R v. XIOMARA, 2023 QCCQ 15

R. c. Martinez 2023 QCCQ 15 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Criminal and Penal Division No: 500-01-191050-191

(05) DATE: January 9, 2023 PRESIDED BY THE HONOURABLE LORI RENÉE WEITZMAN, J.C.Q. HIS MAJESTY THE KING PROSECUTOR v. XIOMARA MARTINEZ ACCUSED SENTENCE [ 1 ] Xiomara Martinez was found guilty of conspiracy to traffic in heroin between January 1, 2018 and June 30, 2018, contrary to section 465

(1) c) of the Criminal Code (Cr. C.). [1] [ 2 ] As explained in the decision on conviction, Ms. Martinez was a participant in a conspiracy to traffic heroin with a criminal organization involving 10 individuals. The organization, led by Dany Durand, was well structured with each of its members having specific roles and responsibilities. The organization paid $5,750 for each package of 50 g of heroin and replenished its stock approximately every 5 days. One member separated the packages of 50 g of heroin into smaller bags for sale on the street.

Several managers coordinated pickups of the heroin and were responsible for supervising the runners (or couriers), who in turn would supply the drugs to the street sellers and collect the profits. Each street seller was given a specific pre-established work shift and would report to a supervisor. [ 3 ] Although the exact role played by Ms.

Martinez in this organization was not established, the evidence did prove that she was a participant and met with co-conspirators in furtherance of the conspiracy on four occasions, between May 1, 2019 and June 25, 2019. [ 4 ] The Crown recommends a sentence of 5 years, underscoring the dangers of heroin and referring to the sentences imposed on seven co-accused which range from 3 years to 8 years and 3 months, reflecting the involvement and profile of each. [2] Ms. Martinez emphasizes her limited involvement in the conspiracy as well as several attenuating factors. She suggests a sentence of 12 months.

GUIDING PRINCIPLES [ 5 ]

Section 718 Cr. C. provides that the fundamental purpose of sentencing is to protect society and to contribute to the respect for the law and the maintenance of a just, peaceful and safe society. This purpose is met by the imposition of sanctions intended to meet one or more of the following objectives:

a) to denounce unlawful conduct;

b) to deter the offender and others from committing offences;

c) to separate offenders from society when necessary;

d) to assist in rehabilitating offenders;

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

f) to promote a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community. [ 6 ] A sentence should be similar to sentences imposed on similar offenders for similar offences (sec.718.2 (b)).

[7] An offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances (sec. 718.2 (d)and (e)). [8] The Court must consider the mitigating and aggravating circumstances (sec. 718.2 (a)) in striving to determine a just sentencewhich must fundamentally be proportionate to the gravity of the offence and the degree of responsibility of the offender (sec 718.1). PROFILE OF MS. MARTINEZ / AGGRAVATING AND MITIGATING CIRCUMSTANCES: [9] Ms. Martinez is 46 years old. She was born in El Salvador, where she grew up until her family moved to Canada when she was 14years old.

She is now a dual citizen of both countries. She is the co-owner and manager of a family business which operates anemployment agency in the food industry. She also owns a garage that manages the maintenance of the vehicles used by the agency. Shehas no criminal record. [10] Ms. Martinez maintains her innocence and chose not to testify at her trial as is her constitutional right.

Because of her silence withrespect to her participation in this conspiracy, the presentence report does not shed any light on the factors that may have led her tobecome involved with this criminal organization.[3] [11] There is no evidence of Ms. Martinez being addicted to drugs or a drug user at all. The only inference that can be drawn, given thenature of this conspiracy, is that she participated in it for financial gain. There is no evidence here of any awareness nor of anyintrospection on her part about the consequences of her crime that might serve to lower the risk of reoffending.

It should be noted,however, that the absence of mitigating factors − although useful in comparing her situation to that of other offenders − is not to beconsidered as an aggravating factor. [12] The principal mitigating factor in this matter is the fact that until now, Ms. Martinez has been a productive member of society. Sheis self- employed and has no prior criminal record. The aggravating factor is the nature of the drugs involved in this conspiracy. Thejurisprudence is replete with reminders about the devastating consequences of heroin use, and its pernicious and addictive nature.

APPROPRIATE RANGE OF SENTENCES / PARITY OF SENTENCES [13] In order to ensure that the sentence imposed is just and appropriate, the Court must consider sentences imposed in similar matters.Of course, each case is to be individualized and must take into account the particular circumstances of the offender. Distinctions mustalso be drawn between the circumstances of Ms. Martinez and those of her co-accused who have received their sentences. In addition, theCourt stresses that the sentence to be imposed here is for one count of conspiracy only.

Although the maximum sentence for conspiracyto traffic heroin is the same as the maximum sentence for trafficking (the maximum penalty is life imprisonment in both cases), inreviewing sentences imposed in similar matters, the Court will consider that Ms. Matinez has not been found guilty of trafficking. As theSupreme Court of Canada has stated, evidence that an offender committed the substantive offence will generally lead to a harshersentence than if he or she had conspired to commit it but had not actually done so.[4] [14] The sentence here must reflect the fact that Ms.

Martinez participated in a conspiracy to traffic in heroin, one of the most dangerousdrugs sold on the street. The acute dangers and high cost to society associated with the trafficking of hard drugs was most recentlyunderscored by the Supreme Court of Canada in R v. Parranto:[5] [87] The dangers posed by trafficking in hard drugs, such as heroin and cocaine, have long been recognized in Canada.

Over the pastfew decades, however, society’s awareness of the true gravity of trafficking in such drugs has grown to the point that we are reminded,on a daily basis, of the death, destruction, and havoc it causes in communities across Canada. [88] Trafficking in such substances causes both direct and indirect harms to society.

Directly, the distribution and abuse of hard drugsleads to addiction, debilitating adverse health effects, and, all too frequently, death by overdose. […] [89] Trafficking also leads indirectly to a host of other ills, including an increase in all manner of crime, committed by those seekingto finance their addiction, as well as by organized crime syndicates […] Given that much of this criminal activity is violent, traffickinghas come to be understood as an offence of violence, even beyond the ruinous consequences it has for those who abuse drugs and in theprocess, destroy themselves and others.

Indeed, as Doherty J.A. has explained, violence is such a predictable consequence of the illicitdrug trade that it cannot be dissociated from it: Cocaine sale and use is closely and strongly associated with violent crime. Cocaine importation begets a multiplicity of violent acts.Viewed in isolation from the conduct which inevitably follows the importation of cocaine, the act itself is not a violent one in the strictsense. It cannot, however, be disassociated from its inevitable consequences. (R. v.

Hamilton (2004), (ON CA), 72 O.R. (3d) 1 (C.A), at para. 104) […] [90] A further and perhaps even more devastating consequence of the hard drug trade is its impact on families and theintergenerational trauma it causes: Trafficking in drugs, and in particular hard drugs such as cocaine, is a crime whose victims can be found far beyond the individuals whobecome addicted to the drugs. Families can be torn apart by either the loss of the individual to the addiction itself or to the violence thatall too often accompanies the drug trade.

Children suffer immense harm from the effects of addiction in their home, whether this addiction be from pre-natal impact or fromphysical and/or emotional violence in the homes that they should be safe in. The future of these children and their families is damagedand all of society pays the price.

(R. v. Profeit, 2009 YKTC 39, at paras. 25-26 . [91] Finally, the trafficking of hard drugs leads to “significant if not staggering” costs to society in terms of health care and lawenforcement expenses, as well as lost productivity […] [references omitted] [15] Recently, in imposing sentence in the case of R. v.

Salem,[6] Mascia J. canvassed the range of sentences for offenses involvingheroin, as well as the rationale for imposing harsh sentences, which stems primarily from the goal of deterrence in these matters.[7] [16] The review of the caselaw in Salem[8] establishes that “absent exceptional circumstances, even first offenders trafficking in smallquantities will be handed jail sentences − usually in a penitentiary”.[9] Deterrence is the overriding sentencing principle in these cases,even for the addict who sells heroin to feed his habit.[10] In Salem, exceptional circumstances[11] justified a lenient sentence of twoyears less a day (less 50 days counted as pretrial custody)[12] which was well below the usual range.[13] [17] In R. v.

DiBenedetto,[14] the Ontario Court of Appeal confirmed a range of sentence of 6 to 12 years for offences involvingtrafficking of between 0.5 and 1 kg. of heroin. [18] As to the parity of sentences with those imposed on the co-accused in this file, based on the evidence at trial, Ms. Martinez’ rolewas lesser than any of the co-accused already sentenced. As mentioned above, on four occasions Ms.

Martinez met with a co-conspiratorin furtherance of their common goal. [19] The leader of the conspiracy and those that were heavily involved in the group’s activities received sentences of between five andeight years, following their early guilty pleas.[15] There is no suggestion that their involvement is in any way commensurate with that ofMs. Martinez. [20] Lesser sentences were imposed on two co-conspirators. Simon Leclerc, 30 years old, pleaded guilty and acknowledged that he wasinvolved in the conspiracy from October 2017 to June 2018. His involvement began as a courier.

He delivered money to Durand, theleader of the group, and retrieved packages of 50 g of heroin on at least two occasions. His role became that of a packer, in charge ofseparating 50 g of heroin into smaller bags for which he received $500 a week. In addition to the counts of conspiracy to traffic in heroinand trafficking in heroin, he also pleaded guilty to breach of conditions for having broken his curfew, contrary to the conditions of hisrelease.

Taking into account a positive presentence report, the absence of any prior convictions, the full support of his law-abidingfamily, his remorse, his efforts to address both his personal difficulties and his drug dependence through therapy, and considering a lowrisk of reoffending, the sentence imposed was three and a half years. [21] François Jarry, 36 years old, pleaded guilty to conspiracy to traffic in heroin and trafficking in heroin from October 2017 to May2018. He acted as a courier for the organization, picking up both money and drugs.

The evidence established that he transported 50 g ofheroin on four different occasions, receiving $500 each time, and was not deterred in his activities as a courier even after he was arrestedwith heroin in his possession during the course of this investigation. He had a criminal record consisting of four counts of failure torespect court conditions or conditions of a probation order between 2011 and 2014. The presentence report noted that his arrest in thismatter led to positive changes in his life, namely moving away from his network of criminal acquaintances, and total abstinence fromdrugs and alcohol.

Those efforts were seen as lessening the risk of recidivism, nevertheless the risk was deemed to be present in themedium and long-term. He received a sentence of three years. [22] In both of those cases (Leclerc and Jarry), despite the seriousness of the offenses and the significant involvement of each accused inthe conspiracy, the sentence reflected their positive steps taken towards rehabilitation. CONCUSION [23] In view of all the factors set out above and taking into account the range of sentences, the Court finds no justification for imposinga sentence significantly higher on Ms.

Martinez than those imposed for Leclerc and Jarry. It is true that their sentences reflectedmitigating factors which are absent here (guilty pleas, rehabilitation), however, the sentence to be imposed here is for one count ofconspiracy, whereas Leclerc and Jarry were also guilty of trafficking heroin. Furthermore, the evidence established that their involvementin the conspiracy was considerably greater than that of Ms.

Martinez. [24] Even taking account of the lesser involvement of Ms Martinez, there is no doubt that the 12-month sentence she proposes ismarkedly and inexplicably below the appropriate range for this type of offense[16] and does not reflect the devastation caused by heroin.As mentioned above, the Court has no evidence of any mitigating circumstances apart from the absence of any prior record. [25] The Tribunal will sentence Ms.

Martinez to a period of imprisonment of 30 months; a sentence meant to deter others from similarconduct, and to express society’s condemnation of this type of activity, while considering the particular circumstances of this offender. FOR THESE REASONS, THE COURT: SENTENCES Xiomara Martinez to a period of imprisonment of 30 months less 20 days calculated as pretrial detention, thus, 29 monthsand 10 days; IMPOSES the mandatory 10-year firearms prohibition pursuant to

section 109 of the Criminal Code.

__________________________________ LORI RENÉE WEITZMAN, J.C.Q. Me Marie-France Plante Me Mathieu LongpréFor the Prosecutor Me Joseph ElfassyFor the Accused Date of hearing: October 31, 2022 APPENDIX Trafficking in commercial quantities[1] Ekuban v. R., [1991] CanLII 3562 (QC CA) Possession of 660 gr. of heroin for the purposes of trafficking • Sentence: 8 years. • The offender was a heroin user. • The offender was a father of 7 children. • The offender pleaded guilty. • The offender had no criminal record.

Simple possession of 3 ½ gr. of heroin • Sentence: 2 years, incarceration to be served concurrently.[2] R. v. Sinnadurai, (QC CA) Trafficking and conspiring to traffic 50 gr. of heroin • Sentence: 5 years. • The offender was 32 years old. • The offender was gainfully employed at the time of the offences. • The offender had no previous convictions.[3] R. v. Dankyi, (QC CA) Possession of 250 gr. of heroin for the purposes of trafficking • Sentence: 8 years. • The offender pleaded guilty. • The offender had no related criminal record but was on probation (creditcard fraud) at the time of the offence.[4] R. v.

DiBenedetto, 2016 ONCA 116

Possession of 409.89 gr. of heroin for the purpose of trafficking • Sentence: 6 years. • The offender was of young age. • The offender had a positive personal background. • The offender had a high potential for rehabilitation. • The offender had an unrelated criminal record.[5] R. v. Bains, 2015 ONCA 677 Trafficking 1 kg of heroin • Sentence: 9 years. • Offence committed by a first-time offender. • The offender had unblemished antecedents. • The offender had family support. • The offender had a consistent employment history. • The purpose of the offence was financial gain.[6] R. v.

Javier Benjamin Quito, unreported, 500-73-002141-030, 12 September 2007 Possession of 544.56 gr. of heroin for the purpose of trafficking • Sentence: 5 years and 7 months. • The offender pleaded guilty. He had agreed to provide his address toreceive a package which contained heroin. • The offender was 39 years old. • The offender shared custody of his daughter. • The offender had no relevant criminal record. Dealing in small quantities[7] R. v.

Giroux, (QC CA) Possession for the purposes of trafficking 16.1 gr. of heroin; possession of0.25 gr. of heroin; trafficking 0.10 gr., 0.05 gr. and 0.10 gr. of heroin • Sentence: 6 years. • The offender was a small-time drug addicted dealer. • The offender was a repeat offender. • The offender committed the offence to meet consumption needs.[8] R. v. Vézina, (QC CA) Trafficked 8.7 gr. of heroin into a prison • Sentence: 4 years. • The offender was a 38 year-old mother of two. • The offender had no relevant criminal record.[9] R. v. Calvo Escorcia, 2014 QCCQ 190

Possession for the purposes of trafficking of 3.3 gr. of heroin • Sentence: 2 years less a day (conditional sentence). • The offender was a heroin addict. • The offender pleaded guilty. • The offender was involved in criminal activity for a limited period of time. • The offender demonstrated convincing proof of rehabilitation.[10] R. v.

Derome, [2016] J.Q. no 2978 Possession for the purposes of trafficking 26.53 gr. of heroin • Sentence: 4 ½ years. • The offender was a mother of two with no prior convictions. • The offender pleaded guilty. • The offender had a difficult upbringing marked by criminality andsubstance abuse.[11] R. v.

Beaudreaullt, [2015] J.Q. no 7277 Trafficking 0.10 gr. of heroin and possession for the purposes of trafficking4.6 gr. of heroin • Sentence: 5 years. • The offender was a 57 year-old heroin addict involved in criminal conductto feed his habit. • The offender had numerous prior convictions for drug offences. • The offender pleaded guilty. Other decisions prioritizing deterrence[12] R. v.

Osterag, 2000 ABCA 232 Three counts of trafficking in heroin • Sentence: 5 years. • The offender sold 1.9 gr. of heroin to an undercover officer for which hewas paid $1000. • The offender was a 46 year-old heroin addict. • The offender pleaded guilty. • The offender had a diploma in thermodynamics and worked in turbinebusiness. • The offender was in contact with treatment centers about possibleadmission for rehabilitation while awaiting trial. • The offender’s prospects of rehabilitation were considered unconvincing.[13] R. v.

Phun,1997 ABCA 344 Trafficking 1 gr. of heroin on two occasions • Sentence: 4 years. • The offender was a heroin addict. • The offender demonstrated rehabilitation. • The offender pleaded guilty.[14] R. v. Bahari,1994 O.J. no. 2625 (Ont.C.A.)

Four counts of trafficking heroin (6.71 gr.) • Sentence: 6 years (18 months on each count). • The offender was a 40 year-old heroin addict. • The offender pleaded guilty. • The offending took place over a three week period. • The offender had a minor criminal record and favorable pre-sentencereport.[15] R. v. DaSilva, [2004] O.J.

No. 4808 (Ont.S.C.J.) Possession of 2.08 gr. of heroin for the purposes of trafficking • Sentence: 3 years. • The offender was 33 years old. • The offender was a hard worker who took care of his sick, elderly mother. • The offender had strong family support. • The offender expressed genuine feelings of remorse. • The offender was a drug addict for 9 years but had stopped consuming. • The offender had a prior conviction for trafficking and possession ofstolen goods.[16] R. v. Pimentel, 2004 O.J.

No. 5780 (Ont.S.C.J.) Possession of 5.1 gr. of heroin for the purpose of trafficking • Sentence: 5 years. • The offender was 26 years old. • The offender was employed for a number of years in the constructionindustry. • The offender had a significant criminal record as youth and adult,including convictions for simple possession of narcotics. Sentences favouring rehabilitation[17] R. v.

Lafrance, (QC CA) Possession of 49 gr. of cocaine for the purposes of trafficking • Sentence: 90 days served intermittently; 3 year’s probation; 180 hourscommunity work. • The offender pleaded guilty. • The offender had a positive pre-sentence report and convincinglydemonstrated rehabilitation.[18] R. v. Prokos, (QC CA)

Seven counts of trafficking and possession for the purpose of trafficking ofheroin • Sentence : 23 months (conditional sentence); 2 years probation. • The offender was 26 years old with no criminal record. • The offender was remorseful and pleaded guilty at first opportunity. • The offender’s role was to deliver drugs to specified individuals andremitting the sums collected to his unknown employers, for which he was paid$400 a week. At the time of arrest, the offender had 52 doses of heroin in hispossession.

He only learned the nature of the substance a few days before hisarrest. • The offender had completed his studies, was gainfully employed. • The offender had good prospects of rehabilitation, little risk of reoffendingand a positive pre-sentence report.[19] R. v. Duhamel, 2015 QCCQ 12896 Conspiracy and traffic of cocaine • Sentence: 2 years less a day, served in the community. • On seven occasions, offender acted as a courier for someone else and metthe police civilian agent in a restaurant to exchange money against largequantities of cocaine.

The offender remitted a total of $306,000 in cash inexchange for 9 kilos of cocaine. The offender was paid in cocaine, keeping 100gr. for each transaction. • The offence was committed while the offender was in deep depression.His cocaine consumption coincided with the period he was involved in thecriminal enterprise.

The offender’s involvement in illicit drugs was limited to thedevastating period during which his son was dying. • The offender pleaded guilty and expressed genuine remorse. • The offender made a convincing and exceptional demonstration ofrehabilitation. • The offender had not reoffended in the 3 years since his arrest and did notbreak any bail conditions.[20] R. c. Zawahra, 2016 QCCA 871 8 counts of trafficking crack cocaine and one count of theft • Sentence: 90 days served intermittently. • The offender pleaded guilty. • Convincing proof of rehabilitation[21] R. c.

Viettro Borges, (QCCA) Importing 1.2 kg of cocaine • Sentence: 2 years less a day served in the community. • A 21 year-old offender had been recruited by friends who grosslyexploited his immaturity, his credulity and his lack of personal resources, andthreatened him. • The Court of Appeal noted the need to favour rehabilitation and socialreintegration in this cas[22] R. c. Préfontaine, 2020 QCCQ 1759

Conspiracy to traffic 6 kg of cocaine, 27 kg of cannabis and 14 kg ofcannabis resin • Sentence: 90 days served intermittently. • Seven years passed between the offender’s arrest and his sentencing. • The offender convincingly demonstrated rehabilitation. • The offences were committed in a sophisticated network with significantquantity of hard drugs involved. The offender’s role was important. • The offender had a previous conviction for a similar crime.[23] R. v.

Sharma, 2020 ONCA 478 Importing 2 kg of cocaine • Sentence: a conditional sentence of 2 years less a day. • The offender was a 20 year-old indigenous woman with no criminalrecord and a tragic background. as the single mother of a two-year-old child. • The offender's motivation to commit the offence arose in desperatefinancial circumstances where she was unemployed and facing imminenteviction from her home. • The offender is a low risk to reoffend and has made rehabilitative effortssince arrest.