2020 QCCQ 12311, 2020 QCCQ 12311

R. c. Morlese 2020 QCCQ 12311 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL « Criminal and Penal Division » N° : 500-01-174200-185 DATE : June 18, 2020 ____________________________________________________________________ BEFORE THE HONORABLE JUSTICE ONORABLE PATR PATRICIA COMPAGNONE, J.C.Q. ____________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor c.

TREVONN MORLESE Accused ____________________________________________________________________ SENTENCE ____________________________________________________________________ [ 1 ] On July 19, 2018, the accused, a 27-year old man is found, sleeping in a courtyard, in the middle of the night, near an area where gunshots were fired following a brawl.

He is in possession of a loaded 9 mm weapon, a high capacity magazine and one kilo of cocaine. [ 2 ] The Court, having found the accused guilty of possessing this loaded weapon and magazine, and the cocaine for the purpose of trafficking it, must now determine the appropriate sentence to be imposed. [ 3 ] For the purpose of the present decision, the Court relies on the facts outlined in the oral reasons for judgement of July 24, 2019, where the accused was found guilty of these charges.

They are the following. [ 4 ] Gunshots are heard around 9:45 p.m., on July 18, 2018, on De Maisonneuve Street, between Regent and Melrose Street. Three witnesses call 911. Police officers arrive mere minutes later and block off the area after having found shell casings where the gunshots were heard. No one else is in the vicinity, except witnesses who reported the gunshots. [ 5 ] A perimeter is erected and surveillance of the area is established by the police all through the night, until the wee hours of the morning. [ 6 ] Considering a gun has been fired, police look for potential victims or suspects.

For this, they are assisted by a dog handler. [ 7 ] Around 2:45 a.m., the dog handler finds the accused lying next to the foundation of a house located at 2170 Melrose Street. He is sleeping in its side yard within the perimeter erected by the police earlier that night. This yard and house are situated at the corner of Melrose and De Maisonneuve Street. [ 8 ] A few minutes later, the dog and his handler find a recyclable bag, at the same place, in a bush.

This bag contains, among other things, a kilo of cocaine. [ 9 ] Around 4:35 a.m., the dog and his handler find a loaded 9 mm pistol hidden underneath some earth and rocks, adjacent to where the accused was found. [ 10 ] On the following afternoon, police officers obtain a telewarrant authorizing the search of 2210 Regent Street, apartment 7.

Police believe this is where the incident would have initiated before a witness heard raised voices and saw the beginning of an altercation in the alley behind the property located at 2210 Regent Street. [ 11 ] The police officers conduct the search and find, among other things, a .44 caliber Magnum weapon, cartridges and a magazine.

They also find a man purse containing items related to the accused, such as a rental car contract and a plane ticket stub. [ 12 ] The .44 Magnum happens to be the gun fired earlier in the evening, on De Maisonneuve Street. [ 13 ] The accused tendered no evidence and offered no arguments. He was found guilty of all charges laid against him.

He now has to be sentenced appropriately. [ 14 ] The Crown recommends the accused be sentenced to five years imprisonment for the offences of possession of a loaded restricted weapon and prohibited device and be sentenced to two years imprisonment for the possession for the purpose of trafficking of the cocaine, to be served consecutively. [ 15 ] The accused makes no suggestion regarding sentencing except to argue that the Court should take into account the time spent in custody before imposing his sentence and credit more than one day for each half day spent in custody, more specifically the time spent in confinement because of the COVID-19 pandemic.

He testified regarding this specific point but tendered no other evidence.

THE ISSUE [ 16 ] What is the just and appropriate sentence to impose on the accused? ANALYSIS [ 17 ] The fundamental principles of sentencing are codified in sections 718 and following of the Criminal Code .

The goal of sentencing is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society [1] . [ 18 ] This goal is met by the imposition of sanctions intended to meet one or more of the following objectives: to denounce unlawful conduct [2] ; to deter the offender and others from committing offences [3] ; to separate offenders from society when necessary [4] ; to assist in rehabilitating offenders [5] ; to provide reparation for harm done to victims or to the community [6] ; and to promote a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community [7] . [ 19 ] The Court must be mindful of the principle that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances [8] .

A sentence should also be similar to sentences imposed on similar offenders for similar offences [9] . [ 20 ] Also, a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender [10] . [ 21 ] The objective gravity of offences is illustrated by the maximum penalty set out by the legislator. The maximum penalty for the possession of a loaded restricted weapon and prohibited device is 10 years imprisonment [11] .

As for the possession for the purpose of trafficking of cocaine, the accused is liable to life imprisonment [12] . [ 22 ] Sentencing involves the exercise of a broad discretion by the courts in balancing all the relevant factors in order to meet the objectives being pursued by sentencing [13] . Proportionality is the cardinal principle [14] . [ 23 ] Because of the presence of multiple offences, the Court must first determine the appropriate sentence for each offence and decide whether they should be served concurrently or consecutively.

If the totality of the sentence then violates the rule of proportionality, adjustments must then be made [15] . Again, proportionality is paramount. [ 24 ] With respect to the degree of responsibility of the offender, the Court takes into account the aggravating and mitigating circumstances summarized below. Aggravating circumstances [ 25 ] The quantity of cocaine found in the possession of the accused is an important aggravating factor.

All levels of Canadian courts are sensitive to the well-known dangers of this drug and the devastating consequences brought on by addiction as well as the cycle of criminal activity that often plagues its users. The importance of deterrence and denunciation in such matters is often emphasized [16] . [ 26 ] The combination of drugs and firearms is quite a toxic one and most certainly dangerous. The facts of this case are a formidable illustration of this. Though the evidence does not prove the accused fired the shots on the evening in question, it is quite certain he was present during these events.

And he is the one found in possession of a loaded weapon and a kilo of cocaine. [ 27 ] Also, the accused has prior convictions [17] . His criminal career starts in 2008, at 15 years of age. As an adult, it starts in 2011, when he is 19 years old and convicted for breaching conditions of his release and escaping from lawful custody. [ 28 ] The following year he is again convicted for breaching conditions of his release and escaping from lawful custody.

In 2013, he is convicted twice for breaching conditions of his release, once for breaching conditions of his probation order and also for possessing drugs for the purpose of trafficking. He is sentenced to 12 months imprisonment for this last conviction. [ 29 ] In 2014, he is convicted for possession of drugs and for the possession of a loaded (prohibited or restricted) firearm. He is sentenced to 36 months imprisonment.

An order prohibiting the possession of firearms and any other mandatory weapons for a period of 10 years is pronounced by the sentencing judge [18] . [ 30 ] In 2014, he is convicted for breaching the conditions of his probation order and sentenced to 60 days imprisonment. [ 31 ] In February 2018, he is convicted for theft and possession of drugs. A probation for a period of one year is ordered. [ 32 ] At the time of the events relating to the charges at bar, the accused was bound by a probation order and an order prohibiting him from possessing a weapon [19] .

Such orders are designated to protect the effectiveness of the criminal justice system [20] . Indeed, the accused is not discouraged by the justice system trying to be effective in prohibiting the repetition of his criminal behaviour. [ 33 ] Also, he had three pending cases [21] at the time of the events. One of them concerning charges of dangerous driving, public mischief and failure to stop at the scene of an accident. He was found guilty of these charges in September 2019. [ 34 ] This last evidence is admissible for the purpose of showing the accused's background and character [22] .

It is indeed relevant to the objectives of sentencing. It certainly shows the accused was not on the road to rehabilitation. [ 35 ] Most certainly, his previous sentences did not have the desired effect of deterring him from reoffending [23] . It reveals a pattern of ongoing criminality. Mitigating circumstances [ 36 ] It is quite difficult to find any mitigating circumstance in the present case.

[ 37 ] At least, the accused has the support of his mother, who visits him in detention even though she disagrees totally with his choices [24] . [ 38 ] Though he is only 27 years old, this fact is greatly outshined by his lengthy criminal record. Still, there is time ahead to amend himself if he wishes to do so. Presentence Report [ 39 ] The presentence report [25] analysing the accused’s situation is certainly not encouraging, to say the least. [ 40 ] The accused was unemployed before his arrest and incarceration.

He has reportedly completed a Secondary IV and has a 2 year old daughter who lives with her mother. Most of his income since age 18 has consisted of financial support from his family. There seems to be a lack of value for work on the accused’s part. Since his adolescence, the accused’s associates have mostly been negative. [ 41 ] His criminal career starts at 15, resisting his mother’s rules and associating with unsavoury acquaintances. As a result, he was charged with different crimes, more notably robbery and possession of drugs.

For these offences, he was sentenced to secure custody, supervision, detention in the community and several periods of probation as well as mandatory weapons prohibition [26] . [ 42 ] With regard to the conduct for which he was found guilty, the accused does not acknowledge any responsibility [27] . [ 43 ] During his pre-sentence custody, the accused has had four instances of institutional misconduct or disciplinary infractions related to a variety of events. They are the following: possession of cellular telephones and chargers, possession of a homemade weapon and refusal to obey rules.

The most recent incident occurred on September 18, 2019, at the Montreal Courthouse [28] . [ 44 ] The accused has not participated in any social rehabilitation programs while in custody. He stated to the probation officer in charge of preparing the presentence report that he wishes to complete secondary school studies in order to improve his employability. But, he has not established a concrete plan about the path to be followed in order to reach these goals [29] . [ 45 ] The accused is a 27-year-old man, who is immature, irresponsible and easily influenced.

His contacts with the criminal justice system, which began in adolescence, have continued for nearly 11 years, and have included intensive and varied delinquent behavior [30] . [ 46 ] The accused’s imperviousness and delinquent values, as well as the presence of a social circle of inappropriate peers, raise concerns for his ability to take himself in hand [31] .The risk of recidivism remains [32] . [ 47 ] Still, there seems to be a seed of motivation in the accused, possibly influenced by his desire to get out of custody.

But, although there is large potential, the challenge for the accused will be to maintain his motivation over the long term. The probation officer suggests he should engage in a process to become integrated into the workforce and not associate with persons who are involved in criminal activities and/or have criminal records [33] . [ 48 ] The accused’s situation, though dire, is not without hope. All depends on his motivation and ability to maintain it throughout the course of his sentence and after his release.

Appropriate sentence [ 49 ] Quite clearly, gun-related crime poses great danger to our society [34] . [ 50 ] The same can be said about possession of cocaine for the purpose trafficking it. [ 51 ] The Crown has submitted many authorities regarding sentencing in possession for the purpose of trafficking of cocaine and possession of restricted or prohibited firearms cases [35] .

None of them are exactly like the case at bar, it is why comparative approach has its limits [36] . [ 52 ] However, it is clear from all the case law submitted that a fit sentence is one that, while being individualized, will sufficiently promote denunciation and deterrence.

It is also clear that the Crown’s recommendation falls within the range of sentences for similar offences. [ 53 ] The accused has submitted no arguments nor authorities. [ 54 ] Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives.

However, they should not be considered “averages”, let alone straightjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case [37] . [ 55 ] More specifically, the charge relating to the loaded weapon falls within the first category in Nur [38] . It is the category where the outlaw carries a loaded prohibited or restricted firearm in public places as a tool of his trade. This person is engaged in conduct which poses an immediate danger to the public [39] .

A three-year sentence may be appropriate for this type of offence. [ 56 ] In the case at bar, the accused is also in the possession of a prohibited magazine and one kilo of cocaine while subject to a probation order [40] and an order prohibiting him from possessing such a firearm and magazine [41] . [ 57 ] The Crown submits two and a half to five years imprisonment is the appropriate range of sentence concerning the possession for the purpose of trafficking of cocaine [42] .

But, the Court must be mindful that no two cases are exactly alike and sentencing is an individualized process. [ 58 ] Still, it has long been established that cocaine is a notoriously dangerous drug with direct and indirect social and economic harm

done throughout our community [43] . The direct adverse health effects on those who use the drug are enormous and disastrous. Cocaine sale and use are closely and strongly associated with violent crime [44] . [ 59 ] Here, the accused has a lengthy criminal record and rehabilitation is a long way from being achieved. He has also recently served harsh prison terms for the exact same offences. While in pre-sentence custody, he has been charged four times with misconduct or disciplinary actions.

Definitely, the accused poses a real risk of reoffending. [ 60 ] In addition, the possession of a loaded prohibited firearm and one for drug trafficking significantly increase the complexity of an accused’s criminal conduct [45] . [ 61 ] Given all the above-mentioned reasons, the Court finds a sentence of five years [46] imprisonment to be a fit and appropriate sentence for the charge of possessing a loaded restricted firearm.

The same sentence will be imposed on the charge of possessing a prohibited device. [ 62 ] As to the charge of possession for the purpose of trafficking of a kilo of cocaine, the Court finds a sentence of 2 years [47] imprisonment to be a fit and appropriate sentence.

Totality [ 63 ] Being mindful that totality of the sentence must not violate the rule of proportionality, the Court finds the imprisonment sentences on the charges regarding possession of a loaded prohibited weapon and prohibited device must be served concurrently. [ 64 ] As for the sentence for the possession for the purpose of trafficking of cocaine, the Court shares the reasoning of the Ontario Court of Appeal in R. v. Provost [48] in that it should be served consecutively. This reasoning was also applied in R. v.

Aurelus- Marmontel [49] . [ 65 ] After much consideration of all mitigating, aggravating and other relevant circumstances regarding the offences and the accused, the Court finds the total sentence of seven years imprisonment is justified under the rules of proportionality and totality [50] . Pre-sentence custody [ 66 ] The accused has been detained since July 19, 2018; a total of 700 days of pre-sentence custody. [ 67 ] The Crown and the accused agree that the credit of 1.5 days for each day spent in pre-sentence custody should apply.

But, the accused argues a higher credit should be applied for the time spent in lockdown following the COVID-19 pandemic. He asks for a credit of two days for each day spent in lockdown. He testifies regarding this particular request. [ 68 ] The Crown, relying on the decision in Baptiste [51] , disagrees with this request. [ 69 ] Incarceration at any stage of the criminal process is a denial of the accused’s liberty [52] . Hence, any time spent in jail should generally be credited day for day.

This is the general rationale for giving credit [53] . [ 70 ] On the other hand, such credit is insufficient to account for the full prejudicial circumstances of remand custody; enhanced credit, as provided by s. 719(3.1) C.c. accounts for both loss of eligibility of parole and early releases (quantitative impact) and the harshness of the conditions (qualitative impact) [54] . [ 71 ] Following s. 719(3.1) C.c ., the Court may, in determining the sentence to be imposed, take into account as much as 1.5 days spent in custody, if the circumstances justify it.

No more than this is permitted by law. [ 72 ] The statutory maximum credit of 1.5 days for every day served where circumstances warrant it does not change the analytical approach endorsed in Wust [55] by our Supreme Court.

Judges continue to assign credit on the basis of the quantitative rationale, to account for lost eligibility for early release and parole during pre-sentence custody, and qualitative rationale, to account for the relative harshness in detention centers. [56] [ 73 ] Still, courts have been known to grant enhanced credit above the statutory limit. [ 74 ] As explained by justice Galiatsatos in Baptiste [57] , what has come to be known as the « Duncan credit » [58] , allows the sentencing judge to exercise his or her discretion and reduce a sentence in order to account for harsh pre-sentence custody.

Our Superior Court recognized, in R. c. Boyer , [59] that Duncan can be applied to grant a higher credit in such a manner if there is evidence of particularly harsh pre-sentence incarceration conditions and their impact on the accused [60] . [ 75 ] That being said, individuals who have suffered particularly harsh treatment, such as assaults in detention, can often look to other remedies, including s. 24(1) of the Charter [61] .

The accused has not filed such a motion in the present case. [ 76 ] Being bound by s. 719(3.1) C.c ., the Court finds the only way it may credit the requested time served in lockdown by the accused would be to reduce his sentence, hence applying the Duncan principle. But, only if the evidence allows it to exercise its discretion in such a manner. [ 77 ] The only evidence available to the Court is the testimony of the accused. It is uncontradicted. [ 78 ] The accused has been detained since July 19, 2018. He states he has been in lockdown, following the COVID-19 pandemic, since March 13, 2020.

Since this day, he is allowed outside his cell 4 hours per day, as the others are in his wing. Twenty detainees share this wing and he shares his cell with another detainee. These outings are for them to have a meal and take a shower. No visitations are allowed. Regular activities, such as gym and books, are suspended.

[ 79 ] The COVID-19 pandemic is universal and unique. It is a well-known fact that public health measures were taken worldwide to contain its progression. Most of the world population was confined for a period of time to try and reach this goal. The difference here is that most of the individuals confined in such a manner were probably not detained in a cell with another person, in a wing with twenty other.

That being said, they were most probably not in a prison either. [ 80 ] What the accused describes, though different than usual conditions of pre-sentence custody, does not differ from what most of the population was going through in that it addressed the physical distancing measures requested by public health by keeping inmates in their cells [62] . Moreover, his testimony establishes that all detainees were subjected to these conditions.

This, to protect all of them from the COVID-19 virus. [ 81 ] Still, the Court is mindful that being confined in a small shared space while not being able to have any social contact or privileges can most probably be stressful. Hence, hardship can be inferred. But, no undue hardship has been established nor any impact on the accused following his detention conditions related to the reaction of the prison authorities in response to the COVID-19 pandemic. [ 82 ] It is important not to confuse the COVID-19 pandemic and particular harshness of pre-sentence custody.

It is on the basis of particularly harsh conditions of detention causing undue hardship that the Duncan principle can be applied. Not simply because of the COVID-19 pandemic. [ 83 ] Here, the measures put in place by the prison authorities appear transparent, intelligible and justified.

They appear entirely reasonable in the exceptional context related to the Covid-19 pandemic. [63] [ 84 ] Here, though the COVID-19 pandemic is the reason why the accused was subjected to pre-sentence custody detention conditions which are different than usual, the accused did not demonstrate any violation of his rights nor did he demonstrate particularly harsh conditions of detention which caused him undue hardship. [ 85 ] Consequently, the Court rejects the accused’s request and declines to make any reduction in what would be otherwise a fit sentence. [ 86 ] Hence, the Court must fall back on s. 719(3) and 719(3.1) and decide which credit to apply. [ 87 ] Notwithstanding the accused’s behavior resulting in four violations of regulation while in pre-sentence custody [64] , the Crown agrees with an enhanced credit of 1.5 days for each day spent in such custody.

Applying the quantitative and qualitative rationales, the Court agrees to grant such credit. [ 88 ] Applying a credit of 1.5 days for each day spent in pre-sentence custody [65] , 1050 days must now be subtracted from the accused’s sentence.

CONCLUSION FOR THESE REASONS, THE COURT: IMPOSES a sentence of 1825 days (5 years) imprisonment on counts 1 and 2; DIRECTS that counts 1 and 2 be served concurrently to each other but consecutively to any other; TAKES INTO ACCOUNT the 700 days of pre-sentence custody already served by the accused; GRANTS a credit equivalent to 1050 days pursuant to section 719(3.1) C.c ., on each count, leaving a remainder of 775 days imprisonment to be served on each count, concurrently; IMPOSES a sentence of 730 days (2 years) imprisonment on count 3; DIRECTS that count 3 be served consecutively to any other; ORDERS , pursuant to section 109(1)(d)(3) that the accused is hereby prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance, for life.

ORDERS , pursuant to

section 487.051(3) C.c ., that the accused provide samples of bodily substances that are reasonably required for the purpose of D.N.A. analysis; ORDERS , that all items seized be forfeited and disposed according to law. ____________________________ PATRICIA COMPAGNONE, J.C.Q. M e Alexandre Gauthier Counsel for the Crown Accused self-represented Date of hearing : May 13 and 28, 2020