R. v. Watson, 2023 NBPC 11

PROVINCIAL COURT OF NEW BRUNSWICK JUDICIAL DISTRICT OF WOODSTOCK Citation: R. v. Watson, 2023 NBPC 11 Court File No.: 04696007 et al. Between: HIS MAJESTY THE KING - and - BRADLEY WATSON JUDGMENT (Decision on Sentence) Before: His Honour Sébastien A. Michaud Place of hearing: Woodstock, New Brunswick Date of hearing: February 16, 2023, and May 11, 2023 Date of decision: June 22, 2023 Appearances: Glendon J. Abbott, K.C., and Jillian E. Jordan, for His Majesty the King Michael Mallory, for Bradley Watson MICHAUD, P.C.J.: Introduction and Charges 1 .

Bradley Watson was jointly charged with Trevor York on a 3-count Information for offences under s. 5(2) (2 counts) and s. 7.1 of the Controlled Drugs and Substances Act (CDSA). Their trial commenced on October 19 th , 2022 and continued the following day. Further trial days were required. At the scheduled trial continuation on February 16, 2023, Bradley Watson opted to change his pleas to guilty to the said charges. At that same appearance, he also pled guilty to charges he was facing on 3 other Informations. 2 . In

summary, Bradley Watson has entered guilty pleas to the following 8 offences found in the 4 Informations before the Court: Information 1 - Offences Date of offence 1- 5(2) CDSA (Indict.) – possession of cocaine for the purpose of trafficking January 29, 2021 2- 5(2) CDSA (Indict.) – possession of methamphetamine for the purpose of trafficking January 29, 2021 3- 7.1 CDSA (Indict.) – possession of a press for use in the production of and/or trafficking in cocaine January 29, 2021 Information 2 - Offences

4- 91(1)(

a) CC (SC) – possession of firearms without being the holder of a licence January 29, 2021 5- 86(2) CC (SC) – unlawful storage of firearms January 29, 2021 Information 3 - Offences 6- 5(2) CDSA (Indict.) – possession of methamphetamine for the purpose of trafficking August 19, 2021 7- 5(2) CDSA (Indict.) – possession of cocaine for the purpose of trafficking August 19, 2021 Information 4 - Offence 8- 145(4)(

a) CC (SC) – failure to comply with undertaking – for possessing a firearm contrary to a condition of the undertaking August 19, 2021 3 . The factual background pertaining to each of the 5 offences of January 29, 2021, was provided to the Court by the Crown and agreed to by Bradley Watson on February 16, 2023. After hearing the facts and confirming Mr. Watson’s guilty pleas, I found him guilty for each of the said 5 offences. 4 . The factual background pertaining to each of the 3 offences of August 19, 2021, was provided to the Court by the Crown and agreed to by Mr.

Watson at the sentence hearing held on May 11, 2023. After hearing the facts and confirming Mr. Watson’s guilty pleas, I found him guilty for each of the said 3 offences. 5 . I am therefore very mindful of the facts in all of the matters before the Court. They are now part of the record. I do not intend on reviewing them in detail in my reasons for judgment except to the extent that it is necessary to do so. I will however provide a

summary of the facts for both incidents from which the offences stem. Circumstances of the Offences January 29, 2021, incident 6 . In the early morning of January 29, 2021, police officers conducted a CDSA search warrant at the residence of one Paul Hamilton. At that moment, Mr. Watson was the occupant of one of the bedrooms on the premises. He was arrested.

A search of the bedroom revealed the following items that were seized by the officers: - 74 Methamphetamine tablets found in a lamp shade; - 28.2 grams of Crystal Methamphetamine found in a dresser drawer; - 42 grams of crushed Methamphetamine tablets; - 5 Methamphetamine tablets on top of a desk; - 27 rounds of ammunition; - 1 loaded 12 gauge shotgun; - 2 other firearms; - 2 SharpStone presses; - $800 in CDN currency in Mr. Watson’s wallet located under a bed; - $300 in CDN currency on a shelf above a bed;

- 23 boxes of 100 Ziploc bags; - 35 dime bags; - 365 grams of Benzocaine; - 25 grams of Cannabis in a nightstand; - 1 Infyniti scale. 7 . In each of the 2 SharpStone presses, Cocaine was found. One press contained 29 grams of Cocaine while the other one contained 30 grams of Cocaine. 8 . In total, the controlled substances found on January 29, 2021, in the bedroom occupied by Mr. Watson are as follows: - Methamphetamine tablets: 79 - Methamphetamine tablets crushed: 42 grams - Crystal Methamphetamine: 28.2 grams - Cocaine: 59 grams August 19, 2021, incident 9 .

In the early morning of August 19, 2021, police officers conducted a CDSA search warrant at the residence of Mr. Watson. He was arrested. A search of the premises revealed the following items that were seized by the officers: In a bedroom: - 110 Methamphetamine tablets; - 6.8 grams of Crystal Methamphetamine; - 17 grams of Cocaine; - 12.5 grams of a cutting agent; - Several new dime bags; - Ammunition; - 1 cell phone. In a 2 nd bedroom: - 1 crossbow. In a kitchen cabinet: - 207 Methamphetamine tablets; - 1.7 grams of Crystal Methamphetamine; - 35.7 grams of a cutting agent; - Working scales.

In a back storage room: - $870 CDN currency; - $691.75 CDN currency; - 1 digital scale; - An unknown quantity of a cutting agent for Crystal Methamphetamine. In an outbuilding: - 3.3 grams of Cocaine. In a vehicle on the premises: - 1 12-gauge shotgun; - 1 break action shotgun with ammunition. 10 . In total, the controlled substances found on August 19, 2021, on Mr. Watson’s premises are as follows: - Methamphetamine tablets: 317 - Crystal Methamphetamine: 8.5 grams - Cocaine: 20.3 grams 11 . At the time of his arrest on August 19, 2021, Mr. Watson had $150 in CDN currency on his person. 12 . Mr.

Watson gave a warned statement to the police regarding this incident. He admitted being a drug user but denied trafficking in drugs. Reports 13 . For the purposes of the sentence hearing, a Pre-Sentence Report dated April 19, 2023, was filed with the Court. The parties confirmed having received copies of same. Furthermore, Bradley Watson’s record of previous convictions was received in evidence by consent and marked as Exhibit C-1. Both the Pre-Sentence Report and Exhibit C-1 were referred to at the hearing. I have considered the contents of each in arriving at my determination on sentence.

Circumstances of the Offender 14 . Mr. Watson is 38 years old. He was 36 at the time of the offences. The Pre-Sentence Report indicates that he is single and has no children. He is in a good state of physical and mental health. He was born and grew up in the Town of Woodstock, New Brunswick, with his parents and 3 siblings. He graduated with his High School Diploma from Woodstock High School in 2003. At the age of 22, he moved to Fort McMurray in Alberta and worked there as a truck driver. He returned to New Brunswick in 2016 after losing his driver’s licence. 15 . The Pre-Sentence Report highlights that Mr.

Watson’s last employment experience was in 2019 and that he has been without income for some time. He is also not a recipient of Income Assistance. In his free time, he enjoys snowmobiling and four-wheeling. 16 . Mr. Watson advised the probation officer that prepared the Pre-Sentence Report that he previously used methamphetamine

and cocaine but, at the time of his interview for the preparation of the report on April 13, 2023, he asserted that had not done any illicit drugs during the last year. He did confirm that he regularly smokes cannabis. 17 . Mr. Watson is currently in custody on remand at the Madawaska Regional Correctional Centre since February 16, 2023, on the matters before the Court. At the sentence hearing, the Crown did indicate that on February 16, 2023, Mr. Watson was also serving a term of imprisonment for other charges. That sentence was completed on April 22, 2023. 18 . Mr.

Watson has pled guilty, albeit not at the first opportunity. In fact, for the January 29, 2021, offences, the trial had already begun. He has nonetheless accepted responsibility for his actions. 19 . Of course, in considering Mr. Watson’s personal circumstances, it is a relevant consideration that he has a criminal record. His record contains 11 convictions between 2011 and 2019, inclusively. Most are related to driving offences. 3 convictions are for breaches under

Section 145 of the Criminal Code . One conviction is for failing to attend court in 2018 contrary to s. 145(2)(

b) CC and two convictions, one in 2018 and the other in 2019, are for failing to comply with an undertaking contrary to s. 145(3)(

b) CC. For each of these last 2 breaches, Mr. Watson was sentenced to 30 days in jail. He has no previous convictions under the Controlled Drugs and Substances Act . The Issue 20 . The ultimate issue I must decide is what is a fit and proper sentence for each of the offences committed by Bradley Watson. Position of the Parties 21 . The Crown and counsel for Mr. Watson do not agree on the appropriate sentence and hence, differ in their recommendations. The Crown is seeking a global term of incarceration of five (5) years, being mindful of the totality principle. Counsel for Mr.

Watson is recommending a global term of imprisonment of three and one half (3½ ) years. 22 . Both parties agree that the s. 5(2) CDSA offences call for a mandatory weapons prohibition order. The Crown is also seeking a DNA order on these offences. The Crown is further requesting forfeiture orders under s. 16 CDSA and s. 491 of the Criminal Code . Mr. Watson is not opposing the DNA and forfeiture orders being sought. The Law 23 . The Supreme Court of Canada in R. v.

Lacasse, 2015 SCC 64 , at para. 3 , has recognized that the fitness of a sentence imposed can establish or diminish the “ credibility of the criminal justice system in the eyes of the public”. 24 . Sentencing in this case is governed by the provisions of the Criminal Code and the Controlled Drugs and Substances Act .

It involves “ the exercise of a broad discretion by the courts in balancing all the relevant factors in order to meet the objectives being pursued in sentencing.” ( See Lacasse , supra , at para. 1 .) The purpose and principles of sentencing as set out in the Criminal Code and the Controlled Drugs and Substances Act allow for “sentence individualization” ( see R. v. Knott , 2012 SCC 42 , at para. 47 .) and guide the sentence I must impose. The Fundamental Purpose of Sentencing, the Objectives and Principles 25 .

Section 718 of the Criminal Code describes the fundamental purpose of sentencing. It reads: 718. The fundamental purpose of sentencing is to protect society and 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 followingobjectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by 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 or to the community. 26. Deterrence is subdivided into specific and general elements. Specific deterrence is designed to convince the offender beforethe Court not to re-offend. The circumstance of the offender and the prospects for rehabilitation must be considered. A court must lookat the “individual, his record and attitude, his motivation and his reformation and rehabilitation”. (See R. v. Morrissette (1970), (SK CA), 1 C.C.C. (2d) 307 (Sask. C.A.) at para. 10.) 27.

General deterrence is aimed at persuading others who may be inclined to commit the same offence from so doing. If this isthe aim, the sentencing court must consider “the gravity of the offence, the incidence of the crime in the community, the harm caused byit either to the individual or to the community and the public attitude toward it.” (See Morrissette, supra, at para. 10.) 28. The separation of an offender from society is occasionally necessary. The application of the objective must be read, inconcert with s. 718.2(e), which essentially requires that imprisonment be the sentence of last resort.

There are circumstances of bothoffender and offence, however, that require the offender to be imprisoned. 29. The maintenance of a just, peaceful and safe society, as is mandated by s. 718, can often best be achieved by therehabilitation of offenders. As the Supreme Court has held in R. v. Lacasse, supra, at para. 4, “Rehabilitation is one of the fundamentalmoral values that distinguish Canadian society from the societies of many other nations in the world.” 30.

The Criminal Code also holds that the fundamental principle of sentence is that a sentence must be proportionate to thegravity of the offence and the degree of responsibility of the offender. This is a codification of the proportionality principle and is foundat s. 718.1. 31. Other principles are important in crafting an appropriate sentence.

Section 718.2(

a) of the Criminal Code indicates that a“sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence orthe offender.”

Section 718.2(

b) of the Criminal Code states that “a sentence should be similar to sentences imposed on similar offendersfor similar offences committed in similar circumstances.” This is the codification of the parity principle.

Section 718.2 also dictates that: (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done tovictims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders. 33. The CDSA also contains a provision guiding sentence at

Section 10. Subsection 10(1) addresses the purpose of sentencingregarding CDSA offences as follows: 10

(1) Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this

Part is

to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, andtreatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community. 34. The CDSA goes on to describe aggravating factors at subsection 10(2): 10(2) If a person is convicted of a designated substance offence, the court imposing sentence on the person shall consider any relevantaggravating factors including that the person (

a) in relation to the commission of the offence, (

i) carried, used or threatened to use a weapon, (ii) used or threatened to use violence, (iii) trafficked in a substance included in

Schedule I, II, III, IV or V, or possessed such a substance for the purpose of trafficking, in ornear a school, on or near school grounds or in or near any other public place usually frequented by persons under the age of 18 years, or (iv) trafficked in a substance included in

Schedule I, II, III, IV or V, or possessed such a substance for the purpose of trafficking, to aperson under the age of 18 years; (

b) was previously convicted of a designated substance offence, as defined in subsection 2(1) of this Act, or a designated offence, asdefined in subsection 2(1) of the Cannabis Act; (

c) used the services of a person under the age of eighteen years to commit, or involved such a person in the commission of, the offence. 35. The objectives described in s. 718 of the Criminal Code and s. 10 of the CDSA may have predominance in a set ofcircumstances dictated by the offence, the offender or both. 36. The imposition of a just sentence requires “sufficient manoeuvrability to tailor sentences to the circumstances of theparticular offence and the particular offender.” (See R. v Ipeelee, 2012 SCC 13, at para. 38.) 37.

The Court of Appeal of New Brunswick has consistently held that deterrence and denunciation are the sentencing objectivesthat must be emphasized in cases dealing with drug trafficking and the possession of drugs for the purpose of trafficking. This compels,they have held, that absent exceptional circumstances, a significant period of incarceration should be imposed for such convictions. (SeeR. v. Frost, 2012 NBCA 94, at para. 8; R. v. Martin, 2012 NBCA 95; R. v. Lennon 2013 NBCA 19; R. v. Cormier, 2018 NBCA 38, atpara. 32.) 38.

The Court of Appeal of New Brunswick’s decision on the guiding sentencing principles in cases dealing with drug traffickingand the possession of drugs for the purpose of trafficking in R. v. Cormier, 2018 NBCA 38, is informative. The Court, at paras. 32-41,reaffirmed their earlier position on the issue and went further to consider the creation of a sentencing range for the possession of “harddrugs” -

Schedule 1 substances - and identified principles intended to guide sentencing courts. In R. v. Brandon Lyle Baisley, anunreported decision on sentence I rendered on June 23, 2022, in Miramichi, I applied those principles to the offences of possession ofmethamphetamine, hydromorphone and benzimidazole for the purpose of trafficking. All these drugs are

Schedule 1 substances. 39. Crack cocaine was one of the

Schedule 1 substances under consideration in Cormier, supra. Although the Court of Appealdeclined “to set a definitive range for sentencing offenders who traffic in or are in possession of

Schedule I drugs” (see Cormier, supra,at para. 30), it did extrapolate from the jurisprudence in New Brunswick and observed that sentences imposed for trafficking in orpossession of crack cocaine for the purpose of trafficking fall between two years less a day to six years, eight months of imprisonment.The Court commented that “the length of sentence varies depending on the amount of crack cocaine involved and level of involvementof the individual convicted” (see Cormier, supra, at para. 52).

The Court did also note at para. 33 that “crack cocaine requires particularconsideration” because it is generally recognized “that crack cocaine is more dangerous and harmful than traditional powder cocaine”.(See Cormier, supra, at para. 36.) 40. The Court in Cormier, supra, also adopted the Newfoundland and Labrador Court of Appeal decision in R. v. Oates, (NL CA), [1992] N.J. No. 165 (NL C.A.) (QL), which established a list of relevant factors to help identify the level ofone’s participation in the distribution of drugs. They are as follows:

1. Types of drugs involved; 2. Quantities in question; 3. The degree of sophistication of the enterprise; 4. Potential for profit; 5. Length of time the enterprise existed prior to arrest; and 6. Accused’s role or level of involvement in the enterprise. 41 . In R. v. Parranto , 2021 SCC 46 , the Supreme Court of Canada offered national guidance relative to sentencing in matters of hard drug use, sale and possession for the purpose of sale. The Court in that case was focused on fentanyl.

It also provided general guidance on the utility of relying on legal precedents from the past that do not reflect our current understanding of the “human wreckage” across this country caused by hard drug addiction. 42 . At paras. 87-92 in Parranto , supra , the Court, through the concurring judgment of Justices Moldaver and Côté, made observations regarding the dangers posed to individuals and the harms done to society by trafficking in hard drugs.

They further observed that “t rafficking also leads indirectly to a host of other ills, including an increase in all manner of crime, committed by those seeking to finance their addiction, as well as by organized crime syndicates”. ( See Parranto , supra, at para. 89 . ) They also stated that an “ even more devastating consequence of the hard drug trade is its impact on families and the intergenerational trauma it causes.” ( See Parranto , supra, at para. 90 . ) 43 . I am very much alive to the strong message of our Supreme Court in Parranto , supra . 44 . In R. v.

Mazerolle , 2022 NBQB 38 , Justice Ferguson stated the following at paras. 72 and 73: [72] As said, the conclusions reached in the concurring judgment in Parranto are the sad reality that exists in this community of Miramichi today. Never before has such societal disablement and deconstruction been seen or experienced here due to hard drug addiction. One would wish that the wreckage of the hard drug scourge was otherwise but, sadly, it is not.

The common traits and elements of it are as pervasive here as they are across this country. [73] It is my firm belief, having watched the societal landscape change over a lengthy period of time, that methamphetamine poses as serious a risk as cocaine in any form. Moreover, it is dangerously cheap to buy and that fact alone poses a serious danger to the segment of the drug addicted or vulnerable public who are without financial means to buy more expensive illicit drugs such as cocaine. Its ability to takeover an addicted person’s lifestyle and world is indisputable. 45 .

In my opinion, Justice Ferguson’s observations and description of the impacts of hard drug use in Miramichi, methamphetamine in particular, are undoubtedly applicable to all communities in New Brunswick. Maximum Punishment 46 . The substances listed in

Schedule I of the CDSA to which Mr. Watson has acknowledged possessing for the purpose of trafficking make him liable to a maximum sentence of imprisonment for life pursuant to section 5(3)(

a) of the Act. Minimum sentences are prescribed in the CDSA but none of the pre-conditions to their issuance exist here. While the accused possessed weapons, it is not alleged he carried, used or threatened to use them in committing the CDSA offences. 47 . For the offence under s. 7.1 CDSA , possession of a press for use in the production of and/or trafficking in cocaine, Mr. Watson is liable to a maximum sentence of imprisonment for 10 years, pursuant to

section 7.1(2)(a)(

i) of the Act. 48 . For the offences under ss. 86(2) , 91(1) (

a) and 145(4) (

a) of the Criminal Code , all of which are prosecuted as

summary conviction offences, Mr. Watson is liable to fine of not more than $5,000 or to a term of imprisonment of not more than two years less a

day, or to both, pursuant to the general penalty provided at s. 787 of the Code. Range of sentence 49. The Crown referred to the following cases in support of its position on sentence: 1- R. v. Cormier, 2018 NBCA 38; 2- R. v. Parranto, 2021 SCC 46; 3- R. v. Mazerolle, 2022 NBQB 38; 4- R. v. Vroom, 2016 NBCA 43; 5- R. v. Losier, 2020 NBPC 9; and 6- R. v. Henderson, 2022 NBPC 5 (on the issue of remand credit). 50. I have previously mentioned Cormier, Parranto and Mazerolle in this decision. The Crown raised them at the hearing mainlyfor the principles they establish in hard drugs sentencing cases. 51.

The Crown referred to Vroom and Losier in support of its contention that the sentences on the weapons offences hereinshould be ordered to be served consecutively rather than concurrently. The Crown also argued that the aggravating factor found at s.10(2)(a)(

i) of the CDSA was present here. I have previously stated that while the accused possessed weapons, it is not alleged he carried,used or threatened to use them in committing the CDSA offences. Accordingly, I conclude that the aggravating factor at s. 10(2)(a)(i)CDSA is not applicable here. 52.

Regarding the issue of consecutive vs concurrent sentences concerning the weapons’ offences, Vroom stands for theproposition that consecutive sentences should normally be imposed for breach of weapons’ prohibition orders under s. 117.01 of theCriminal Code because of the need to communicate a strong deterrent message for violation of such orders. Vroom also dealt with moreserious weapons offences than in this case. There is no weapon prohibition order in this matter.

Consequently, the imposition ofconsecutive or concurrent sentences will be determined per the usual applicable principles, in particular the totality principle. 53. Counsel for Mr. Watson did not submit caselaw in support of his position. 54. In crafting what I view as a just sentence in this matter, I also considered the sentences imposed or confirmed in the followingcases: Brown v. R., 2022 NBCA 33; R. v. Moulton and Bugay, 2018 NBQB 183; and R. v. Bradstreet, 2023 NBKB 76 , 2023NBKB 076.

While I recognize that joint recommendations on sentence were ultimately accepted in Moulton and Bugay and Bradstreet,both these decisions along with Brown, have one feature in common: the judicial district of Woodstock. All of the offenders weresentenced for offences having occurred, for the most part, in the Woodstock region. The offences in question, those under the CDSA, arequite similar to the charges Mr. Watson is facing.

These decisions offer some insight regarding the type of sentences imposed in thejudicial district of Woodstock for such offences and certainly are of assistance in the consideration of the parity principle. Application of the Sentencing Principles Mitigating and Aggravating Circumstances 55. Mitigating circumstances in this case are: a. Mr. Watson’s guilty pleas to the offences; b. The absence of previous convictions under the CDSA;

c. Mr. Watson’s acknowledgement of his responsibility in the matters before the Court, even though the expression of remorse is not fully apparent here ; d. Mr. Watson’s prospect for rehabilitation, particularly in light of his willingness to partake in counselling and to further his education while serving his eventual term of imprisonment. 56 . Aggravating circumstances in this case are: a. Mr. Watson has a criminal record; although, again, I reiterate that there are no CDSA offences on that record; b. Mr.

Watson was on an Undertaking given to a peace officer for the January 29, 2021, offences when he committed almost identical offences under the CDSA on August 19, 2021 ; c. Mr. Watson was in possession of weapons, two firearms and a cross -bow, along with ammunition on August 19, 2021, contrary to a condition of the January 29, 2021, Undertaking to a peace officer; d. Mr . Watson reoffended on August 19, 2021, after having been charged and having appeared in Court for the January 29, 2021, offences. Level of Participation in the Distribution of Drugs 57 .

I will now consider the six relevant factors in assessing Mr. Watson’s level of participation in the distribution of drugs. (

i) The types of drugs involved: Methamphetamine, including Crystal Methamphetamine, and Cocaine are

Schedule I substances. They are considered “hard drugs”. (ii) The quantities in question: The quantities of drugs in the present matters are not insignificant. The total amounts seized are not indicative, however, of a very sophisticated dealer in the upper echelons of the drug trade. The quantities appear to reflect low to mid level trafficking. (iii) The degree of sophistication of the enterprise: Mr. Watson was found in possession of multi substances, including cutting agents, and in possession of drug related paraphernalia, such as dime bags, digital scales and presses. He was also in possession of firearms.

All of this suggest an operation that is more sophisticated than a street level trafficking enterprise. (iv) The potential for profit: Over $2800.00 in CDN currency in total were seized from Mr. Watson or on his property at the time of his arrests on January 29, 2021, and August 19, 2021. The Pre-Sentence Report highlighted that Mr. Watson had been without income for some time. Without having a complete evidentiary background to make a sound finding regarding this factor, it is nonetheless a reasonable inference that Mr.

Watson appeared to be living on the avails of his drug enterprise since 2019, the year of his last employment. (

v) Length of time the enterprise existed prior to arrest: No specific details were offered at the sentence hearing on this particular factor. It is however known that Mr. Watson, because of his pleas, was active in the drug trade in January 2021 at the time of his first arrest and then again in August 2021 at the time of his second arrest. (vi) The accused’s role or level of involvement in the enterprise: The evidence presented at the sentence hearings indicates that Mr. Watson was the sole person responsible for the enterprise in this case. 58 . In

summary, as it relates to the offences and the offender, I find that the offences, particularly those under the CDSA , are serious; that the moral culpability of Mr. Watson is high; and that the need to denounce the crimes and deter him and others is pressing. The Totality Principle

59 . The totality principle also impacts this sentence. Our Court of Appeal has noted in R. v. Peterson , 2017 NBCA 29 , at para. 14 , that the totality principle is an expression of the general principle of proportionality and holds that “Judges sentencing offenders to serve consecutive sentences from multiple offences must ensure the cumulative sentence does not exceed the overall culpability of the offender.” 60 . Mr. Watson is charged with a series of offences. In such instance, s. 718.3(4) of the Criminal Code provides as follows: 718.3(4) The court that sentences an accused shall consider directing (

a) that the term of imprisonment that it imposes be served consecutively to a sentence of imprisonment to which the accused is subject at the time of sentencing; and (

b) that the terms of imprisonment that it imposes at the same time for more than one offence be served consecutively, including when (

i) the offences do not arise out of the same event or series of events, (ii) one of the offences was committed while the accused was on judicial interim release, including pending the determination of an appeal, or (iii) one of the offences was committed while the accused was fleeing from a peace officer. 61 .

Section 718.2(

c) of the Code , however, holds that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh . 62 . In such circumstances, the guidance of our Court of Appeal in Peterson , supra, reveals the following: (

i) Consecutive sentences are to be imposed unless there is a reasonably, close nexus between the offences in time and place as part of one continuing criminal operation or transaction; ( Peterson , supra , at para. 16 .) (ii) Concurrent sentences may not be appropriate where the offences, though part of the same transaction, are intrusions on different legally protected interests; ( Peterson , supra , at para. 17 .) (iii) If some sentences are to be served consecutively the judge must impose the appropriate sentence for each offence or group of offences that are to be served consecutively ( Peterson , supra , at para. 15 .); and (vi) The total of the consecutive sentences should then be calculated with the sentencing judge taking one last look at the total sentence.

This last look ensures that the total sentence is not unduly long or harsh. The sentencing judge is to consider the gravity of the offences, the offender’s moral culpability, the harm done to the victims, that the effect of the sentence is not "crushing," and that it be in keeping with the offender’s record and future prospects. ( Peterson , supra , at para. 15 .) 63 . Based on the above guidance, I have taken that last look back. Were I to impose sentences merited by the circumstances of this case, the cumulative sentences would greatly exceed even the Crown’s proposed global sentence.

It might well also be unduly long or harsh. As such I have chosen to impose concurrent sentences on some offences that I otherwise would have made consecutive; the offence under s. 7.1 CDSA being one such example. I have also concluded that the offences of January 29, 2021, and those of August 19, 2021, while very similar in nature, are not in a reasonably close nexus in time and in place. Consequently, a consecutive sentence to the January 29, 2021, offences will be imposed for the August 19, 2021, offences. However, each August 19, 2021, offence will run concurrently to the others of the same date.

This will reflect my view of the appropriate global sentence. I believe this global sentence is proportionate to the gravity of the offences, particularly those under the CDSA , and to Mr. Watson’s degree of responsibility. I also believe it is not unduly long or harsh, nor is it “crushing” having regard to Mr. Watson’s prospects for rehabilitation. Pre-Sentence Custody 64 . Mr. Watson was serving a sentence of imprisonment on other matters at the time he entered his guilty pleas to the present offences on February 16, 2023. Up until that moment, he had not been in prison in relation to the current case.

On February 16 th , I ordered that he be held in custody until his sentence on all the matters for which he had entered guilty pleas that day, even though he was already, in fact, in custody.

65 . At the sentence hearing on May 11, 2023, the Crown informed the Court that Mr. Watson’s sentence of imprisonment he was serving had expired on April 22, 2023. The Crown invited the Court to consider his time on remand from that moment only and not from February 16, 2023. Unsurprisingly, counsel for Mr. Watson argued that the remand period should be considered from February 16, 2023, until the date of sentence. 66 .

Sections 719(3) and 719(3.1) of the Criminal Code read as follows: 719(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody. 719(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody. 67 . The Crown cited R. v.

Henderson , 2022 NBPC 5 in support of its position regarding the starting point for the remand credit calculation. This is a decision of my colleague Judge Brittain. I am aware that it has been appealed to our Court of Appeal and I understand that while the appeal has been heard, a decision has not yet been rendered. At paras. 45-49, Judge Brittain wrote: 45. The authority to award “remand credit” to an accused flows from

section 719 of the Criminal Code . This provision allows judges to permit one or one-and-one half days’ credit for time spent on remand. As Chief Justice Drapeau (as he then was) stated in Doiron v. R. , 2005 NBCA 30 , at paragraph 22 : …s. 719(3) allows the sentencing court to take pre-sentence custody into account in fashioning an appropriate sentence; it does not obligate the court to give credit for time served. However, such an obligation may arise by implication from other provisions of the Criminal Code (see , for example, LeBlanc v. R. , 2005 NBCA 6 ).

Moreover, even where a credit is not stricto jure mandatory, disallowance cannot be capricious: the court's reasons for sentence must feature a principled justification for its refusal to give credit for pre-sentence custody… 46. In R. v. Pammet , 2016 ONCA 979 , the Court of Appeal of Ontario addressed the issue of remand credit in the context of a parole violator who was reincarcerated, finding at paragraph 20 that “the difficulty with this argument is that Justice Rosenberg, writing for the majority in R. v. Wilson , 2008 ONCA 510 , 236 C.C.C. (3d) 285 , explicitly rejected it.

He concluded that giving an offender credit for pretrial custody for unrelated charges would permit an accused to ‘bank’ time spent in custody.” 47 . Justice Fitzpatrick further elaborated on this point at paragraph 30 of R. v. Manella 2017 ONSC 2333 , finding: “…if there is no connection between the pre-sentence custody time that an accused has accumulated and the charges upon which an accused is being sentenced, then there is no principled reason to allow any credit for that time. To do otherwise 'would distort the sentencing regime'.” 48. Similarly, in R. v.

Pelletier , 2019 MBCA 126 the Manitoba Court of Appeal concluded at paragraph 17: “it was not a material error, given the wording of section 719(3) of the Criminal Code , for the judge to grant no credit for PSC (pre-sentence custody) because of the mere fact that the accused was in custody and serving a sentence on an entirely unrelated and serious offence.” 49. The conclusion of this Court, having considered this authority, is that an accused cannot expect to benefit by way of a remand credit for pre-trial or pre-sentence custody if they are serving out a sentence on an unrelated matter. To allow Mr.

Henderson a remand credit in these circumstances would be akin to sentencing him to concurrent time for an entirely unrelated crime. 68 . I agree with my colleague’s reasoning in Henderson , supra , and the cited caselaw therein. Remand credit is applied only to the time spent in custody as a result of the charged offence or offences. 69 . In the case at hand, Mr. Watson is only entitled, pursuant to s. 719(3) of the Code , to a credit for the time spent in custody since April 22, 2023.

The time he spent in custody between February 16, 2023, and April 22, 2023, while serving a sentence on an unrelated matter, cannot and shall not be credited towards the current offences.

70 . There have been 62 days between April 22, 2023, and today, June 22, 2023, both dates inclusive. In keeping with the prevailing practice throughout the Province which is generally to allow the enhanced 1.5:1 credit for time served in pre-sentence custody notwithstanding the limit set-out in s. 719(3) of the Code , Mr. Watson is entitled to a credit of 93 days for the time he spent in custody awaiting sentence. Imposition of Sentence 71 .

Having carefully considered the various applicable sentencing principles and their relative importance, I believe that a fit and proper sentence in these matters to be as follows. After stating the individual sentences, the equivalent remand credit will be deducted from the global sentence. Those sentences are: For the January 29, 2021, offences : A. Possession of cocaine for the purpose of trafficking contrary to s. 5(2) CDSA (Indict.) , 24 months imprisonment. B.

Possession of methamphetamine for the purpose of trafficking contrary to s. 5(2) CDSA (Indict.) , 24 months imprisonment concurrent any other sentence imposed this date. C. Possession of a press for use in the production of and/or trafficking in cocaine contrary to s. 7.1 CDSA (Indict.) , 6 months imprisonment concurrent to any other sentence imposed this date. D. Possession of firearms without being the holder of a licence contrary to s. 91(1)(

a) CC (SC) , 1 month imprisonment concurrent to any other sentence imposed this date. E. U nlawful storage of firearms contrary to s. 86(2) CC (SC) , 1 month imprisonment concurrent to any other sentence imposed this date. For the August 19, 2021, offences : F. Possession of methamphetamine for the purpose of trafficking contrary to s. 5(2) CDSA (Indict.) , 36 months imprisonment consecutive to any other sentence imposed this date. G. Possession of cocaine for the purpose of trafficking contrary to s. 5(2) CDSA (Indict.) , 36 months imprisonment concurrent to any other sentence imposed this date. H.

Failure to comply with undertaking – for possessing a firearm contrary to a condition of the undertaking – contrary to s. 145(4)(

a) CC (SC) , 2 months imprisonment concurrent to any other sentence imposed this date. 72 . The global sentence is therefore 60 months imprisonment, less 93 days of remand credit. Ancillary Orders

73 . In addition, the following ancillary orders are required: a. Pursuant to

section 109 of the Criminal Code and for the 4 offences under s. 5(2) CDSA , I make an order prohibiting you from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for 10 years as per s. 109(2)(

a) and prohibiting you from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. b. The 4 offences under s. 5(2) CDSA are secondary designated offences within the meaning of s. 487.04 of the Criminal Code . Pursuant to s. 487.051(3) of the Code , being satisfied that it is in the best interests of the administration of justice to do so, I make an order in Form 5.04 authorizing the taking from you of the number of samples of bodily substances that is reasonably required for the purpose of forensic DNA analysis. c. Pursuant to

section 491 of the Criminal Code , the weapons and ammunition seized and detained by police at the time of the property searches under the authority of search warrants and personal searches of Mr. Watson, both on January 29, 2021, and August 19, 2021, are hereby forfeited to His Majesty to be disposed of as the Attorney General of New Brunswick directs. d. The Crown, pursuant to

section 16 of the Controlled Drugs and Substances Act, is seeking the forfeiture of all the non-chemical offence-related property seized in this case, except for the weapons and ammunition that have been forfeited pursuant to

section 491 of the Criminal Code . Mr. Watson is not opposing this request. I am satisfied, on a balance of probabilities, that the non-chemical offence- related property (other than the weapons and ammunition) seized and detained by police at the time of the property searches under the authority of search warrants and personal searches of Mr. Watson, both on January 29, 2021, and August 19, 2021, are related to the commission of the 5 offences under the CDSA .

The non-chemical offence-related property are: 2 SharpStone presses; 23 boxes of 100 Ziploc bags; 35 dime bags; 1 Infyniti scale; several new dime bags; 1 cell phone; working scales; 1 digital scale and $2,811.75 in CDN currency. They are hereby forfeited to His Majesty in right of Canada to be disposed of or otherwise dealt with in accordance with the law. 74 . The Victim Fine Surcharges on all counts are hereby waived pursuant to s. 737(2.1) of the Code , given that Mr. Watson has been in custody for quite some time and that he is without any source of income. 75 .

Finally, I sought and received the consent of the parties to provide an oral

summary of these reasons. [1] I am filing a full written judgment and entering it into the record of proceedings, providing a copy to the parties and noting that an oral

summary of this judgment has been read into the record. ____________________________________ Sébastien A. Michaud, P.C.J.