R. v. Gorman, 2023 NLSC 34

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Gorman , 2023 NLSC 34 Date : March 3, 2023 Docket : 202001G6082 His Majesty The king v. Christopher Gorman Before: Justice Daniel M. Boone Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: December 9, 2022 and February 23, 2023

Summary: A jury found the Offender guilty of trafficking in cocaine and possession of two kilograms of cocaine for the purpose of trafficking. He was convicted of trafficking, and the charge of possession was stayed on application of R. v. Kienapple . Although the volume of cocaine was significant, the Offender's involvement was minor. He was sentenced to two years less a day to be served in the community on conditions, followed by two years probation. Appearances: Trevor N. Bridger Appearing on behalf of the Crown

Jon E. Noonan Appearing on behalf of the Offender Authorities Cited: CASES CONSIDERED: R. v. Kienapple, (SCC), [1975] 1 S.C.R. 729; R. v. Roncaioli, 2011 ONCA 378; R. v.Ferguson, 2008 SCC 6; R. v. Silveira (SCC), [1995] 2 S.C.R. 297; R. v. Kang-Brown, 2008 SCC 18; R. v. Oates [1992] , (NL CA), 100 Nfld. & P.E.I.R. 289, 318 A.P.R. 289 (Nfld. C.A.); R. c. Bissonnette, 2022 SCC 23 , 2022S.CC 23; R. v. Nasogaluak, 2010 SCC 6; R. v. Proulx, 2000 SCC 5; R. v. Parsons, 2017 NLCA 64; R. v. Kane, 2012 NLCA 53; R. v.Noftall, 2022 NLCA 23; R. v. Parsons, 2017 NLCA 64; R. v. Gorman, 2022 NLSC 3; R. v.

Gorman, 2022 NLSC 67; STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46; Controlled Drugs and Substances Act, S.C. 1996, c. 19; CanadaPost Corporation Act, R.S.C. 1985, c. C-10; Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982, beingSchedule B to the Canada Act 1982 (U.K.), 1982, c. 11 REASONS FOR JUDGMENT Boone, J.: OVERVIEW [1] A jury found Christopher Gorman guilty of trafficking in cocaine and possession of cocaine for the purpose of trafficking. Asthe counts related to the same conduct with the same drugs on the same date, the principles in R. v. Kienapple, (SCC),[1975] 1 S.C.R. 729, apply and a conviction is entered for trafficking, the more serious of the offences. He is now to be sentenced. FACTS The Circumstances of the Offence [2] The charges against Mr.

Gorman resulted from a police investigation, initiated after a Canada Post inspector opened a packagethat had been sent to a fictitious company at a mailbox within a UPS outlet. The inspector saw two bricks of white powder, whichappeared to him to be cocaine, inside the package.

He alerted the RNC who inspected the package and then obtained a warrant allowingthe RNC to take possession of the package and carry out a monitored delivery to the UPS store. [3] The Crown and Defence agreed to certain facts regarding what happened next: • the police conducted surveillance at a private mailbox provider (“UPS”) outlet on September 27, 2019; • on that date they observed Mr. Gorman attending UPS and leaving with the package that they had alarmed, tracked, and delivered; • the police followed Mr.

Gorman to his house, observed him carrying the package into the house; the package remained in thehouse until the next day; • another person came to the house the next day and within minutes of his arrival the package was moved around the house and thenopened; • the police then moved in, that other person fled from the house, evading Police pursuit; • Mr. Gorman was arrested in the back yard; • the Police observed the presence of the opened package in the back yard where Mr.

Gorman was apprehended. [4] The evidence at trial also showed that the package was moved only once and remained unopened until the other person arrivedat Mr. Gorman’s house. [5] Mr. Gorman did not dispute that he possessed the package containing cocaine, transported it, and passed it to the other personat his home. Mr. Gorman, however, testified that he was unaware that the package contained cocaine. Because they found him guilty of

trafficking in cocaine and possession of cocaine for the purposes of trafficking, the jury must have disbelieved Mr. Gorman’s evidencethat he was unaware that the package contained cocaine. [6] The jury verdict does not encompass all of the findings necessary and relevant to my task of imposing sentence. Othercircumstances relevant to sentencing include: the value, quantity and purity of the drugs, the level of sophistication in the traffickingoperation, the role that Mr. Gorman played in the operation, and the circumstances of the arrest.

I must make findings of facts that bearon these circumstances based on the evidence at trial. In making these findings, I am not bound in any way to choose the version of factsmost favourable to the offender: R. v. Roncaioli, 2011 ONCA 378. However, the Criminal Code, R.S.C. 1985, c. C-46, s. 724 says that Ishould decide relevant facts generally on a standard of balance of probabilities; but any factors that would aggravate the sentence to beimposed must be demonstrated beyond a reasonable doubt: R. v.

Ferguson, 2008 SCC 6. [7] I make the following further findings of fact: • First, I accept the evidence of the RCMP laboratory that the package contained two kilograms of relatively high purity cocaine. • Second, I also accept the evidence of Inspector Palmer that the value of the cocaine in bulk as seized would have been about $100-140,000 but after it was processed, cut, and packaged for distribution would have a street-level value of $500-620,000. • Third, I find that Mr.

Gorman’s role in this operation consisted only of arranging for the UPS mailbox under his name and thenpassing the unopened package to the other person involved. This is consistent with the jury verdict but also with Mr. Gorman’stestimony and with the police surveillance evidence that Mr. Gorman did not open or do anything with the package for a full day, untilthe other person arrived at his house and the package was opened. • Fourth, I accept the evidence of Mr.

Gorman that he was paid $400 for his participation in this transaction: $200 cash and $200toward reduction of debt to the other participant, who had paid an $8000 VISA debt on Mr. Gorman’s behalf, with the intention that thedebt would be reduced by a further $200 for further packages that Mr. Gorman was to receive at his UPS mailbox and then pass on inthe same manner as in this transaction.

It was not clear from the evidence whether the transaction on which the current charges werebased was the first transaction or whether others had preceded it. • Finally, other than the fact that the other person involved had access to a significant shipment of high-quality cocaine andknowledge of a means to ship it to this province from British Columbia, there was no evidence at trial regarding the relativesophistication of the operation in which Mr. Gorman was involved. There was no evidence as to the source of the drugs or of any relatednetwork for redistribution to other dealers or to the street level.

The Circumstances of the Offender [8] Mr. Gorman has no prior convictions. He is 34 years of age. He is not in a relationship and has no dependents. He recently soldhis home, and now lives with his brother and elderly father. He has a two-year College diploma in Computer Systems. He worked in ITfor the same employer for the 11 years prior to his trial. His employment was terminated when he informed his employer of hisconviction.

His employer told him that he would not be rehired in his previous position because it was a position of trust but welcomedhim applying for other positions within the company. [9] A Presentence Report determined that Mr. Gorman is a suitable candidate for a conditional sentence involving communitysupervision. Impact of Offence [10] I can take judicial notice of the impact of cocaine trafficking on the community.

The Supreme Court of Canada and the Courtof Appeal have expressed this community impact on numerous occasions, some examples of which are below: This crime is a blight on society and every effort must be undertaken to eradicate it. (R. v. Silveira (SCC), [1995] 2 S.C.R. 297, at para. 146) Drug trafficking leads to other crimes. Illegal hard drugs such as cocaine are widely recognized to be a serious problem in our society.Their use not only fuels organized crime, but can also destroy lives. (R. v.

Kang-Brown, 2008 SCC 18, at para. 184) Trafficking in cocaine, in itself, is grave as it preys upon the addiction of others for profit leaving in its wake inestimable individual andsocial damage and desolation.

(R. v. Oates [1992] , (NL CA), 100 Nfld. & P.E.I.R. 289, 318 A.P.R. 289 (Nfld. C.A.), at para. 24, per Marshall, J.A.) SENTENCING PRINCIPLES, OBJECTIVES AND PARAMETERS [11] The Criminal Code, s. 718.1, provides that proportionality is the fundamental principle that guides judges in imposingsentence. The principle of proportionality has two aspects: a sentence “must be severe enough to denounce the offence but must notexceed ‘what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence’”: R. c. Bissonnette,2022 SCC 23 , 2022 S.CC 23, at para. 50, quoting R. v.

Nasogaluak, 2010 SCC 6, at para. 42. [12] The Code, in s. 718, mandates that the fundamental purpose of sentencing is to protect society and encourage respect for lawthrough the imposition of just sanctions that have one or more of the following objectives: denunciation, deterrence (of the offender andof others who might consider engaging in similar conduct), separation of offenders from society, rehabilitation, reparation, andpromoting both a sense of responsibility on the part of offenders and acknowledgement of the harm suffered by their victims. [13]

Section 718.2 of the Code sets out further principles of sentencing including, so far as is relevant to this case, accounting foraggravating and mitigating factors; ensuring parity among sentences for similar offences committed by similar offenders with similarcircumstances; depriving offenders of liberty only if less restrictive sanctions are not appropriate; and considering sanctions other thanimprisonment if reasonable in the circumstances considering the harm to the community caused by the offence. [14] The Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 10(1) also provides that, alongside the principles, purposes, andobjectives set out in the Code, the Court in sentencing for offences under the Act should be guided by this fundamental purpose: tocontribute to respect for the law and the maintenance of a just, peaceful, and safe society while encouraging the rehabilitation ofoffenders and acknowledging the harm they caused. [15] According to the Controlled Drugs and Substances Act, s. 5, the offence of trafficking in cocaine is subject to a maximumsentence of life imprisonment; there is no prescribed minimum. [16] Prior to recent amendments to the Code, conditional sentences were not available as punishment for trafficking cocaine becausethat offence was punishable by up to life imprisonment.

Conditional sentences are now available: Code, s. 742, provides that so long asthe court imposes a sentence of less than two years imprisonment, the safety of the community would not be endangered by the offenderserving the sentence in the community; and a conditional sentence would be consistent with the fundamental purpose and principles ofsentencing, then the court can order that the sentence be served in the community subject to conditions that, if breached by the offender,would result in incarceration for the remainder of the sentence.

Conditional sentences obviously reduce incarceration rates but also canadvance objectives of punishment, deterrence, promoting respect for law, safety of society, a sense of responsibility, acknowledgment ofharm, and rehabilitation. Conditions should be imposed with those objectives in mind: R. v. Proulx, 2000 SCC 5; R. v. Parsons, 2017NLCA 64. A conditional sentence still significantly restricts an offender’s liberty even if it is less restrictive than incarceration. POSITIONS OF THE CROWN AND DEFENCE [17] The Crown argued that a fit sentence for Mr.

Gorman would be 30 months incarceration and that, even if the Court imposes asentence less than two years, then it still should require that the sentence be served in prison because a conditional sentence would notmeet the purpose of deterrence. The Crown’s position is mainly based on the volume of cocaine in the possession of Mr. Gorman, butthe Crown also points to the lack of admission of guilt and remorse evident in the Presentence Report. [18] Mr. Gorman argues for a conditional sentence to be served in the community under house arrest. He relies on numerousgrounds for his position.

In particular, he points to the relatively minor role that he played in the cocaine transaction and his goodantecedents, but also on the constitutional invalidity of the statute under which Canada Post searched the package, and on policemisconduct in the course of his arrest. SENTENCING PRECEDENTS [19] The authorities indicate that the degree of moral responsibility of a participant in cocaine trafficking is determined by a calculuswith the inputs being the level of participation and the amount of drugs involved.

A participant in a very low volume transaction wouldordinarily be liable to a sentence lower than someone who is involved to the same extent in trafficking a significant amount of drugs.But, in assessing the blameworthiness of a particular offender who plays a minor role in a large transaction, care must be taken to not, inthe interests of general deterrence, overemphasize the volume of drugs involved.

As the Supreme Court said in Nasogaluak, at para. 43,sentencing must always be an individualized process, in which “[n]o one sentencing objective trumps the others and it falls to thesentencing judge to determine which objective or objectives merit the greatest weight, given the particulars of the case.” [20] The Court of Appeal of this province has clearly articulated that a Court imposing sentence for cocaine trafficking should do sowith deterrence as the primary objective: R. v. Oates; R. v. Kane, 2012 NLCA 53; R. v. Noftall, 2022 NLCA 23.

These cases establishthe range of sentence for mid-level participants in significant cocaine trafficking operations at incarceration from three to four and a halfyears. A review of the cases demonstrates the type of participation characterized as mid-level trafficking. The offender in Oates wasconvicted of conspiracy to traffic in 412 grams of high purity cocaine. He was involved in planning the delivery and redistribution of thecocaine, and the payment and collection of money. He shared in the profits of the illegal enterprise. The offender in Kane was convictedof conspiracy to traffic in cocaine and marijuana.

He rented the premises used as a stash house, where the police found paraphernaliaused in the drug trade. He instructed those who redistributed the drugs and arranged for the payment of money to the head of theoperation in Quebec. The offender in Noftall was convicted of conspiracy to traffic in cocaine and marijuana, and he was the highest-positioned participant in this province of the operation.

He used his garage to receive and distribute the drugs to street dealers, he hadongoing contact with the Quebec suppliers and active involvement in redistribution of the drugs, collecting payment, and accounting forthe proceeds.

[ 21 ] The decision of the Court of Appeal in R. v. Parsons , 2017 NLCA 64 demonstrates that not all participants in significant cocaine trafficking must be sentenced within the range of sentences established by Oates , Kane , and Noftall . Parsons was convicted of conspiracy to traffic 305 grams of cocaine. The sentencing judge found no evidence of a sophisticated trafficking operation. Parsons picked up the cocaine at a warehouse, then concealed and transported it in his car, and he had weigh scales and several thousand dollars in cash at his premises.

Notwithstanding a favourable presentencing report that emphasized Parsons’ antecedents and prospects of rehabilitation, the trial judge sentenced him to 25 months incarceration, noting that general deterrence is the primary purpose and imprisonment the normal penalty for trafficking significant quantities of cocaine.

The Court of Appeal noted the range for offenders like Oates and Kane but substituted a sentence of two years less a day, to be served conditionally, followed by a one-year term of probation, noting at paragraph 53, that the paramountcy of deterrence “does not foreclose a focus on rehabilitation where the circumstances warrant” and 56. ... This result is not inconsistent with this Court's determination that general deterrence is a paramount consideration in cases involving conspiracy to traffic in cocaine, with rehabilitation being a secondary consideration.

The particular circumstances here are such that the sentencing principles of general deterrence and rehabilitation are best achieved by means of a lengthy conditional sentence with appropriate conditions. ANALYSIS Aggravating Factors [ 22 ] The significant volume of high-purity cocaine is the most important aggravating factor in this case. [ 23 ] Further, Mr. Gorman’s participation in this transaction was motivated purely by greed for money. [ 24 ] I also note that the trafficking scheme in which he was engaged was intended by Mr. Gorman and the other participant to continue at least until Mr.

Gorman had repaid his total debt of $8000. In saying that, I am mindful that Mr. Gorman is only to be sentenced for the offences that were the subject of this trial, and not for his intentions to commit further crimes in the future (an intention which might have changed or been abandoned), or even for other crimes committed in the past. It is relevant, however, that this transaction was not a one-off but part of a larger scheme. [ 25 ] Finally, the Presentence Report demonstrates that Mr.

Gorman has not fully accepted responsibility for his actions and still maintains that he was unaware that there was cocaine in the package he received and delivered. Mitigating Factors [ 26 ] Just as the volume of cocaine is the most important aggravating factor, Mr. Gorman’s relatively minor role in the scheme is the most significant mitigating factor. He was not charged with conspiracy to traffic. He did not have any role in this operation other than arranging the mailbox, receiving the package, and then delivering it unopened.

The evidence did not show that he had any involvement in sourcing or purchasing the cocaine, arranging for shipment to this province, or onward distribution to other dealers or to users. Unlike other cases, there was no paraphernalia necessary for the cutting or processing of cocaine, nor any cash or weapons, seized from his home. [ 27 ] The low level of Mr.

Gorman’s involvement is clearly reflected in the ratio between the $400 he was to receive for his role and the significant profits (of up to $500,000), which, according to the expert witness, someone could expect to make from the distribution of this cocaine to the street. [ 28 ] Mr. Gorman is a first-time offender. He has a solid work and education history and prospects for future employment. [ 29 ] I find that Mr. Gorman cannot be characterized as a “mid-level trafficker” within the meaning of that phrase as used in Noftall .

There was debate during argument as to whether the levels of trafficking used in the case law refers to the amount of drugs trafficked or the participation of the offender. In either case, Mr. Gorman cannot, on the evidence, be considered a midlevel trafficker: his participation was minor, and Inspector Palmer testified that the amount of cocaine seized in this case was indicative of trafficking at the low or maybe low-mid range. I therefore do not, find that the sentence that he faces falls within the range suggested in Oates , Kane , and Noftall .

Indeed, in this case, the Crown position on sentencing is not at odds with my assessment – the Crown argues for a sentence of two and a half years, which is below the range in the authorities discussed. [ 30 ] In respect of the sentencing precedents, Mr.

Gorman’s level of moral blameworthiness (measured by his participation and by the order of magnitude of the drugs involved) is similar to that of the offender in Parsons in which the Court of Appeal overturned the sentence of 25 months imposed by the trial judge and substituted a conditional sentence of two years less a day followed by a one-year term of probation. [ 31 ] I have considered whether Mr. Gorman should serve his sentence in prison or in the community.

In so doing, I have considered the principles and directions of the Supreme Court of Canada in Proulx , summarized at paragraph 127 . [ 32 ] In this case, following the structure in the Proulx

summary, I make the following findings: • A conditional sentence is available in this case; • I am satisfied, based on Mr. Gorman’s antecedents and the conclusions of the Presentence Report, that, especially after the punitive effects of a conditional sentence, he is at low risk to reoffend or engage in other criminal activity; • A conditional sentence in this case can serve the sentencing objectives of denunciation and deterrence and can better serve the objective of rehabilitation than incarceration;

• The aggravating factors in this case, particularly the amount of cocaine involved, the indicators of planned or ongoing criminal activity, and the lack of expression of remorse, can be denounced, and deterrence served by a longer period of probation. [ 33 ] I therefore find that a fit sentence (subject to the discussion of state misconduct that follows) for Mr. Gorman is two years less a day, to be served under a conditional sentence order, followed by a two-year term of probation. Reductions in Sentence for State and Police Conduct [ 34 ] Mr.

Gorman argues that state and police misconduct in this case justify a reduction in sentence below what the Court might otherwise impose. Certainly, the Court can consider such factors in crafting a fit sentence. In Nasogaluak , at. para. 3, the Supreme Court of Canada stated: … the sentencing regime provides some scope for sentencing judges to consider not only the actions of the offender, but also those of state actors.

Where the state misconduct in question relates to the circumstances of the offence or the offender, the sentencing judge may properly take the relevant facts into account in crafting a fit sentence, without having to resort to s .24(1) of the Charter . Indeed, state misconduct which does not amount to a Charter breach but which impacts the offender may also be a relevant factor in crafting a fit sentence. [ 35 ] Mr. Gorman relies on two aspects of state misconduct in arguing for a sentence reduction.

First, he relies on my earlier finding that the Canada Post search that initiated the police investigation was conducted pursuant to an unconstitutional statutory provision. Second, he says that one of the police officers involved in his arrest was physically abusive to him, and that that officer and others were verbally abusive to him. Unconstitutional Statute Authorizing Search [ 36 ] In a previous decision, R. v. Gorman , 2022 NLSC 3 , I ruled that s. 41(1) of the Canada Post Corporation Act, R.S.C. 1985, c.

C-10 , was inconsistent with the guarantee against unreasonable search in s. 8 of the Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 . In a later decision, R. v. Gorman , 2022 NLSC 67 , I declared that provision of no force and effect, suspended the declaration for one year, but ordered that Mr. Gorman is exempt from that suspension, and therefore, s. 41(1) is of no force and effect in the case against him. However, I found that Mr.

Gorman had not demonstrated that the admission of the evidence discovered through the search of the parcel by Canada Post would bring the administration of justice into disrepute in the long-term and, therefore, denied his application to exclude the evidence from his trial. [ 37 ] Mr.

Gorman now argues that he bore the litigation burden on behalf of society to bring forward an argument exposing the unconstitutionality of a statute of long standing, and that in recognition of that he ought to be rewarded with a sentence reduction. [ 38 ] In my previous decision, I noted that the unconstitutional search had no direct impact on Mr.

Gorman’s Charter rights because he did not have any interest or expectation of privacy in the package when it was searched by Canada Post, and that he suffered only minimal intrusion on his Charter -protected interests caused indirectly through the impact of an unconstitutional statute on the public at large. This minimal and indirect impact is not the kind of direct impact on the circumstances of the offence or offender that the Supreme Court of Canada stated in Nasogaluak , could be taken into account in fashioning a fit sentence. [ 39 ] Moreover, Mr.

Gorman did not provide any authority from the criminal law that suggests that the kind of reward for litigation burden that he seeks is available in the context of sentencing. [ 40 ] Therefore, no sentence reduction is justified due to the unconstitutionality of the statute that authorized the Canada Post search. Police Misconduct Incident to Arrest [ 41 ] As part of the sentencing hearing, Mr. Gorman testified, and led evidence from Csts. Harvey and MacIsaac, regarding the conduct of Cst. MacIsaac and other officers at the time of his arrest. [ 42 ] Cst. Harvey made an internal RNC complaint against Cst.

MacIsaac regarding comments he made to Mr. Gorman. He said that he based his complaint partially on his own observations and partially on the allegations made by Mr. Gorman in his initial police statement. [ 43 ] Cst. MacIsaac could not recall any of the events around the arrest and made no notes at the time. Mr. Gorman asked that I draw an adverse inference against Cst. MacIsaac because good police practice required that he take contemporaneous notes. However, the absence of notes in this case does not justify an inference that Cst. MacIsaac engaged in the conduct of which Mr. Gorman accuses him.

Such conduct would not have been recorded in any event and sloppy practice on the part of an officer does not support a legal or logical conclusion that that officer engaged in misconduct. [ 44 ] Mr. Gorman testified that Cst. MacIsaac pushed his face into the ground with a booted foot. He said that this happened while he was being handcuffed. Cst. Harvey handled the handcuffs and he testified that in that moment Cst. MacIsaac’s boot was near Mr. Gorman’s head but that he did not observe the boot make contact with Mr. Gorman. I am satisfied that Cst.

Harvey would have seen this if it happened, and that he would have said that he had seen it in his complaint against Cst. MacIsaac if he had. I therefore am unable to find that this occurred. [ 45 ] Mr. Gorman testified that Cst. MacIsaac also slammed him up against the wall of the house three times. Cst. Harvey says that he saw Cst. MacIsaac pin Mr. Gorman against the side of the house and that he heard Cst. MacIsaac yell at Mr. Gorman, asking him where the drugs were. However, he said that Cst. MacIsaac otherwise was merely controlling Mr. Gorman. Again, I find that if Cst. Harvey had observed Cst.

MacIsaac physically abusing Mr. Gorman then he would have included that in his complaint. [ 46 ] I also accept Cst. Harvey’s evidence that Mr. Gorman was considerably worked up and panicked during these events, and I

find that his perception of police actions would have been coloured by this. [ 47 ] Cst. Harvey also testified that he told Cst. MacIsaac to stop yelling at Mr. Gorman. [ 48 ] Mr. Gorman also says that the police officers made several inflammatory comments towards him concerning the amount of time that he was facing in prison (“3 to 5”) and the potential sexual and physical abuse that he would face in prison. Cst. Harvey admits that he made the “3 to 5” comment and that the other comments were the subject of his complaint against Cst. MacIsaac.

I therefore find that these comments were made, and I accept the view of Cst. Harvey that making such comments is inappropriate and in violation of police procedure. [ 49 ] Therefore, I conclude that the police verbally threatened but did not physically abuse Mr. Gorman during his arrest. I accept that this constituted police misconduct and that it was connected with the circumstances of the offence. [ 50 ] However, I do not find that this misconduct justifies a reduction in sentence.

As the authorities demonstrate, sentence reduction on account of police misconduct is intended to reflect sentencing principles including encouraging respect for the law, including the fundamental values enshrined in the Charter . However, not every instance of police misconduct in the course of arrest can support a sentence reduction.

As the Supreme Court of Canada said in Nasogaluak at para. 48 : “Naturally, the more egregious the breach, the more attention the court will likely pay to it in determining a fit sentence.” [ 51 ] The verbal threats regarding consequence uttered by the police were made in the moment of a heated situation. The behavior of Cst. MacIsaac was tempered to a degree by the intervention of Cst. Harvey. The internal RNC complaints process is a better way to address Cst.

MacIsaac’s conduct in a manner that encourages respect for the law. [ 52 ] Moreover, the use of sentencing considerations to address police misconduct is not intended to punish the police but rather to recognize the harm to the offender and to society at large resulting from police misconduct. In this case, there was no evidence that persuaded me that there was such harm in this case. The police misconduct was transitory, in the heat of the moment, did not involve physical abuse, and did not cause any related breach of Mr.

Gorman’s rights such as would have been the case if, for instance, it had vitiated his right to remain silent or to consult counsel. [ 53 ] Therefore, I conclude that Mr. Gorman’s sentence should not be reduced on account of state or police misconduct. DISPOSITION [ 54 ] The Crown does not ask for any ancillary orders other than a mandatory firearms ban, which I order. [ 55 ] Therefore, Mr. Gorman, you are sentenced, for the offence of trafficking cocaine, to two years less a day, to be served conditionally upon the following conditions: 1. Keep the peace and be of good behaviour; 2.

Appear before the Court when required to do so; 3. Report to a supervisor within two working days after this Order is made, and thereafter when required by the supervisor and in the manner directed by the supervisor; 4. Remain within the jurisdiction of the court unless prior written permission to go outside that jurisdiction is obtained from the supervisor; 5. Notify the supervisor of your current address and employment status; 6. Notify the supervisor in advance of any change of name or address, and promptly notify the supervisor of any change of employment or occupation; 7.

Remain within your residence or on the property attached to the residence except for: a. one hour each day during daylight hours at a regular time approved by the supervisor for exercise; and four hours one day each weekend for shopping, or carrying out personal business; b. attendance at medical or dental appointments; c. attendance at church or other religious or spiritual ceremony, or activity approved by the supervisor; d. attendance at appointments or activities approved by the supervisor for the purpose of your rehabilitation; 8.

Present yourself at the door personally when required by a police officer or the supervisor; 9. Not possess or consume drugs except in accordance with a medical prescription; 10. Attend and participate in any treatment, educational, assessment, or counselling programs directed by the supervisor; 11.

Obtain the prior written permission of the supervisor to attend to any unforeseen circumstances, with limits to be set by the supervisor for the particular occasion or circumstance. [ 56 ] In addition, I order that you serve a term of probation for two years and, during that term, conditions 1, 2, 3, 4, 5, 6, 9 and 10, as set out in the above order, shall apply.

_____________________________ Daniel M. Boone Justice