2014 QCCQ 11758, 2014 QCCQ 11758

Unofficial English Translation R. c. Bernier 2014 QCCQ 11758 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL LOCALITY OF MONTREAL " Criminal and Penal Division" No.: 500-01-050821-112 DATE: DECEMBER 3, 2014 ______________________________________________________________________ PRESIDING: THE HONOURABLE JEAN-PIERRE BOYER, J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutrix v. FRANCIS BERNIER Accused ______________________________________________________________________ SENTENCING ______________________________________________________________________ I.

INTRODUCTION [ 1 ] On March 4, 2014, the accused pleaded guilty to three counts of possession of 34.76 grams of cannabis, 8.3 grams of cocaine and 520 rocks of crack cocaine for the purpose of trafficking, offences that had been committed on January 25, 2011. [ 2 ] When the accused pleaded guilty, the Court ordered that a pre-sentence report be prepared and postponed the submissions on sentencing to a later date. [ 3 ] The Court received a copy of the pre-sentence report in late May 2014 and heard submissions from counsel on September 10, 2014. II.

THE FACTS [ 4 ] Following information from privileged sources, a narcotics investigation was launched targeting an organization distributing crack cocaine in the Rosemont and Hochelaga-Maisonneuve neighbourhoods of Montreal. [ 5 ] On January 25, 2011, police officers searched the residence of the accused in Lavaltrie and seized 34.76 grams of cannabis, 8.3 grams of cocaine, and 520 rocks of crack cocaine, as well as equipment for the processing of cocaine. [ 6 ] Other persons related to this search were arrested. [ 7 ] According to the information gathered by Constable Sébastien Létourneau of the city of Montreal police department, despite the size of the network targeted by the police operation, the accused was not known to the police and his name has not come up in the various investigations undertaken since the present charges. [ 8 ] The evidence shows that the accused had agreed to store these substances at his residence on behalf of acquaintances, to make some money quickly and easily to rectify his precarious financial situation.

Apparently, he had kept the drugs for only a few days before the search. III. POSITIONS OF THE PARTIES

[ 9 ] The prosecution seeks a sentence of three years' imprisonment, arguing that sentences applicable to drugs of this type must be harsh and that the accused's situation is not of the exceptional nature that would justify an application of the conditional sentencing regime. [ 10 ] Counsel for the accused believes that the accused's case is exceptional and asks the Court to impose a sentence of imprisonment of two years less a day, to be served in the community. IV.

PURPOSE AND PRINCIPLES [ 11 ] Denunciation and deterrence are the preferred objectives in drug trafficking matters, even in the case of persons without a criminal record. [ 12 ] The purpose and principles of sentencing set out in sections 718 and following of the Criminal Code are: to denounce unlawful conduct; to deter the offender and other persons from committing offences; to separate offenders from society, where necessary; to rehabilitate offenders; to provide reparations for harm done; and to promote a sense of responsibility in offenders. [ 13 ] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender and it should be increased or reduced to account for any relevant aggravating or mitigating circumstances. [ 14 ] The fact that the Court does not punish a crime but rather an individual should always be kept in mind, as Lamer J. observed in Proulx : [1] This Court has held on a number of occasions that sentencing is an individualized process, in which the trial judge has considerable discretion in fashioning a fit sentence.

The rationale behind this approach stems from the principle of proportionality, the fundamental principle of sentencing, which provides that a sentence must be proportional to the gravity of the offence and the degree of responsibility of the offender. Proportionality requires an examination of the specific circumstances of both the offender and the offence so that the “punishment fits the crime”. As a by-product of such an individualized approach, there will be inevitable variation in sentences imposed for particular crimes.

Thus, each sentence must be individualized and take into account its particular facts. [ 15 ] Before depriving an offender of liberty, the sentencing Court must consider if less restrictive sanctions may be appropriate in the circumstances ( s. 718.2 (

d) Cr.C . ). [ 16 ] The conditional sentence provisions were enacted both to reduce reliance on incarceration as a sanction and to broaden the application of the principles of restorative justice in sentencing. [ 17 ] Before the amendments that came into force in December of 2007, this is what emerged from the leading case on conditional sentencing ( R. v.

Proulx , supra ): A. - No offences are excluded from the conditional sentencing regime except those with a minimum term of imprisonment, nor should there be presumptions in favour of or against a conditional sentence for specific offences; - Having determined that the appropriate range of sentence is a term of imprisonment of less than two years, the judge should then consider whether it is appropriate for the offender to serve his or her sentence in the community; B. The requirement under

section 742.1 Cr.C . that the judge be satisfied that the safety of the community would not be endangered by the offender serving his or her sentence in the community is a condition precedent to the imposition of a conditional sentence ; C. Two factors should be taken into account: the risk of the offender re-offending and the gravity of the damage that could ensue in the event of re-offence ; D. Once the prerequisites of

section 742 Cr.C . are satisfied, the judge should give serious consideration to the possibility of a conditional sentence in all cases by examining whether a conditional sentence is consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 Cr.C. ; E. There may be some circumstances, however, where the need for denunciation or deterrence is so pressing that incarceration will be the only suitable way in which to express society's condemnation of the offender's conduct or to deter similar conduct in the future ; F.

A conditional sentence may provide sufficient denunciation and deterrence, even in cases in which restorative objectives are of lesser importance, depending on the nature of the conditions imposed, the duration of the sentence, and the circumstances of both the offender and the community in which the conditional sentence is to be served . [ 18 ] Some claim that a conditional sentence is only a partial restriction on freedom when compared with a prison sentence; this overlooks the fact that a term of imprisonment can be reduced by the granting of parole, while a conditional sentence of similar length cannot. [ 19 ] A judge who orders a conditional sentence must be convinced that the sentence is a sufficient deterrent while being conducive to the offender's rehabilitation. [ 20 ] In the case of offences related to possession of narcotics such as cocaine and crack for the purpose of trafficking, deterrence is undeniably a major objective, and a suspended sentence should be imposed for this type of offence only when there are overriding mitigating factors.

V. CASE LAW

[ 21 ] Sentences imposed across Canada for drug-related offences vary considerably according to the nature of the drug in question. [ 22 ] Cocaine-related offences now call for harsher sentences because of crack, which is incredibly dangerous. [ 23 ] Author Clayton C. Ruby has the following to say concerning the attitude of Canadian courts towards offences involving cocaine and crack. Cocaine was once regarded by courts as a drug that is somewhat more serious than marijuana but less serious than heroin.

However, due to the existence of crack cocaine and intravenous cocaine users, this attitude appears to be changing. More recent sentences for cocaine seem on par with those imposed for heroin possession or trafficking . [2] [Emphasis added] [ 24 ] Our Court of Appeal has examined the many risks associated with the trafficking of crack. In R. v. Dorvilus , [3] Baudouin J., for the majority, described the dangers of this drug as follows: [ translation ] Crack gives users an intense and very quick, but short-lived, high and creates a strong and almost immediate addiction.

It is a drug whose usage is now rapidly spreading among children and young people, because it is cheap compared with powder cocaine or heroin. A crack "rock" sells for between $10 and $15, whereas it takes $25 to $40 to buy a quarter of a gram of powder cocaine.

It also causes aggressiveness and paranoid tendencies in users who are craving the drug. [ 25 ] He concluded that it was necessary for the courts to adopt a strict attitude towards crack dealers: [ translation ] ... the courts have a duty to be strict and unyielding when it comes to the traffic of crack, especially since crack creates a strong and almost immediate addiction, and because it is cheap, children and youths can afford it. [ 26 ] He then reviewed the case law and listed the sentences imposed for crack trafficking.

Apart from a case where the accused was on remand in difficult conditions, all the sentences mentioned ranged from 6 to 54 months' imprisonment . [Emphasis added] [ 27 ] The Court has also noted many judgments where suspended sentences were imposed at trial and where our Court of Appeal did not see fit to intervene. [4] [ 28 ] It is therefore possible for a judge to order a sentence that is outside the established range, as the Supreme Court of Canada, per Lebel J., teaches in Nasogaluak : [5]

(44) The wide discretion granted to sentencing judges has limits… A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit. Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community in which the offence occurred. [ 29 ] R. v. Prokos ( supra ) and R. v.

Lafrance [6] rendered by our Court of Appeal are good examples of this. [ 30 ] In Prokos , Rousseau-Houle J. stated the principles applicable to the ordering of a suspended sentence for drug trafficking offences (paras. 36 to 38): [ translation ] • Drug trafficking offences must always be clearly and strongly condemned. In cases of importing and trafficking hard drugs such as heroin and crack cocaine, when drug addiction is not involved, the deterrence objective is undeniably a key one.

The myth should not be perpetuated for the sake of a general deterrence objective, invoking the inherent gravity of the offences, submitting that the only valid deterrent punishment is an unconditional term of imprisonment. • An individualized approach to sentencing remains a fundamental sentencing principle. For drug-related offences, the sentencing system cannot be based exclusively on social deterrence and denunciation of the gravity of the offences. Sentencing must be tempered and individualized.

It is up to the sentencing judge to choose the sentence that offers the best chance of deterring the offender and ensuring his social rehabilitation, while protecting society. • While the general deterrence criterion is a primary consideration, the rehabilitation criterion, when put forward very convincingly, can nevertheless become overriding during sentencing . [Emphasis added] [ 31 ] Otis J. echoes these observations in Lafrance when she writes: [ translation ] • While the general deterrence criterion is a primary consideration in cases of trafficking and of possession of drugs for the purpose of trafficking, the rehabilitation criterion, when put forward very convincingly, can nevertheless become overriding during sentencing. • The trial judge is in a privileged position to assess the chances of rehabilitating the offender.

In this case, the presence of the stakeholders in the courtroom and the environment in which they live form the backdrop against which the judge, informed by the parties, decides to judicially endorse rehabilitation by accepting, after having weighed them, the risks this entails . [Emphasis added]

VI. ANALYSIS [ 32 ] Over the past 47 months, Mr.

Francis Bernier has complied with all the conditions of his release; he recognizes his wrongful acts and their repercussions, he takes full responsibility for his crimes, and he is taking steps to avoid finding himself before the criminal courts again. [ 33 ] The accused was heard during submissions on sentence and he has convinced the Court that he does not pose a risk to society. [ 34 ] The probation officer wrote a positive report on the accused, describing him as a person who faced the legal system for the first time in his life, who is prepared to pay the consequences of his acts and who, through his words, suggests that he has done some soul- searching about his past actions. [ 35 ] He is an autonomous and mature person, and the prognosis for social rehabilitation appears favourable. [ 36 ] His activities are essentially focused on work and on the relationships he is trying to rebuild with his family; since January 2011, he has continued his efforts to fully reintegrate into society. [ 37 ] While giving all due importance to the general deterrence and denunciation criteria for this type of offence, the Court notes that since his release, the accused has done some soul-searching and that he is an asset to society.

He has very convincingly demonstrated that the rehabilitation criterion must become the overriding consideration in his sentencing . [ 38 ] The presence of aggravating circumstances such as the nature and quantity of the drug and the financial gain are largely offset by the following mitigating circumstances: − The accused has no criminal record; − He pleaded guilty even though the legality of the search was disputable; − He was in possession of the drugs for only two days before the search; − He has always worked since his release to support his family; − He fully assumes his responsibilities and he expresses remorse; − He is not connected to organized crime, according to Investigating Officer Létourneau; − He acted for financial gain to avoid losing his house and his children; − He has healthy social values; − The risk of re-offending is very low; − He is a productive member of society; − He assumes his share of responsibility for the wrongful acts and shows a high level of awareness of the criminogenic elements.

His regret, remorse and shame are visible. VII. APPROPRIATE SENTENCE [ 39 ] The accused has shown that he wants to continue on the path to rehabilitation, and a suspended sentence is a useful alternative to a term of imprisonment. [ 40 ] Consequently, the Court favours a sanction other than incarceration to enable the accused to continue his social rehabilitation; the length of the conditional sentence and the conditions restricting freedom will accomplish the denunciation and deterrence objectives.

FOR THESE REASONS, [ 41 ] The Court SENTENCES Francis Bernier to a term of two years plus a day to be served in the community for each of the two counts. [ 42 ] This suspended sentence will be subject to conditions that will be read during sentencing. [ 43 ] At the end of the suspended sentence, the accused will be bound by a three-year probation order under conditions that will also be read during sentencing. [ 44 ] The Court prohibits the accused from possessing weapons in accordance with

section 109 Cr. C. for a period of 10 years. [ 45 ] There will be exemption from payment of the victim surcharge.

__________________________________ JEAN-PIERRE BOYER, J.C.Q. Me Éric Poudrier For the prosecution Me Manlio Del Negro For the accused Hearing date: