R. v. Gendron, 2019 BCPC 12

Citation: R. v. Gendron 2019 BCPC 12 Date: 20190131 File No: 15957-1 Registry: Powell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MARTIN ALBERT GENDRON REASONS FOR SENTENCE OF THE HONOURABLE JUDGE K. ARTHUR-LEUNG Counsel for the Crown: S. Davey Counsel for the Defendant: D. Garling Place of Hearing: Powell River , B.C.

Dates of Hearing: January 29 and 31, 2019 Date of Judgment: January 31, 2019 [ 1 ] Martin Albert Gendron entered a guilty plea to a one count Information that on or about the 18 th day of January, 2017, at or near the City of Powell River, in the Province of British Columbia, did unlawfully possess a controlled substance, to wit: cocaine, for the purpose of trafficking, contrary to Section 5(2) of the Controlled Drugs and Substances Act. [ 2 ] A Pre-Sentence Report was prepared wherein he self-reported that he grew up on Texada Island, that he had a good upbringing, was married and then separated, has returned to a residency on Texada Island two years ago residing in a trailer, and self-reported that the

community of Powell River was not good for him and was in contact with whom he referred to as “negative people” (Page 2). He reported to the writer that he is in poor health, that he suffered a stroke in October, 2018 and thereafter a mild set back and last year was hospitalized for a lung infection which his physician said was “secondary to drug injection use” (Page 3). His physician disclosed that he has virtually no contact with Mr.

Gendron and thus was unable to comment on his current physical health and, however, reported that he tapered off his drug use on Page 3 of the Report; however, there was nothing from the physician that he quit his drug use. He receives disability income. He self-reported a historical pattern of drug use including 9 years of heroin dependence, that he has not attended any substance abuse counselling and said that he quit himself, however, of note is his physician was unable to confirm such. He then qualified his drug use to the writer of the PSR and said that he uses cannabis for pain management. Mr.

Gendron was initially abiding by his bail terms, however, ceased reporting in October, 2017, which would have been before his stroke. No explanation for his failure to report was provided, save and except that I will acknowledge that he was hospitalized in Vancouver for meningitis and other ailments over a four month period; however after his discharge, he never returned to reporting after his medical discharge, either in person or by any telephone. Mr.

Gendron was adamant to the writer of the PSR that he would not manage well with incarceration due to his health, however, then said that he would find community supervision and attending Powell River difficult (Page 5). Within the PSR, there is no acknowledgment on the part of Mr. Gendron about his involvement in the drug use within his apartment, and the community as a whole, and continued to blame his former co-accused for the drug use and said that he was simply staying in his bedroom with a girlfriend in his own apartment and that “I don’t know what they found…the drugs weren’t mine” (Page 5). Mr.

Gendron is still refusing to take responsibility for this crime and appreciate the harm that he has caused to this community nor any acknowledgement of remorse when interviewed for the preparation of the PSR. I turn to the book of exhibited photographs and it is factually rebuttable that Mr. Gendron was not truthful to the writer of the PSR indicating that “I don’t know what they found”, when there are photographs of score sheets posted on the wall in his residence, a number of crack pipes on the coffee table, and multiple baggies of cocaine. Mr.

Gendron clearly knew that trafficking was occurring within his residence and I am unable to accept that he was truthful to the writer of the PSR. [ 3 ] Exhibit 1 in this proceeding is the Powell River RCMP Major Exhibit Flowchart listing 34 items seized, some of which I will not refer to as they do not relate to this count in this Information to which Mr. Gendron has pled guilty. Item 1 is a Winchester firearm, more commonly referred to as a pellet gun that was located partially hidden in the armrest of the couch in Mr. Gendron’s living room.

A large number of small zip lock baggies and three digital scales were located. A number of documents confirming that Mr. Gendron was the registered tenant to the apartment. A box of baking soda with a measuring cup and spoon was located which was used to cut and delete the drugs. Spoons with cocaine residue was seized. A black extendable baton was located in addition to a 4 and a half inch folding knife. A Samsung phone was seized. Some 27 baggies of powder cocaine was seized, totalling 0.54 grams of weight with a street value of $1,350.00.

In addition, a further 5 bags of powder cocaine with a street value of $250.00, a calendar with a large number of daily notes of score sheets, names and phone numbers, and $580.00 in currency. [ 4 ] Exhibit 2 in this proceeding is a copy of the calendar with images of cats and the pages attached are filled with names, scores and contact information. Some days have seven entries, indicative of the active involvement in his residence of trafficking. That calendar was posted and clearly visible in his residence. He blames it on his former co-accused.

Virtually every day on the calendar sheets have multiple entries of scores per day. This was a sophisticated dial-a-dope operation and for Mr. Gendron to feign ignorance and no remorse to the writer of the PSR is not acceptable. [ 5 ] Exhibit 3 in this proceeding is a booklet containing 159 pictures of items seized and photographs of Mr. Gendron’s apartment. There is nothing in this extensive booklet that would convince me to accept Mr. Gendron saying that he had no knowledge and that he blamed his former co-accused.

The residence is trashed extensively with an overwhelming amount of photographs that include multiple crack pipes, the pellet gun, a butane ignitor, electronic scales, multiple small baggies, filled baggies of cocaine dispersed on the floor, spoons with cocaine residue, and score sheets. All such depicted items were through the residence all in plain view. [ 6 ] The mitigating factors before me are that Mr. Gendron has entered a guilty plea in November, 2018, that he is elderly and that his health is frail.

He said that he was clean, however, thereafter conflicts that he does have a long history since being a youth of being addicted to one drug or another. He self-reports that he is clean of drugs, however, he does not engage with his physician or counselling and thus there is nothing in which to confirm that self-report. On the day of sentencing, Mr.

Gendron, now clearly realizing that incarceration was being sought by Crown and at the time of submissions was a possibility, has now expressed remorse to the Court and now admits “I knew what was going on in there”, however, he then qualified it when he spoke to the Court and said that he did not see any harm because he was not selling and that he was not responsible for the selling of the drugs. He blamed his former co-accused still on the day of sentencing and said that it was his former co-accused who, in his words, “preyed on those people”, and thus it is concerning that, as of the day of sentencing, Mr.

Gendron still does not appreciate his level of participation in this offence and his continual knowledge of the trafficking, his making his residence day-in and day-out available for drugs and thus the harm that this has caused to the community as a whole. Indeed, to use Mr. Gendron’s own words, his level of participation in this indeed also “preyed on those people”, meaning the addicts in the community. Phone calls that the police received while in his residence produced by Crown showed that those seeking to purchase knew that it was Mr. Gendron’s own residence as to the location of the illegal hard drugs.

On the day of sentencing, Mr. Gendron told the Court that if the Court helps him out that he will never return to that again. [ 7 ] The aggravating factors before me are that Mr. Gendron has failed to express remorse to the writer of the PSR, he has failed to accept the facts before this Court that were unchallenged that he clearly was in his own apartment that was fraught with ongoing drug use and activity, that the police received 5 incoming calls while in his residence and at least one caller specifically asked if it was Mr.

Gendron who answered the phone, that he fails to recognize the gravity of the offence, the gravity of his involvement and the gravity of harm that he exposed to this small community. Mr. Gendron has a criminal record spanning in excess of 20 years, however, I will acknowledge that it is brief in terms of the number of entries, that there is a significant gap from 1988 to 1992 and then from 1992 to 2015, where the last entry was for possession of a controlled substance. He ceased reporting, even well before his stroke in the Fall of 2018.

At best is a self-report from his physician that he has tapered from his drug use but by no means there is anything to confirm his cessation of drug use. This was a dial-a-dope operation of hard drugs out of Mr. Gendron’s residence. [ 8 ] Crown counsel seeks to convince this Court that a sentence of 6 months of incarceration should be imposed. In the decision of R. v. Cisneros 2014 BCCA 154 , the BC Court of Appeal imposed a range of 6 – 9 months for consideration for sentencing judges when crafting a sentence.

In the Cisneros , (supra ), matter he was 27 years of age, had no criminal record, and supplemented his income by selling drugs. He was not a drug user. In the matter before me, by the disclosure of Mr. Gendron’s physician, Mr. Gendron was a drug

user in the past. The BC Court of Appeal, when considering an appropriate range of sentence, noted that this was a dial-a-dope operationand that there was an absence of extraordinary circumstances to deviate from the 6 – 9 month range. The Court imposed a 6 monthperiod of incarceration. In the decision of R. v. Oates, 2015 BCCA 259, this was for a 31 year old accused who was on probation at thetime of the offence, was engaged in a dial-a-dope, had entered a guilty plea and was motivated by greed rather than the use of drugs.

Thefocus of the Oates, (supra), decision is that the Courts must ensure that denunciation and deterrence is addressed in crafting theappropriate sentence for an offender engaged in a dial-a-dope operation. It is trite to say, but no one fact pattern fits any other decisionand thus, Courts provide guidance of a range when considering the appropriate sentence to impose, while also considering the principlesof sentencing, deterrence, denunciation and rehabilitation. In the matter before me, Defence counsel is seeking to convince me that asuspended sentence is appropriate. I am not convinced.

While I will acknowledge that it is open for me to impose such a sentence, I donot believe that it properly addresses the principles of sentencing. Mr. Gendron did not express any remorse in the PSR nor take anyresponsibility for his involvement in the offence until the day of sentencing and he still, however, despite now admitting that he knewwhat was happening in his residence and saying today that he is sorry, fails to acknowledge his level of participation and said that he didnot “prey on those people.” It is overwhelmingly clear from the filed documentation that Mr.

Gendron was not truthful by saying to thewriter of the PSR that he had no knowledge and was merely in his bedroom. The apartment is strewn throughout as being horrificallymessy but clearly visible was a substantial amount of evidence of drug trafficking, drug possession and drug use. More notably, is fromthe Crown’s submissions that when they entered the residence, there was a telephone that rang a number of times. Five phone calls wereanswered by the RCMP officers, of which one caller specifically asked if the person answering the phone was Mr.

Gendron, thus thosein the community seeking to purchase cocaine knew that Mr. Gendron’s residence was the source for purchasing hard drugs in a dial-a-dope operation. None of that was disputed by Defence counsel. Mr. Gendron continues to fail to accept his level of responsibility andengagement in this sophisticated dial-a-dope operation. The operation was extensive. A review of Exhibit 2, that being the calendar,shows day-in and day-out multiple entries of scores of drug deals.

Entering a guilty plea is a mitigating factor, however, truthfulness isalso an over-arching consideration for this Court when crafting a sentence and Mr. Gendron has not been truthful as to the extent of hisengagement in this activity. This is a small idyllic community on the Pacific Ocean. The exhibits before me lead me to solidly concludethat Mr. Gendron was a significant player in the drug trafficking business in this small community. This community deserves better. Dial-a-dope operations are a sophisticated business enterprise that goes beyond general trafficking and beyond possession.

In accordancewith Oates, (supra), I have considered the facts before me and I do not believe that a suspended sentence is appropriate, and in doing so, Irely upon Paragraph 16 of the decision wherein the Court of Appeal states: What is always required in a sentencing analysis on the issue of deterrence where deterrence is a main or important principle, is anappreciation and consideration of all the circumstances before the court, including the nature of the offence and circumstances of theoffender. [9] I will acknowledge that the PSR and Defence counsel have noted that Mr.

Gendron suffered a stroke in the Fall of 2018 andthereafter a smaller stroke. Defence counsel respectfully submits that Mr. Gendron is fearful of serving his sentence in jail and that theproliferation of drugs in the custodial system would be too tempting for Mr. Gendron. Defence counsel respectfully submits that Mr.Gendron would be in danger if in custody because he is frail and vulnerable. I acknowledge Mr. Gendron is elderly and has somedisability due to the stroke, however, there is no evidence before me that incarceration would be harmful to his health and well-being.

Infact, I would find that being a clean, warm environment with ready access to medical care would assist Mr. Gendron. I accept Crown’ssubmission and reliance upon the BC Court of Appeal decision of R. v. Babcock, 2013 BCCA 368, and similarly there is nothing beforeme that would convince me that his health would be at risk if he served a jail sentence. At Paragraph 12 of the Babcock, (supra),decision that Court noted: We must balance medical considerations with the gravity of the offence and this offender’s particular circumstances. In my view, theprotection of the public was the most important factor in Mr.

Babcock’s sentencing, together with the gravity of the offence. I am notpersuaded that his condition and the treatment he is receiving warrant our reducing the sentence on compassionate grounds. [10] While every crafting of a sentence requires consideration and balancing of the aggravating and mitigating factors before me ineach individual case and to apply rehabilitation, deterrence and denunciation, dial-a-dope operations are sophisticated and particularly ina small community, it is magnified even more so with what was seized and the dearth of entries on score sheets with multiple entriesday-in and day-out.

On the day of sentencing, Mr. Gendron admitted that he knew what was occurring in his residence, however, he stillcontinued to blame his co-accused and said that he did not “prey on those people”. The participation of Mr. Gendron in permitting hisresidence to be used day-in and day-out is actively engaging and causing harm to this community.

Deterrence must be affordedconsiderable weight when imposing a sentencing for trafficking hard drugs and in this matter it is cocaine. [11] There are circumstances where the Court can find exceptional circumstances in a particular offender to impose a sentence loweror higher than the range set out in case law and that is articulated in R. v. Voong, 2015 BCCA 285. At Paragraph 6 of the Voong, (supra),decision, the Court of Appeal reminded all that “imposing a sentence for criminal conduct is in the purview of judges in the trial courts.

It is an individualized process, in that a sentence must be fashioned to take into account the circumstances of the offender, the moralblameworthiness of the offender, the principles of sentencing and proportionality to the offence and the offender.” I have done so. Asnoted in R. v.

M.(CA), (SCC), [1996] 1 SCR 500 at Paragraphs 91 and 92, the Supreme Court of Canada recognized theindividualized process in sentencing and gave deference to sentencing judges, acknowledging that there will be degrees of variation indifferent regions and reminded the lower courts, “…sentences for a particular offence should be expected to vary to some degree acrossvarious communities and regions in this country, as the “just and appropriate” mix of accepted sentencing goals will depend on the needsand current conditions of and in the particular community where the crime occurred.” As I have noted, this is a small community on thePacific Coast, made up of both small and larger businesses, a significant First Nations community, and by and large, hardworking, honestfolks.

It is geographically a community largely dependent on ingress and egress by the ferry system. People who live and work in thiscommunity do not endorse activities such as Mr. Gendron’s sophisticated dial-a-dope operation. It puts members of this community atrisk. It was a sophisticated operation involving the trafficking of cocaine and the entries in the calendar indicate that this was not a one-time business enterprise. I thank Defence counsel for his submissions, however, I am unable to be convinced that a suspended sentenceis appropriate in this matter. [12] I have carefully considered

Section 718 of the Criminal Code, the case law that guides trial court judges, the mitigating factors,the aggravating factors before me and the principles of rehabilitation, denunciation and deterrence, both general and specific. In doing

so, I will impose a 6 month period of incarceration upon Mr. Gendron, there will be a 10 year

Section 109 firearms prohibition, this being a secondary offence there will be a DNA Order and there was no position taken by Defence counsel and the Forfeiture Order sought will be granted. These are my Reasons. ________________________________ The Honourable Judge K. Arthur-Leung Provincial Court of British Columbia