R. v. Devries, 2012 NUCJ 07

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R. v. Devries, 2012 NUCJ 07 Date: 20120606 Docket: 08-11-709; 08-11-613 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: David (Ed) Devries ________________________________________________________________________ Before: The Honourable Mr. Justice Kilpatrick Counsel (Crown): J. Gevikoglu Counsel (Accused): A.

Crowe Location Heard: Iqaluit, Nunavut Date Heard: May 24, 2012 Matters: Controlled Drugs and Substances Act, s. 5(4) x 2; Criminal Code, s. 271 x 4; s. 151 x 2 REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication) Restriction on Publication: By court order made under

section 486.4 of the Criminal Code , “any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way.”

I. INTRODUCTION [ 1 ] Mr. Devries has entered guilty pleas to two indictable offences under the Controlled Drugs and Substances Act (CDSA) involving trafficking or possession for the purpose of trafficking of Cannabis (marijuana). He also accepts responsibility for six sexual offences against female adolescents. He is now to be sentenced for these eight offences. II. THE DRUG OFFENCES [ 2 ] The facts related to the two drug offences are set out in Exhibit S-1. [ 3 ] In 2009, Mr. Devries was a “reverend” of the Church of the Universe.

This Church operated out of the Devries residence in Iqaluit. [ 4 ] As a result of a search warrant being executed upon the Devries residence, the police uncovered evidence of a significant trafficking operation in Cannabis being conducted under the auspices of the Church of the Universe. Invoices seized during the police raid dated between June 2, 2009, and August 4, 2009, disclosed that the Church had received 22 shipments of Cannabis with an invoice value of $148,500 in this 2 month period. These shipments totaled 21 kilograms of Cannabis.

This amounted to an average of one kilogram of drugs every three days. [ 5 ] Subsequent to his arrest, Mr. Devries was released from custody by a Justice of the Peace subject to conditions on an undertaking. [ 6 ] Following his release, Mr. Devries formed the Qikiqtaaluk Compassion Society. This society operated out of a residence in Iqaluit. The police executed a search warrant on this residence on January 29, 2010. Once again the authorities uncovered evidence of a trafficking operation in Cannabis. In addition to the $6,500 in cash seized from the premises, numerous business records were found.

These records outline store sales of 9.37 pounds of Cannabis weekly. The Society had 11 employees, 450 members, rent payable in the amount of $2,500 a month and weekly sales of $17,248. The Society’s business expenses averaged $6,500 a week. [ 7 ] Sales projections based on seized business records suggest that the Society grossed $56,653 a month with an annual profit of $679,842. After deducting expenses, the seized records show a profit margin of 27% on all products sold by the Compassion Society. [ 8 ] Mr.

Devries was arrested by the RCMP and again released by a Justice of the Peace on conditions. [ 9 ] On September 9, 2011, the RCMP again executed a search warrant at the Devries home. In addition to 91.7 grams of Cannabis, and a small quantity of Hash, the police seized $32,760 in cash. Also seized were a large number of deposit slips from the North Mart in Iqaluit for deposits made on two Cash Link cards. These deposits show that $78,000 was deposited into these two accounts during a 30 day period. Express Post labels also show packages being shipped to MedMe in British Columbia totalling $76,000. [ 10 ] Mr.

Devries was rearrested on September 9, 2011, for violating his bail conditions and has remained in custody at the Baffin Correctional Center since this date. [ 11 ] Mr. Devries has indicated to the author of the Pre-Sentence report that over a ten year period, he may have grossed as much as two million dollars from the sale of Cannabis. A. Analysis [ 12 ] This was a large well planned commercial trafficking enterprise. Mr. Devries may have provided “discounts” for church members

or members of the Compassion Club. He may have provided discounts to elders purchasing drugs from his store, but this does not detract from the overall characterization of the enterprise as a business driven by profit. Substantial profit was in fact generated by this illegal activity. [ 13 ] In submissions, counsel for the Defendant indicated that Mr. Devries has difficulty with the characterization of the activities of the Compassion Society as trafficking. Mr.

Devries, through counsel, seems to suggest that while the activity was “technically” trafficking, the Defendant believed that he was morally justified to do what he was doing. [ 14 ] The offence was premeditated and well planned. This is the hallmark of a criminal enterprise. There is enhanced moral turpitude where there is planning behind a criminal act. These were not offenses committed by someone in the heat of passion. Nor were these offenses committed when personal judgment was impaired by alcohol or other intoxicants. [ 15 ] Mr. Devries involved others in this criminal enterprise.

Employees were paid to sell drugs from the “store”. The drugs did not sell themselves. [ 16 ] Mr. Devries persisted in his illegal activities even after his arrest on drug related offences. He was twice arrested and twice released on court process. Mr. Devries’ persistent involvement in the drug trade despite repeated court intervention suggests that he has little respect for orders of the Court. Mr. Devries’ continued minimization and denial of the moral significance of the trafficking operation undertaken by him suggests that Mr.

Devries’ potential to reoffend in relation to this type of drug offense remains high. [ 17 ] Mr. Devries has a history of drug related convictions. In 2006, in Igloolik, Mr. Devries was sentenced to six months in gaol and one year of probation for drug trafficking and laundering the proceeds of crime. There was an order made that for the forfeiture of $20,000 of funds seized as a consequence of that police investigation. [ 18 ] Mr. Devries is entitled to some credit for his guilty pleas. His acknowledgement of responsibility has spared the state the time, trouble, and expense of proving the allegations.

The guilty pleas cannot be characterized as early pleas however. The guilty pleas were entered long after the charges were set for trial. [ 19 ] There does not appear to be any real remorse associated with the guilty pleas for the drug offences. No mention was made of the drug offences when Mr. Devries made his statement to the Court on sentence. Mr. Devries remains an outspoken critic of Canada’s drug laws, as least in so far as they relate to Cannabis. [ 20 ] The Court emphasizes that the offences before the Court have nothing to do with Mr. Devries own need to use medical marijuana to control pain. Mr.

Devries apparently obtained a license under the Marijuana Medical Access regulations to use Cannabis personally for this limited medical purpose. This license did not authorize Mr. Devries to sell marijuana to others. [ 21 ] In view of the guilty plea, Crown and Defense have both jointly submitted that a sentence of two years and one day gaol for the two drug offences (concurrent) would be appropriate in the circumstances. This sentence would see Mr. Devries lodged in a federal penitentiary. [ 22 ] While this sentence is low, it falls within the appropriate range for these offences.

Appellate jurisprudence places significant restrictions upon a trial court’s ability to exercise its own discretion in matters of sentence where a guilty plea results from a joint submission. The sentencing on these offences should consequently be regarded as having little precedential value. The end result of the sentencing on these two drug offences is the product of a joint submission, nothing more. B. Conclusion [ 23 ] Substance abuse in all its forms is a leading cause of social dysfunction and crime in Nunavut. Drug abuse, particularly Cannabis, is part of a much larger problem.

In a Territory where chronic poverty and food insecurity are commonplace, ever increasing sums of money are being spent on drugs and alcohol by those who can least afford the expense associated with the habit. In many instances, the most vulnerable members of society are going without, while the selfish satisfy their own needs at society’s expense. In Nunavut, the

Cannabis offence rate is four times the national average—1,039 offences per 100,000 people in Nunavut, compared to 220 offences per 100,000 people nationally . [ 24 ] The counselling services necessary to address compulsive and addictive behaviour in Nunavut are extremely limited. These services cannot cope with the social dysfunction being generated by present levels of substance abuse. [ 25 ] In Nunavut, significant amounts of police time and resources are being expended to combat a growing underground trade in illicit drugs.

The diversion of these valuable resources leaves fewer police and financial resources to address other pressing social issues. The cost of policing is being borne by a cash strapped Territorial government that can ill afford the communities’ demands for more and more policing. [ 26 ] Mr. Devries has significantly contributed to social dysfunction within Nunavut by carrying on a large commercial trafficking operation. In doing so. he has been openly contemptuous of Parliament and the laws that Parliament has made in relation to the use of Cannabis. Mr. Devries has set himself above the law.

This defiance cannot be tolerated in a society that respects the value of the democratic process and the rule of law.

Membership in Canadian society carries with it a responsibility to respect the laws generated by this process. [ 27 ] Absent exceptional circumstances, those who deliberately engage in a large commercial trafficking operation in Nunavut should expect to receive a penitentiary term if they are caught and convicted. [ 28 ] The Court directs the Clerk of the Court to send a copy of these reasons for judgment and the Defendant’s written admissions (Exhibit S-1) to the Canada Revenue Agency for its review. C.

Ancillary orders [ 29 ] The Defendant is prohibited from the possession or use of any firearm, ammunition, or explosive device for a period of 10 years commencing today and ending 10 years after the Defendant is released from custody. Pursuant to section 109(2) (

b) of the Criminal Code , Mr. Devries is also prohibited from possessing or using any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, or prohibited ammunition for life. [ 30 ] Any such items now in the Defendant’s possession, together with any firearms license or FAC must be immediately surrendered to the nearest detachment of the RCMP for forfeiture to the Attorney General. [ 31 ] These orders are mandatory upon conviction for these drug offenses under s.109 (1) (

c) of the Criminal Code . [ 32 ] With the consent of the Crown, and pursuant to section 490(4), the Court orders the return of the seized personal property identified in the order filed with this judgment. [ 33 ] With the consent of the Crown, the Court also authorizes the return of certain motor vehicles seized from Kaylie Devries on September 23 and 24, 2011, that are currently subject to a management order under s.7 of the Seized Property Management Act.

The return of these items is subject to the conditions set out in the order filed with this judgment. [ 34 ] Given the length of the period of incarceration imposed for these drug offences, the victim fine surcharge for both offences is waived for reason of hardship. [ 35 ] Finally, pursuant to section 16(1)(

a) of the Controlled Drugs and Substances Act, the Court orders forfeiture of all drugs seized together with any offence related property (other than those items of property ordered returned to the offender’s family).

III. THE SEXUAL OFFENCES [ 36 ] The facts related to these six sexual offences are outlined in detail on Exhibit S-2. [ 37 ] Count one relates to a single incident that occurred some six or seven years ago in Igloolik. Mr. Devries performed oral sex upon a 16 year old female. This offence was a profound breach of trust. [ 38 ] Count 2 relates to the same victim as in Count one. This offence involves a single incident of sexual touching of the victim in the area of her breasts, pubic area and buttocks. This offence occurred in Iqaluit when the victim was approximately 13 or 14 years of age.

This offence was also a breach of trust. There was some grooming of the victim by Mr. Devries. The adolescent was told that in the victim’s circumstances this type of intimacy was normal. [ 39 ] Count three relates to a second victim. This offence occurred in Iqaluit when the victim was between the age of 14 and 16. The offence relates to multiple incidents of sexual abuse involving digital penetration, giving and receiving oral sex, and nine incidents of full sexual intercourse. This victim was a friend of one of the Devries’ family members. [ 40 ] Count four relates to a third victim.

This offence occurred in Iqaluit and started when the victim was approximately ten years of age. There were at least 10 incidents of sexual touching involving either fondling or digital penetration. This offence was also a serious breach of trust. [ 41 ] Count five relates to the same victim involved in count four. This offence involves multiple instances of Mr. Devries performing oral sex upon the victim and digital penetration of the victim’s vagina. This offence represents an escalation in the form of abuse. This offence occurred over a span of approximately 17 months in Iqaluit.

The victim was 14 years of age when this type of abuse started. [ 42 ] Count six relates to the same victim in counts four and five. After first performing oral sex, Mr. Devries attempted to have sexual intercourse with the victim who was then 14 or 15 years of age. The victim resisted and Mr. Devries stopped. A. The guilty pleas [ 43 ] Mr. Devries has entered guilty pleas to all offences. He is entitled to substantial credit for having done so. The young victims of these offences are often traumatized by the trial process. Mr.

Devries has spared his three victims the necessity of having to relive their ordeals in a public setting. [ 44 ] The Court has read the letters of apology penned by Mr. Devries to the victims entered as Exhibits S-11A through 11C in this sentencing. The Court has also heard Mr. Devries speak to sentence. The Court is satisfied that the guilty pleas entered by Mr. Devries in relation to these offences are consistent with a genuine expression of remorse. Similar expressions of remorse were also expressed by him to the author of the Pre-Sentence Report. B.

Offense characteristics [ 45 ] In relation to two of the three victims (five counts), the sexual abuse constituted a profound breach of trust. The victims were young, impressionable and vulnerable. [ 46 ] Three of the six offences involved multiple incidents of abuse carried out over a period of many months and in some cases, years. Where the sexual abuse is perpetrated over a significant period of time, the offender’s moral culpability is elevated. The difficulty of detection and the importance of discouraging such activity enhances the need for a deterrent sentence.

[ 47 ] The repeated acts of sexual intercourse associated with Count three elevate this offense to the highest level of moral culpability. This is not a case where a Defendant on one occasion succumbs to the passion of the moment. The frequency of the sexual contact with this victim underlies a deliberate and ongoing pattern of abuse. These many sexual offences cannot be explained by substance abuse. There is no suggestion that Mr. Devries was intoxicated at any point during the commission of these offences. [ 48 ] The pattern that emerges from all six of these offences suggests that Mr.

Devries may have deeper psychological issues. The Court is not in a position to make an informed risk assessment with respect to Mr. Devries’ potential to reoffend in the absence of an expert assessment from a forensic psychologist or psychiatrist. C. Victim Impact [ 49 ] This Court can do no better than to repeat what was said by this Court in the case of R v G (J) 2008 NUCJ 12 , [2008] Nu J No 12: [8] There is growing recognition at all levels of contemporary society that the sexual offence can cause significant psychological and emotional harm to its victims.

The impact caused by lesser forms of sexual abuse can also be severe and long lasting, particularly in the case of a child victim. The psychological harm sustained by a child is not necessarily proportional to the type, or degree of force, used to commit the sexual offence. It cannot be assumed that the absence of penetration necessarily translates into minimal victim impact. [9] For a child victim, the potential range of impacts can be as broad as they can be severe.

An adolescent female’s understanding of her sexual identity, her ability to trust and bond with members of the opposite sex, and her sense of self respect, are all things that are readily damaged by lesser forms of sexual offending. The risk of such damage increases where the offending behaviour is repeated or prolonged, or where it is done by a person who is in a position of authority or within the child’s circle of care. A child’s trust, once lost, will be difficult to recover. [10] The damage associated with a sexual offence on a child can potentially last a lifetime.

It can manifest itself through social dysfunction of varying kinds and degrees of severity. Depression and anxiety, anger and fear, may all be the sad legacies of an unfortunate childhood experience. A lack of sophistication may make remedial efforts to undo the emotional

damage caused by the offence much more difficult to achieve. The young person’s level of comprehension and limited communication skills may impair the effectiveness of psychotherapy. The expert therapeutic intervention needed to repair the damage associated with childhood sexual offences is extremely limited in Nunavut, and is often not available in the communities outside Iqaluit. D. Analysis [ 50 ] Mr. Devries is not to be punished on the basis that he has caused lasting emotional harm to his victims. The evidence before the Court does not support such a finding. However, Mr.

Devries willfully assumed the risk of this harm occurring when he engaged in repeated sexual contact with his victims. There is no suggestion on the evidence that substance abuse on any occasion impaired Mr. Devries’ judgment or his ability to understand the risks associated with his conduct.

It is the willful assumption of the risk of harm, together with the accompanying breaches of trust that raises many of these sexual offences to the highest level of seriousness. [ 51 ] On the facts, a substantial custodial sentence is not only appropriate but necessary to reflect the gravity of the six offences now before the Court. There is not one incident of inappropriate sexual contact to consider – there are many. There is not one young person victimized, there are three. In light of the very high incidence of sexual offences in Nunavut, some weight must be given to the need for general deterrence.

The incidence of sexual offences against children is 10 times higher in Nunavut than in the rest of the country - 44.3 incidents per 100,000 people compared to 4.3 per 100,000 people nationally . [ 52 ] Where the law imposes a duty to protect the vulnerable, the consequences associated with a breach of this duty must be significant. Denunciation must also be stressed through a sentencing process that both recognizes and reinforces the fundamental social values that have been damaged by Mr. Devries’ offending behavior. All the victims in this case were vulnerable because of their size and age.

They were vulnerable because of the nature of their relationship with Mr. Devries and the Devries family. They had a right to be protected, not victimized. [ 53 ] Mr. Devries’ rehabilitation remains an important consideration in the sentencing process. However, the proportionality principle demands a serious consequence in this case that cannot be achieved by the three year term of custody recommended by Defense counsel. V. SENTENCING ANALYSIS A. Credit for Pre-Trial detention [ 54 ] Mr. Devries has been in pre-trial detention since he was arrested on September 9, 2011.

His repeated breaches of release process results in a maximum credit for pre-trial detention on the drug offences at a rate of one day credit for each day in pre-trial detention. [ 55 ] On November 5, 2011, Mr. Devries was re-arrested for the sexual offences. He consented to detention on these new offences. There has been no show cause. In these circumstances, a credit for pre-trial detention may exceed the formula of one for one credited on the drug offences up to a maximum of 1.5 days credit for each day spent in remand.

Exceptional circumstances must be shown to exist in order to justify any enhanced credit for pre-trial detention. [ 56 ] In the course of this sentencing hearing, the Court heard evidence of the sub-standard physical conditions associated with overcrowding at the Baffin Correctional Center. Overcrowding has placed severe restrictions upon the institution’s ability to provide adequate space for both recreation and programming. The number of assaults and other behavioral problems internal to the institution can be expected to increase as the inmate population increases beyond what is reasonably appropriate.

[57] On the basis of the evidence heard in this sentencing hearing, the Court is prepared to accord Mr. Devries with enhanced credit of1.5 days for every day in detention from November 5, 2011, to the date of sentence (June 6, 2012). [58] The total credit to be applied to Mr. Devries pre-trial detention therefore stands at 57 days at a rate of 1/1 and 177 days at a rate of1.5/1 for a total credit of 331 days. This credit will be deducted from the sentence to be imposed upon Mr. Devries for these eightoffences. B.

Gladue considerations [59] In arriving at this sentence, the Court has given anxious consideration to the purpose and principles of sentencing set out in sections718 through 718.2 of the Criminal Code. The Court has also specifically considered Mr. Devries’ Métis status and his own sad history ofsexual victimization as a child in arriving at an appropriate disposition. [60] Beyond referencing Mr. Devries’ own history of victimization, Defense counsel has not asked the Court to consider systemicfactors relevant to the Métis people’s tragic history of discrimination and marginalization within Canadian Society.

There was noreference made during submissions to the Supreme Court of Canada’s jurisprudence in R v Gladue, (SCC), [1999] SCJNo 19, [1999] 1 SCR 688 [Gladue], and R v Ipeelee, 2012 SCC 13, [2012 SCJ No 13 [Ipeelee].

The Defense concedes that on the factsof this case, a restorative justice option or other community based sentence would not be an appropriate alternative to custody. [61] With many years of life experience as Defense counsel, Crown attorney and Judge in Canada’s three northern territories, this Courtis intimately familiar with the systemic disadvantages and challenges faced by Métis, First Nation, and Inuit citizens living in Canada’snorth. Gladue considerations have been taken into account in arriving at a fair and appropriate disposition in this case. C. Consecutive vs.

Concurrent sentences [62] Appellate jurisprudence would suggest that where there are separate offences involving different victims separated by time or place,consecutive dispositions of custody should ordinarily be considered. [63] Given the global recommendation of five years for the sexual offences proposed by the Crown, the Court is not in a position toadequately reflect proportionality by fashioning individual consecutive sentences. To attempt to do so would result in inordinately lowsentences for some offences. This would risk trivialization or minimization of the seriousness of some or all of the offences.

To avoidthis result, the Court will impose concurrent sentences in circumstances where consecutive sentences would ordinarily be applied.

TheCourt notes that in this case both Crown and Defence submissions focused on recommendations related to a global position on all sexualoffences. [64] While the sentence imposed for the sexual offences will be concurrent to each other, this sentence of custody is to be consecutive tothe sentence imposed on the drug offences. [65] In arriving at the sentence of custody to be imposed on all eight offences, the Court has considered and applied the totality principlein an effort to avoid a disproportionate overall result. VI. CONCLUSION A. Sentence • Count 1 – 1 year gaol • Count 2 – 9 months gaol (concurrent)

• Count 3 – 5 years gaol (concurrent) • Count 4 – 20 months gaol (concurrent) • Count 5 – 18 months gaol (concurrent) • Count 6 – 2 years gaol (concurrent) [ 66 ] The resulting sentence reflects the mitigating effect of the guilty pleas. Had Mr. Devries been convicted of these same offences following a trial, the sentence would have been elevated. Consecutive terms of incarceration in relation to the three different victims would likely have been imposed. [ 67 ] The seven year sentence imposed for all eight offences is reduced by 331 days credit for pre-trial detention.

This leaves a balance of six years 34 days left to serve. B. Ancillary Orders for the sexual offences [ 68 ] There will be a firearms prohibition order of 10 years duration commencing the date of this judgment and ending 10 years after Mr. Devries is released from custody. [ 69 ] Pursuant to section 109(2) (

b) of the Criminal Code , Mr. Devries is also prohibited from possessing or using any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, or prohibited ammunition for life. [ 70 ] Any such items now in the Defendant’s possession, together with any firearms license or FAC must be immediately surrendered to the nearest detachment of the RCMP for forfeiture to the Attorney General. This order is mandatory upon conviction for these drug offenses under s.109 (1) (

a) of the Criminal Code . [ 71 ] There will be a DNA order compelling the taking of a sample of DNA from Mr. Devries for the purpose of registration with the national DNA databank. The sexual offences are primary designated offenses within the meaning of

section 487.04 of the Criminal Code . This order is mandatory under

section 487.051(1) of the Criminal Code. [ 72 ] There will be an order pursuant to

section 490.012 compelling Mr. Devries to submit to the processes of the Sex Offender Registry for life. This order is made mandatory under

section 490.013(2.1) by virtue of Mr. Devries being convicted of more than one designated offence within the meaning of

section 490.01(1) of the Criminal Code . [ 73 ] There will be an order under

section 161 of the Criminal Code prohibiting Mr. Devries from: 1. Seeking or obtaining any employment, whether or not such employment is remunerated, or becoming a volunteer in any capacity that involves being in a position of trust or authority towards persons under the age of 16 years; 2. Using a computer system within the meaning of s. 342.1 (2) of the Criminal Code for the purpose of communicating with a person under the age of 16 years. [ 74 ] This order begins on the date of this judgment and ends 15 years after release from imprisonment, including release on parole, mandatory supervision or statutory release. [ 75 ] There will be an order pursuant to

section 743.21 of the Criminal Code prohibiting contact or communication between Mr. Devries and any of the named complainants in the sexual offences. [ 76 ] There will not be a victim fine surcharge ordered in this case. In view of Mr. Devries’ incarceration, the surcharge is waived for

reasons of hardship. [ 77 ] Finally, there was a USB key seized from Mr. Devries’ residence containing multiple pictures of children in a state of undress. These pictures may fall within the definition of child pornography as set out in

section 163.1 of the Criminal Code . Persons viewing these photographs might identify the young persons depicted in the photographs. These persons all reside in Nunavut. [ 78 ] The Crown has requested that the Court order forfeiture of the USB key under

section 164.2 of the Criminal Code for the purpose of destruction. [ 79 ] This application is not opposed by the Defendant. The order for forfeiture will be issued as requested. Dated at the City of Iqaluit this 6th day of June, 2012 ___________________ Justice R. Kilpatrick Nunavut Court of Justice