (i.e. criminal record or no criminal record), the accused’s motive, and whether he profited from the trafficking. [ 51 ] Turning specifically to Mr. Johnstone, he is now 25 years old and at the time of the offence was 21 years old. The Crown concedes that the drugs delivered by Mr. Johnstone were not at the top end, such as heroine, for example.

The Crown concedes that the nature of the drugs trafficked in this case would reduce the sentence within the range of four to six years. [ 52 ] The only aggravating factor as it appears on these facts is that the accused was in a position of trust in his occupation as a correctional officer. However, this factor is already taken into account in the four to six year sentence range. [ 53 ] The mitigating factors present here include Mr. Johnstone’s guilty plea at the first reasonable opportunity, his lack of criminal record, and the fact that he did not profit from the trafficking.

Although not necessarily a mitigating factor, there is also evidence before the Court that Mr. Johnstone’s likelihood of reoffending is low, as evidenced by the report of Dr. Marc Nesca. Further, Dr. Nesca has diagnosed Mr. Johnstone with depression, which is post-offence. In addition to the above, a pre-sentence report provided to the Court is favorable to Mr.

Johnstone, and in fact, the author believes that he would be suitable for community supervision. [ 54 ] Therefore, taking into account the one aggravating factor and all of the mitigating factors and other considerations as noted above, the appropriate sentence without the mitigation of duress is four years imprisonment. ii. Appropriate Sentence with Duress Mitigation [ 55 ] There is no authority setting out a formula to determine how much a sentence should be reduced where duress has been proven.

However, reported cases demonstrate that sentencing is individualized and determined on the facts of each case. “Extenuating circumstances such as duress can justify a sentence outside the usual range of sentence”: R v Domke , 2006 ABPC 252 at para 82 , 400 AR 112. [ 56 ] There is however a particular consideration that cannot be forgotten when sentencing a Correctional Officer convicted of trafficking drugs into prison – the accused financial incentive.

In cases where Correctional Officers are convicted of trafficking drugs into prison, the mitigating factor of duress is usually outweighed by the aggravating factor of making a profit from the crime. I am not aware of any reported cases where duress was proven and there was no profit to the accused. [ 57 ] Therefore, what is the appropriate amount of reduction or mitigation in sentencing where it has been proven that duress occurred and the accused was not party to the conspiracy or the association, and further, did not receive any compensation for his services?

It may be helpful to consider the appropriate mitigation in the context of duress as a defence as opposed to simply a mitigating factor in sentencing. In this case, had Mr. Johnstone been able to satisfy the fourth element of duress as a defence, “that there be a close temporal connection between the threat and the harm threatened”, he would have been provided a full defence to the charges and been found not guilty.

The law is such because the conduct of the accused was morally involuntary and the acts were committed because the accused realistically had no choice. [ 58 ] In the case of duress as a mitigating factor in sentencing, it should therefore be meaningful and significant when compared to its effect as a defence. Mr. Johnstone believed he had to commit the trafficking offenses because if he did not, significant harm would come to him or his mother. As I found earlier, this was a reasonable belief.

When looked at through the lens of an individual as having no choice, then clearly, it cannot be said that he is as morally culpable as somebody who has a choice. In addition, the level of moral culpability is lessened even more because Mr. Johnstone did not take or profit from his actions. [ 59 ] Therefore, taking everything into consideration as stated above, the impact of mitigation in this context must be meaningful and significant. The Supreme Court in Ipeelee said that the principle of proportionality has a direct connection to moral blameworthiness.

In this case, the accused’s moral blameworthiness is limited. Therefore, the fit and proper sentence is two years less a day. VII. Appropriate Sentence in this case [ 60 ] As I stated above, I am satisfied that a fit and proper sentence is two years less a day. Following this, the next question is whether or not this sentence should be a conditional sentence to be served in the community. [ 61 ]

Section 742.1 of the Criminal Code provides the requirements in determining whether a sentence should be served in the community.

Section 742.1 (

a) requires the Court to be satisfied that the sentence being served in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing as set out in ss 718 to 718.2 of the Criminal Code . Furthermore, “[c] oercion or duress are viewed as a further example of "extraordinary" mitigating circumstances that may make a conditional sentence appropriate in cases where, but for that consideration, such a sentence would not be available”: Basit , at para 45 . [ 62 ] I am satisfied that Mr.

Johnstone serving this sentence in the community will not endanger the safety of the community. This is clear from the pre-sentence report and also by Dr. Nesca. Further, in these circumstances and more particularly the accused’s level of moral blameworthiness, serving the sentence in the community is more consistent with the fundamental principles of sentencing. [ 63 ] Therefore, Mr. Johnstone is sentenced to a conditional sentence of imprisonment of two years less a day to be served in the community, concurrent on each count.

The terms of the conditional sentence order and other ancillary orders will be determined after

submissions from counsel. Heard on the 6 th and 7 th days of October, 2014. Dated at the City of Edmonton, Alberta this 22 nd day of October, 2014. V.O. Ouellette J.C.Q.B.A. Appearances: Adam C. Halliday Public Prosecution Service of Canada for the Crown Rod J.A. Gregory Davidson Gregory Danyluik for the Accused