R. v. Pearcey, 2015 NSPC 72

IN THE PROVINCIAL COURT Cite as: R. v. Pearcey, 2015 NSPC 72 HER MAJESTY THE QUEEN Versus ROBERT SHANE PEARCEY Date: 20150713 Docket:2637313 2637309 2668845 2668846 Registry: Halifax SENTENCING HEARD BEFORE : The Honourable Judge William B. Digby, J.P.C. PLACE HEARD : Halifax, Nova Scotia DATE HEARD: July 13, 2015 CHARGES: That he, on or about the 21 st day of August, 2013, at or near Halifax Regional Municipality, did unlawfully have in his possession, Cannabis Resin, a substance included in

Schedule II of the Controlled Drugs and Substances Act , S.C. 1996, c.19, and did thereby commit an offence contrary to Section 4(1) of the said Act. AND FURTHER, between the 11 th day of July, 2013 and the 21 st day of August, 2013, at or near Halifax Regional Municipality, Nova Scotia, did being an official, to wit: a Correctional Officer, did commit a breach of trust in connection with the duties of his office by facilitating the entry of tobacco and other unknown substances into the jail, contrary to

Section 122 of the Criminal Code . AND FURTHER on or about the 21 st day of August, 2013, at or near Lower Sackville, Nova Scotia, did being an official, to wit: a Correctional Officer employed with the Central Nova Scotia Correctional Facility, did commit a breach of trust in connection with the duties of his office by having in his property, to wit: the brown buxton wallet containing the banking and personal identification of Barry Lawrence Veinot of a value not exceeding five thousand dollars knowing that all of the property was obtained by the commission in Canada of an offence contrary to

Section 122 of the Criminal Code .

AND FURTHERMORE, on the aforementioned date and place, did having his possession property, to wit: the brown buxton walletcontaining the banking and personal identification of Barry Lawrence Veinot of a value not exceeding five thousand dollars knowingthat all of the property was obtained by the commission in Canada of an offence punishable by indictment, contrary to Section 354(1) ofthe Criminal Code. THE COURT: Good morning, Mr. Pearcy. Mr. Pearcy is before the Court this morning for sentencing on four charges.

The charges are 21st of August, 2013, possession of cannabis resin, contrary to Section 4(1) of the Controlled Drugs and Substances Act; between the 11th of July and the 21st of August, both 2013, commit a breach of trust by facilitating the entry of tobacco and otherunknown substances into the jail, contrary to

Section 122 of the Criminal Code. That’s an indictable offence punishable by a maximum of five years incarceration. The third charge is the 21st of August, 2013, an indictable offence of possession of a wallet of a value notexceeding $5,000, contrary to Section 354(1) of the Criminal Code, an offence punishable by a maximum of two years incarceration. And the fourth one, 21st of August, 2013, commit a breach of trust by possession of that same wallet, contrary to

Section 122 of theCriminal Code, also an indictable offence punishable by a maximum of five years incarceration. The Crown position is that they are seeking a global sentence of two years incarceration and is not seeking other orders. TheDefence position is that they are asking for a sentence of less than two years to be served on a conditional basis in the communitypursuant to the provisions of

Section 742 of the Criminal Code. The principles of sentencing are set forth in

Section 718 of the Code and to quote: “S.718 - The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and themaintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community.” Further principles are enunciated in

Section 718.1 and 718.2 and I note Defence counsel’s comment that a breach of trust underSection 718 is an aggravating factor but it’s also included in

Section 122 so the Court should be careful not to give it undue emphasis bydoubling up, I think is the suggestion, of Defence counsel. I agree with Defence counsel on that point. The circumstances of the offence are set forth in the Agreed Statement of Facts which was signed by Mr. Pearcey on the 12th ofJanuary, 2015, the day that he entered his guilty pleas. There are two attachments to that: the investigator’s synopsis with respect to theinvestigation regarding the admission of the contraband substances into the institution and the investigator’s synopsis with respect to thefinding of the wallet in Mr.

Pearcey’s residence when it was searched in relation to the drug investigation. For the sake of brevity I won’tread them since all parties here present are familiar with it and the press can look at it subsequent to the proceedings if they care to do so. The case law and unfortunately there is case law that’s related to this, set forth by Ms. Furey in her brief and I have the case of R.v. MacLean that’s submitted by counsel on behalf of Mr. Pearcey. There are comments with respect to the role of Correctional Officersthat are contained in the decision of R. v. Moore which is 2009 BCSC 1926 , 2009 B.C.J.

No. 2880, a 2009 decision. Thestatistics may be slightly different six years later but I doubt that it’s a significant difference and it is another jurisdiction but I think theprinciples are the same. I quote from paragraph 27 of the Moore decision wherein they quote a report that had been prepared, I take itfor the purpose of the sentencing of Mr. Moore. In that, the author, Mr. Colson, states: 27) “Correctional Officers as peace officers are responsible for the protection of the community, safe custody and security of inmatesand satisfying the intent of sentence.

They are empowered and entrusted with authority over others and have access to confidentialsecurity intelligence and client information.

Correctional Officers assist in the delivery of a number of programs in custody centres including, for example, substance abuse management. Correctional Officers are the most important element in the approach to eliminating drugs in the custodial setting. Correctional Officers are expected to apply due diligence in observing, detecting and reporting drug use and trafficking related to Correctional Centres. The role of a Correctional Officer requires direct contact and engagement with inmates for security and the delivery of programs and services.

The direct supervision of inmates requires Correctional Officers to embody a high level of personal integrity and professionalism. Correctional Officers are expected to mentor inmates and model community values that will encourage individuals to change their behaviour ...” It further goes on to say, as quoted in paragraph 28 of the Moore decision: “28) The Adult Custody Division is committed to the elimination of drug trafficking and possession in custody centres. This commitment is a substantial undertaking as prisons are known to house the highest proportion of people with substance abuse problems in Canada.

Approximately seven out of ten inmates have substance abuse issues. Inmates are relentless in their efforts to possess drugs while incarcerated.” Further, at paragraph 31 of the Moore decision, it goes on to quote further from the report: “31) The risk associated to drug trafficking and possession is aggravated in the institutional setting due to an inmates’ subculture value system known as the “Con Code”. The Con Code encourages violence as a legitimate means of resolving disputes and drug trafficking and possession contribute to physical assaults in custody centres.

Correctional Officers and inmates are exposed to the risks associated with institutional drug trafficking. Physical assaults occur against inmates who possess drugs when inmates have failed to deliver or make payment of drug debts and when inmates battle for control of institutional drug trafficking.” Further, in paragraph 34 of the Moore decision, it states: “34) The report outlines also the damage to the facility and the justice system after a Correctional Officer is corrupted: The risk to operational security and safety are not limited to drugs.

Once compromised, a Correctional Officer could assist in escape or smuggle other contraband items such as cellular phones, syringes, pornography and weapons.” The case law has been reviewed rather thoroughly and recently by Mr. Justice Duncan of the Nova Scotia Supreme Court in the case of R. v. David , a decision in which judgement was rendered February 27, 2013. After analyzing the case law, which Mr. Justice Duncan sets out in detail, he concludes at paragraph 73 and I quote: “The sentence I must impose is a message to persons who hold positions like Mr.

David that this behaviour will be met with harsh sentencing consequences, even if you have no record and a good background. Our prisons must be as safe and as well run as possible. This conduct puts that system at risk unless people know that it is not worth the risk to try. If this were solely about what is necessary to deter Mr. David from committing another crime, or what is necessary to rehabilitate him, we would be looking at a far lesser penalty. But, as I said at the outset, the primary consideration here is one of denouncing this conduct and deterring others from committing these crimes.

That calls for imprisonment.” One could simply substitute unfortunately Mr. Pearcey’s name for Mr. David and it is equally applicable. And I note with interest that the David decision involved a deputy sheriff here in the Metropolitan area who smuggled, on a number of occasions, a selection of hard drugs in the institution. He received a sentence of four years and nine months in total. That decision, I would think,

would have been known to someone in Mr. Pearcey’s position because it involved smuggling of drugs into the same institution in which he worked and that was in February of 2013 and these offences are in August of 2013. I would find it hard to believe that Mr. Pearcey would not have been aware of that situation, perhaps not in its fullest detail but I would think that would be of some topic of conversation within correctional staff at the institution. There is also the decision of R. v. Calder in which Ms. Calder, a lawyer, smuggled drugs into the institution and was caught.

She was also found to have two other prison packages of drugs in her home. She received a sentence of 30 months incarceration. There was evidence that she had mental health issues which made her vulnerable to the manipulation of her client, a need to please other persons. She lost her career. She had been previously of good reputation and was held in considerable regard. Mr. David as well also had a favorable Presentence Report and people spoke well of him and his contribution in the community in which he lived. Both individuals were remorseful. Mr. David pled guilty, Ms. Calder did not. Unfortunately Mr.

Justice Duncan’s words in R. v. David didn’t deter another Correctional Officer, Mr. Beaton, who, because of threats that were made against his daughter, smuggled 18 hydromorphone pills into a correctional facility in New Glasgow and he received 30 months on a joint submission. It was recognized in that case it was a one-off event. Mr. Beaton had pled guilty, he was remorseful, and was a good candidate for rehabilitation. In R. v. MacLean , a decision brought to the Court’s attention by Mr. MacEwen, Ms. MacLean, a nurse at the correctional facility, brought steroids in to an inmate on more than one occasion.

She pled guilty and she received a sentence of 18 months which was permitted to be served on a conditional basis in the community. That is not the only situation where correctional employees or staff have received a Conditional Sentence but it is an outside ... the number of sentences where Conditional Sentences have been imposed are in the minority. I note, in particular, paragraphs 10, 11 and 12 in that decision which seem to me probably significant in Mr. Justice Boudreau’s decision to grant a Conditional Sentence as opposed to requiring that the sentence be served in the facility.

Paragraph 10 states: “10) Ms. MacLean also testified that the work environment at the Correctional Facility ...” ... and that’s the same Correctional Facility in which Mr. Pearcey was working ... “... was very stressful, with daily abusive and belittling language and, at times, direct threats. She said she approached management for support on a number of occasions, but that little was done. She said she tried to get help for the stress from the Employee Assistance Program a number of times and found it not very helpful.

She felt all she could do was, as she implied, ‘suck it up’ and go on with the work. 11) Some offenders would send her explicit sexual notes and one even threatened to rape her when he got out. She witnessed three deaths while there. She said the nurses would just have to work around these things and even continue to deliver medications to the ones who had threatened them. 12) Ms. MacLean testified that work conditions deteriorated during her last years at the correctional facility to the point that staff were not getting along, and bullying was going on, adding to the stress.

She said management did not seem to care about the worsening ‘toxic’ work environment. Ms. MacLean said she learned to internalize the stress and tried to cope with it by having a glass of wine or so to relax when she got home.” Ms. MacLean unfortunately fell under the sway of a Kenneth Wingfield who is described as a con man. He managed to manipulate her by saying that he loved her, that he would protect her in the institution, he’d take care of her when she got out. He also had flowers delivered to her home which contained the first load of drugs which she brought into the institution.

Other packages were delivered. She was reluctant but then she received a message that we know that your mother lives in New Glasgow. The job of a Correctional Officer is difficult. They serve time along with the inmates. They are busy trying to achieve things. The inmates are there, unfortunately many of them, doing absolutely nothing except trying to find cracks and chinks in the institutional processes or the individuals are looking for a weak spot that they can exploit to get what they want. I reiterate again the comments from the report in R. v.

Moore that inmates are persistent and unremitting in their efforts to get drugs while they’re in the institution. This means that Correctional Officers are being watched for weaknesses. The cases show varying reasons why Correctional Officers have fallen into transgressions: fear, intimidation directed at them or their family members, damage to their property, psychological weakness, depression, anxiety, other mental health issues, financial pressures, stress caused either at home or in the work environment. All of that is watched for by some of the inmates.

The inmates who take the greatest interest in that, of course, are the predators who are there for preying on the rest of society and unfortunately some of

them are very good at spotting weaknesses in other human beings and manipulating it to their own end. The Presentence Report for Mr. Pearcey indicates that he’s an outstanding father to his mixed families. His family and friends, his former spouse, all speak well of him. He has an addiction issue with alcohol and with cocaine. He’s not the only Correctional Officer to have those weaknesses. I bear in mind the comments attributed to Nurse MacLean in her case about the lack of support. There is nothing to suggest that Mr.

Pearcey sought out assistance from the institution and that having sought that out, that it was not forthcoming. I think it’s significant that the institution do everything they can to support their employees given the stress that they work under. Having said all that, the case law is such that emphasis must be placed on deterrence, not only of the individual, and I don’t think individual deterrence is necessary in the case of Mr. Pearcey, it’s not in the case of most Correctional Officers who fall into this trap because they’re not going to be in the position to repeat their offences.

They suffer as individuals the public shame of the conviction, they see the pain that they cause to their family members, their spouses, their parents, their children. I think it’s fair to say that the vast majority, if not all, of people who go into this work go into it with the best of intentions and they must ask themselves how did they get from the starting point to the ending point. Every story is probably somewhat different but all have been exploited in one way or another by the inmates in their drive to get drugs. In some cases the quantities of drugs are significant, the types of drugs are hard drugs.

It also makes a difference whether the initial contact comes from the Correctional Officer or from the inmates. Mr. Pearcey started his slide by approaching an inmate asking where he could get cocaine on the street. He may not have realized that at the time that he just sold his soul for the first installment. After that, it’s a downhill slide. He’s then compromised. He brought in tobacco. He also allowed weekend packages to come in through individuals who were serving intermittent sentences. He did that by turning a blind eye. That’s not what I would characterize as simply not doing his job.

We may never know exactly what the other contraband substances in addition to the tobacco are but for the benefit of anyone else who might be like-minded, I point out Section 5(3)(ii)(b). There’s a minimum period of incarceration for trafficking in certain types and quantities of drugs of one year. I’m mindful of the Supreme Court of Canada decision in R. v. Gardner , 1982 S.C.R. 386, that when relying on something as an aggravating factor, there has to be proof on the criminal standard which is proof beyond a reasonable doubt.

I don’t know what the unknown contents of the weekend packages were or the contents so that

section cannot be applied in this case, although it is an indication of the seriousness with which Parliament views illegal drugs within an institution. Having looked at the case law and the circumstances of this case, the mitigating factors which are Mr. Pearcey’s cooperation with the police, his plea of guilty, his efforts to rehabilitate himself, the likelihood that he will never become involved in a transgression of the law again, at least not one of a similar nature, there still remains the emphasis that has to be placed on general deterrence and with considerable regret and some sympathy for Mr.

Pearcey who has found himself in this situation, I’ve concluded that the Crown’s submission of a two-year global sentence is the appropriate sentence, given the need for general deterrence and the need to protect the rule of law insofar as judges, lawyers, and other justice system participants in addition to Correctional Officers. The sentences are as follows. With respect to the simple possession of cannabis resin, ten days. With respect to the breach of trust by facilitating entry of tobacco and other unknown substances, 20 months concurrent with the ten days.

With respect to the possession of the wallet, four months consecutive. With respect to the breach of trust for the possession of the wallet, four months concurrent with the other four months for a total of 24 months or two years in a federal institution. These offences took place before Parliament took away the ability of the Court to waive victim fine surcharges. Victim fine surcharges are waived. The Crown is not seeking any other orders. No other orders are made. I know a copy of this sentencing decision will be forwarded to the correctional authorities.

I sincerely hope that the authorities who have custody of Mr. Pearcey will be able to keep him safe and protected while in their custody. Should they be unable to do so, it would be a tragedy. We all have our weakness as human beings and it’s impossible to predict where any us may end up. The chances for Mr. Pearcey for rehabilitation are good. He appears to otherwise have a good value system. If the authorities view him as an early candidate for release, I would take no issue with that. Thank you.