r v. JESSE ROBERT ERNEST COTE, 2015 QCCQ 7541

R. c. Cote 2015 QCCQ 7541 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF GATINEAU LOCALITY OF GATINEAU Criminal Division Nos. 550-01-071977-138 550-01-071978-136 DATE: August 28, 2015 ______________________________________________________________________ PRESENT: THE HONOURABLE RICHARD LAFLAMME J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutor v.

JESSE ROBERT ERNEST COTE Accused ______________________________________________________________________ SENTENCING ______________________________________________________________________ [ 1 ] The accused pleaded guilty to a charge of possession of cannabis for the purpose of trafficking, possession of crack for the purpose of trafficking, possession of cocaine for the purpose of trafficking, transporting a firearm contrary to the regulation made under

section 117 (

h) of the Criminal Code (Cr.C.), and violating the conditions of an undertaking given to a justice of the peace or a responsible officer. The alleged offences were all committed on July 8, 2013. [ 2 ] For those crimes, the legislator provides for maximum sentences ranging from two years of imprisonment to imprisonment for life. I. THE FACTS [ 3 ] The vehicle in which the accused was riding was intercepted by the police because of a defective tail light. The police officers noted an open bag filled with cigarettes. In the bag, they found 884 grams of marijuana, 8.3 grams of crack and 2.9 grams of cocaine.

When searching the trunk, the police officers found two firearms, for which the accused had no certificate or licence. At the time of the offences, the accused was subject to an undertaking. II. POSITIONS OF THE PARTIES [ 4 ] In the interest of denunciation and deterrence, the prosecution sought an overall prison term of 30 months, subtracting the time spent in closed therapy.

Hence, the prosecution requested 21 months of imprisonment as of sentencing, along with probation, the duration of which is left to the Court’s discretion. [ 5 ] The defence proposed to stay the sentence and subject the accused to two years’ probation ordering him to perform 200 hours of community work. That suggestion was based, in particular, on the fact that the accused took

part in nine months of closed therapy and that, since the commission of the offences, he has convincingly demonstrated his rehabilitation. III. EVIDENCE ON SENTENCE [ 6 ] The accused testified at the sentencing hearing. [ 7 ] He said that he began using drugs at age 15. Until his arrest, his entire world revolved around his drug use. He said that he found his two weeks of temporary detention difficult, mainly because of the withdrawal, which was particularly hard, but also because of the language barrier, since he does not speak French. After his release from custody, he stayed at a therapy centre for two months.

In order to further distance himself from his unhealthy environment, he transferred to an addiction treatment centre in Lavaltrie for seven more months. The documents from Freedom House confirm that the accused’s path to sobriety and rehabilitation has been irreproachable. He does not take anything for granted and attends NA or AA meetings despite his demanding work schedule. [ 8 ] Since his arrest, he has completely stopped using drugs, found a good job and resumed contact with his family. He registered for masonry training and hopes to be accepted so that he can one day become a mason.

[ 9 ] The accused’s mother gave an emotional testimony about how her son has literally changed since his stay at a therapy centre. He used to be withdrawn and easily angered at the slightest annoyance, and was estranged from all the members of his family. He is now open and calm and has reconnected with the other members of his family, with whom he has harmonious relations. IV.

SENTENCING PRINCIPLES [ 10 ] The sentence handed down by the Court must be proportionate to the responsibility of the accused and the gravity of the offences. [ 11 ] In addition to the objective and subjective gravity mentioned earlier, the Court must take into account the aggravating and mitigating circumstances related to the commission of the offences or the circumstances of the offender. [ 12 ] The Court identifies the following aggravating circumstances: • The nature of the drugs seized: The accused had in his possession three substances for the purpose of trafficking, two of which can be classified as hard drugs.

Courts often point out that crack is one of the most dangerous drugs, since it creates dependency very quickly and causes physical and social damage; • The quantities were significant: 884 grams of marijuana, 8.3 grams of crack and 2.9 grams of cocaine; • The crimes were committed for financial gain. However, it should be added that the accused’s ultimate goal was to sustain his significant drug addiction; and • The accused has a previous conviction for a similar offence, when he was tried under the Youth Criminal Justice Act .

He was given 18 months’ probation, with 30 hours of volunteer work. [ 13 ] The Court notes the following mitigating factors: • The accused pleaded guilty, thereby avoiding a trial; • The accused’s young age at the time of the crimes: 20 years old; • Nine months of closed therapy enabled the accused to stop using drugs. He has been sober since November 15, 2013.

He still participates in support groups to maintain his sobriety; • He changed his lifestyle and the people with whom he associates; • The two weeks of temporary detention, which were difficult; • The accused shows regret and remorse about his criminal acts and fully acknowledges his responsibility; and • The presentence report was very positive. [ 14 ] Sentencing is an individualized process that takes into account the characteristics of the offender. [ 15 ] The accused is 22 years old.

The pre-penal report showed that his childhood was marked by the separation of his parents when he was eight years old, followed by the absence of his father. He grew up with his mother, who provided him with a supervised environment conducive to the development of pro-social values. As mentioned earlier, he began using drugs at age 15: first cannabis, then hard drugs.

His young age and impressionability led him to become involved in the sale of narcotics through a friend. [ 16 ] The probation and volunteer work ordered under the Youth Criminal Justice Act did not convince him to stop his criminal activities and drug use. However, the probation officer indicated that the accused no longer considers criminal activities to be [TRANSLATION] “an interesting option, and that he aspires to a law-abiding lifestyle”. His arrest in July 2013 was the event that triggered his introspection and the remarkable changes he has made since then.

He voluntarily went to an addiction treatment centre. He relapsed once at the beginning of his therapy, in November 2013, but has since remained sober. In addition, he still has relations with people who can encourage him to remain sober. He receives support from his mother, his sister and his extended family. Moreover, the presence of his loved ones, who are proud of him for taking action, and his sobriety contribute to the favourable prognosis for his reintegration into society.

The risk of reoffending is limited; according to the probation officer, a long-term approach will enable the accused to maintain his progress, achieve more balance and develop his self-reliance. In that regard, the accused joined the labour market in June 2014. He has a job in the construction field and often works seven days a week. [ 17 ] In addition to the characteristics and personal situation of the accused, the Court must take into account the other objectives provided for in

section 718 Cr.C .: • To separate offenders from society, where necessary; • To provide reparation for harm done to victims or to the community; and • To promote a sense of responsibility in offenders. [ 18 ] In addition, the Court must comply with the following principles: • Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; • An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances;

• All available sanctions other than imprisonment that are reasonable in the circumstances should be considered; and • A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [ 19 ] It is worth noting that Canadian courts of appeal have affirmed and reaffirmed many times that courts have a duty to be strict, and not complacent, in dealing with hard drugs, particularly crack, given the high level of dependency and mischief associated with that harmful drug. [1] As our Court of Appeal recently pointed out in R. v.

Francis Bernier : [TRANSLATION] . . . while the criteria of denunciation and deterrence are a primary consideration in cases of trafficking or narcotics possession, rehabilitation, when put forward “very convincingly”, can nevertheless become an overriding criterion at sentencing. [2] [ 20 ] In that ruling, the Court cited the following passage from Aurélius : [3] [TRANSLATION] [14] . . . while it is true that crack is a particularly harmful drug, mainly because of the small amount required to create dependency, the need to denounce and deter the traffic of that substance does not automatically make it impossible to grant a conditional sentence of imprisonment. 22 . . . [16] Moreover, the Court has acknowledged that, even in the case of drug offences, the principle of individualization of sentences, which always applies, sometimes justifies favouring the rehabilitation of offenders by allowing them to serve their sentence in the community. [ 21 ] In this case, the accused cannot be granted a conditional sentence of imprisonment, given the amendments made to

section 742.1 Cr.C . on November 20, 2012. [4] Nevertheless, in light of the principle of individualization of sentences, as interpreted in R. v.

Nasogaluak , [5] the Court considers that it can be inferred from Aurélius, supra that denunciation and deterrence do not make it impossible to impose a sentence other than incarceration, since [TRANSLATION] “No one sentencing objective trumps the others and it falls to the sentencing judge to determine which objective or objectives merit the greatest weight, given the particulars of the case”. [6] [ 22 ] Very recently, our Court of Appeal also pointed out that sentences for that type of crime range from a few months to four years of imprisonment. [7] “The relative importance of any mitigating or aggravating factors will then push the sentence up or down the scale of appropriate sentences for similar offences. . . .” [8] [ 23 ] Regarding the principle of similar sentences for similar offences, it is difficult to find decisions in which offenders committed similar offenses in similar circumstances.

Although that principle is a valuable guideline for trial judges, they must make the necessary distinctions when analyzing decisions. [ 24 ] The position of the Crown is based on R. v. Labelle , [9] R. v. Kamal [10] and R. v. Stevens . [11] Those three judgments are very interesting in that they identify many decisions regarding trafficking or possession for the purpose of trafficking. A few comments are in order for each of them. [ 25 ] In R. c. Labelle , the accused was sentenced to three years in prison, from which 18 months of pre-trial custody were subtracted.

The only similarities with the present case pertain to the nature and quantity of some of the drugs being trafficked (cocaine and crack). At the time the crimes were committed, the accused was unemployed and subject to an undertaking, in addition to having been convicted five times for similar offences and incarcerated twice. The decision identifies several judgments that, with respect, have no similarities with regard to the offender’s profile or the circumstances of the offences. [ 26 ] Éric Downs J.’s decision in R. v.

Kamal, supra is of interest: Downs J. outlines the applicable sentencing principles, which he illustrates in a table identifying about 15 cases and summarizing the nature of the offences, the age of the accused, and the aggravating and mitigating factors accepted for the purpose of sentencing. The sentences, many of which are conditional, range from 15 to 46 months of imprisonment.

A two-month sentence for two counts of trafficking, in the amount of $20, was reduced to 17 days by the Court of Appeal. [12] Once again, none of the cases mentioned have enough similarities with the present case to contribute to fair, reasonable and comparable sentencing. [ 27 ] In Stevens , the Court of Appeal increased a sentence from 18 to 30 months for trafficking and possession for the purpose of trafficking of cocaine and hydromorphone, in addition to theft and possession of stolen goods. Stevens was on probation further to convictions for similar crimes.

After a first arrest for several instances of trafficking with an undercover officer, he was arrested again for possession of cocaine and medication. The Court notes that the evidence did not indicate conditions conducive to making rehabilitation the main objective in determining the appropriate sentence. The pre-penal report was very negative and concluded that there was an unacceptable risk of reoffending in society. The offender did not care about the consequences of his trafficking on society and took no responsibility for his actions, preferring to blame others.

A few years earlier, he had completed therapy, which proved ineffective. In 2013, he began another therapy, from which he was expelled. It goes without saying that the 30-month sentence sought by the Crown in the case at hand is disproportionate when the situations of Côté and Stevens are compared. [ 28 ] The defence attorney submitted two decisions, neither of which directly supports his recommendation for a suspended sentence. First, R. v. Desbiens [13] is not directly related to sentencing for drug offences.

Moreover, the Superior Court justice [TRANSLATION] “considers that it is more useful, but also much more difficult, to undergo closed detoxification treatment, instead of staying at a common prison, passively watching television while awaiting the outcome of one’s trial”. [ 29 ] As for the second decision, Godmaire v. R. , [14] the Court of Appeal substituted an 18-month sentence of imprisonment for a conditional sentence of imprisonment with 200 hours of community work. Godmaire’s situation resembles Côté’s profile. Godmaire,

who was 25 years old, committed seven offences attributable to his substance abuse, including robbery and breaking and entering. After his arrest, he was released in order to stay at a closed therapy centre for 13 months. In fact, the Court criticized the trial judgment for giving [TRANSLATION] “the criteria of deterrence a level of precedence that was not required by the particular and exceptional circumstances in the case, and not recognizing the full scope and effects of Godmaire’s stay at Maison Mélaric”. The pre-penal report was very favourable and the offender had a job.

What is more, it was acknowledged that the offender no longer posed a threat to society, and even that he was fully rehabilitated. The Court then considered that it could combine the corrective and punitive objectives. The decision also points out that it would be unfair not to credit the appellant for the considerable amount of time when he was in fact deprived of his liberty. In R. v. Downes , [15] the Court of Appeal for Ontario reviewed jurisprudential trends regarding the credit to be granted for time spent at a closed centre or under very strict conditions.

It listed many decisions for and against granting credit against sentences, as well as the nuances to be made.

The Court of Appeal summarized as follows the elements that must be considered when applying for credit for bail conditions: - Time spent on stringent pre-sentence bail conditions, especially house arrest, is a relevant mitigating factor. - As such, the trial judge must consider the time spent on bail under house arrest in determining the length of sentence. - The failure of the trial judge to explain why time spent on bail under house arrest has not been taken into account is an error in principle. - The amount of credit to be given for time spent on bail under house arrest is within the discretion of the trial judge and there is no formula that the judge is required to apply. - The amount of credit will depend upon a number of factors including, the length of time spent on bail under house arrest; the stringency of the conditions; the impact on the offender's liberty; the ability of the offender to carry on normal relationships, employment and activity. - Where the offender asks the trial judge to take pre-sentence bail conditions into account, the offender should supply the judge with information as to the impact of the conditions.

If there is a dispute as to the impact of the conditions, the onus is on the offender to establish those facts on a balance of probabilities in accordance with s. 724(3) of the Criminal Code . (at 333) [ 30 ] There is abundant jurisprudence referring to the mitigating nature of participation in therapy. [16] It frequently includes the claim that the accused’s undergoing therapy after charges are laid is not sufficient to set aside or mitigate the gravity or significance of the acts committed, or to achieve the objectives of denunciation and deterrence. That is acknowledged by some.

However, those decisions do not settle the matter of credit stemming from strict release conditions. [ 31 ] In the case at hand, the Court believes that nine months of therapy in a closed centre must be considered a deprivation of liberty. At first glance, a condition requiring someone to live at a specific location 24 hours a day is very restrictive.

The Crown conceded this in proposing that the sentence be reduced by nine months, to take into account the period during which the accused was in fact deprived of his liberty. [ 32 ] In the case at hand, the Court is of the opinion that the accused convincingly demonstrated his rehabilitation. He has stopped using drugs, which were the source of his criminal activities. He has joined the labour market and become an asset to society. He receives support from his loved ones and from people specialized in maintaining sobriety.

His rehabilitation is not a passing phase: he has remained sober and complied with his release conditions for two years. The fact that the accused was spurred to such action, as well as his young age, are convincing reasons to give primacy to the objective of rehabilitation over those of denunciation and deterrence. However, this does not render the sentence proposed by the defence reasonable. The Court found no decision supporting the course of action proposed.

Although such a sentence would certainly encourage the accused in the efforts he has been making in recent years, it would void the objective and subjective gravity of the offences committed, as well as the objectives of denunciation and deterrence. A sentence of detention is required in order to take those elements into account. Nevertheless, for the reasons given above, the Court believes that the sentence can be at the lower end of the scale established by the jurisprudence. A sentence of imprisonment equivalent to 12 months is likely to achieve the penological goals mentioned earlier.

As proposed by the prosecution, the time spent at the closed therapy centre should be subtracted from those 12 months. [ 33 ] In addition, the accused was temporarily detained for 14 days. The uncontradicted evidence shows that those two weeks were trying, given the withdrawal and the fact that the accused, who speaks only English, found himself in a largely French-speaking environment.

The effect of presentence detention on access to early release is included in the circumstances justifying additional credit of no more than one and a half days for each day of presentence detention under section 719(3.1) of the Criminal Code . [17] In this case, it cannot be concluded that the accused would have been denied early release. In addition, the accused did not try to extend his detention in order to exploit or subvert the system, on the contrary. An additional credit of 21 days is granted to the accused for the 14 days of temporary detention.

Hence, he is sentenced to 69 days of imprisonment as of today. [ 34 ] Considering that the accused’s job significantly contributes to his rehabilitation, the Court allows him to serve his sentence intermittently. In addition, he will be subject to supervised probation for three years, under the following conditions: (

a) Keep the peace and be of good behaviour; (

b) Appear before the court whenever required to do so; (

c) Notify in advance the probation officer of any change of address or of name, and rapidly advise him/her of any change of employment or occupation: (

d) Report to a probation officer within 72 hours of his release from prison. In particular, he must follow his/her instructions concerning any therapy for substance abuse ;

(

e) Perform, according to the terms and conditions indicated by the probation officer, 100 hours of community service within 12months; (

f) Abstain from consuming and possess: any drug, except in accordance with a medical prescription; (

g) Abstain from being in the presence of people who, to his knowledge, illegally consume, possess or traffic in narcotics or drugs; (

h) Abstain from having in his possession a pager, a cellular phone or any other mobile telecommunications device except forworking purposes.; (

i) ABSTAIN from owning, possessing or carrying offensive, restricted or imitation weapons, including starter pistols, lead pistols,firearms, cross-bows, prohibited or restricted weapons, prohibited devices, ammunition, prohibited ammunition, explosive substances,cutting or thrusting weapons and, if he ownes, possesses or carries them, he must hand them over before (time) ____________ p.m.,(date) ________________, to _______________________________________________. He is prohibited from possessing any document authorising him to acquire a firearm except for working purposes. [sic] [TRANSLATION] (

j) Report to the Hull detention centre on Saturday, September 12th, 2015 at 9:00 a.m. and remain there until Sunday, September 13th,2015 at 4:00 p.m., and thereafter every Saturday at 9:00 a.m. until the following Sunday at 4:00 p.m., until the sentence expires. [35] In addition to the sentence imposed, the Court issues an order under

section 109 Cr.C. prohibiting the accused from having inhis possession any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition orexplosive substance, for ten years. [36] Lastly, the Court sentences the accused to pay the victim surcharge within 45 days. __________________________________ RICHARD LAFLAMME J.C.Q. Mtre. Jean-Philippe GarneauCriminal and penal prosecuting attorney Mtre. Pierre-Olivier LemieuxCounsel for the accused Date of hearing: June 26, 2015 [16] Québec (Directeur de poursuites pénales et criminelles) v.

Franco Fortin 2013 CarswellQue 7434; R. v. Juteau (QC CA), [1999] J.Q. No. 1862; R. v. R. D., 2008 QCCA 1641 , [2008] J.Q. No. 8469; R. v. A.R., [2007] O.J. No. 4205;R. v. Gosselin, [2011] N.W.T.J. No. 49; R. v. Parise, [2002] O.J. No. 2513; R. v. Bolduc 001 CarswellQue 2225; R. v. Daoust 2001CarswellQue 2228; R. v. F. (M), 1995 CarswellQue 882; R. v. L. M., 2008 CarswellQue 10698; R. v. Savard, 2013 CarswellQue 2556; R.v. Gray, 1995 CarswellOnt 1744; R. v. Kooper, 2006 CarswellMan 875; R. v. Malette, 2005 CarswellOnt 4350; R. v. T_R, 2003CarswellQue. [17] Carvery, 2014 SCC 27; Summers, 2014 SCC 26.