r v. Domenico GIANNELLI, 2022 QCCQ 2419

R. c. Giannelli 2022 QCCQ 2419 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Criminal and Penal Division N o : 500-01-182417-185 DATE: May 6, 2022 ______________________________________________________________________ BY THE HONORABLE MYLÈNE GRÉGOIRE, JCQ ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v. Domenico GIANNELLI

(001) Accused ______________________________________________________________________ REASONS for SENTENCE ______________________________________________________________________ [ 1 ] Domenico Giannelli (hereinafter “the accused”) was arrested in the course of the execution of a search warrant issued on December 18, 2018, for the 105 Milton Street, apartment 1101, in Montreal.

Also present on the premises at the time of the police intervention was his co-accused, Natalie Anne Fairfax. [ 2 ] As a result of the search, several items were seized by the police : ➢ 7,25 g of heroin mixed with fentanyl; ➢ 23,64 g of cocaine; ➢ 12,16 g of crack (cocaine); ➢ 3 cellular phones; ➢ Accounting books and lists; ➢ A contaminated scale; ➢ CAD $14,035. [ 3 ] On November 9, 2020, in the course of the trial, Natalie Anne Fairfax changed her plea and admitted her guilt to the three counts of having in her possession for the purpose of trafficking different substances of

Schedule 1 , committing thereby indictable offences provided by section 5(2)(3)

a) of the CDSA . [ 4 ] On July 9, 2021, she was sentenced to a term of imprisonment of two years less one day on each count to be served concurrently.

A probation order for two years was also imposed. [ 5 ] On July 29, 2021, a few weeks after the conclusion of his trial, the accused is found guilty of the same three accusations of possession of substances for the purpose of trafficking. [ 6 ] The prosecution is seeking a 48-month jail term while the defense sustains that 90 days of imprisonment to be served intermittently, a probation order of 3 years including an order to perform 240 hours of community service would constitute an appropriate sentence. [ 7 ] Defense counsel also proposed that the accused be subject to electronic monitoring (“GPS”). [1] [ 8 ] A full account of the evidence can be found in the judgment [2] on the verdict.

The facts that the Tribunal has identified in the decision on guilt are deemed to be part of these reasons. [ 9 ] In order to facilitate the reading and understanding of the sentencing judgment, the following

summary will suffice. THE FACTS [ 10 ] During the month of November 2018, Montreal Police Service received information from two sources stating that the accused,

along with others, was involved in drug trafficking of heroin, cocaine and crack, in different areas of Montreal. [ 11 ] Based on the gathered information, the police undertook physical surveillance operations and proceeded to several controlled purchases of heroin.

Between November 23, 2018, and December 18, 2018, Natalie Anne Fairfax, Vincent Williamson, Benson Joseph and the accused were seen on different occasions interacting in a context described as “narcotic contacts”. [ 12 ] On December 4 and 7, 2018, the accused was specifically observed near the location on time, or close to the time of the controlled drug purchases from Benson Joseph. [ 13 ] The investigation revealed that the drug dealers obtained their supplies among other places, from the 105 Milton Street, apartment 1101, in Montreal, where Ms.

Fairfax claimed she was tasked with monitoring the stock of illicit substances. [ 14 ] She testified having contracted the lease on December 10, 2018, as she would receive $2,000 per month to act as the custodian of the drug stash. From once to the next, the drugs were divided into different quantities and different sizes of bags but ready to be sold when they got to 105 Milton Street. [ 15 ] The video evidence, issued from the surveillance cameras of the building, showed that the accused was at all time in possession of a microchip that gave him access to the 105 Milton Street.

Between December 12 and 18, 2018, the accused, wearing a black shoulder bag, was observed getting in and out sometimes alone, sometimes accompanied; Ms. Fairfax and Mr.

Vincent Williamson are among the people observed in his presence. [ 16 ] On December 18, 2018, the police executed a search warrant issued the same day for the 105 Milton Street, apartment 1101, in Montreal. [ 17 ] Less than a minute after the dynamic entry of all police officers, S/D Maréchal found a little bag containing 7,25 grams of heroin mixed with fentanyl [3] on the floor right where he got in contact with the accused as they busted in. [ 18 ] In the accused shoulder bag, the police found the following items : ➢ Accounting sheets with inscriptions related to drug trafficking; [4] ➢ Documents related to the Audi driven by the accused during the physical surveillance; [5] ➢ CAD $10,300 in the front pocket of the bag. [6] [ 19 ] In Ms.

Fairfax’s purse, in different compartments, police officers found bundles of money, [7] and an accounting book. [8] [ 20 ] Police officers noticed in plain view on the kitchen table, two cellular phones, [9] a big Ziploc bag containing 23,64 grams of cocaine [10] placed on top of a baby wipes box. In that box, they found a contaminated scale [11] and 12,16 grams of crack in several packets [12] and other unused bagging equipment. [13] [ 21 ] Right beside the baby wipes box there was a green book [14] with various accounting notes, names and rates of different hotels or rentals.

One of those notes referred to personal information connected to Benson Joseph. [ 22 ] The value of the drugs was established as being the following : ➢ 7,25 g of heroin mixed with fentanyl : $2,200 (0,10 g/$30); ➢ 23,64 g of cocaine : $2,500 (¼ g/$20); ➢ 12,16 g of crack (cocaine) : $2,500 (0,10 g/ $20). The accused and his evidence [ 23 ] At the sentencing hearing, as at trial, the accused remained silent.

However, he did introduce evidence. [15] [ 24 ] Members of his family, his spouse, a co-worker, a friend and his employer wrote letters [16] to express their support towards the accused. [ 25 ] In their own words, they list the qualities of the accused and articulate their various concerns about the impact of the Court’s decision. [ 26 ] Likewise, Ms. Linda Castel wrote a letter [17] to describe her relationship with the accused. She also testified that since 2017, he acts as a caregiver for her 40 years’ old son, Timothy that is mentally delayed.

The accused goes to the house twice a day, from Monday to Friday, and makes sure that Timothy takes his medication. He also helps him with his personal hygiene care. [ 27 ] Since she suffered from a stroke, Ms. Castel also receives personal assistance from the accused with running errands and going to her medical appointments.

She asks for the court’s leniency, fearful of the consequences of losing the accused contribution in their day-to-day life. [ 28 ] Finally, Marie-Hélène Belley, a private practice criminologist, met with the accused on October 25, 2021, and produced a criminological assessment. [18] Her mandate was to issue clinical opinions in relation to all criminal concerns, assess the risk of recidivism and provide recommendations.

[ 29 ] We can read that the accused has been sharing his life with a woman for 17 years. From this union was born a child, now 14 years old. Together they form a blended family consisting of the mother and three other children (30 years old, 28 years old and 21 years old) from a previous union. [ 30 ] The accused has a 22-year-old daughter from a previous relationship, but has little contact because she lives in Toronto where she moved with her mother several years ago. [ 31 ] The accused speaks positively about his actual relationship.

When questioned about it, he said they had their ups and downs but she is a devoted spouse and mother on whom he can rely. The latter is not involved in the underworld and has no criminal record. [ 32 ] The friendly relationship with the co-accused has led to arguments within the couple, but he says that by communication, the situation has improved and that she supports him through his difficulties. [ 33 ] The accused has few social activities outside of work. He spends most of his free time with his family. He loves to cook and is working on a project with his brother who has completed a chef training program.

Their goal is to start a catering business. [ 34 ] He has been using cannabis since he was a teenager. He claims to smoke a joint of this psychoactive substance at night at bedtime. This habit improves his sleep. Ms.

Belley states that he does not demonstrate any behavioral dependence. [19] [ 35 ] The accused is aware that he will have to serve a sentence even though he maintains his innocence. [ 36 ] Contrary to the assertion of the prosecutor during his argument, we do find a mention of the accused’s role as a companion for a person with special needs in the context of his job with the CLSC. [20] [ 37 ] The accused also works full time at “Les Services Résidentiels Brenave”, offering restoration services.

His employer describes him as a polite, kind, punctual, ambitious and exemplary employee. [21] [ 38 ] In regards of the risk assessment of reoffending, Ms. Belley identifies the following static risks: the accused prior convictions, and his social relationships with offenders during adolescence and early adulthood. [ 39 ] His addiction to drugs does not put him in touch with the underworld as he obtains his cannabis legally and with a medical prescription. This static risk does not seem to worry Ms.

Belley. [ 40 ] The accused empathy, his stability at work, his intimate long-time relationship as well as his family conveying pro-social values, reveal themselves as protective factors. [ 41 ] Ms. Belley concludes her assessment with the following recommendations : ➢ Avoid association with anyone who has a criminal record or connection to the underworld; ➢ Maintains regular employment; ➢ Be supervised by family members.

ANALYSIS [ 42 ] It is with no surprise that I here repeat my remarks, previously mentioned in the case of the co-accused, as to the applicable legal principles and case law. [ 43 ] As set forth in

section 718 of the Criminal Code , the purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions on the offender. The stated objectives of any sentencing decision includes denunciation, deterrence, rehabilitation, reparation for harm done, promotion of offender responsibility and acknowledgement of harm done. [ 44 ] In regards of drug-related offences, Parliament specifically framed these sentencing principles in

section 10 of the CDSA. [22] [ 45 ] Sentencing is not an exact science. The emphasis to be given to each of these objectives will vary according to the offence for which the offender is being sentenced, the circumstances of the offence and the circumstances of the offender. [ 46 ] During the sentencing process, the Court’s function is to impose a sentence that is fit.

A fit sentence is one that does not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence. [ 47 ] The Court must evaluate the aggravating and mitigating circumstances as they relate to the commission of the offences or the situation of the accused.

Furthermore, the sentence should be similar to what has been imposed on offenders dealing with analogous offences that were committed in comparable circumstances. [ 48 ] In the course of my analysis in determining the co-accused appropriate sentence, I had the opportunity to make a review of sentencing ranges with respect to persons convicted of possession for the purpose of trafficking of heroin, heroin/fentanyl, cocaine and/or crack. [23] [ 49 ] Comparative approach has its limits; it is always difficult to find a case right on point since sentencing is such an individualized exercise. [ 50 ] Looking at the significance of sentencing ranges, the Supreme Court of Canada in R. c.

Lacasse [24] underlined that :

“ Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives.

However, they should not be considered “averages”, let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case”. [ 51 ] The same court repeated these principles in Friesen [25] and again recently, in Parranto [26] : [16] Quantitative appellate guidance generally takes one of two forms: starting points, or sentencing ranges. These tools are best understood as “navigational buoys” that operate to ensure sentences reflect the sentencing principles prescribed in the Criminal Code .

Busy sentencing judges face a challenging task; the Code often provides for a wide range of possible sentences and the factual circumstances of each case vary infinitely. Sentencing must begin somewhere, and both starting-point and range methodologies assist sentencing judges by providing a place to start in the form of either a single number or a range. As this Court has recognized, however, “there is no such thing as a uniform sentence for a particular crime” ( M. (C.A.) , at para. 92).

Neither tool relieves the sentencing judge from conducting an individualized analysis taking into account all relevant factors and sentencing principles. [ 52 ] In their book on sentencing, authors Parent and Desrosiers [27] provide a portrait of the penalties imposed in terms of trafficking and possession for the purpose of trafficking of hard drugs : 759.

De façon générale, les peines en matière de trafic de cocaïne et de possession e n vue d’en faire le trafic varient de quelques mois d’emprisonnement à quatre ans de pénitencier [28] , avec une concentration se situant dans les 14 mois d’emprisonnement. [29] Des peines plus longues peuvent s’avérer nécessaires lorsque l’accumulation de facteurs aggravants ou la présence de certaines circonstances particulières le commandent.

Une tendance à des peines plus sévères peut également être observée en matière de drogues dures [30] en raison de la nocivité des substances saisies et des ravages qui en résultent [31] (méthamphétamine, cocaïne et crack).

Quant au trafic de crack, l’échelle des peines applicables pour ce type de drogue varie entre 6 mois et 54 mois d’emprisonnement. [32] [ 53 ] Our Court of Appeal in Onwualu [33] made the following observation : […] L’analyse des décisions montre que pour le trafic ou la possession dans le but de faire le trafic de 8 grammes de cocaïne-crack, les tribunaux imposent des peines d’emprisonnement sévères dont le point de départ se situe autour de vingt-quatre mois. [ 54 ] As to the devastating effects of crack (cocaine), the reasons given by Justice Beaudoin in R. c.

Dorvilus [34] are still relevant : Le crack crée chez l’usager une sensation intense et très rapide, mais de cou r te durée, et une dépendance forte et pratiquement immédiate. C’est une d r ogue 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 10,00 et 15,00 $ alors que 25,00 à 40,00 $ 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. He adds this : 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 . [ 55 ] Like cocaine and crack, heroin is a “hard drug”. [ 56 ] In Pimentel , [35] Justice Hill stated that “ heroin is a pernicious and addictive narcotic.

Consequently, severe sentences are imposed by the courts to deter those tempted by commercial gain from trafficking in the illicit drug”. [36] [ 57 ] Society must be protected from the untold grief and misery occasioned by hard drugs [37] such as heroin, the most dangerous and insidious narcotic which generally has devastating consequences on the health, social relationships and financial circumstances of users and their families. [38] [ 58 ] That being said, what happens when, like in case at bar, the heroin is mixed with fentanyl. [ 59 ] It is important to stress that this means the extreme danger of ingesting fentanyl is hidden to users. [ 60 ] On the subject of dangers and havoc associated with fentanyl, the Court finds apropos to report the following extracts from R. v.

White : [39] [41] The obvious dangers and heightened risk of death associated with fentanyl use have been recognized in a number of cases in Canada. I need only refer to two. R. v . Smith , 2017 BCCA 112 , is often cited as the leading case in British Columbia dealing with sentencing for fentanyl offences. In that case, the British Columbia Court of Appeal accepted the following description of the dangers of fentanyl: [16] … Fentanyl is 20 to 50 times more potent than heroin. A mere 2 milligrams is a lethal dose . This is as small as a grain of salt.

Overdoses frequently occur in individuals who thought they were using heroin, oxycodone, cocaine or other similar substances but who unknowingly consumed fentanyl. When fentanyl is labeled and sold as other street drugs, such as heroin, users may not know what they are taking and may not understand the heightened degree of risk. The risk of death is thus heightened exponentially among users who do not reduce their dosage. [Underlining in original] [42] Similarly, in R . v. Loor , 2017 ONCA 696 , the Ontario Court of Appeal accepted the following expert evidence which had been

presented at trial : [35 ] Fentanyl, like heroin, is an opioid. Opioids are drugs that act on the central nervous system to relieve pain. Unlike heroin, which is illegal, fentanyl is a prescription drug, which can be obtained legally for therapeutic use. [36] Therapeutically, fentanyl is used for the management of moderate to severe chronic pain. Patches are an effective way to administer fentanyl because they are applied to the skin and provide a patient with continuous pain relief for up to three days. But fentanyl is a very powerful drug, according to Dr.

Woodall, up to 100 times more powerful than morphine and 20 times more powerful than heroin. Because it is so potent, fentanyl is only prescribed in a patch under strict medical supervision and to those who are “opioid tolerant”, that is to those who have been taking opioids for a long time. [37] Because fentanyl is so potent it becomes a very dangerous drug when it is not used for therapeutic reasons under medical supervision.

Those who have a prescription for it and yet abuse it, or those without a prescription who buy a patch on the street or borrow one from a friend are at risk of toxicity and death . [38] The effects of fentanyl are why people abuse it. Fentanyl gives people a high, a feeling of well-being, of euphoria. Those who use it for a long time may become addicted. But because fentanyl depresses the central nervous system, it can slow down the way one’s brain functions, decrease one’s heart rate, and slow down one’s breathing.

A person who takes enough fentanyl may eventually stop breathing and die . [ 61 ] In considering the consequences of trafficking in hard drugs in the context of an appeal on the sentencing of fentanyl, our Supreme Court noted only a few months ago that “t rafficking in hard drugs is thus a crime with such grievous consequences that it tears at the very fabric of society” . Individuals who traffic in large quantities of these drugs are regularly sentenced to long terms of incarceration to be served in a penitentiary. [40] [ 62 ] The sentence must indeed reflect those harms.

This statement is as valid in a case of “possession for the purpose of trafficking” as of “trafficking” since in these matters, each link in the chain plays a decisive and essential role in reaching the consumer. [ 63 ] Now, in respect of this individualized process, what is the appropriate and proportionate sentence in response to the crimes committed by the accused? [ 64 ] The gravity of an offence is underscored by the punishment it attracts. [ 65 ] Possession for the purpose of trafficking receives a harsher sentence than simple possession. In 2012,

section 742.1 of the Criminal code was amended to preclude the possibility of granting a conditional sentence for possession for the purpose of trafficking in cocaine offences. The same restriction applies to heroin offences. [ 66 ] One cannot debate the seriousness of the offences committed by the accused considering that under section 5(2)(3)

a) of the CDSA, he is liable to life imprisonment on each count. [ 67 ] With respect to the degree of responsibility of the offender, the Court takes into account the aggravating and mitigating circumstances, as well as all the other relevant factors summarized below. Mitigating circumstances [ 68 ] The Court recognize the presence of the following mitigating circumstances : ➢ Working, the accused is proving to be an asset for society. His involvement with Timothy and Mrs. Castel is noteworthy; ➢ He benefits from the support of his entourage; ➢ His compliance with the conditions of his release.

Aggravating circumstances [ 69 ] The nature, the quantity and the variety of drugs (heroin/fentanyl, crack and cocaine) found in the possession of the accused figure as a significant aggravating factor. [ 70 ] The substances seized generate more than 72 doses of heroin/fentanyl, 94 doses of cocaine and 121 doses of crack (cocaine) of a total value of $7,200 (paragraph 22). [ 71 ] Based on recent case law, heroin laced with fentanyl is an aggravating factor in sentencing whether or not there is a quantitative analysis of the fentanyl. [41] An offender assumes the risk of the presence of fentanyl when selling or possessing illicit drugs. [ 72 ] The presence of fentanyl in the heroin impacted the seriousness of the nature and quality of the drugs involved in the offences committed by the accused.

E ither he should have known or he was willfully blind and was willing to take the risk of “possessing for the purpose of trafficking” fentanyl in the heroin. [ 73 ] As above-mentioned, all levels of Canadian courts are sensitive to the well-known dangers of all these drugs and the devastating consequences brought on by addiction as well as the cycle of criminal activity that often plagues its users.

The importance of deterrence and denunciation in such matters is often emphasized . [ 74 ] There have been a number of decisions where the courts have recognized the mitigation created where an accused was an addict trafficker or an addict whose criminal offences were directly related to their addiction and who had made significant inroads in overcoming that addiction. [42]

[ 75 ] Here, as it was the same situation for his co-accused, evidence shows the accused was not addicted to these hard drugs and acted for the purpose of greed. [ 76 ] Even keeping in mind that he was not found guilty of counts of trafficking, the accused obviously had an active role in that so- called business. [ 77 ] Evidence was made that the accused, Ms. Fairfax, Benson Joseph and Vincent Williamson were all related and in contact with one another in the context of drug trafficking. [ 78 ] The link between the accused and 105 Milton Street, apartment 1101, was also established.

Upon arrest, the accused even told the police that this was his living address. [ 79 ] The accused was observed entering and getting out of 105 Milton Street, sometimes alone, sometimes accompanied. The Tribunal ruled that he was at least as much in control of the drug stash that was his co-accused. [ 80 ] The controlled drug purchases by the undercover officer, the number of people observed during the police surveillance of which the accused was a member, demonstrate that the network was of some magnitude. [ 81 ] The photos taken during the search also reveal the scale of operations.

Beside the large quantity of hard drugs already split into bags and ready to be sold, police seized three cellular phones, accounting books and lists, a contaminated scale and a sum of CAD $14,035, of which CAD $10,300 was found in the accused shoulder bag. [ 82 ] All the facts of the case lead the Tribunal to conclude that this was not a brief deviation in judgment on the part of the accused.

I cannot ignore either the fact that it was the execution of the warrant which resulted in his (their) actions being stopped. [ 83 ] As exposed under Exhibit S-1, the prior convictions of the accused are the following : Dates Infractions Convictions 1997-06-05 (Tribunal pour adolescents) Voies de fait lésions Probation pour 1 an 1998-05-29 (Tribunal pour adolescents) Vol qualifié Placé sous garde pour 12 fins de semaine à compter du 1998-11-27 et Probation pour 1 an 2005-05-09 Vol qualifié; Possession d’imitation d’arme 12 mois et Probation pour 2 ans sur chaque chef 2010-02-15 Infraction au profit d’une organisation criminelle; Trafic; Complot; Possession en vue trafic 20 mois (743.6 purge ½ peine) 1 jour consécutif 1 jour consécutif 1 jour consécutif 2016-05-02 Possession simple Amende de $350 [ 84 ] Even if the last conviction goes back in 2016, it was again related to drugs. [ 85 ] The Tribunal cannot disregard the accused conviction for participation in activities of criminal organization, drug trafficking, conspiracy, and possession of narcotics for the purpose of trafficking received in 2010. [ 86 ] His criminal record in similar matters is an aggravating factor.

Other relevant circumstances [ 87 ] The Court acknowledges that other circumstances may be relevant to the process of individualization of the sentence. [ 88 ] The accused counsel invokes the passage of time as a mitigating factor stating that more than three years had passed since the events . [ 89 ] In Critton [43] , justice Hill summarized the principles rationally emerging from the jurisprudential debate as to the s ignificance of delay between crime and sentencing as follows : (1) the effect of delay on sentencing is a case-specific inquiry;

(2) deliberate acts to evade detection by the authorities, whether flight or contribution to delayed complaint tend to weigh against assigning mitigating impact to the fact of delay; (3) reform and rehabilitation during the intervening period tend to eliminate the prospect of recidivism and to nullify the need for specific deterrence to be reflected in the court’s disposition; (4) certain very serious crimes require sentences with measures of general deterrence and denunciation regardless of the offender’s lengthy crime-free existence subsequent to the crime(s); (5) objectively speaking, taking into account delay, the court’s disposition should not be seen as a reward or benefit eliminating or depreciating the concept of proportionate punishment. [ 90 ] Citing the rehabilitation of the accused to justify his sentencing position, his counsel cites the 2020 decision of Préfontaine [44] by this Court of Appeal, reiterating the broad discretion of the trial judge to depart from the applicable sentencing ranges when faced with evidence that the offender has been rehabilitated. [ 91 ] That case needs to be distinguished as Préfontaine pleaded guilty to the offences that involved, among others, three counts of conspiracy to sell different types of drugs (cocaine, cannabis and hashish); he testified at length to present himself to the judge and explain his past and actual profile.

His risk of recidivism was evaluated as being low. [ 92 ] In our file, faced with the persistence of the accused denial of facts, Ms. Belley was only able to identify the risk factors as well as the protective ones, without coming to a distinct conclusion as to his risk of recidivism. [45] [ 93 ] It is true to say that in Hudon , [46] the Court of appeal, referring to Zawahra, [47] clarifies that the phrase "particularly compelling demonstration" should not be seen as too heavy a burden : [13] Il ne faut pas, comme semble le proposer l’appelante, y voir un fardeau trop lourd.

L’expression est connue et signifie que la preuve doit être probante par opposition à une preuve hors de tout doute raisonnable. Cette appréciation de la preuve appartenait à la juge et la seule question qui subsiste est celle de savoir si elle a manifestement erré lorsqu’elle conclut à une démonstration convaincante de réhabilitation. [ 94 ] The case law does not require proof of a vested or full pardon. Rather, in Zawahra , the Court uses the phrase "the road to rehabilitation". [ 95 ] At this stage, the Tribunal feels necessary to discuss the case of Tremblay c.

R. [48] , where the accused chose not to testify at his jury trial, but was heard at the sentencing hearing, trying to minimize his involvement in the crimes for which he was convicted. The Court of Appeal reminded that : [11] […] le juge de première instance était lié par la base factuelle ou implicite du verdict du jury et devait considérer comme prouvés tous les faits, exprès ou implicites, essentiels au verdict de culpabilité rendu par le jury. [49] [ 96 ] A few years later, that same Court reaffirmed that principle in Auguste , [50] stating that an offender cannot use the sentencing hearing to offer an

interpretation of the evidence, which was for the trier of fact to evaluate. [ 97 ] In the case at bar, the accused has requested a trial and no one can fault him. As Justice Guy Cournoyer noted in Reyes , [51] « le fait que l’accusé maintienne sa version des faits lors de la détermination de la peine est une réaction fort compréhensible et n'a rien d'étonnant. Cette réaction ne constitue pas, en soi, un facteur aggravant ». [ 98 ] As mentioned above, the accused hired a private criminologist, Ms.

Belley, who has produced a written assessment for the sentencing hearing. [52] She was not called to the stand. [ 99 ] The accused, who chose not to testify at this hearing, cannot use the criminologist to convey his version in order to benefit from mitigating circumstances that might emerge from his explanations to Ms. Belley. [ 100 ] The Tribunal determines that Ms. Belley’s remarks on the facts surrounding the circumstances of the offences [53] are of no use and have no probative value. [ 101 ] Basically, the defense presented at trial through the testimony of Ms.

Fairfax, stating she was the one and only person responsible for the drug stash, was not retained as evidenced by the Tribunal’s verdict. [ 102 ] As noted above, the reasons for that decision on guilt forms part of this judgment. [ 103 ] On a different topic, the fact that the accused is the father of a 14-year-old boy did not prevent him from getting involved again in the criminal world and more specifically the one related to drug trafficking.

His son had been in his life for several years already when he chose that path another time. [ 104 ] The same comments can be made as to his involvement with Timothy and Ms. Castel. She testified that the accused started in 2017 to act as the caregiver of her son. The offences were committed at the end of 2018. [ 105 ] Those elements, although relevant, cannot reveal themselves as mitigating factors. [ 106 ] The legislator also provides for the harmonization of sentences, which implies the imposition of similar sentences on similar offenders for similar offences committed in similar circumstances.

This principle does not require identical sentences for all co-accused. In fact, our Court of appeal, in the case of Émond , [54] explained in which manner this principle must be applied:

[45] Le critère de l’harmonisation des peines par définition non seulement tolère, mais commande une marge de disparité. Bien que reflétant le précepte voulant que « les semblables soient traités de manière semblable », ce critère devrait être appliqué de manière à respecter les principes de proportionnalité et d’individualisation des peines.

Pour cette raison, il s’oppose non seulement à l’imposition de peines identiques, mais commande une certaine disparité lorsque les peines sont correctement individualisées. [ 107 ] The co-accused was sentenced to two years less a day of imprisonment on each count to be served concurrently.

While the aggravating factors were similar, the mitigating factors were more numerous and clearly distinguished : ➢ The accused pleaded guilty; ➢ She had no criminal record; ➢ She offered a good collaboration for the presentence report; ➢ Deterrent impact of the judicial process; ➢ Expression of remorse; ➢ Working, she is an asset for society; ➢ She stopped drinking alcohol, aware of the downward slope she was heading; ➢ Steps taken to register for therapy as suggested by the probation officer; ➢ Low risk of recidivism. [ 108 ] The accused “road to rehabilitation” is quite different from that of his co-accused and nothing justifies nor commands a more lenient sentence then hers, as proposed by defense counsel; to the contrary.

The recidivism in similar matters demonstrates that his passage through the courts has not had the desired dissuasive impact. [ 109 ] There is no need to revisit the dangers and harms caused by such behavior involving such hard drugs. [ 110 ] In light of all the circumstances, the moral blameworthiness of the accused remains high and the sentence must send him and society, a strong and clear message of denunciation and deterrence. [ 111 ] Although the accused initiation of rehabilitation is a step in the right direction, the sanction recommended by defense counsel overemphasizes that aspect and is clearly insufficient not only in regards of the accused profile and the gravity of the offences committed, but to achieve all the other sentencing principles and objectives.

FOR ALL THE ABOVE REASONS, THE COURT IMPOSES to the accused a sentence of 42 months of imprisonment on each count to be served concurrently. ORDERS the forfeiture for destruction of the seized drugs (Exhibit P-11: Exhibit 13.002.001- Exhibit 13.002.006- Exhibit 13.002.007), cellular phones (Exhibit P-11: Exhibit 13.002.003- Exhibit 13.002.004- Exhibit 13.002.009) accounting documents (Exhibit P-11: Exhibit 13.002.005- Exhibit 13.002.011- Exhibit 13.002.014) and other contaminated items (Exhibit P-11: Exhibit 13.002.008- Exhibit 13.002.016- Exhibit 13.002.017.001- Exhibit 13.002.017.002- Exhibit 13.002.017.003).

ORDERS the forfeiture of the sum of CAD $14,035 to the Attorney General of Quebec (Exhibit P-11: Exhibit 13.002.002- Exhibit 13.002.010- Exhibit 13.002.012- Exhibit 13.002.013- Exhibit 13.002.015). PROHIBITS the accused, in virtue of

section 109 of the Criminal Code , from having in his possession:

a) any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance for a period of ten years;

b) any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. ORDERS , pursuant to

section 487.051(3) C.cr . that the accused provides samples of bodily substances that are reasonably required for the purpose of D.N.A. analysis.

________________________________ MYLÈNE GRÉGOIRE, JCQ Me Éric PoudrierFor the prosecution Me Michel F. PerreaultFor the accused Date of hearing: March 25, 2022. [35] R. v. Pimentel, (ON SC). [36] Id., at para. 14. [41] R. v. Lloyd, 2019 BCCA 128 at para. 34.