R. v. Pierce, 2018 NUCJ 16

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Pierce, 2018 NUCJ 16 Date: 20180625 Docket: 08-16-400 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: William Allen Pierce ________________________________________________________________________ Before: The Honourable Madam Justice Bonnie Tulloch Counsel (Crown): Marian Bryant Counsel (Accused): Sara Siebert Location Heard: Iqaluit, Nunavut Date Heard: May 4, 2018 Matters: Sentencing; Criminal Code , RSC 1985, c C-46, ss 354(1)(a), 355(a); Controlled Drugs and Substances Act , SC 1996, c 19, ss 5(2), 5(3)(

a) REASONS FOR JUDGMENT (Delivered Orally) (NOTE: This document may have been edited for publication)

I. INTRODUCTION [ 1 ] This is the day that I have set aside to sentence William Allen Pierce on a charge of possession of 392.8 grams of cocaine for the purpose of trafficking and possession of $7,200 in cash identified as proceeds of crime. II. FACTS [ 2 ] Crown and Defence have drafted an Agreed Statement of Facts that I have attached to this decision as Appendix “A”. Mr. Pierce accepts these facts. [ 3 ] This accused came to the attention of the Royal Canadian Mounted Police in Iqaluit pursuant to an ongoing investigation which resulted in the execution of a search warrant on August 5, 2016, at Mr.

Pierce’s residence in the Tundra Valley area of Iqaluit. [ 4 ] The items seized on that occasion are listed in Appendix “A” at paragraph 1. [ 5 ] An approximate value of the cocaine seized has also been agreed upon. Constable Bowskill provided an expert opinion that in the city of Iqaluit in 2016 the price for one gram of powdered cocaine was $200. This means that the value of the cocaine seized, if sold by the gram, is approximately $78,560. If sold per ounce, it would amount to approximately $56,000. III. ANALYSIS [ 6 ] There is no doubt that Mr. Pierce was a drug trafficker.

He is the one who chose to sell drugs in the city of Iqaluit and he is the one that must now face the consequences of his actions. [ 7 ] It goes without saying that Mr. Pierce is not the only one who will suffer consequences for the bad choices he made during the time leading up to his arrest. [ 8 ] Those who care about Mr. Pierce will also suffer, which is clear from the letters of support filed in this case. [ 9 ] The destruction which results from an addiction to cocaine is well documented and those people who bought drugs from Mr.

Pierce have been, and often continue to be, negatively impacted by the Nunavut drug trade, of which he was a part. [ 10 ] In coming to my decision today, I must carefully consider and balance a number of factors related both to the offence and to the offender. [ 11 ] Mr. Pierce pleaded guilty to these charges after unsuccessfully challenging the validity of the search warrant and its impact on his rights under

section 8 of the Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c 11. My sentence today does not fault him for that. [ 12 ] I accept his guilty pleas and have given him substantial credit for not proceeding to trial on these charges. Although it was not a plea at his very earliest opportunity, it is an early one.

[ 13 ] I have also considered the following: • the letters of support provided by Mr. Pierce’s family and his employer, • the fact that he does not have a criminal record, • his sincere expression of remorse, • the rehabilitative efforts he has undertaken since his arrest, • any factors that could have contributed to bringing him before the Court, • the cases submitted by Counsel, and • Counsel’s able submissions. [ 14 ] The Crown submits that the appropriate range of sentence for this offender, on these facts, is three to three-and-one-half years.

The prosecutors are asking me to impose a global sentence at the high end of the scale. They suggest three-and-one-half years would be appropriate. [ 15 ] Defence Counsel says the appropriate range is two-and-one-half to three years. Given Mr. Pierce’s personal circumstances, it is submitted that a sentence of two-and-one-half years would adequately satisfy the principles of sentencing in this case. [ 16 ] Crown and Defence have agreed that the paramount consideration on sentencing must be denunciation and deterrence. I agree. [ 17 ] This is a case where the fundamental purposes of sentencing under

section 718 of the Criminal Code , RSC 1985, c C-46 [ Criminal Code ], and

section 10 of the Controlled Drugs and Substances Act , SC 1996, c 19 [ CDSA ], support the imposition of a lengthy term of custody. [ 18 ] Trafficking in cocaine is an offence punishable by life imprisonment. There is no mandatory minimum penalty, except in prescribed circumstances. [ 19 ] That being said, all of the cases referred to me, and those that I have reviewed myself, indicate that traffickers in cocaine must be dealt with sternly.

Even first-time offenders engaged in a single transaction will receive a period of custody depending on the amount of the narcotic and the money involved. [ 20 ] The motivation for drug trafficking is money. Drug dealing is a very profitable business. Through his actions, Mr. Pierce is guilty of preying on vulnerable individuals living in his own community. [ 21 ] The dangerous and disastrous effects of addiction to cocaine are well documented. [ 22 ] In Nunavut, those who become addicted to hard drugs, such as cocaine, often destroy their lives and their families.

Money needed for the necessities of life are used instead to fuel an addiction. They get caught up in an inability to lead a normal life and eventually become completely dependent on drugs to live from day-to-day. Criminal activity often results from their urgent need to feed their habit. [ 23 ] To make matters worse, there are few resources and no residential treatment centres or programs in Nunavut to deal with the serious aftermath which results from traffickers who make cocaine accessible in this territory. [ 24 ] Mr.

Pierce was a guard at Baffin Correctional Centre for a period of time and saw firsthand the disastrous effect addictions have on individuals within the prison system. [ 25 ] He has allowed his greed for money to overshadow his moral obligation to follow the law and be an upstanding member of his community. [ 26 ] Johnson J., in the case of R v Cherkaoui , 2009 NUCJ 7 at para 21 , [2009] NJ 6 (QL) [ Cherkaoui ] , decided in 2009 by this Court, quoted Foisy J. in the case of R v Friskie (22 September 2008), Iqaluit 08-08-225 (Nu CJ) at page 15: Basically what you are dealing is poison.

It’s extremely addictive and people like yourselves as far as I’m concerned are parasites

because you feed off the weaknesses of others for your own profit. Nunavut is different than other jurisdictions because it is extremely largely populated by Inuit; it is the Inuit territory. By and large these are not people of means; these are people who have to struggle to live, they don’t have a lot of money - many of them are very poor. When dealing with crack cocaine or other very addictive drugs their small resources are spent to feed a habit which they [acquired] as a result of people like you coming into this territory.

That leaves no money to pay rent, no money to buy food to feed themselves and/or other families, no money to buy other staples of life which are very, very expensive in this territory. [ 27 ] Although Mr.

Friskie was dealing in crack cocaine – as was the case in Cherkaoui – the comments are just as applicable with respect to the damage caused by the illegal cocaine trade to the social fabric of Nunavut communities. [ 28 ] All of this to say that when considering, as I must, the proportionality principle of sentencing, I have no problem finding that the gravity of the offence and the degree of responsibility of the offender, in this case, are extremely high. [ 29 ] Crafting an appropriate sentence is a very difficult and onerous part of my job as a Judge. [ 30 ] Nunavut has a long history of imposing sentences which are specific to the facts surrounding the offence, while taking into account the background of the offender.

It is an individualized approach which recognizes that each case is unique. [ 31 ] Mr. Pierce is now 30 years old. He was 27 at the time of his arrest. He is therefore a youthful first-time offender with no criminal record. It is his first interaction with the justice system. [ 32 ] As a child, Mr. Pierce grew up on a reserve in Norway House Cree Nation in Manitoba. He suffered the effects of significant bullying. He and his family were among the only non-Aboriginal people living in Norway House.

Accordingly, he was considered to be an outcast in his community. [ 33 ] The accused has a younger sister, who now resides in Nova Scotia. During his childhood, the accused was very protective of his sister. [ 34 ] High school was very difficult for the accused. He became very depressed and, at one point, he tried to commit suicide by hanging. It was at that point that he was put on medication and he quickly turned to drugs and alcohol. [ 35 ] Mr. Pierce was placed in a foster home at age 15, where he remained until his 18th birthday, when he moved to Nova Scotia.

He was not equipped to deal with the realities of life on his own and his serious addiction to drugs and alcohol became more prominent. [ 36 ] At age 21, he called his mother and was able to return home to live with his parents on the reserve. Within two days, he secured a job at the Northern Store in the meat department. He thrived and was transferred first to Moosonee, Ontario, and then to Iqaluit, where he has resided since 2011. [ 37 ] In 2012, his fiancée gave birth to their daughter. [ 38 ] Due to heavy drinking, the accused lost his job at the Northern Store in 2013. [ 39 ] Mr.

Pierce describes himself during that time as “an alcoholic cokehead”. [ 40 ] He worked in Iqaluit at various places, such as Baffin Correctional Centre, First Air and Pai-Pa Taxi. [ 41 ] I am told that, since the accused’s initial arrest in August of 2016, he has stayed away from both drugs and alcohol. [ 42 ] He has been on a number or restrictive conditions, which he has taken very seriously. [ 43 ] He applied to vary his bail conditions on two occasions when he wanted to travel outside the territory.

The first time was for purposes of attending a training program in Newfoundland and the second time was so that he could spend time with his family in Manitoba.

[ 44 ] At one time his curfew was also amended so that he could work in Nunavut. [ 45 ] The fact that there have been no breaches during the lengthy period of time he has been on bail is also to his credit. [ 46 ] His daughter, Annabelle, is now six years old. She lives with her mother and the accused’s parents at Norway House. [ 47 ] Upon Mr. Pierce’s return to Manitoba, he was able to secure steady employment and he has positively reconnected with his family and friends. [ 48 ] He was able to spend considerable time with his daughter and has contributed substantially to her care.

He provides financial and emotional support for his parents and his ex-fiancée. Both parents are very committed to co-parenting their daughter who, I am told, is an inspiration to her father and a catalyst for his desire to make healthy changes in his life for the future, including moving back to Manitoba once he is released from custody. [ 49 ] The letters of support provided to the Court are very positive. They talk about the accused being a great father and son.

They talk about the fact that he is a good worker and that he has a job waiting for him after his time in jail. [ 50 ] I am of the opinion that the strong network of support that Mr.

Pierce has built up during this time will greatly assist his overall rehabilitation, which is always an important consideration in the sentencing decision. [ 51 ] On May 2, 2018, upon his return to Iqaluit from Manitoba, he surrendered himself to the authorities at Baffin Correctional Centre to await his sentence. [ 52 ] The cases submitted by Counsel are helpful in establishing the appropriate range of sentencing for trafficking in cocaine. [ 53 ] Taking into account the fact that cocaine is highly addictive, highly dangerous and highly destructive, any sentence I impose today must send a strong message to the general public that a substantial period of time in custody, even for first-time offenders who traffic in this drug, is warranted. [ 54 ] This is a crime driven by greed and opportunity.

IV. SENTENCE IMPOSED [ 55 ] For all of the reasons indicated, I have come to the conclusion that the appropriate and fit sentence for this unique offender on these particular facts is a global sentence of 36 months or 1,095 days in the penitentiary.

It is broken down as follows: on the trafficking charge, the sentence is 1,095 days; and on the possession of proceeds of crime charge, the sentence is 180 days, to run concurrent. [ 56 ] Given the accused’s connection to Manitoba and his wish to return there upon his release, I am prepared to make a strong recommendation on the warrant of committal that he serve his time at an institution in that province to facilitate visitation by his family.

I feel that this will contribute to his overall rehabilitation. [ 57 ] I am, of course, prepared to grant him credit for the time he has spent in custody awaiting his sentence. [ 58 ] From the time of his arrest in August of 2016 and his release after Show Cause Hearing, he spent five days in custody. [ 59 ] From the time of his surrender into custody on May 2 to today’s date, he has been in custody for an additional 55 days. He is entitled to enhanced credit at the rate of 1.5 to 1; and I am, therefore, prepared to deduct a further 30 days.

I credit him for 90 days of pretrial custody. [ 60 ] This means that the total time remaining to serve is 1,005 days. [ 61 ] Further, I impose the following ancillary Orders:

• I order that Mr. Pierce provide a sample of his DNA for purposes of inclusion in the database. • I am obligated to impose an Order pursuant to

section 109 of the Criminal Code . Mr. Pierce is prohibited from possessing any firearms or ammunition for a period of 10 years. • There will be a forfeiture Order pursuant to section 16(1) of the CDSA for all of the seized property listed in the Agreed Statement of Facts. • And, finally, I must impose a victim of crime surcharge in the amount of $200 on count #1 and $200 concurrent on court #2 for a total fine of $200, which must be paid within one year from release. V. CONCLUSION [ 62 ] Mr.

Pierce, it gives me no pleasure to send you to jail today. [ 63 ] You must now live with the fact that you have caused considerable damage to this community and I am sure that people here will be glad that you will not be returning to Iqaluit upon your release. [ 64 ] I feel for your family and am encouraged by your prospects for rehabilitation. I hope you fully understand the consequences of your actions. [ 65 ] Without your guilty pleas and your rehabilitative efforts, the sentence would have been longer. [ 66 ] Good luck, Mr. Pierce.

Dated at the City of Iqaluit this 25th day of June, 2018 ___________________ Justice B. Tulloch Nunavut Court of Justice APPENDIX “A” AGREED STATEMENT OF FACTS 1. RCMP members of V Division Federal Operations

Section in Iqaluit, Nunavut, as a result of information received in August and September 2015, began an investigation into Mr. Pierce for trafficking in controlled substances. The investigation culminated on August 5, 2016 when RCMP searched Mr. pierce’s house 2507 pursuant to a

section 11 Controlled Drugs and Substances Act warrant, resulting in seizure of: a. Three hundred and ninety-two point eight (392.8) grams of cocaine; b. Four (4) grams of cannabis marihuana; c. Two (2) grams of cannabis resin;

d. One (1) pill; e. Seven thousand dollars ($7,000) cash; f. Items of drug paraphernalia including score sheets, digital scales, cellular telephones, and grinder; g. 14 plastic bags containing the cocaine, all weighing approximately 1 ounce each; and h. Nine (9) one (1) gram bags. 2. The seized items were transported to the Federal Operations Office to be weighed, re-bagged and processed. Several exhibits were sent to the Health Canada Laboratory for analysis.

Health Canada Certificates of Analysis were returned from the laboratory after the analysis was completed and the controlled substances seized were cocaine, cannabis resin and cannabis marihuana. 3. A red box found in the laundry room contained 14 ziplock bags containing cocaine and marked with the number 28 and 28.1 (believed to represent the number of grams). Fingerprints were found on three of those bags: the fingerprints were identified as belonging to Mr. Pierce. 4. A total of $7,200.00 was seized: $200.00 cash from Mr.

Pierce’s bedroom, $6,000.00 cash from his dresser drawer and $1000.00 cash from a small safe outside his room. 5. Mr. Pierce was arrested, Chartered and cautioned in the house by the RCMP officers and charged with seven offences, including possession of cocaine for the purpose of trafficking and possession of proceeds of crime. He was released on a recognizance on August 10, 2016. His recognizance has been amended twice, once to allow him to attend a training programme outside Nunavut and recently to visit his family in Manitoba between March 6 and May 2, 2018. 6.

Constable Bowskill provided an expert opinion that the price for a gram of cocaine sold for $200.00 in Iqaluit in 2016. The value of the cocaine seized, if sold at the gram level was $78,560.00. The price per ounce was $4000.00 to $4500.00 (uncut) and if sold at the ounce level $56,000.00. Marian Bryant This Agreed Statement of Facts has been reviewed by William Pierce and is accepted as being correct. Sara Siebert