r v. Jermaine, 2017 QCCQ 11336

R. c. Francis 2017 QCCQ 11336 JP 2213 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL N° : 500-01-118233-151 DATE: October 6, 2017 BEFORE THE HONOURABLE YVAN POULIN, J.C.Q. HER MAJESTY THE QUEEN Prosecutor v. Jermaine FRANCIS Accused REASONS FOR SENTENCE [ 1 ] Mr. Francis pleaded guilty to a count of possession for the purpose of trafficking of crack cocaine and a count of simple possession of marihuana. The charges stem from events that occurred on February 25, 2015 in Town of Mount Royal. Mr. Francis was intercepted for a traffic violation that ultimately led to the discovery of the drugs.

In total, he was found in possession of 30 rocks of crack cocaine and 1.75 grams of marihuana. The marihuana was seized from the glove compartment of his car. The crack cocaine was seized from the inside pocket of his coat. [ 2 ] On April 6, 2017, in a ruling rendered orally, the Court denied Mr. Francis’ motion to exclude the drugs seized. The Court concluded that no Charter violation had been committed by the police in obtaining the crack cocaine and marihuana. Following that ruling, Mr. Francis pleaded guilty to both charges. [ 3 ] Mr. Francis is 29 years old and was 26 years old at the time of the events.

He has no children but his girlfriend is now pregnant. He has no criminal record as he was granted an absolute discharge, in 2012, for a drug-related charge. [ 4 ] Mr. Francis presently works as a sales representative for a company. At the time of his arrest, he had been working for a few months, with a partner, in a startup distribution company. He has no addiction problems and is neither a crack cocaine nor a hard drug user. He testified that at the time of the events, he had bought the crack cocaine for resale in an effort to solve his financial problems.

He wanted to make easy money as he was apparently stressed about not being able to pay his monthly rent. Upon his arrest, the individually wrapped rocks of crack were found in his coat. [ 5 ] On page 3, the pre-sentence report states : L’agir délictuel s’est produit dans une période de difficultés financières et émotives où le justiciable avait en quelque sorte perdu ses repères habituels.

Le passage à l’acte témoigne d’un manque flagrant de jugement. Ce fut un geste planifié pour se sortir provisoirement de ses difficultés financières. [ 6 ] The circumstances in which Mr. Francis bought the crack cocaine for resale are vague and nebulous. In his testimony, he said that he bought the drugs a few weeks prior to his arrest “from a random person” in a park.

Although he paid a substantial amount of money for it, he contended that he did not know what kind of drugs he was buying, that he did not inquire about what type of drugs they were and, moreover, that he did not know what to do with the drugs afterwards. [ 7 ] As mentioned in a prior ruling, the Court does not believe the accused on those points. Mr. Francis is an intelligent articulate man. As stated in the pre-sentence report, it is clear that he planned his course of action in an effort to solve his financial problems.

He bought the drugs with the intention of reselling them and it is obvious, from the evidence, that he knew full well that the drugs were crack cocaine. The 30 rocks were individually wrapped in small baggies. Once the transaction was completed, he left the park with the drugs in his possession. It would be absurd and irrational to conclude that he paid a supplier unknown to him without even knowing the type of drugs he was buying.

[ 8 ] That being said, it cannot be established from the record that Mr. Francis has been involved in the drug business for more than this sole episode. In addition, there is nothing in the evidence to show that any of the crack cocaine was effectively resold. The pre-sentence report mentions that the accused committed the offence in the context of a lack of judgment. However, the probation officer states that it was still a planned decision.

Further, it was noted that he is an individual with no history of substance abuse. [ 9 ] Based on her analysis, the probation officer contends that it is unlikely that he would reoffend. However, she recommends that he undertake a therapy to improve his ability to communicate and seek help whenever his financial situation becomes more stressful. At the hearing, Mr. Francis testified that he would be willing to undertake such a therapy. However, although he was given a list of affordable counsellors by the probation officer, he conceded in cross-examination that he hadn’t taken any steps in that direction yet.

POSITION OF THE PARTIES [ 10 ] Given all the circumstances and the applicable principles, the Crown submits that a global term of imprisonment of 18 months would be a just and appropriate sentence. In support of its submission, the Crown relies on recent case-law in which important sentences have been imposed to similar offenders in comparable circumstances. [ 11 ] The defense submits, on the other hand, that the present case does not call for a heavy sentence.

Given the personal circumstances of the accused, including the fact that he is expecting his first child, the defense urges the Court to suspend the passing of sentence and direct that he be subjected to a probation order for a period of two to three years. In support of its argument, the defense relies on some cases in which more lenient sentences have been imposed to rehabilitated drug addicts. ANALYSIS [ 12 ] The objectives of sentencing long recognized at common law have been codified in s. 718 of the Criminal Code .

They are: the denunciation of unlawful conduct, deterrence both general and specific, the separation of the offender from society where necessary, rehabilitation, repair of harm done to the victims or the community, promoting a sense of responsibility in offenders and acknowledgement of the harm done. [ 13 ]

Section 718.1 of the Criminal Code provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances. It sets out various aggravating factors. It also requires that a sentence be similar to those imposed on similar offenders in similar circumstances. [ 14 ] In the case of drug offences, s. 10 of the Controlled Drugs and Substances Act specifically holds that : 10.

(1) Without restricting the generality of the Criminal Code , the fundamental purpose of any sentence for an offence under this

Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community . [ 15 ] The maximum sentence for the offence of possession of crack cocaine for the purpose of trafficking is life imprisonment. The maximum for simple possession of small quantities of marihuana is six months of imprisonment. It must be emphasized that the determination of a fit sentence is a fact-specific exercise.

The facts of the offence, the nature of the substance, the circumstances of the accused and his moral blameworthiness are all factors that the Court has to consider. In the words of the Supreme Court: “ the determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation ” [1] . [ 16 ] D enunciation and deterrence are significant factors in offences involving hard drugs like crack cocaine.

However, courts are allowed to emphasize rehabilitation in cases where a “ particularly convincing demonstration ” or a “ démonstration particulièrement convaincante ” justifies doing so [2] . [ 17 ] Many examples of sentences imposed for crack cocaine can be found in the jurisprudence. In 1990, in Dorvilus v . R. [3] , the Court of Appeal of Quebec described the applicable sentencing principles for these matters. In paragraph 4, the Court held : Le crack crée chez l’usager une sensation intense et très rapide, mais de courte durée, et une dépendance forte et pratiquement immédiate.

C’est une drogue dont l’usage se propage à grande vitesse à l’heure actuelle surtout chez les enfants et chez les jeunes, parce qu’elle est bon marché par rapport à la cocaïne en poudre ou à l’héroïne. Une «roche» de crack se vend en effet entre 10 $ et 15 $ alors que 25 $ à 40 $ sont nécessaires à l’achat d’un quart de gramme de cocaïne en poudre.

On note aussi qu’elle provoque chez l’usager en manque, de l’agressivité et des tendances à la paranoïa. [ 18 ] In paragraph 9, the Court further stated : [...] les tribunaux ont le devoir de se montrer sévères et non complaisants en matière de trafic de crack, eu égard surtout au fait que la substance crée une grande dépendance et une dépendance quasi immédiate, qu’elle est une drogue bon marché à la portée donc de la bourse des enfants et des adolescents. [ 19 ] In 2011, in R . v.

Moreira [4] , the Court of Appeal reaffirmed this principle in a case where the accused, whom had no prior convictions, pleaded guilty to cocaine and crack-related offences. In view of a number of mitigating factors, the sentencing judge had imposed a 90 days intermittent jail sentence. In granting the Crown’s appeal, the Court reaffirmed the seriousness and gravity of that type of offense along with the principles established in Dorvilus .

After reviewing the case-law and weighing all the circumstances, including the mitigating factors pertaining to the accused, the Court held that a 2-year jail term was warranted. [ 20 ] More recently, in R . v. Barrett [5] , the Court of Appeal varied a sentence of 24 months to 42 months in a case where the accused, 28, had pleaded guilty to offences concerning a substantial quantity of crack cocaine. The accused had a criminal record and

was the father of four children. Although the quantity was considerably larger than in the case at bar, the offences were committed, like in the case at bar, for easy and fast profit by a non-addict. [ 21 ] In the case of Mr.

Francis, the Court takes into account the following aggravating factors: the nature of the drugs, i.e. crack cocaine; the quantity seized; the fact that he committed the offence for lucre, fast and easy gain; and the fact that it was a planned decision, albeit in the context of a lack of judgment. [ 22 ] With regards to mitigating factors, the Court considers the fact that he is a first offender. Although the guilty plea was not an early one, the Court still takes it into consideration as a sign of remorse and willingness of Mr. Francis to accept responsibility for his actions.

The Court further considers the somewhat limited role of the accused in the drug trade, which must be inferred from the lack of evidence of any further involvement in that business and the absence of specific additional elements of commerciality. The personal circumstances described in the pre-sentence report are considered as well, including the regrets and the support of his girlfriend who is pregnant. [ 23 ] The facts of the cases submitted by the defense can all easily be distinguished from the case at bar [6] .

They all concern individuals that became involved in the drug trade because of their own addiction, and that took steps to turn their life around and become assets to society. Courts have always recognized the distinction that exists between individuals who become involved in the drug trade because of their own addiction and those that do so solely for commercial purposes [7] . Mr. Francis is a non-addict that planned to sell hard drugs for easy gain. His behavior would have contributed, in the words of the Supreme Court, to the “ gradual but inexorable degeneration of many of [his] fellow human beings […]” [8] .

His case is not comparable to those submitted by his lawyer. [ 24 ] In light of all the circumstances, it is clear that the case of Mr. Francis cannot be considered one in which a “ démonstration particulièrement convaincante ” would justify a suspended sentence with a probation order. Given the seriousness of the offence, the subjective circumstances of the offence and the applicable case-law, that type of sentence would be inadequate and insufficient. [ 25 ] Had it not been for the mitigating factors mentioned above, the Court would have imposed the jail term proposed by the Crown.

However, having regard to the appropriate weight to be given to these factors, the Court is of the opinion that such a term would be too severe.

It would not sufficiently take into account the somewhat limited role of the accused, his personal circumstances and the lack of evidence of any specific resale. [ 26 ] For all these reasons, after considering all the circumstances, the case-law and the applicable principles, the accused is sentenced to a global term of imprisonment of 9 months , which will be broken down in the following manner: ➢ Count 1 (possession for the purpose of trafficking of crack cocaine): 9 months of incarceration; and ➢ Count 2 (simple possession of marihuana): one day concurrent. [ 27 ] The Court further directs that the accused comply with the following conditions of a probation order for a period of 18 months : ➢ Keep the peace and be of good behaviour; ➢ Appear before the court when required to do so by the court; ➢ Notify the court or probation officer in advance of any change of address, and promptly notify the court or the probation officer of any change of employment or occupation; ➢ Report to a probation officer within two working days of your release from jail and, thereafter, whenever required by the probation officer and in the manner directed by the probation officer; and ➢ Follow any treatment recommended by the probation officer. [ 28 ] In addition, pursuant to

section 109 of the Criminal Code , the Court prohibits the accused from possessing any firearm, cross- bow, restricted weapon, ammunition and explosive substance for a period of 10 years; and prohibits the accused from possessing any prohibited or restricted firearm, and any prohibited weapon, device or ammunition for life. __________________________________ YVAN POULIN, J.C.Q. Me Alexandre Gautier For the prosecution Me Rodolphe Bourgeois For the accused

Date of hearing: August 25, 2017