2022 QCCQ 5990, 2022 QCCQ 5990

R. c. Hussein 2022 QCCQ 5990 COURT OF QUÉBEC CANADA PROVINCE OF QUEBEC DISTRICT OF GATINEAU LOCALITY OF GATINEAU “Criminal Division” No.: 550-01-118797-200 550-01-118798-208 DATE: September 9, 2022 ______________________________________________________________________ PRESIDING: THE HONOURABLE RICHARD LAFLAMME, J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutrix v. ALI-ABDUL HUSSEIN Accused ______________________________________________________________________ SENTENCING JUDGMENT ______________________________________________________________________ [ 1 ] The accused pleaded guilty to a charge of simple possession of drugs listed in

Schedule I of the Controlled Drugs and Substances Act and to uttering a threat to cause death or bodily harm to the owner of his apartment. These offences are punishable by 7 and 5 years’ imprisonment, respectively. The prosecution seeks a sentence of 12 to 15 months’ imprisonment; the accused argues for an intermittent sentence of 90 days’ imprisonment. I. THE FACTUAL CONTEXT [ 2 ] On September 18, 2020, the police received a call about a person disturbing the peace. The accused, who was highly intoxicated, was on a balcony and banging on a door while screaming.

During the search performed subsequent to the arrest, the officers found 20.7 grams of cocaine, 4.3 grams of crack, and 0.4 grams of fentanyl on the accused. Earlier, he had sent the following text to the owner of his apartment, Joey Lacroix: “I’m gonna smash your face. I’ll kill you Joey”. He was accusing his friend of stealing his drugs. II . ANALYSIS (

A) SENTENCING PURPOSES AND PRINCIPLES [ 3 ]

Section 718 Cr. C . states that the purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law, and the maintenance of a just, peaceful, and safe society. Sentences must have 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; (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. [ 4 ] It is useful to note that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. It must also be individualized and personalized. It should not reflect vengeance or a classification of offences, but instead the imposition of a measured and just punishment focused on the individual. In the case of a repeat offender as in this case, the Court must refrain from sentencing the offender again for his prior offences by giving disproportionate weight to the principle of the gradation of sentences.

[ 5 ] To achieve the cardinal principle of proportionality in sentencing, the Court must consider, among other things, the aggravating or mitigating factors relating to the commission of the offence or the offender’s situation. [ 6 ] The following aggravating factors will be considered: (

a) The hard drugs involved; (

b) The variety of drugs seized; (

c) The relatively significant quantities of cocaine and crack; (

d) The accused’s numerous prior offences, including several convictions for drug possession and trafficking. His prior offences also include several convictions for crimes against the person, against property, and against the administration of justice; (

e) The rapidity at which the accused reoffended after he was released from prison; [ 7 ] The Court will consider the following mitigating factors: (

a) His guilty plea; (

b) The fact that he was highly intoxicated when the offences were committed; (

c) His major addiction to drugs; (

d) His 47 day pre-sentence custody; (

e) His participation in residential therapy at a treatment centre for 169 days, between November 5, 2020, and April 23, 2021. Although taking

part in therapy is not a mitigating circumstance as such, [1] the Court will deal with the consideration to be given to this release condition at the final stage when determining a just and fair sentence for the accused; (

f) The accused has stopped using drugs entirely; (

g) He appears to have taken his life in hand somewhat; (

h) He feels guilt about the threats he made to his friend. (

B) THE ACCUSED [ 8 ] The accused is 34 years old. At the time of the offences, he was 32. [ 9 ] Both the accused’s testimony and the report from the Envolée rehabilitation centre show that the accused was left on his own because of family problems. He began using cannabis as early as 13 years old. His brushes with the law began during that period as well. [ 10 ] When he was 15 years old, he was stabbed in an altercation. He has been arrested several times and sentenced to secure custody. While he was in a group home, he was sexually abused by an employee of the centre, who was 20 years his senior.

When he was released, he began trafficking drugs. Despite a significant prison sentence, he reoffended soon after his release, in addition to using Percocet pills, a powerful painkiller, on a daily basis. He was again sentenced to prison for three years for drug trafficking offences. When he was released, he had a toxic relationship with a new girlfriend. [ 11 ] As noted above, the accused has a lengthy criminal record that began when he was an adolescent. It includes several violent crimes: strangling an individual, robbery, assault, accessory to murder after the fact.

He has been convicted three times on various charges of drug possession, possession for the purpose of trafficking, and drug trafficking. In addition to a charge of perjury in 2011, the accused has convictions for obstructing the work of peace officers, attempted obstruction of justice, and several breaches of release orders.

His most recent sentences were in 2018 and included 700 days in detention. [ 12 ] At the time of the sentencing hearing, the accused stated that he had been working for two or three months as a “sales manager” for a company called Hyper Global Net, which specializes in the purchase, repair, and resale of damaged televisions. A letter, unsigned but whose author identifies himself as Wade Devine, states that the accused has worked as “V.P. in charge of sales repairs and advertisement” five days a week since December 2021. Mr. Devine’s title in the company is unknown.

The accused stated that his business partner could not attend the hearing because he had COVID symptoms. No postponement was requested to complete the defence evidence in this respect. According to the accused’s testimony, there are only two people in the company. It is rather surprising to observe the discrepancies in the evidence having to do with the beginning of this job and that relating to the accused’s titles and/or functions in the company.

The Court remains perplexed about this alleged employment. [ 13 ] At the time of the sentencing hearing, the accused had been in a relationship with a new girlfriend for three and a half months. She does not take drugs and she supports his sobriety. She is his rock, he says. [ 14 ] As stated above, the accused entered a residential therapy program to deal with his addiction. A report from the centre describes undeniable progress, but it is yet to be consolidated. He attended Narcotics Anonymous meetings, as the Centre Envolée suggested.

The evidence of his participation [2] perplexes the Court; surprisingly, several meetings he attended were after the hearing date. The evidence also shows that he entered the Stabilization Program at the Ottawa Mission, as a resident. The duration of the stay varies between 30 and 60 days.

[ 15 ] The accused is willing to submit to all of the conditions set by a probation officer in order to maintain his sobriety and the stability of his new lifestyle. [ 16 ] The cross-examination of the accused revealed that he is awaiting sentencing for impaired driving in September 2021. He had just ended a romantic relationship at the time and decided to self-medicate for his depression. He also admitted that two other charges of impaired driving in Ontario are pending, one of which occurred in September 2020.

These incidents, or at least the one for which he is awaiting sentencing, reveal an emotional fragility that places him at risk of relapsing into drugs or intoxicating substances. [ 17 ] The accused was assaulted during the sentencing process, resulting in two hospitalizations. First, on March 14, 2022, he was assaulted with a weapon, and then shortly before the date set for rendering this decision, he was shot by a firearm. Without more information about these incidents, the Court may consider them only in respect of his medical situation and his life history. (

C) THE SENTENCE [ 18 ] It goes without saying that drug possession is a veritable scourge in our society. Every day the courts are firsthand witnesses to the ravages caused by using the substances that the accused had in his possession. It is settled law that, generally speaking, the objectives of denunciation and deterrence are given priority, but they do not override the other objectives and principles of sentencing. [ 19 ] In R. c. Muongholvilay , [3] the Court of Appeal rightly noted that [ translation ] “drug addiction is a significant source of criminal activity in general.

The sentencing process cannot ignore this issue, while the principle of individualized sentencing responds to it in part”. [ 20 ] It also stated that the sentencing judge must not ignore compelling evidence of addiction treatment that directly addresses the source underlying the commission of the offence and that focuses in particular on promoting a sense of responsibility for the harm caused. [ 21 ] The Court of Appeal also recalled that rehabilitation clearly need not be achieved at the time of sentencing, but that evidence of an actual rehabilitation process must not only exist but also be particularly persuasive. [ 22 ] A key factor in the categorization of drug offences has always been the nature of the drug at issue, and it is not uncommon for courts to perform a harm-based analysis. [4] In this case, the accused had some of the most dangerous drugs on the market in his possession.

Crack and fentanyl are often lethal. The increasingly widespread ravages of these drugs are well-known. In Onwualu c . R. , [5] the Court of Appeal of Quebec cited with approval this passage from Clayton C. Ruby in Sentencing : [6] “Offences involving the freebase form of cocaine, crack, attract a higher range of sentence across the board due to its perceived dangerousness. Mere possession may have severe consequence.” The Court notes that sentences for simple possession of crack cocaine vary widely, but they are often harsh, even for small quantities.

The Court considers that these comments are equally relevant to fentanyl. The Court of Appeal has rendered numerous judgments that can be used for the purposes of parity in sentencing. We shall discuss this point later on. [ 23 ] Although it cannot be said that his rehabilitation is complete – which it need not be [7] – the accused does display some degree of rehabilitation. He is still fragile, and his long-term improvement remains to be established. Despite his therapy, he relapsed and self- medicated, and as a result is awaiting sentencing for impaired driving. The changes to his lifestyle are quite recent.

His entry into the Stabilization Program mitigates the consequences of his post-therapy relapse and shows that he remains a candidate for rehabilitation. His lengthy criminal record reveals few quiet periods; the Court cannot ignore this fact. [ 24 ] His efforts at rehabilitation must be reflected by a reduced sentence. The accused took

part in a residential treatment program for 169 days and spent 47 days in pre-sentence custody. First, it is important to differentiate these two periods. The time spent in therapy is not days spent in custody within the meaning of sections 719(3) and (3.1) Cr. C . It is not disputed that the accused will be credited with 70 days for his 47 days in interim detention. [ 25 ] What about his time in residential treatment? [ 26 ] The courts recognize that time spent in residential treatment during which the accused is deprived of his or her freedom may be taken into account as a factor to reduce the sentence.

There is no pre-set mathematical formula to determine the sentence reduction to be granted; every case turns on its own facts. In R. c . Hudon , the Court of Appeal confirmed the trial judge’s decision to give one-to-one credit when deducting the duration of [ translation ] “therapy completed in a controlled, secure location, which he did not leave”, despite a relapse after he left therapy. [ 27 ] In this case, the accused did not go on any outings from the residential treatment centre because of the pandemic. The location was controlled and secure.

Although he entered the centre voluntarily, the fact remains that this was one of the conditions of his release. He completed his treatment to the satisfaction of the workers. No relapse was observed.

These facts weigh in favour of reducing the sentence by the time spent in treatment, namely 169 days in addition to the 70 days’ credit for interim detention. [ 28 ] In Onwualu , cited above, the Court of Appeal established that the range of sentences for the amount of crack the accused had in his possession is between 3 and 9 months. [ 29 ] For simple possession of fentanyl, the Court has found several judgments that may be used as a guide. For example: - R. v .

Johnson : [8] a sentence of 60 days for possession of 0.1 grams of fentanyl, served concurrently with a sentence of equal length for possession of a prohibited firearm. The 36-year-old accused proved rehabilitation. - R. v . Tekolla : [9] A sentence of 1 month of imprisonment for 1.18 grams of fentanyl. The sentence was consecutive to 24 months for possession of a prohibited firearm and consecutive to a charge of possession of oxycodone (1 pill). The 24-year-old accused had made significant efforts at rehabilitation.

- R. v . McCue : [10] A sentence of 45 days in prison to be served concurrently to 4 years for possession of fentanyl for the purpose of trafficking. Simple possession represented 4.1 grams. The accused was a 37-year-old Indigenous person who showed good potential for rehabilitation. - R. v . Lariviere : [11] The Court of Appeal for Ontario upheld a sentence of 6 months for possession of 2 grams of fentanyl. The sentence was concurrent with a sentence amounting to 30 months for a home invasion and use of a firearm. The accused was an Indigenous person who took

part in a treatment program. - R. v . Voszler : [12] A sentence of 12 months’ imprisonment for possession of 13 fentanyl tablets and a concurrent sentence of the same length for possession of 24.7 grams of heroin. These sentences were concurrent with a sentence of 5 years for possession of methamphetamine for the purpose of trafficking. - R. v . Yasin Patel : [13] a sentence of 90 days’ imprisonment for 0.56 grams of cocaine, 0.27 grams of a mixture of heroin, cocaine, and fentanyl, and 2.93 grams of fentanyl. This sentence was concurrent with a sentence of 4 years for various firearms offences. - R. v .

Lynn : [14] a sentence of 30 consecutive days was ordered for possession of 0.2 grams of a mixture of carfentanil, heroin, and fentanyl. The overall sentence was 510 days. The accused had no similar prior offences and had participated in rehabilitation programs. - R. v . Nancoo : [15] A 21-year-old man was sentenced to 90 days for possession of 25 “microgram fentanyl patches”. He had no criminal record. - R. v . Giannilos : [16] A sentence of 9 months was imposed for two counts of possession of “15 100 microgram fentanyl patches”. Both times, he obtained the patches from a pharmacist using a forged document.

The accused was 37 years old, had mental health issues, and had only one prior offence, of criminal harassment. - R. v . Desbiens : [17] The Court of Appeal approved a joint suggestion of 90 days for the possession of 0.4 grams of fentanyl. The accused was 27 years old and had a criminal record for assault, drugs, and firearm possession. [ 30 ] This is only a brief selection of the sentences handed down in such matters. [ 31 ] With regard to simple possession of crack, as noted in Onwualu , cited above, the Court of Appeal listed several cases [18] involving quantities similar to the amount of drugs in this case.

The sentences ranged between 3 and 6 months of prison. [ 32 ] Regarding the cocaine, the amount is significant. As this drug is more common, the range of sentences is very broad, from discharges all the way to several months of detention. In this case, the Court may draw inspiration from the judgment of the Ontario Superior Court in R. v. Nutall , [19] where a 37-year-old man was convicted of the lesser and included offence of simple possession of 29.4 grams of cocaine. The accused, who had no criminal record, was sentenced to 6 months’ imprisonment.

The judgment reported other similar sentences. [ 33 ] Admittedly, denunciation and deterrence should be given priority, considering the harmfulness of the drugs at issue, the combination of those drugs, the relatively significant amount of cocaine and crack, and the lengthy criminal record of the accused. At the same time, the changes he has made to his lifestyle make it possible to assign greater, although not more, importance to the objective of rehabilitation. Most of the judgments submitted by the prosecution concern sentences for trafficking or possession for the purpose of trafficking.

In this respect, the offences are not similar. [ 34 ] A recent judgment of this Court, R. c. Baptista , [20] features certain similarities with this case, both in regard to the offender’s profile and the variety of drugs involved. In that case, the accused was sentenced to 365 days’ imprisonment. [ 35 ] The Court therefore finds that an overall sentence of 365 days would be an appropriate sentence. The sentence should be reduced by 269 days for interim detention and time spent in residential treatment.

The length of the sentence satisfies the principles of proportionality and the gradation of sentences, while denouncing the accused’s conduct but also considering his efforts towards rehabilitation. [21] He will therefore be required to serve 96 days as of today, for simple possession of

Schedule I substances. [ 36 ] On the charge of uttering threats, given his significant prior offences against the person, a concurrent sentence of 90 days’ imprisonment is ordered. [ 37 ] To ensure that the accused continues his rehabilitation, he will be subject to a 24-month probation order.

FOR THESE REASONS, THE COURT: In file 550-01-118797-200 SENTENCES the accused to 96 days’ imprisonment as of today (credit being given for 269 days for interim detention and time spent in residential treatment); SENTENCES the accused to pay a victim surcharge within 45 days; In file 550-01-118798-208 SENTENCES the accused to 90 days’ imprisonment, to be served concurrently with file 550-01-118797-200; SENTENCES the accused to pay a victim surcharge within 45 days; In both files

ORDERS the accused to submit to the following conditions under a 24-month probation order with surveillance: - As of his release from prison, or, if released on conditions, at the end of his period of imprisonment; - Keep the peace and be of good behaviour; - Appear before the Court when required to do so by the Court; - Notify the Court or the probation officer in advance of any change of name or address and promptly notify the Court or the probation officer of any change of employment or occupation - Abstain from communicating, directly or indirectly, with Joey Lacroix; - Not communicate or attempt to communicate in any way with people who sell, traffic or use drugs, or have drugs in their possession; - Not be in the physical presence of Joey Lacroix; - Not harass, bother, molest or spy on Joey Lacroix; - Not refer directly or indirectly to on any social media Joey Lacroix; - Not be within a 100 metre radius or any other place where Joey Lacroix may live - Not be within a 100 metre radius of the home, at the workplace and at the place of study of Joey Lacroix; - Report to a probation officer within two working days after the coming into force of the probation order and thereafter, when required by the probation officer and in the manner directed by the probation officer, for 24 months; - Refrain from using drugs or other intoxicating substances or be in possession of except in accordance with a validly obtained medical prescription; - Refrain from consuming cannabis and its derivatives or be in possession of except in accordance with a validly obtained medical prescription; - Refrain from being in a place where drugs are used, sold, trafficked or distributed; - Follow the probation officer’s instructions or those of any intervenor appointed by him/her concerning any therapy for: a substance abuse problem and a violence problem; - Sign the probation order without delay. __________________________________ RICHARD LAFLAMME, J.C.Q Mtre Marie-Pier Gauthier Criminal and penal prosecuting attorney Mtre Vincent Mendo Counsel for the accused