r v. BARRINGTON, 2013 QCCA 1351

R. c. Barrett 2013 QCCA 1351 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-005358-138 (500-01-026566-098) DATE: AUGUST 9, 2013 CORAM: THE HONOURABLE FRANÇOIS DOYON, J.A. NICHOLAS KASIRER, J.A. JACQUES R. FOURNIER, J.A. HER MAJESTY THE QUEEN APPELLANT – prosecutor v. BARRINGTON BARRETT RESPONDENT – accused JUDGMENT [ 1 ] The Crown seeks leave to appeal from a judgment of the Court of Quebec, District of Montreal (the Honourable Mr.

Justice Robert Marchi), rendered January 28, 2013, which sentenced Barrington Barrett to nine months of imprisonment for convictions on two counts of trafficking crack cocaine and two years for a conviction on a count of possession for the purposes of trafficking the same drug. The sentences were ordered to be served concurrently. CONTEXT [ 2 ] The police learned that it was possible to purchase crack cocaine by calling a particular telephone number. [ 3 ] On July 8, 2009, an undercover police officer dialled the telephone number. Mr. Barrett answered and proposed to meet with the officer.

During that meeting, Mr. Barrett went home and returned with two rocks of crack cocaine, which he sold to the officer for $40. The same scenario took place the next day, the date on which Mr. Barrett was arrested. The police obtained a search warrant, searched Mr. Barrett's residence and seized 175.3 grams of crack, which amounts to 1753 rocks. The portable telephone used for the transactions was also seized from the residence. [ 4 ] On June 14, 2012 – the day of the trial – Mr. Barrett pleaded guilty to all three counts. [ 5 ] The sentencing hearing was set for January 28, 2013.

In the interval, a pre-sentence report was prepared. [ 6 ] Mr. Barrett is 28 years old and the father of four children. He works as an assembler and lives with his spouse in her mother's home. The probation officer observed that since his teens, Mr. Barrett has associated with persons from a criminal milieu and that he is a regular user of marijuana. Prior to his current job, Mr. Barrett did not work for a number of years. [ 7 ] Mr. Barrett has a criminal record. Most of his prior convictions took place while he was a young offender.

Convictions include robbery, assault of a peace officer, extortion, assault with a weapon, assault and uttering threats. The latter two convictions took place when he was an adult. [ 8 ] It appears from the pre-sentence report that Mr. Barrett has a marginal lifestyle influenced by the desire to obtain money quickly and easily. He is not himself a consumer of crack cocaine and he has said that his principal motivation to sell the drug was to "be like his friends" rather than for an income.

He did however acknowledge that he chose to sell crack because it generated quick profits. [ 9 ] The probation officer was of the view that the risk of a repeat offence was moderate. [ 10 ] The Crown proposed four years imprisonment to the sentencing judge. The defence suggested a sentence of 20 months to be served in the community. THE JUDGMENT OF THE COURT OF QUEBEC [ 11 ] The sentencing judge decided that Mr. Barrett engaged in drug trafficking for personal profit and not because he had a drug dependency. He noted that there was no evidence that linked Mr. Barrett to a criminal organization.

The judge was of the view that Mr.

Barrett only played a minor role in the possession of the drugs found in the residence because he was holding the drugs for other drug-traffickers. The judge said Mr. Barrett knew the substance was crack cocaine but did not know the exact quantity. He compared Mr.Barrett’s role to that of a courier who imports drugs for a criminal organization. The judge did not however believe Mr. Barrett's claimthat he only sold drugs twice, i.e. the two transactions with the undercover officer for which he was accused of trafficking. [12] The sentencing judge was of the view that the Crown's suggestion was too harsh.

He underscored the minor role played by theMr. Barrett in respect of the possession and concluded that the Crown's proposed sentence did not take sufficiently into account thelimited degree of Mr. Barrett’s responsibility. [13] The judge did not think however that the purpose of rehabilitation should take precedence over the purposes of deterrence anddenunciation. [14] The judge took account of the following three elements as aggravating circumstances: 1. The seriousness of the offence, in that trafficking in crack is a most serious crime; 2. Mr.

Barrett is not consumer of the drug and engaged in trafficking of crack exclusively for profit; 3. He has prior convictions, even though the last offence dates back to 2003 and did not involve drug trafficking. [15] As to mitigating circumstances, the judge took account of the following: 1. Mr. Barrett pleaded guilty to all three offences; 2. In respect of the third count of possession, he merely had custody of the drug for others (in the judge's words, he was "stashing thedrug for others"); 3. He is not part of a criminal organization; 4. He presents a moderate risk of repeat offending; 5.

He is capable of and has the will to respect the conditions that the Court may impose upon him. [16] In large measure, the judge based his analysis of what would be a fit sentence on the decision of this Court in R. v. Moreira.[1] [17] On appeal, the Crown submits that the sentences imposed are unreasonably lenient. More specifically, the Crown points toerrors of principle bearing on the aggravating and mitigating circumstances identified by the sentencing judge and to the weight accordedto these factors.

The Court proposes to review these arguments in detail in the reasons that follow but it may be said, at the outset, thatthe judgment contains errors of principle that calls for the intervention of the Court. ANALYSIS OF THE MITIGATING FACTORS The guilty plea [18] It is widely recognized that the earlier a guilty plea is entered from the time an accused has the first opportunity to do so, thegreater the advantage the plea will produce for the justice system. An early plea means, for example, that need to call witnesses may belimited and occasionally eliminated altogether.

Court resources made available to the parties will be reduced and, generally speaking, theefficiency of the criminal process will be enhanced. These advantages should be taken into account on sentencing. It cannot however besaid that these advantages were properly felt in this case in a manner that justified a robust recognition of the plea as a mitigating factor.Mr. Barrett pleaded guilty three years after he was charged and, at the time of the plea, the seven Crown witnesses were present in Court.This fact cannot be ignored, as Martin, J. observed in R. v.

Blais:[2] [167] Selon le juge Ewaschuk (supra) 18:0370, un tribunal accorderait généralement une réduction au bénéfice d'un accusé quimanifeste des remords, reconnaissant sa responsabilité et qui permettrait à l'administration de la justice d'éviter les coûts d'un procès.Cependant, un plaidoyer à la toute dernière minute avant le procès comme en l'espèce ne constitue pas un plaidoyer qui mérite uneconsidération particulière dans la détermination de la peine : « 18 :0370.

A court will generally impose a lesser sentence if the accused pleads guilty on the basis that this indicates remorse,acknowledgement of responsibility, and saves the community expense. The credit to be given for a guilty plea cannot be reduced to any "mathematical formula", but varies with the circumstances of each case. However, a guilty plea will not attract much of a discount where the circumstances are such that the guilty plea is offered in the face ofoverwhelming evidence of guilt, or made only at trial.

The latter case does not constitute an "early guilty plea", which may attract aconsiderable reduction in sentence. In particular, a prompt guilty plea is considered a major mitigating factor, R. v. Sandercock (1985),1985 ABCA 218 , 22 C.C.C. (3d) 79 (Alta.

C.A.) at p. 86 but not a late guilty plea. » [19] While it cannot be said that the guilty plea merited no consideration whatsoever, the better view is that it was of limitedimportance in the circumstances. [20] Moreover, the mitigating strength of a guilty plea (acknowledgement of responsibility, rehabilitation, remorse, etc.) must beconsidered in light of the evidence. As the Court of Appeal for British Columbia observed in R. v. Packwood,[3] the credit accorded byreason of a guilty plea may be lessened where the evidence of guilt was overwhelming:

13 Second, counsel for the appellant submitted that the sentencing judge had failed to take into account the mitigating circumstance that the appellant had entered a plea of guilty. In R. v. Fitzgerald, [1991] B.C.J. No. 1030 , Hutcheon J.A. made the following comment on the effect on sentencing of the entry of a guilty plea. At p. 3 he stated: For my part, I recognize that there are cases in which a plea of guilty will play a considerable

part in the sentencing process. As was pointed out, however, where the circumstances are such that the plea of guilty is offered in the face of overwhelming evidence of guilt it will not attract so great a discount. [ 21 ] In the instant case, the evidence was compelling and the guilty plea was entered at the last minute, at the very moment that the Crown was readying to present its proof. One cannot of course blame an accused for exercising his or her right to a trial or waiting to be sure that the Crown is ready to proceed before deciding to plead guilty.

On the other hand, it is appropriate to question the weight of a guilty plea as a mitigating factor and to what extent it should be credited at the time of sentencing by examining the context in which it was made. This is the case even if, as the authors Ruby, Chan and Hasan have noted, "[i]t is clear that a guilty plea must, except in unusual circumstances, have some mitigating effect". [4] [ 22 ] To conclude on this point, it is not wrong to say that, in itself, a guilty plea is a mitigating factor on sentence and that it could have some effect here.

Nevertheless, where circumstances suggest that the mitigating effects of such a plea might be lessened, it is useful for a judge to consider the impact of the plea in deciding the extent of the credit that should be attributed to it. The sentencing judge did not undertake this analysis in this case or, at the very least, if he did that analysis was not plain in his reasons for judgment. That said, there is no evidence that the judge granted undue importance to the guilty plea.

He only mentioned it in passing and one cannot say that the impact of this factor had a disproportionate impact on the determination of the sentence. In other words, if it were only for the matter of the guilty plea, intervention by the Court would not be justified. The absence of a connection with a criminal organization [ 23 ] We have noted that the sentencing judge wrote that Mr. Barrett was not part of a criminal organization and that, in his view, this amounted to a mitigating factor.

In the Court's estimation, in so doing the judge committed an error of law. [ 24 ] In subparagraph 718.2( a )(iv) Cr.C. , Parliament directs that evidence that an offence was committed in association with a criminal organization is deemed to be an aggravating circumstance. It does not follow, however, that the absence of a connection to a criminal organization is to be considered a mitigating circumstance. A judge cannot mitigate a sentence simply because a file does not reveal one of the aggravating circumstances identified by the legislature.

To reason otherwise, every time Parliament added a statutory aggravating circumstance, an offender would benefit from a correlative mitigating circumstance where there was an absence of evidence of the new aggravating circumstance. The result flies in the face of all good logic. [ 25 ] The mere fact that an aggravating circumstance is not shown to be present does not justify the inference of a conclusion to the offender's advantage. The absence of an aggravating factor cannot transform itself into a mitigating factor.

At best, that absence is a neutral factor at sentencing. [ 26 ] It is important to bear in mind that a minimum sentence of one year imprisonment is imposed where an offence is committed for the benefit, of or at the direction of, a criminal organization (subparagraph 5(3)(a)(i)(

A) of the Controlled Drugs and Substances Act ). Proof of such a circumstance was not made in this case and, accordingly, Mr. Barrett is not subject to this minimum sentence. He cannot, however, draw additional benefit from that fact by invoking that absence of proof as a mitigating factor. [ 27 ] Furthermore, as we shall see in the reasons that follow, the judge's conclusion that Mr. Barrett is not part of a criminal organization is, in our view, unfounded.

The limited role of the offender [ 28 ] The role of an offender in the perpetration of an offence is obviously a relevant factor in the determination of his or her sentence. The authors Parent and Desrosiers [5] have written the following in respect of sentencing for drug trafficking: 603.

Bien que les infractions relatives aux stupéfiants puisent être classées en fonction de la présence de facteurs atténuants et de circonstances aggravantes, celles-ci doivent tenir compte également de l'ampleur du trafic concerné et du rôle que joue l'accusé dans l'entreprise illégale. [ 29 ] The Crown pleads that one should take care not to trivialize the importance of a person who has custody of a supply of drugs because this task is essential to drug trafficking. The Court agrees with this submission. [ 30 ] In this connection, the sentencing judge unduly minimized Mr. Barrett's role.

Moreover, actions as custodian of the drugs, properly construed, appear to contradict the judge's conclusions on the absence of Mr. Barrett's connections with a criminal organization. [ 31 ] Custodians of hard drugs play an essential role in organized crime. Without them, the proximity between the drug supply and the drug users is difficult to maintain. The dispersal of a drug traffickers' inventory amongst different custodians also leads to a reduction in the dimension of seizures by the police. It allows for the principals in the drug trade to distance themselves from the drugs themselves.

In short, drug trafficking is more difficult and more risky for major drug traffickers without the assistance of custodians. By storing drugs in their homes, custodians take on an important role in the drug trade in that the drugs in their care are often out of reach of the police. [ 32 ] The sentencing judge held that Mr. Barrett did not know the exact quantity of drugs he kept in his residence. This conclusion does not necessarily diminish moral blameworthiness. As the Ontario Court of Appeal observed in R. v. Sidhu [6] in connection with drug couriers:

[17] The trial judge considered the respondent’s wilful blindness to be a mitigating circumstance. With respect, we disagree. As amatter of principle and policy, we ought not to be sending a message to would-be-couriers that if they wear blinders, they will receive alower sentence than if they actually learn the nature and quantity of the substance they are importing. In assessing degrees of moralblameworthiness, we see no meaningful distinction between the two. [18] In so concluding, we are not to be taken as departing from the principle enunciated by this court in R. v.

H. (C.N.), (2002), (ON CA), 170 C.C.C. (3d) 253 – that where an offender takes reasonable steps to determine the nature of the drug andis duped by his co-conspirators, this will serve as a mitigating factor. [19] That, however, is not this case. The respondent was wilfully blind to the nature and quantity of the substance he wasimporting. Having kept himself in the dark, he cannot rely on his lack of knowledge as a mitigating factor. [33] In the instant case, Mr. Barrett hid the drugs in his home.

He said that he made no inquiries as to the exact amount of drugs, buthe knew well that what he was hiding was crack – the same drug that he himself sold to the police on two occasions. A traffickerhimself, Mr. Barrett was well aware of the fact that only a small quantity of crack is required to produce a rock for sale on the street.

Mr.Barrett was wilfully blind to the quantity of drug he stored and he cannot claim that the circumstances give rise to a mitigating factor onthe possession charge at sentence. [34] In this connection, the Court is of the view that the sentencing judge committed a palpable and overriding error in deciding thatMr. Barrett was not part of a criminal organization. The quality of crack found in his residence was substantial. As noted above, itrepresented 1753 rocks of crack each of which, according to the evidence, having a street value of $20. It is implausible that Mr.

Barretthad no direct connection with an organization that entrusted him with drugs valued in excess of $35,000. Entrusting Mr. Barrett withdrugs with this value is a sign that the owners had confidence in him. The whole leads to a single conclusion: whether or not he was afull-fledged member, he nevertheless committed the offence of possession in association with a criminal organization that plainly hadconfidence in him. [35] Finally, the two transactions in respect of which he pleaded guilty demonstrate that his own trafficking arrangements were fullyoperational.

Upon contacting him on the telephone, a buyer had immediate access to crack cocaine. Can it reasonably be said that thisactivity had no connection to his role as custodian, if only a connection based on the common origin of the drugs? [36] In sum, the Court is of the view that the sentencing judge committed an error of principle in failing to impute to Mr. Barrett thefull moral and criminal responsibility for his actions.

THE IMPACT OF THE ERRORS [37] It is of course true that a court of appeal can only disturb sentences in narrow circumstances and the discretionary decisions ofsentencing judges deserve deference on appeal. A sentence cannot be changed unless it is manifestly inappropriate or reflects an error ofprinciple, a failure to take a relevant factor into consideration or an overemphasis of the appropriate factors. [38] As we have observed above, however, the judgment a quo evinces an error of law and an error of principle. The judgment failsto give full effect to the principle of proportionality in that it minimizes Mr.

Barrett’s degree of responsibility. In such circumstances, thedeference normally owed to a sentencing judge’s decision loses its raison d’être.[7] [39] In addition, these errors meant that the sentence was clearly unreasonable and therefore unfit. [40] In the recent case of R. v.

Moreira,[8] where the possession of less significant quantities of drugs was at issue (26 packages ofone-quarter gram of cocaine and 26 rocks of crack), the Court intervened to substitute a sentence of two years imprisonment in the placeof the sentence of 90 days, to be served discontinuously, imposed in first instance. [41] In Moreira, the Court relied on the following reasons given by Baudouin, J.A. in R. v.

Dorvilus:[9] [...] les tribunaux ont le devoir de se montrer sévères et non complaisants en matière de trafic de crack, eu égard surtout au fait que lasubstance crée une grande dépendance et une dépendance quasi-immédiate, qu'elle est une drogue bon marché à la portée donc de labourse des enfants et des adolescents. [42] In R. v.

Lafrance,[10] Otis, J.A. wrote the following: Si, dans les infractions reliées au trafic et à la possession pour fins de trafic des stupéfiants, le critère de la dissuasion générale constitueune considération de première importance, il n'en reste pas moins que le critère de la réadaptation, lorsqu'il fait l'objet d'unedémonstration particulièrement convaincante, pourra devenir prééminent lors de la détermination de la peine. [43] No such demonstration was made in the present case. On the contrary, even in his testimony before the sentencing judge, Mr.Barrett did not tell the truth.

As a result, the judge rejected Mr.

Barrett’s testimony that he had only engaged in trafficking on the twooccasions in which the police officer was involved. [44] There are indeed several elements that favour the objective of rehabilitation here, but they are not sufficient to mitigate theimportance of the objectives of denunciation and deterrence in the circumstances. [45] Again in Moreira, the Court emphasized the broad range of sentences imposed in like circumstances, extending from 6 to 54months, before it settled on the appropriate sentence: [33] Dans ce contexte, une peine de 24 mois d'incarcération ferme est appropriée.

Il s'agit en effet d'une peine qui se situe à l'intérieurde la fourchette des peines applicables aux trafiquants de crack, qui, rappelons-le, reçoivent généralement des peines plus sévères que lestrafiquants de cocaïne.

[ 46 ] In their book on sentencing, authors Parent and Desrosiers also refer to a similar range for trafficking cocaine and possession for the purposes of trafficking. Where a file presents aggravating and mitigating circumstances, the authors observe that the sentences imposed are generally between 5 and 48 or more months of imprisonment. [11] The authors Ruby, Chan and Hasan suggest that offences linked to cocaine are in the top portion of the range of appropriate sentences and, for trafficking in crack, that range is a very wide one.

They have recorded sentences starting at several months to those of more than 54 months of imprisonment. [12] [ 47 ] In this case, the few mitigating factors do not carry much weight as against the aggravating circumstances. If the sentencing judge had not erroneously considered the mitigating factors identified above, he would most certainly not have imposed a two-year prison term.

The sentence would have been significantly harsher. [ 48 ] In the circumstances, the Court is of the view that concurrent sentences totalling 42 months of imprisonment should be substituted for the sentences imposed by the sentencing judge. [ 49 ] FOR THESE REASONS, THE COURT : [ 50 ] GRANTS the motion for leave to appeal; [ 51 ] ALLOWS the appeal; [ 52 ] MODIFIES the sentences so that they be fixed at 9 months of imprisonment for counts 1 and 2 (trafficking) and 42 months for count 3 (possession for the purpose of trafficking); and [ 53 ] ORDERS that these sentences be served concurrently from January 28, 2013, the other orders being unchanged.

FRANÇOIS DOYON, J.A. NICHOLAS KASIRER, J.A. JACQUES R. FOURNIER, J.A. Mtre Jean-François Roy DIRECTEUR DES POURSUITES CRIMINELLES ET PÉNALES For the appellant Mtre Marianne Léonard BOULET, GOYETTE & ASS. For the respondent Date of hearing: June 7, 2013