R v Gaudrault, 2021 ABQB 461

Court of Queen’s Bench of Alberta Citation: R v Gaudrault, 2021 ABQB 461 Date: 20210610 Docket: 180323040Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - Bradley Michael Gaudrault Offender _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice K.M. Eidsvik _______________________________________________________ Introduction [ 1 ] On March 23, 2021, a jury found Bradley Michael Gaudrault guilty of: Count 1 : on or about the 17th day of March, 2018, at or near the Hamlet of Carway, Alberta, did unlawfully import into Canada a

substance included in

Schedule I to wit cocaine contrary to section 6(1) of the Controlled Drugs and Substances Act (“ CDSA ”), and, Count 2 : On or about the 17th day of March, 2018, at or near the Hamlet of Carway, Alberta, did possess a substance included in

Schedule I to wit cocaine for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act . Circumstances of the Offence [ 2 ] In order to convict Mr. Gaudrault of these offences, the following facts, express or implied, were required to have been accepted by the jury. There are also further facts that this Court will accept as proven during the trial. They are as follows: 1. Mr. Gauldrault was the driver of a Nissan Xterra who presented at the Canada border at Carway, Alberta on March 17, 2018. 2. Mr. Gauldrault was the owner of the Nissan Xterra. 3. The Nissan Xterra had 31 bricks of cocaine, a

schedule 1 controlled substance, stored in a hidden compartment in the back. 4. The bricks weighed approximately 31 kilograms. Eight samples of the substance of the bricks were identified as cocaine and three of these bricks had the cocaine purity between 72% and 75%. It is a reasonable inference to conclude that all 31 bricks were cocaine. 5. Mr. Gaudrault knew that he was carrying 31 bricks of cocaine in his vehicle and he had control over the cocaine. 6. Mr. Gaudrault possessed the cocaine for the purpose of trafficking.

The cocaine was worth somewhere in the range of $1.39 M if sold at the kilo level and more if sold at the gram level. 7. Mr. Gaudrault meant to, and did, import the cocaine into Canada from the United States on March 17, 2018 by driving it across the border in his vehicle. Mr. Gaudrault’s personal circumstances [ 3 ] Mr. Gaudrault is 30 years old. He was born and raised in Halifax mainly by a mother who suffered from a gambling and alcohol addiction, as well as mental illness. He had multiple siblings. He had a traumatic upbringing suffering from poverty, an abusive step-father, and uncertain living conditions.

His mother took her own life when Mr. Gaudrault was 19 years old and this had a significant negative impact on him. His life from that point on was in a downward spiral. He dropped out of school and associated with ill-advised people. [ 4 ] Mr. Gaudrault is an alcoholic and cocaine addict. He has rehabilitated somewhat since his arrest. He began using substances heavily after the loss of his mother. He moved in with his father and step-mother although his father also struggled with sobriety. [ 5 ] Mr.

Gaudrault eventually finished his GED and moved to Fort McMurray in 2017 for employment purposes, and moved to Calgary in 2018. While in Calgary he worked several jobs including concrete cutting, and as a cook at various pubs and restaurants. [ 6 ] At the time of the offence, Mr. Gaudrault was unemployed and addicted. He found himself in a desperate situation without a stable income to support his habit. He is deeply ashamed of his actions and knows that he has caused pain to his friends and family.

He is also aware of the potential pain he could have caused to many if he had been successful in smuggling the cocaine into the country especially after having witnessed his mother’s struggles with addiction. He has offered to take any course offered to him to help with his addictions. He would also like to upgrade his school and get into a trade such as welding. [ 7 ] Mr. Gaudrault had many letters of support from his family and close friends in Nova Scotia. Many spoke of his good character and sad circumstance of his mother’s suicide.

An aunt spoke of his volunteer efforts at SPCAs both in Nova Scotia and Alberta and his pleasure in giving back to the community. They will support him upon his return to Nova Scotia. Sentencing principles [ 8 ] The sentencing principles that apply here are not controversial and are agreed to between the parties. [ 9 ] First, I need to consider ss. 718 , 718.1 and 718.2 of the Criminal Code that set out the fundamental purpose and the objectives of sentencing.

Section 718 provides as follows: 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and

(

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. [ 10 ] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: Criminal Code , s. 718.1 . Parity, totality and restraint are also secondary considerations as outlined in s. 718.2 . To help in this regard, a review of cases involving similar situations is helpful. I’ll come to those shortly. Nonetheless, sentencing is an individual process, so sentences imposed for similar offences may not be identical. [ 11 ] The Crown and Mr.

Gaudrault agree that in drug importation and trafficking cases, denunciation and deterrence are paramount. Under s. 10 of the CDSA Parliament has emphasised that sentencing judges must have regard to the societal impact of the illicit drug trade. [ 12 ] The Crown argues that not only should the sentence deter Mr. Gaudrault, but it should also deter others from committing like offences.

More specifically, the Crown emphasised the damage caused by cocaine, especially the high volume involved in this case, in our society and the important need to deter its proliferation by the general deterrence of importers and traffickers. [ 13 ] The Defence submits that rehabilitation cannot be lost in the equation especially when sentencing first offenders.

Crown position [ 14 ] The Crown sought a sentence in the range of 12 to 15 years for the importing conviction and 8 to 10 years, concurrent, for the trafficking offence. [ 15 ] On the facts, the Crown submitted that this case should be considered as a serious case of wholesale possession, importing and trafficking of a substantial amount of cocaine (31 kg), a

schedule I drug. Counsel pointed out that the value of the cocaine if sold at the kilo level was approximately $1.39 M and if sold at the street level of $3 M. He pointed out the societal harm that this cocaine could have caused, both to users, and to those who become victims of consequent crimes occasioned by those seeking to obtain funds to fuel their addiction. [ 16 ] Further on the facts, the Crown submitted that not only did Mr.

Gaudrault know about the hidden trap in his vehicle and the cocaine contained therein, but it is logical to assume that he was involved and knew about the manufacturing of the trap in his vehicle. [ 17 ] On the case law with respect to similar offences, the Crown argued that although there is no starting point for importation offences in Alberta, the range for this offence, on a guilty plea, is 10 to 12 years, as set out in the Alberta Court of Appeal decisions of R v Overacker , 2005 ABCA 150 , R v Truax , 2021 ABCA 97 and R v Cirone , 1988 ABCA 228 .

Reference was made to many cases, but the Crown put emphasis on the recent decision of R v Mir , unreported ABPC, February 26, 2021 where Mr.

Mir was sentenced to 11 years for importing, and 8 years concurrent, for being in possession for the purpose of trafficking 50 kgs of methamphetamine. [ 18 ] The Crown submitted that the cases relied on by the Defence were distinguishable as they mainly emanated from Ontario and B.C. where the range of sentence for these same offences has been set to be more in the 6-8 year range. [ 19 ] With respect to the possession for the purpose of trafficking conviction, the Crown argued that the starting point is 4.5 years for trafficking or possession for the purpose of trafficking a

schedule I drug in wholesale amounts ( R v Januska , 2015 ABQB 150 at para 19 ). Considering the amount of cocaine involved however, and relying on R v Alcantara , 2017 ABCA 56 , where the offender was sentenced to 13 years for his involvement as an enforcer in a large-scale drug trafficking operation, the range here should be between 4.5 and 13 years. [ 20 ] The Crown submitted that the main aggravating factor here was the significant quantity and nature of the drug. The main mitigating factor is the fact that Mr.

Gaudrault had no prior criminal record, although the Crown pointed out that many of the sentencing precedents relied on, the offenders also had no prior record ( Cirone , R v Nassar , 1988 ABCA 305 , Overacker , Januska , Mir , and Truax ). He also pointed out that many of these decisions involved guilty pleas which could be a mitigating factor, which is not present here. [ 21 ] The Crown conceded in argument that Mr. Gaudrault’s difficult background could be considered mitigating here.

As well, that there was no evidence of criminal organisation involvement. [ 22 ] In terms of pre-trial bail condition and custody credit, the Crown argued that Mr. Gaudrault should be given 1.5 days credit for 65 days of pre-sentencing custody (97.5 days) and that no credit or mitigation of sentence should be allowed for his bail conditions. Defence Position [ 23 ] The Defence submitted that an appropriate sentence for Mr. Gaudrault was 7 years for the importation offence and 5 years concurrent for the trafficking offence.

In addition, 124 days credit should be credited both for harsh conditions during time served, including some during COVID where conditions were (are) particularly difficult. Defence also sought some mitigation of sentence for the strict bail conditions Mr. Gaudrault endured. [ 24 ] Defence pointed out that this offence was not motivated by greed like several cases before the Court, but rather stems from extremely difficult circumstances in Mr. Gaudrault’s life which led to poverty and addiction in his life.

He is young, has no prior record, and is keen to rehabilitate himself. [ 25 ] With respect to the facts, there is no evidence that Mr. Gaudrault was involved in the manufacturing of the trap door. Nor, as conceded by the Crown, is there evidence that he was involved in a criminal organisation. He was simply a courier and was caught on

this one occasion attempting to cross the border. There is no evidence of other importation instances. [26] The Defence pointed out that the maximum penalty for an importation conviction under s. 6(1) of the CDSA is life andminimum, pursuant to s. 6 (3)(1.a), is 2 years. The maximum for trafficking is life but there is no minimum that applies here in light ofthe fact none of the circumstances here engage s. 5(3)(a)(

i) or (ii) of the CDSA which sets out minimum sentences. [27] In terms of the sentencing cases, Defence submitted that sentencing is an individual process – “specific cases are not to betreated as precedents” (see R v Johnas, 1982 ABCA 331 at para 31). [28] The Defence argued that many cases raised by the Crown can be distinguished. For instance, Overacker, should bedistinguished since double the amount of drugs was involved, the involvement of a criminal organisation was implicated and theoffender admitted that this was his 4th crossing.

In Truax, even though the Court of Appeal indicated that the range for wholesale drugimporting sentences should be 10-12 years, Mr. Truax was actually sentenced to six years.

Further, Mir should be distinguished since theamount of drugs imported there (50 kg) was significantly more than here. [29] Defence counsel submitted that the following Alberta cases are relevant in this sentencing matter: R v Gambilla, 2015 ABQB571, where 6 and 6.5 years sentences were ordered for the two offenders for importing almost 2 kg of cocaine (and 4.5 years concurrentwas ordered for possession for the purpose of trafficking); R v Yousif, 2010 ABPC 26 where a 7 year sentence was ordered for theimportation of 3 kgs at the Calgary airport; and Januska, where a 6 year sentence was imposed for importing a package of cocaine. [30] Defence counsel also made reference to a number of Ontario and B.C. cases and in particular: R v Lawson, 2003 OJ No 5040 where the Court of Appeal of Ontario indicated that the range of sentences for 1st offender couriers is in the range of 6 to 8 years; R vEpp, 2006 BCCA 570 where the Court of Appeal reduced Mr.

Epp’s sentence from 14 years to 10 years for importing 100 kg of cocaineon the basis, that as a courier, he was not as morally culpable as offenders who are high up on the drug hierarchy chain. The Courtpointed out that the amount of drugs, while a factor in sentencing, should not be overemphasised.

R v Suelzle, 2009 BCPC 15 where asentence of 10 years was imposed for planning and organising the importation of 100 kg of cocaine in two shipments across the border,and, R v Kang, 2009 BCSC 1827 where a sentence of 8 years was imposed for a similar amount of cocaine (100 kg) but where theoffender was “solely a transporter of drugs” as compared to being involved at a high level. [31] In terms of mitigating factors, the Defence submitted that these include the fact that Mr.

Gaudrault had no criminal record, hewas not on judicial interim release at the time of the offence, he was not involved in a criminal organisation, he was a one-time hiredtransporter, he has accepted the verdict and expressed remorse, he has the support of his family and friends, and he was motivated byaddiction. [32] In terms of credit, Defence counsel argued that Mr.

Gaudrault should be credited 1.5 for 1 days for time served prior to thetrial (13 days in custody – so 20 days credit) and 2 for 1 credit for time served after the verdict, pre-sentence because of his time inRemand during COVID conditions (52 days in custody to May 13, 2021 – so 104 days credit). These hardships included no visitors, nophone access, multiple lockdowns, and close quarters causing issues with respect to isolation. Mr.

Gaudrault indicated to the Court thatwhen he first arrived in Remand he was put into the gang unit since it was the only healthy unit available. [33] Defence pointed to R v Deakin, 2020 ONCJ 202, R v Kandhai, 2020 ONSC 1611 and R v Hearns, 2020 ONSC 2365 wherethere was discussion of the particular hardship of COVID in the prison system, the potential of a departure from the usual range ofsentence and therefore the imposition of shorter sentences.

This issue was also recognised by Justice Burrows in R v EF, 2021 ABQB272 where the impact of COVID was recognised as a factor that would render a sentence harsher. [34] Defence also sought pre-trial credit for the stringent judicial interim release conditions (R v Downes, (ONCA), R v Lau, 2004 ABCA 408 and R v Hilderman, 2005 ABQB 864). [35] Mr. Gaudrault was on strict bail conditions between March 29, 2018 and March 27, 2019. During this period, he, amongstother normal conditions, was not allowed to leave the jurisdiction (to visit his family in Nova Scotia in particular) and had a 10 pm to 6am curfew.

Defence argues that these conditions should be treated as a highly mitigating factor to his overall sentence. Discussion and Analysis [36] I commend counsel for the Crown and Defence for having done a thorough canvassing of the appropriate cases and factorsthat I must consider in sentencing Mr. Gaudrault, as I have summarised. [37] On the facts that were proven beyond a reasonable doubt, as I mentioned at the outset, I agree that in order for the jury to haveconvicted here, it must have found that Mr. Gaudrault knew of the 31 kg that was hidden in his vehicle when he crossed the border atCarway.

Further, that he knew that this amount of drugs would be used for trafficking purposes. However, I cannot conclude that theCrown has proven beyond a reasonable doubt that Mr. Gaudrault was implicated in manufacturing the trap where the drugs were placed.Or, in other words, as the expert described at trial, whether Mr. Gaudrault was involved in a Walmart or a Dollar Store operation.Indeed, the Crown is not alleging that he was involved in any crime organisation. I can only sentence on what has been proven. What hasbeen proven, is that he was a one-time courier of a large amount of cocaine.

He was young, from a troubled background, suffering fromaddiction, unemployment and poverty when the offence occurred. He is remorseful and recognises the gravity of his offence – especiallyhaving witnessed the ravages of addiction first hand with his parents. He is a first-time offender. [38] I recognise that I am bound by our Court of Appeal rulings setting out that the range of sentence for this level of wholesaleimporting is in the 10 to 12 year range (as set out in Overacker and recently affirmed in Truax, and applied in Mir).

However, I am alsocognisant of the many other Alberta decisions that have sentenced in the 6 to 7 year range for similar offences (with albeit loweramounts of drugs involved) including 6 years in Truax, 6 years in Januska, 6 and 6.5 years in Gambilla and 7 years in Yousif.

[39] It is notable that in our adjacent province, British Columbia, sentences for importing triple the quantity of drugs (100 kg), insimilar courier type circumstances, are in the 8-10 year range (Epp, Suelzle, and Kang).

Further, that this range, and even lower (6 to 8years), is what is imposed in Ontario in relatively similar circumstances (Lawson, see also R v Cunningham (1996) (ON CA), 27 OR (3d) 786 and R v Beckford, 2021 ONCA 56 – but where amounts imported were less). [40] With respect to the possession for the purpose of trafficking conviction, I note that all of the cases have imposed concurrentsentences for this conviction when an importing conviction and sentence is also involved. Both the Crown and Defence agree that this isappropriate here.

The starting point, as discussed above is 4.5 years, and generally the sentences for the possession conviction are lighteror the same as, than the importation conviction. For instance, in Truax, the importation sentence was 5 years for both the importationand possession for the purpose (although the global sentence was 6 years because of the criminal organisation convictions). [41] The aggravating and mitigating factors here are not controversial.

On the aggravating side, I accept that 31 kg is a very largequantity of drugs being brought into our society, that this amount would have sold for a very large amount of money and caused a greatdeal of havoc. There is no mitigating factor of a guilty plea as is seen in many of the cases. The fact that there is no criminalorganisational involvement is an important factor, although again not necessarily aggravating or mitigating. Further, the fact that this isMr.

Gaudrault’s first offence is a factor to consider but not necessarily mitigating or aggravating. [42] In terms of mitigating factors, I agree that his relative youth, his very difficult background, remorse (which I accept asgenuine), incentive to rehabilitate, the fact he was motivated by addiction, not greed, are mitigating factors. I also note the supportivecomments about Mr. Gaudrault’s good character as noted in the many letters of support from his family, friends, and, somewhatunusually, from the Remand Centre.

I also accept that living with bail conditions that included a curfew and travel restrictions is amitigating factor here. [43] With respect to the credit for time served, both parties agree that 1.5 to 1 credit should be allowed for the time served up to thetime of the conviction. The difference of the parties’ position lies in the amount of credit allowed for the time spent in Remand duringthe COVID pandemic. The authority quoted by the Defence, which I will not repeat, is clear that this is a reasonable consideration toconsider, and I will do so here.

The mental and physical anguish suffered by the population at large during the COVID pandemic hasbeen significant – this has been exacerbated while in custody. Sentence [44] Considering all of the factors that I have discussed, including the need for the denunciation and deterrence of these crimes, anappropriate sentence that reflects Mr.

Gaudrault’s involvement in the importation of cocaine at the Carway border, is eight and a halfyears in a federal penitentiary, and a concurrent sentence of seven years for possession for the purposes of trafficking this large amount ofcocaine. [45] I distinguish the Overacker case both because of the amount of drugs being imported but also because of the multiple timesthat he admitted to perpetrating this crime, the involvement of organised crime and the “vital role” that Mr. Overacker played in it.

Also,the Court noted that that offender was not personally vulnerable due to an addiction or financial difficulties but was gainfully employedand decided to make more money (see para 24).

A first-time offender involved in one crossing, like here, is very different (although Ialso recognise that there was no guilty plea here like in Overacker). [46] I also note that although Truax repeated that the range for importing with no record, with a guilty plea, as between 10 -12years, the Court in effect lowered the range to 5 years in certain cases for the importation and possession for the purpose convictions(one extra year was added for the organised crime aspect – so the global sentence was 6 years).

Also, I distinguish Truax from the casebefore me, since in Truax, there were multiple importing trips (4) and there was a conspiracy to import conviction and criminalorganisational involvement which was not proven or alleged here. I note that the sentence in Truax was significantly mitigated onaccount of the very sad Gladue factors. Here, Mr. Gaudrault found himself in very difficult circumstances leading up to the time of theoffence, which also calls for the mitigation of his sentence.

Finally, like in Truax, the sentence was after trial, so there was no mitigatingguilty plea. [47] I have also considered in this sentence the mitigating fact of a curfew and travel restrictions for 1 year that Mr. Gaudrault dealtwith – although it was not a significant mitigating factor and is distinguishable from a situation such as 24-hour house arrest. [48] With respect to credit for pre-trial custody I will allow 1.5 to 1 day’s credit for the initial custody period (20 days) and 2 to 1credit for the period after the verdict (up to today’s date – or 158 days according to my calculations).

In my view, the extra harshconditions that Mr. Gaudrault faced in Remand during COVID is reason for the extra .5/day recognition in his sentence. The total is 178days credit so that the total time left to serve is approximately 8 years. Conclusion [49] To summarize, I sentence Mr. Gaudrault to 8 and a half years on count 1, and 7 years, to be served concurrently, on count 2. Ialso allow a credit in the amount of 178 days for pre-sentencing detention. [50] I also make a Consent Order for forfeiture of the cocaine, two cell phones, and his passport that was seized at the border.

Inaddition, I grant the s. 109 and s. 487.451 ancillary Orders.

Heard on the 13 th day of May, 2021. Dated at the City of Calgary, Alberta this 9 th day of June, 2021. K.M. Eidsvik J.C.Q.B.A. Appearances: Kent Brown Dominic Puglia for the Crown Sean Fagan and Rosie Murphy for the Offender