2011 QCCA 1632, 2011 QCCA 1632

Unofficial English Translation D'Amours c. R. 2011 QCCA 1632 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No: 200-10-002366-099 (100-01-011768-070) (100-01-011775-075) (100-01-011776-073) (100-01-012128-076) (100-01-012367-070) DATE: September 13, 2011 CORAM: THE HONOURABLE JULIE DUTIL, J.A. LORNE GIROUX, J.A. JEAN BOUCHARD, J.A. GAÉTAN D'AMOURS APPELLANT – Accused v.

HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix JUDGMENT [ 1 ] The appellant appeals from his conviction, rendered on March 24, 2009, by the Court of Quebec, Criminal and Penal Division, District of Rimouski (the Honourable Judge Richard Côté), on the following nine counts: In regard to Stéphane Bernard (006), Mario Boisvert (010), Éric Bourget (011), Dany Cook (013), Gaétan D'Amours (014), Mélanie Houle (017), Sébastien Hudon (018), Miguel Lachance (020), Cindy Jennifer O'Hara (027), Pierre Ross (029), Dave Thibault, Ricardo Barrais, Louis-Philippe Lacas 1.

Between February 19 and May 31, 2007, in Rimouski, District of Rimouski, and elsewhere in the province of Quebec and in Canada, conspired together, or with one or the other, or with others to commit the indictable offence of trafficking cocaine and methamphetamine, substances included in

Schedule I of the Controlled Drugs and Substances Act , thereby committing the indictable offence set out at section 465(1) (

c) of the Criminal Code . In regard to Stéphane Bernard (006), Mario Boisvert (010), Éric Bourget (011), Dany Cook (013), Gaétan D'Amours (014), Mélanie Houle (017), Sébastien Hudon (018), Miguel Lachance (020), Cindy Jennifer O'Hara (027), Pierre Ross (029) 2. Between February 19 and May 31, 2007, in Rimouski, District of Rimouski, and elsewhere in the province of Quebec, conspired together, or with one or the other, or with others to commit the indictable offence of trafficking cannabis, a substance included in

Schedule II of the Controlled Drugs and Substances Act , thereby committing the indictable offence set out at section 465(1) (

c) of the Criminal Code . In regard to Gaétan D'Amours (014), Miguel Lachance (020) 3. Between February 19 and May 31, 2007, in Lévis, District of Quebec, and elsewhere in the province of Quebec, conspired together and with others to commit the indictable offence of trafficking Lysergic Acid Diethylamide (LSD), a substance included in

Schedule III of the Controlled Drugs and Substances Act , thereby committing the indictable offence set out at section 465(1) (

c) of the Criminal Code . In regard to Gaétan D'Amours (014) 4. Between May 15, 2006 and May 31, 2007, in Rimouski, District of Rimouski, and elsewhere in the province of Quebec and in Canada, trafficked in cocaine and methamphetamine, or in substances represented or held out to be such substances, included in

Schedule I , thereby committing the indictable offence set out at section 5(1)(3)(

a) of the Controlled Drugs and Substances Act . In regard to Gaétan D'Amours (014) 5. Between February 19 and May 31, 2007, in Rimouski, District of Rimouski, and elsewhere in the province of Quebec and in Canada,

trafficked in cannabis, or in a substance represented or held out to be such a substance, included in

Schedule II , thereby committing the indictable offence set out at section 5(1)(3)(

a) of the Controlled Drugs and Substances Act . In regard to Gaétan D'Amours (014), Denis Ricardo Barrais, Louis-Philippe Lacas 7. Between February 19 and May 31, 2007, in Rimouski, District of Rimouski, and elsewhere in the province of Quebec, trafficked in cocaine, methamphetamine, and cannabis, substances included in Schedules I and II of the Controlled Drugs and Substances Act , for the benefit of, at the direction of, or in association with, a criminal organization, thereby committing the indictable offence set out at

section 467.12 of the Criminal Code . In regard to Stéphane Bernard (006), Mario Boisvert

(010) Éric Bourget (011), Dany Cook (013), Gaétan D'Amours (014), Mélanie Houle (017), Sébastien Hudon (018), Miguel Lachance (020), Cindy Jennifer O'Hara (027), Pierre Ross (029), Dave Thibault, Ricardo Barrais, Louis-Philippe Lacas 8. Between February 19 and May 31, 2007, in Rimouski, District of Rimouski, and elsewhere in the province of Quebec, conspired together, or with one or the other, or with others to commit the indictable offence of possession of amounts of money having a value of more than $5,000, knowing that this property was derived from the commission of an offence punishable by indictment, thereby committing the indictable offence set out at section 465(1)(

c) of the Criminal Code . In regard to Gaétan D'Amours (014), Sébastien Hudon (018), Miguel Lachance (020) 9. Between February 19 and May 31, 2007, in Rimouski, District of Rimouski, and elsewhere in the province of Quebec, conspired together, or with others to commit the indictable offence of weapons trafficking, thereby committing the indictable offence set out at section 465(1) (

c) of the Criminal Code . In regard to Gaétan D'Amours (014) 10. Between February 19 and May 31, 2007, in Quebec City, District of Quebec, had in his possession a Harrington & Richardson Vest Pocket Safety Hammer side-loading revolver, a prohibited weapon, without being the holder of a licence under which he may possess such a weapon, thereby committing the indictable offence set out at section 91(2)(3)(

a) of the Criminal Code . [Emphasis added.] [ 2 ] The appellant was also sentenced, by a judgment rendered from the bench on May 19, 2009, and in writing on June 3, 2009, to a prison sentence of nine and a half years. He also seeks leave to appeal his sentence. [1] Facts [ 3 ] On February 13, 2007, André Plante J. of the Court of Quebec authorized the wiretap of several persons’ private communications, including those of the appellant.

This authorization was granted in the context of a major investigation into a drug ring operating in the Rimouski area, on the basis of an affidavit signed by Detective Sergeant Bernard Fillion of the Sûreté du Québec. [ 4 ] This affidavit is supported by information provided by seventeen police informants designated as [ translation ] “sources”, the work of an undercover officer, physical surveillance conducted by police officers, and cellular phone records, among other things. It is 120 pages long and has 164 paragraphs.

It is accompanied by two appendices, one of which provides the profiles of the seventeen sources. [ 5 ] The wiretap evidence was obtained between February 13 and May 21, 2007. Some 28,000 telephone conversations were analyzed. This evidence revealed that the appellant purchased drugs from his suppliers in Montreal and resold them to traffickers in the Rimouski area. [ 6 ] The tactical operations squad of the Sûreté du Québec arrested the appellant at his home in Lévis, at 4:00 a.m. on May 31, 2007. He called a lawyer from the police station, and the interrogation began at approximately 6:00 a.m.

The appellant was apparently quite talkative. The detectives showed him an organization chart of the drug ring and had him listen to extracts of intercepted telephone conversations. The appellant identified his voice and that of his interlocutors. Throughout the interrogation, the detectives wrote down the appellant’s comments. The appellant was provided a meal, coffee, water, some breaks, and access to a washroom as needed.

The impugned judgments [ 7 ] In the context of the appeal from his conviction, the appellant impugns three preliminary decisions made by the trial judge. [ 8 ] First, the appellant sought the judge’s permission to cross-examine Detective Sergeant Bernard Fillion with respect to his affidavit, as well as another affiant. This permission was denied in a first judgment rendered on December 9, 2008. [ 9 ] The appellant then presented a motion to exclude wiretap evidence in which he alleged that the appendices had not been signed nor given under oath. Consequently, he argued, the judge should not have considered them.

He argued further that several paragraphs of the affidavit should be struck as they were based on hearsay. This motion was also dismissed by a judgment rendered on December 18, 2008. [ 10 ] Finally, on the same day, the trial judge dismissed another motion presented by the appellant pursuant to which he sought to exclude the statement he gave to the officers on the basis that it was neither free nor voluntary. Analysis Cross-examination of the affiant Detective Sergeant Bernard Fillion

[ 11 ] A wiretap must be preceded by judicial authorization. The authorizing judge must be [ translation ] “satisfied that there are reasonable and probable grounds to believe that an offence has been committed or is about to be committed, that the wiretap sought will allow evidence thereof to be obtained, and that other investigative procedures have been tried and have failed, or are unlikely to succeed”. [2] The last criterion is not applicable in cases contemplated by section 186(1.1) Cr.

C. , including offences involving organized crime. [ 12 ] The person seeking authorization must sign an affidavit setting out the facts of the case in a full, frank, clear, and concise manner. [3] In reviewing the wiretap authorization, the trial judge’s role is limited to determining its lawfulness and must not substitute his or her view for that of the authorizing judge. [4] To accomplish this task, the judge must ask “simply whether there was at least some evidence that might reasonably be believed on the basis of which the authorization could have [been] issued”. [5] This explains why the trial judge may confirm an authorization even if the affidavit contains incorrect information, as this Court explained in Aurélius v.

R. : [6] [ translation ] [28] Secondly, the affidavit must be reliable. It must not attempt to mislead. That said, it may contain an error; information set out in the affidavit may be erroneous, even deliberately misleading.

This will not necessarily have the effect of automatically vitiating the application for authorization if, after excluding the erroneous information or statement from the affidavit, it nevertheless satisfies the statutory conditions. [References omitted.] [ 13 ] Similarly, to challenge the lawfulness of a wiretap authorization and cross-examine the affiant, “[a] basis must be shown by the accused for the view that the cross-examination will elicit testimony tending to discredit the existence of one of the preconditions to the authorization, as for example the existence of reasonable and probable grounds”. [7] [ 14 ] With respect to information provided by an informant, Charron J. in R. v .

Pires ; R. v. Lising , [8] stated the following: 41 In some cases, the proposed cross-examination may be directed at the credibility or reliability of an informant. However, cross- examination that can do no more than show that some of the information relied upon by the affiant is false is not likely to be useful unless it can also support the inference that the affiant knew or ought to have known that it was false. We must not lose sight of the fact that the wiretap authorization is an investigatory tool.

At that stage, a reasonable belief in the existence of the requisite statutory grounds will suffice for the granting of an authorization. Upon further investigation, the grounds relied upon in support of the authorization may prove to be false. That fact does not retroactively invalidate what was an otherwise valid authorization. [Emphasis added.] [ 15 ] Finally, deference must be shown by the appellate court for the judge’s decision to authorize the cross-examination of the affiant or not.

Charron J. reiterated this principle in the following terms: [9] 46 On reviewing a trial judge’s decision to permit or deny leave to cross-examine, an appellate court is not entitled to simply substitute its view for that of the trial judge. The trial judge’s determination of whether the proposed cross-examination is reasonably likely to elicit evidence of probative value to the issues for consideration involves an exercise of discretion. The trial judge is in a better position to assess the material, the submissions of counsel and the evidence, if any, in the context of the particular voir dire and trial.

The need for a deferential standard of appellate review was recognized in Garofoli . Sopinka J. stated that “[t]he discretion of the trial judge should not be interfered with on appeal except in cases in which it has not been judicially exercised” (p. 1465). 47 This deferential standard is important. If not adhered to, trial judges, out of an abundance of caution, are likely to embark upon many unnecessary hearings rather than risk vitiating an entire trial.

The trial court’s power to control the proceedings then becomes more illusory than real and, in the context of a Garofoli hearing, the very purpose of the leave requirement is defeated. [ 16 ] Applied to the case at bar, these principles elicit the following comments. [ 17 ] The appellant seeks to cross-examine the affiant in regard to source M, who asserted that the appellant gets his supply from a certain Martin Belhumeur from the Montreal area.

According to the appellant, this information is not credible since if it was, the officers would have included Martin Belhumeur in the list of persons targeted by the wiretap, which they did not. Moreover, according to the appellant, if this information is not reliable, it is possible to find that other information provided by source M is also unreliable. [ 18 ] It is worth repeating at the outset that the major investigation that served as a backdrop to the wiretap application sought to dismantle a drug-trafficking ring operating in the Rimouski area.

In all, thirty-two persons were targeted, twenty-nine of whom were from Rimouski and the surrounding area. A priori , it is not surprising that Martin Belhumeur, who is from Montreal, was not placed under surveillance. [ 19 ] Moreover, it is not only source M who asserts that the appellant got his supply from Martin Belhumeur, but also sources G and K.

Paragraphs 4.52 and 4.115 of the affidavit are worded as follows: 4.52 MEETING WITH SOURCE “K” ON MAY 18, 2006 On May 18, 2006, accompanied by Sergeant Mario Ducasse, detective with the Rimouski BRE (BSLGIM), I met with source “K”, who gave us information that can be summarized as follows: - Martin Belhumeur is the supplier of Gaétan D'Amours , who in turn supplies Sébastien Hudon and Pierre Ross . The drugs are delivered to Rimouski for Ross and Hudon , but Gaétan D'Amours takes a cut of their sales. Gaétan D'Amours still lives in the Quebec City area.

Note: - Gaétan D'Amours was observed in Lévis on December 1, 2006 (reference to paragraph 4.129). 4.115 MEETING WITH SOURCE “G” ON OCTOBER 23, 2006 On October 23, 2006, Sergeants Mario Ducasse and Stéphane Paquet, both detectives with the Rimouski BRE (BSLGIM), met with source “G”, who gave them information that can be summarized as follows: - Stéphane Hudon has two telephone numbers, i.e., cellular phone number ... and ... . - Sébastien Hudon gets his supplies from Gaétan D'Amours of Quebec City. Rino Bédard is D'Amours’ runner. He uses a red van to go to Rimouski.

Bédard’s ( Rino Bédard ) cellular phone number is (418) ... . - Pierre Ross also gets cocaine from Gaétan D'Amours . Ross picks it up, or Rino Bédard delivers it to him. - Gaétan D'Amours’ supplier’s name is “Belhumeur” (Martin Belhumeur) from Montreal. “ Vinny ” ( Vincent Proulx ) uses his “girlfriend”, Martine Tousignant, to hide the drugs. She hides them in her school bag. Her telephone number is ... . “ Vinny ” uses this number to contact dealers.

Notes: - Confirmation of telephone numbers (reference to paragraph 4.161): - (418) ... is listed under the name of Mario Leclerc of Rimouski. - (418) ... is listed under the name of Stéphane Hudon , ... in Rimouski. - (418) ... is listed under the name of Gaétan Gagné, ... in Lévis. This was the known address of Gaétan D'Amours . - (418) ... is listed under the name of Martine Tousignant of Rimouski.

On November 3, 2006, I reviewed the source-meeting report. [ 20 ] Likewise, much of the information provided by source M ties in with and confirms information provided by other sources. [ 21 ] On the whole, the affidavit provides reasonable and probable grounds to believe that a drug ring, of which the appellant was part, was operating in the Rimouski area. Even if we were to treat source M as unreliable, which is not the case, sixteen other sources corroborated each other on several points.

There were sufficient elements present to permit the issuing judge to authorize the wiretap, and absent the demonstration that the cross-examination of the affiant would have raised doubts as to the preconditions for the authorization, the trial judge was justified in denying this application. The first ground of appeal is thus dismissed. Hearsay and appendices not signed nor given under oath [ 22 ] The appellant claims that the wiretap evidence should be excluded because the affidavit filed in support of the application for authorization contains double and even triple hearsay.

According to the appellant, each officer who received confidential information from the different sources should have submitted an affidavit. [ 23 ] In the same vein, the appellant argues that the appendices, which are not signed, contain boilerplate wording that do not permit proper assessment of the sources’ credibility.

Moreover, he argues that the affiant became aware of some information only long after it was transmitted. [ 24 ] The trial judge refused to accept the appellant’s arguments in the following terms: [ translation ] [17] The attesting officer, Officer Fillion, is one of the principal detectives on this case. At the time he signed the affidavit, he had been involved in the investigation for two years. During the investigation, between January of 2005 and September of 2006, he personally met with nine of the seventeen police informants.

Much of the information obtained from the informants that he met with is corroborated by other informants. [18] Moreover, the attesting officer Fillion personally participated in the surveillance and searches conducted over the course of the investigation. [19] Even if information from some of the informants came to him several months after their meetings with their handlers, they remain relevant and reliable since they were continuously updated. [20] In addition to having met with several of the informants, Officer Fillion was in regular contact with the officers in charge of their handling. [21] Consequently, Officer Fillion had sufficient knowledge of the facts at issue to attest to the reliability of the information contained in the affidavit.

[ 25 ] This approach is entirely consistent with the state of the law on this issue. [ 26 ] Hearsay is permissible when the affiant presents reasonable grounds to believe that the wiretap authorization will be fruitful. [10] At this stage, we must not lose sight of the fact that the wiretap authorization is merely an investigatory tool, which has nothing to do with the rules governing the presentation of evidence at trial. [11] [ 27 ] Moreover, it is in practice impossible for one police officer to be aware of all the information necessary in order to obtain a wiretap authorization, particularly when lengthy and complex investigations of the activities of criminal organizations are at issue, as is the case here. [ 28 ] Yet, the appellant argues that each officer should have filed an affidavit attesting to the credibility of the information provided by the informants.

While this may be desirable, there is no such legal requirement, as LeBel J. noted in R. v . Araujo : [12] 48 Finally, while there is no legal requirement for it, those gathering affidavit material should give consideration to obtaining affidavits directly from those with the best firsthand knowledge of the facts set out therein, like the police officers carrying on the criminal investigation or handling the informers. This would strengthen the material by making it more reliable.

In the present case, it might have prevented this case from turning into the mess it is now, still in appeal, after years of litigation on preliminary matters, without any final judgment on the guilt or innocence of the appellants. [ 29 ] The impugned affidavit is that of one of the principal detectives on this case. In this regard, paragraph 4.1 reveals that the affiant is an experienced detective who has worked in the Rimouski area since 1981, and since 1998 as a detective.

Since 2004, he has been assigned exclusively to narcotics investigations with the Regional Investigation Office in Rimouski and personally knows several of the individuals targeted by the investigation. [ 30 ] The affidavit also reveals that on fifteen occasions, the affiant met with one or another of sources A, B, C, E, F, H, K, O, and Q. He therefore had personal contact with nine of the seventeen informants.

Further, the affidavit refers to several observations, surveillances, and inquiries made in the file by the affiant, who was directly involved in and regularly informed of the progress of the police investigation. Assuredly, he is one of “those with the best firsthand knowledge of the facts” in the sense contemplated by LeBel J. in R. v. Araujo . [13] [ 31 ] This Court recently ruled on the status of an affiant who was not the principal detective on the case.

It nevertheless concluded that he was fully aware of all the details of the case and could act as the affiant for the purposes of the wiretap authorization: [14] [ translation ] [31] A complex investigation involves several police officers. Some may be assigned to surveillance; some may act as double agents, while others may be assigned to work with informants. Often, especially in cases concerning criminal groups specialized in drug trafficking, police officers who have become experts in the activities, customs, practices, jargon, and modus operandi of gangs are used.

The squad put together for a long and sensitive investigation is made up of a large number of men and women whose roles are different but complimentary to each other. This is the case here. Officer Pelletier’s task was to gather and organize all the information obtained from the various sources. To do so, as noted above, he had access to all the reports and to all the detectives. He attended the debriefing sessions. He insisted that the officers handling the informants disclose both the positive and negative factors affecting the reliability of the information they provided.

He consulted the SPVM’s expert as well as an attorney. This is how he was able to support his affidavit. Finally, his affidavit was supplemented by two additional statements, that of the director of the police operation and that of the expert Gauthier. [ 32 ] In the same judgment, the Court then examined the issue of the reliability of informants in the situation where the affiant had not personally met with all of them but obtained an assessment of their reliability from the detectives, a situation similar to the present case.

The Court noted that in such circumstances, the judge from whom wiretap authorization is sought is in a position to assess the credibility of the informants: [15] [ translation ] [45] Officer Pelletier did not meet with each informant. He nevertheless insisted that every detective provide an assessment of the reliability of the informant that he or she was handling.

He obtained a written report on the informants identified as A, B, D, E, F, and I, and a verbal report on the informants identified as C, G, and H. [46] This assessment was noted in the affidavit, such that Desbiens J., who was seized of the application for wiretap authorization, was aware of the positive and negative factors affecting the credibility of each informant, in particular the level of detail of the information provided, the informant’s role in the environment in which he or she operated, cooperation in other investigations, the relevance and significance of the information provided on these other occasions, remuneration, if any, and prior criminal record.

He was thus able to assess the reliability of the information provided by the nine informants. [47] Moreover, the parallel examination of the facts set out in the affidavit and certain information provided by the informants revealed confirmatory facts ... . [ 33 ] To conclude, the affidavit presented in this case was sufficient to establish the reliability of the information submitted.

In regard to the fact that the appendices were not signed, the trial judge correctly relied on a judgment of the Ontario Superior Court of Justice according to which “[t]he appendices to the affidavit are an integral part of it”. [16] The trial judge committed no error in ruling as follows: [ translation ] [9] While in some cases it may be desirable that the appendices to an affidavit be signed and sworn, the Court finds that in the

present case, the appendices are an integral part of the affidavit signed by Officer Fillion and the information contained therein could be considered in the same manner as the other allegations in the affidavit. [ 34 ] The appellant’s second ground of appeal is therefore also dismissed.

The free and voluntary nature of the statements made to the police officers [ 35 ] The appellant argues that the fact that the statements he made to the police officers were not recorded and the fact that he did not repeat in his written statement all of the facts previously addressed during the interrogation conducted following his arrest has an impact on the free and voluntary nature of these statements. [ 36 ] In response to this argument, the trial judge cited the words of Iacobucci J. in R. v. Oickle , [17] who, while acknowledging the usefulness of recordings, rules that: [46] ...

This is not to suggest that non-recorded interrogations are inherently suspect; it is simply to make the obvious point that when a recording is made, it can greatly assist the trier of fact in assessing the confession. [ 37 ] The trial judge also referred to R. v. Moore McFarlane , [18] a judgment of the Court of Appeal for Ontario in which Charron J.A., as she then was, ruled that when technical facilities for recording the statement are readily available, but not used, this renders the interrogation suspect.

Yet, the trial judge chose to follow this last case, which is more favourable to the appellant, and ruled that his interrogation was suspect: [ translation ] [23] In the present matter, the evidence reveals that recording facilities were readily available at the Sûreté du Québec station in Quebec City and that Officer Frenette, who was in charge of the interrogation, did not even consider the possibility of making use of them.

This renders the interrogation suspect. [ 38 ] The judge then considered whether the Crown presented a sufficiently detailed account of the circumstances surrounding the appellant’s interrogation to allow him to conclude that, despite the absence of an audio/video recording, the statement was made freely and voluntarily. [ 39 ] He concluded, correctly, that it was the case. [ 40 ] It is worth repeating that the appellant began talking to the police officers from the very moment of his arrest, even before they asked him any questions.

He had the opportunity to consult an attorney and was provided regular breaks, a meal, and so on. [19] Moreover, the entire conduct of the interrogation was recorded in the notes of Officer Caire, whose role was precisely to take notes of everything that was said and that occurred during the interrogation. The appellant does not claim that these notes are false.

Nor does he claim that he was mistreated, that promises were made to him, or that the officers used tricks or schemes against him. [ 41 ] The trial judge believed the testimony of the officers regarding the circumstances surrounding the appellant’s statement.

He then made the appropriate distinctions between the free and voluntary nature of the statement and its reliability: [ translation ] [31] Other than the absence of an audio/video recording, the defence has not alleged any fact that calls into question the reliability of the police officers’ testimony regarding the circumstances of the interrogation. [32] The fact that the accused refused to repeat the content of his oral statements for the purposes of his written statement on the form does not affect the free and voluntary nature of the statement but rather the reliability of his oral statements. [ 42 ] Further, in the absence of any palpable and overriding error in regard to the weight that the trial judge had to attribute to the various evidence presented, there is no call for the Court to set aside his finding that the appellant’s extrajudicial statement was free and voluntary. [ 43 ] The appellant’s third ground of appeal is dismissed and consequently, so is the appeal of his conviction.

The sentence [ 44 ] On March 24, 2009, the trial judge convicted the appellant on the nine counts set out at the beginning of this judgment. [ 45 ] In a judgment rendered from the bench on May 19, 2009, and in writing on June 3, 2009, the judge then sentenced the appellant to a term of imprisonment of nine and a half years, from which was subtracted the two years that he spent in pre-sentence custody, times two. The appellant’s total prison sentence is thus five and a half years. [ 46 ] It is worth repeating the facts noted by the trial judge for the purposes of sentencing the appellant.

He stated the following at paragraphs 2 to 8 of his judgment: [ translation] [2] The accused were arrested in 2007 in the context of a long police investigation referred to as Project “ Bordure”, intended to dismantle a drug-trafficking ring operating in the Rimouski area. [3] The evidence accepted by the Court at trial revealed that between February and May of 2007, there were two drug rings selling cocaine and other drugs operating in the Rimouski area. One was led by Sébastien Hudon and the other was led by Pierre Ross.

[4] Hudon and Ross obtained most of their supply from the accused Gaétan D'Amours of Lévis, who obtained his supply in theMontreal area from the accused Louis-Philippe Lacas, as well as from Mario Boisvert and Dany Cook. The drugs at issue in the dealsbetween Lacas and D’Amours were delivered by the accused Barrais. [5] The criminal organization in which the accused were involved was in fact a group of individuals who had business relationshipsfor the purpose of drug trafficking.

While the trafficking operations were planned and carried out in similar fashion, there is nothing tosuggest that the accused belonged to a structured and hierarchical criminal organization. [6] The accused D'Amours acted somewhat like a broker. He took care of finding cocaine in Montreal to supply the traffickers inRimouski. He would buy cocaine by the kilo in Montreal and immediately resell it to the traffickers in Rimouski, for a profit.

Delivery inRimouski was usually carried out by his acolytes. [7] The evidence indicates that between February and May of 2007, the accused D'Amours purchased and resold at least tenkilograms of cocaine at a price ranging from $31,000 to $36,000 per kilo. During the same period of time, he also soldmethamphetamine, LSD, and six and a half pounds of cannabis destined for Pierre Ross. [8] The evidence reveals that between February and April of 2007, the accused Lacas sold at least five kilograms of cocaine to theaccused D'Amours and that he had access to a significant quantity of cocaine.

He also sold 1,000 methamphetamine tablets to D'Amours. [47] The appellant challenges the judgment on sentencing on two grounds. Firstly, that the sentence imposed is unreasonable as itfalls outside the range of sentences imposed for similar crimes and is contrary to the principle of parity in sentencing.

Secondly, heargues that the judge failed to provide sufficient reasons for his decision. [48] We will now examine the appellant’s arguments in the same order. [49] It is a truism to state that an appellate court must show deference and should only vary a sentence if it is clearly unreasonable.LeBel J. stated the following on this issue in R. v. L.M.:[20] [14] In its past decisions, this Court has established that appellate courts must show great deference in reviewing decisions of trialjudges where appeals against sentence are concerned.

An appellate court may not vary a sentence simply because it would have ordereda different one. The court must be “convinced it is not fit”, that is, “that . . . the sentence [is] clearly unreasonable” (R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227, at para. 46, quoted in R. v. McDonnell, (SCC), [1997] 1 S.C.R. 948, atpara. 15). This Court also made the following comment in R. v.

M. (C.A.), (SCC), [1996] 1 S.C.R. 500, at para. 90: . . . absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appealshould only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. (See also R. v. W. (G.), (SCC), [1999] 3 S.C.R. 597, at para. 19; A. Manson, The Law of Sentencing (2001), at p. 359;and F.

Dadour, De la détermination de la peine: principes et applications (2007), at p. 298.) [15] Owing to the profoundly contextual nature of the sentencing process, in which the trier of fact has broad discretion, the standardof review to be applied by an appellate court is one based on deference. The sentencing judge has “served on the front lines of ourcriminal justice system” and possesses unique qualifications in terms of experience and the ability to assess the submissions of theCrown and the offender (M. (C.A.), at para. 91).

In sum, in the case at bar, the Court of Appeal was required — for practical reasons,since the trier of fact was in the best position to determine the appropriate sentence for L.M. — to show deference to the sentenceimposed by the trial judge. … [17] Far from being an exact science or an inflexible predetermined procedure, sentencing is primarily a matter for the trial judge’scompetence and expertise. The trial judge enjoys considerable discretion because of the individualized nature of the process (s. 718.1Cr. C.; R. v. Johnson, [2003] 2 S.C.R. 357, 2003 SCC 46, at para. 22; R. v.

Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5, at para. 82). Toarrive at an appropriate sentence in light of the complexity of the factors related to the nature of the offence and the personalcharacteristics of the offender, the judge must weigh the normative principles set out by Parliament in the Criminal Code: - the objectives of denunciation, deterrence, separation of offenders from society, rehabilitation of offenders, and acknowledgmentof and reparations for the harm they have done (s. 718 Cr.

C.) (see Appendix); - the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of theoffender (s. 718.1 Cr. C.); and - the principles that a sentence should be increased or reduced to account for aggravating or mitigating circumstances, that asentence should be similar to other sentences imposed in similar circumstances, that the least restrictive sanctions should be identifiedand that available sanctions other than imprisonment should be considered (s. 718.2 Cr.

C.). [50] The principle of parity in sentencing must yield to the principle of deference for the trial judge’s discretionary exercise unlessthe sentence is vitiated by an error in principle or is clearly unreasonable.[21] [51] What of the case at bar? [52] The trial judge concluded that there were no mitigating factors. He was perfectly right. [53] Conversely, it appears that the appellant is the central figure in a hard-drug trafficking ring. Between the months of Februaryand May of 2007, he organized the traffic of ten kilograms of cocaine. Moreover, he has a record of several prior drug offences going as

far back as 1989. [ 54 ] The appellant referred to several sentences imposed in the context of the raid that led to his arrest, including those of Dany Cook (six years), Mario Boisvert (six years), and the head of the Rimouski organization, Sébastien Hudon (seven and a half years). He argues that his sentence is not consistent with those of the others. The appellant failed to mention an important fact.

All of these individuals pleaded guilty, which is a mitigating factor that may justify a more lenient sentence. [22] [ 55 ] Moreover, a review of the case law indicates that for offences similar to that committed by the appellant, the range of sentences varies from three to twelve years, with the majority falling between six and ten years. [23] The global sentence imposed on the appellant is thus situated at the higher end of the range but does not exceed it. [ 56 ] Further, at trial, the appellant’s attorney [24] suggested an eight year prison sentence (six years for cocaine trafficking and two years for participation in a criminal organization).

In these circumstances, we do not see how the appellant can now argue that the nine and a half year sentence imposed on him is clearly unreasonable. [ 57 ] The appellant also argues that it is not clear from the judgment why there is a discrepancy between his sentence and those imposed on the other accused in this case. [ 58 ] This argument is without merit. The reasons of the trial judge need not be flawless.

The trial judge is not required to set out in minute detail every factor considered so long as an appellate court may conduct a meaningful review of the correctness of the decision. [25] For the reasons set out above, that is the case here. [ 59 ] The appellant was a central figure. He sold significant quantities of cocaine, had a prior criminal record, and contrary to his acolytes, did not plead guilty. [ 60 ] On the whole, the Court is of the view that the appellant’s appeal from his sentence must also fail.

FOR THESE REASONS, THE COURT: [ 61 ] DISMISSES the appeal from the conviction; [ 62 ] GRANTS the motion for leave to appeal from the sentence; [ 63 ] DISMISSES the appeal from the sentence. JULIE DUTIL, J.A. LORNE GIROUX, J.A. JEAN BOUCHARD, J.A. Mtre Patrick Cozannet For the appellant Mtre Jacques Casgrain Mtre Sandra Blanchard Criminal and penal prosecutors For the respondent Date of hearing: June 7, 2011