R. v. Berquas, 2018 ONCJ 623

ONTARIO COURT OF JUSTICE CITATION: R. v. Berquas , 2018 ONCJ 623 DATE: 2018 07 24 Toronto Region - Old City Hall COURT FILE No.: 4811-998-17-15002176 BETWEEN: HER MAJESTY THE QUEEN — AND — ALEXANDER TAGEBE BERQUAS Before Justice H.

Pringle Heard on June 22, 2018 Reasons for Sentence released on July 24, 2018 Sarah Shaikh....................................................................................... counsel for the Crown Darren Sederoff........................................ counsel for the accused Alexander Berquas PRINGLE J.: Agreed Statement of Facts [ 1 ] Unbeknownst to Alexander Berquas, police were intercepting his communications from February 21, 2017 and April 21, 2017. As a result, they captured him engaged in drug-dealing negotiations over the course of three days in mid-March, 2017. They overheard Mr.

Berquas negotiating the purchase of three kilograms of a controlled substance, asking for “three” for his “regular guy”, and referencing the price for one kilo as $70 500. In another call, Mr. Berquas revised his order to “two and a half” because he would “cut later”. Finally, a deal was struck to obtain “three” on “Sunday”. The parties scheduled to meet at the Keg Restaurant to complete the deal. [ 2 ] On Sunday, March 19 th , 2017, Mr. Berquas arrived at the Keg carrying a weigh scale in a bag. Police, watching, saw him enter the restaurant with two males.

When the three males exited, they drove to a parking lot. Mr. Berquas entered an SUV with one male while the other waited. [ 3 ] Mr. Berquas exited the SUV carrying a red bag. He hailed a taxi and left. Police executed a vehicle stop on the cab shortly afterwards. When the taxi was stopped, Mr. Berquas had the red bag with him. Inside was the weigh scale and two shoe boxes. Inside the shoe boxes was 2984.77 grams of heroin, in three separate packages. The value of the heroin would be, if sold at the kilo level, between $70 000 to $90 000 per kilo.

If sold at the gram level, its value would be $540 000 to $720 000 and if sold at the point or user level, the value of this amount of heroin would be $600 000 to $900 000. [ 4 ] Two samples from each of the three packages were tested for purity levels. The first package samples were 18 percent pure and 20 percent pure, the second package samples were 19 percent pure and 11 percent pure, and the third package samples were 19 percent pure and 11 percent pure. [ 5 ] Although Mr.

Berquas made reference, in one call, to his “regular guy” needing the heroin by the end of the month, the Crown fairly conceded she could not prove Mr. Berquas’ involvement in trafficking aside from this one incident.

[6] Mr. Berquas and his two co-accused were jointly charged for their alleged roles in this enterprise. They elected trial in theOntario Court of Justice. Their trial is scheduled to begin in November 2018. However, on June 22, 2018, Mr. Berquas pled guilty to asole count of Possession of Heroin for the Purpose of Trafficking, contrary to section 5(2) of the CDSA. [7] But for a brief stint on bail, Mr. Berquas has been in presentence custody since his arrest. The parties jointly submitted Mr.Berquas should be credited for two years and three months presentence custody as of June 22, 2018.

This enhanced figure is authorizedby R. v. Duncan, 2016 ONCA 754. Adding the time my decision was under reserve, Mr. Berquas has served the equivalent of two years,four months, and two weeks. [8] Mr. Berquas has a prior criminal record. It does not contain any related or statutorily aggravating convictions on it. In 2006, hewas found guilty as a youth of assault. In 2009 he was convicted of Fail to Comply Recognizance, and in 2015 he was convicted ofImpaired Driving and Refuse to Provide Breath Sample. He is 27 years old.

Sentencing Principles and Range of Sentence [9] The sentence for possessing such a substantial amount of heroin must favour the principles of general deterrence, specificdeterrence, and denunciation above all else. Severe sentences must be imposed to outweigh the financial incentives in trafficking this“pernicious and addictive narcotic”: R. v. Pimentel [2004] O.J. No. 5780 (S.C.J.) at para. 14. A significant price has to be paid fortransacting in a drug with such evil effects. This price, in the form of loss of liberty, must stop Mr. Berquas from re-engaging in drugtrafficking again.

It must stop those of like mind. [10] Separation of the offender from society, for the protection of society, must also discernibly factor into Mr. Berquas’ sentence.As the Court of Appeal held in R. v. Nguyen, (1996) (ON CA), 92 O.A.C. 200 at paragraph 9, “[t]his court hasconsistently held that heavy sentences are called for in cases of this nature.

Society must be protected from the untold grief and miseryoccasioned by heroin, the most addictive and destructive of the hard drugs.” It is for this reason that a significant penitentiary sentencemust be imposed here. [11] The Crown and defence agree that a penitentiary sentence is necessary to address general deterrence, specific deterrence, anddenunciation. They differ, however, on quantum. For the Crown, Ms. Shaikh sought a sentence of eight years’ incarceration lesspresentence custody. For the defendant, Mr.

Sederoff sought between four and five years’ incarceration less presentence custody. [12] Both parties helpfully provided me with case law to assess range of sentence. While cases from other provinces provedinsightful, I am bound by the cases from the Court of Appeal for Ontario and best guided by trial level sentencing decisions from ourcourts and our community. [13] Neither Crown nor defence provided any cases which spoke to the range for multi-kilo heroin trafficking cases, although Ms.Shaikh submitted it was between fourteen and sixteen years.

The Crown’s position of eight years concedes that a sentence below themulti-kilo range is appropriate for Mr. Berquas, in his individual circumstances and given the guilty plea. [14] Accordingly, I was provided with cases assessing the range of sentence for possessing ½ kilogram to 1 kilogram of heroin. Tobegin, the oft-cited case of R. v. Shahnawaz (2000), (ON CA), 137 O.A.C. 363 set an initial range of between nineand twelve years for this type of misconduct.

The total quantum of heroin sold in Shahnawaz, over four separate drug deals, was 650grams, and the respondent egregiously involved his small children in two of these four drug deals. [15] The respondent received a conditional sentence after a contested trial. Our Court of Appeal found that sentence over-emphasizedthe respondent’s personal circumstances. Those circumstances, while tragic, were unconnected to the respondent’s offending and shouldnot have received significant weight. The Court of Appeal substituted six years’ incarceration.

Despite this sentence, the Court noted thatbetween nine and twelve years was the applicable range of sentence for this much heroin. [16] In 2013, the Court of Appeal for Ontario upheld six and five year sentences, respectively, imposed by the trial judge in R. v.Giammarco and Burchell, [2012] O.J. No. 1053 (S.C.J.). While range was not specifically commented upon, the Court of Appeal heldthat the trial judge gave full force to the relevant mitigating factors and accordingly reduced sentence from what “might ordinarily beimposed for this amount of heroin”: see R. v.

Giammarco and Burchell, 2014 ONCA 242 at para. 4. [17] The trial judge, Hourigan J. (as he then was), had imposed these five and six year sentences after a contested trial. The totalweight of heroin was 3848 grams, or approximately 1 kilogram more than in the case at bar, and the purity levels ranged from 14 to 15percent. Both men were first offenders who had given “valuable assistance to the police”: see paragraph 37. The sentencing judgecharacterized this cooperation as a “relevant mitigating factor”: see paragraph 41. [18] Nine years’ incarceration was upheld by the Court of Appeal for Ontario in R. v.

Bains and Pannu, 2015 ONCA 677. Theappellants were first offenders with good antecedents, found guilty after a jury trial of trafficking approximately one kilogram of heroin.On appeal, the appellants submitted the applicable range to be between six and twelve years. The Court did not explicitly disagree withthat submission, but referenced authority which said the range starts at nine years. In any event, Watt J.A. upheld the sentences, notingthat nine years was in the range that the appellants accepted as correct. [19] Finally, in R. v.

DiBenedetto, 2016 ONCA 116, our Court of Appeal overturned a three year sentence and substituted six years’incarceration for possessing ½ kilogram of heroin and proceeds of crime. At paragraph 9, the Court observed that “[t]he case lawestablishes a range of sentence from six to twelve years for offences involving trafficking of between approximately 0.5 to 1 kilograms ofheroin: see R. v. Pannu, 2015 ONCA 677.” [20] The Crown provided two additional trial level decisions that I found to be of import, albeit for different reasons. Goldstein J., inR. v.

Brown, 2016 ONSC 2997, imposed nine years in a post-trial sentencing where the offender had just over one kilogram of heroin

couriered to his home. The purity level was between 41-48%. The defendant had a criminal record which included cocaine possessionand a weapons offence. He had instructed his sister to sign for the package, knowing that because of her record for importing, policesuspicion would be drawn to her.

The trial judge characterized this as “an extraordinarily serious aggravating factor”: see para. 19. [21] At para. 17, Goldstein J held that “In my view, and with great respect to those with the opposing view, I cannot see how therange of sentence for trafficking in a kilogram or more of heroin can start any less than eight years absent exceptional circumstances”.He distinguished the sentences imposed in R. v. Giammarco and Burchell, supra, because the mitigating feature of police cooperationwas not present in his case. [22] In R. v. Pearce, [2007] O.J.

No. 1597 (S.C.J.), the accused pled guilty, a factor echoing the most important factor in Mr.Berquas’ case. The counts pled to were conspiracy to traffic and trafficking heroin, but the facts established seven temporally separateacts of trafficking in heroin and cocaine, the possession of slightly over 1 kilogram of heroin when arrested, a search warrant seizure of191.76 grams of heroin and a search warrant seizure of ½ kilogram of marijuana.

The accused had a criminal record which included threeprior convictions for trafficking, one of which had attracted a six year sentence. [23] The ongoing nature of the offence aggravated sentence. So did the criminal record. The related convictions proved that drugtrafficking was an ongoing life choice. Dambrot J. concluded that the appropriate sentence would truly fall between twelve and fifteenyears. However, given the guilty plea and other mitigating factors, he imposed a lesser sentence of nine years.

Aggravating and Mitigating Factors [24] Although none of the statutorily aggravating factors are present here, the mere nature of this drug must aggravate sentence. Iwholeheartedly adopt the dicta in Brown, supra, at paragraph 9: Possession of heroin for the purpose of trafficking is a serious offence that has a devastating impact on users and the communitygenerally. The Court of Appeal has consistently identified it as the most serious of all drugs.

Although certainly our society has adopted amore humane approach to heroin addiction, which can be seen as a more general willingness to treat heroin addiction as a form of illness,that in no way applies to the commercial trafficking in large quantities. Commercial traffickers exploit the weaknesses of vulnerable andmarginalized people for commercial gain. [25] The quantum of heroin involved must also aggravate sentence. Multi-kilogram heroin dealers apportion out human misery on awidescale basis. The product they sell, out of greed, breeds addiction, disease, crime, and death.

On the street level, the buyers invariablybecome estranged from society. They commit crime to feed their addiction. They will lose their job, their family, their dignity, theirliberty, because the pull of that addiction is so strong. Ms. Shaikh submitted I must consider the impact that this amount of heroin wouldhave had, had it reached the street. I have. It is heartbreaking. [26] The purchase price of this heroin, from the defendant’s end, was between $70 000 and $90 000. The resale value, at the gramlevel, was between $540 000 and $720 000. No doubt that financial profit was Mr.

Berquas’ motive to get involved in this scheme. Nomitigating reason was offered for trafficking heroin in this quantum. It is near impossible to imagine one. The financial motive, his sheergreed, must aggravate his sentence. It must send the message to Mr. Berquas that the cost of trafficking heroin will always outweigh thefinancial incentive that drew him into committing this offence in the first place. [27] I was provided with a number of authorities on the issue of purity of heroin and its impact on sentence. Here, six samples weretested for purity.

Two were 11 percent pure, one was 18 percent pure, two were 19 percent pure, and the last was 20 percent pure. Ms.Shaikh invited me to rely on the facts in R. v. Pimental, supra, where expert testimony established that “the usual purity level of heroinsold on the street is 7 to 10%”. Respectfully, I cannot rely on the factual findings of another judge as my own. Nor can I use his 2004 factfinding as the foundation to base judicial notice. [28] The Court of Appeal held that the purity level of a controlled substance may aggravate sentence. In R. v.

Hamilton, (2004) (ON CA), 189 O.A.C. 90, at para. 151, Doherty J.A. held: I agree with the trial judge that the purity of the cocaine imported, while usually not known to the courier and therefore irrelevant topersonal culpability, can have some effect on the seriousness of the specific offence (para. 174). The purer the cocaine, the wider itspotential distribution and therefore the greater the harm it may cause in the community. However, I do not think that the purity of thecocaine imported will be a particularly significant factor in assessing the seriousness of the sentence.

Certainly, there should be nomathematical-like reduction in the seriousness of the offence based on the exact purity of the cocaine. I see little difference, for thepurposes of assessing the seriousness of the crime, between cocaine that is eighty per cent pure and cocaine that is ninety per cent pure. In the case at bar, especially given the absence of evidence on the topic, I am not satisfied beyond a reasonable doubt that the puritylevels here would aggravate sentence. However, I see this as the absence of an aggravating factor, as opposed to the presence of amitigating factor.

The absence of this mitigating factor would, however, distinguish it from cases where purity was explicitly relied uponto aggravate sentence. [1] [29] Mr. Berquas has a criminal record. He is not entitled to the leniency accorded first offenders. However, I must temper thisconclusion by noting that his criminal record is unrelated, minor, and generally dated. He has no prior convictions for drug possession ordrug trafficking.

The longest period of incarceration he served was six days of presentence custody, plus one day, for the fail to complyoffence. [30] Absent exceptional circumstances, trafficking such large amounts of heroin must attract a significant penitentiary sentence. Mr.Berquas’ case can be no different. Today, his sentence will send him into the penitentiary system for the first time. But the length of thatfirst penitentiary sentence cannot be determined solely by reliance on denunciation and general deterrence: see R. v. Borde (2003), 186O.A.C. 317 at para. 36.

I must assess his rehabilitative prospects. [31] There are factors which mitigate Mr. Berquas’ sentence. He is now 27 years old. His future path is hardly written in stone at

that age. Looking at the specific entries on his criminal record, I can hardly characterize him as being committed to a life of crime. Thisconclusion was affirmed when I considered the family support Mr. Berquas is lucky to have surrounding him. When the defendant’sfather spoke to the court, I saw a constellation of responsible family members waiting, and willing, to support Mr. Berquas upon release.There is a correlation between the presence of community support and a person’s chances of successful rehabilitation. I see goodrehabilitative prospects in the network that will help put and keep Mr.

Berquas on the right path. [32] Mr. Berquas addressed the court, both in writing and in his s. 726 allocution. He aspires, upon release, to pursue a career inconstruction. In reading about the lack of affordable housing in Toronto and across Ontario, he developed the desire to build and fix uphouses. His letter made no excuses for his behaviour. It acknowledged the seriousness of his offending, and the harm his actionspersonally caused his family and friends. I saw potential for rehabilitation here, too, and accepted the defendant’s remorse and regret asgenuine and heartfelt.

This finding was corroborated by the fact that Mr. Berquas pled guilty to this offence. [33] Mr. Sederoff submitted the plea of guilt was exceptionally mitigating, given the volume of trial time saved and in light of astrong Jordan motion he has foregone. Respectfully, in my view, the mitigating effect of a guilty plea cannot comfortably rest on suchfactors.

If courts allocated mitigation or leniency based on how many weeks of trial time was saved by a plea, this would create unfairand arbitrary results. [34] Further, the strength of the defence case, had it gone to trial, should not play a heavy role in fashioning sentence. The Court ofAppeal for Ontario has said that “[w]e do not subscribe to the proposition that there should be less weight to a plea of guilty from aperson who has been inescapably caught”: see R. v. Santos, (1993) 67 O.A.C. 270 at para. 2.

The converse should necessarily be true. [35] That said, foregoing a strong trial argument impacts the sentencing process in a different way. It may, for example, confirm thehonesty of an offender’s expression of remorse and acceptance of responsibility. I find that to be the case here. [36] Truly, the salient point is that an accused who pleads guilty gives up their constitutional right to have a trial. Whether that trialis estimated at five weeks or five minutes, it is the surrender of this constitutional right that attracts mitigation.

This is because a guiltyplea is a strong indicator of rehabilitative potential, of true remorse, of accepting the consequences of one’s actions. As Hill J. stated in R.v. Holder, (ON SC), [1998] OJ No. 5102 (Gen. Div.) at paras. 14-17: A plea of guilt is generally acknowledged to be a mitigating factor in sentencing: Report of the Attorney General's Advisory Committeeon Charge Screening, Disclosure and Resolution Discussions (the Martin Committee Report) (August, 1993) at page 310; Regina v.Beier, [1995] O.J. No. 2552 (C.A.) at para. 2 per curiam; Regina v. Sawchyn (1981), 1981 ABCA 173 , 60 C.C.C. (2d) 200(Alta.

C.A.) at 210 per Laycraft J.A. (as he then was) (leave to appeal to S.C.C. refused (1982) (SCC), 39 N.R. 617n);Guilty Pleas, J. Watson, (1990-91), 33 C.L.Q. 163 at 198. The effect of a guilty plea in setting the appropriate sentence will vary with the circumstances of each case: Regina v. Faulds et al.(1994), (ON CA), 20 O.R. (3d) 13 (C.A.) at 17 per curiam. A plea of guilt, a confession of wrongdoing, may evidenceremorse and public acceptance of responsibility for the criminal wrong-doing: Regina v. Finnis (1978), 3 C.R. (3d) S-54 (Ont. C.A.) at54 per Martin J.A.; Martin Committee Report, supra at 310.

In these circumstances, the prospects for rehabilitation are enhanced. An early guilty plea is deserving of considerable weight in sentencing disposition: Regina v. Patterson, [1998] O.J. No. 937 (C.A.) atpara. 1 per curiam; Regina v. Pitkeathly (1994), (ON CA), 29 C.R. (4th) 182 (Ont. C.A.) at 184-5 per curiam; Regina v.T.(R.) (1992), (ON CA), 17 C.R. (4th) 247 (Ont. C.A.) at 263 per Doherty J.A.; Martin Committee Report, supra atpages 310-311; Regina v. Wijs et al., [1998] 2 Cr. App. R. 436 (C.A.) at 439 per Lord Bingham C.J. A plea of guilt results in a saving of public cost and expense: Regina v.

Johnson and Tremayne, (ON CA), [1970] 4C.C.C. 64 (Ont. C.A.) at 67 per Gale C.J.O. Even in those instances where a guilty plea is simply a recognition of the inevitable, the pleabrings finality, spares judicial resources, and reduces the trauma and inconvenience to victims and witnesses: Regina v. Faulds et al.,supra at 17; Regina v. Santos (J.) (1993), 67 O.A.C. 270 (C.A.) at 270-271 per curiam. Indeed, a plea of guilt, entered during a trialitself, may be deserving of mitigation of sentence: Regina v.

Garofoli et al. (1988), (ON CA), 41 C.C.C. (3d) 97 (Ont.C.A.) at 153 per Martin J.A. (affirmed on other bases (1991), (SCC), 60 C.C.C. (3d) 161 (S.C.C.)). [37] Mr. Berquas’ plea was entered well in advance of trial. Timing of a guilty plea remains an important factor in assessingmitigation. Other common law jurisdictions, such as England, have legislated the quantum of sentence reductions based on the timing ofthe plea: see, for example, Justice Cole’s careful analysis of that system in R. v.

Ismael, 2014 ONCJ 136 at paras. 21 through 26. [38] Here in Canada, Parliament has left the degree of reduction to the discretion of sentencing judges. However, in my view for aguilty plea to have any true meaning as a mitigating factor, there should generally be a discernable difference between sentences imposedafter a contested trial and those imposed following a plea of guilt. [39] Dambrot J.’s decision in R. v. Pearce, supra was only one of two Ontario cases presented to me, where sentencing followed aguilty plea and not a contested trial[2].

Justice Dambrot would have imposed a sentence between 12 and 15 years, save and except for theguilty plea and some non-exceptional mitigating factors. Instead, he imposed a nine year sentence, which was between 3 and 6 yearslower than the sentence he deemed otherwise appropriate. This case has assisted me in understanding the calculable difference insentence a guilty plea may have. The difference in quantum should generally be meaningful. Application to Mr. Berquas’ Case [40] The Crown’s position suggests Mr.

Berquas’ sentence, in all of the circumstances, should fall in the ½ kilo to 1 kilogram range.The defence position seeks a sentence below that range. Given the aggravating factors, I cannot justify a sentence below that range. Butin my respectful view the Crown position does not fully give effect to the fact of the early guilty plea.

[ 41 ] In R. v. Giammarco and Burchell , almost four kilograms of similar level purity was possessed for trafficking purposes and sentences of five and six years were imposed. These sentences were imposed after a contested trial and, as per Goldstein J. in Brown , supra, because of the mitigating effect of police co-operation.

In my view, a guilty plea in the Ontario Court of Justice, entered well before trial, is deserving of the same degree of mitigation as police co-operation. [ 42 ] Applying the principles of sentencing, in the context of both aggravating and mitigating factors including the guilty plea, the appropriate sentence for Mr. Berquas is six years’ incarceration. Subtracting presentence custody of two years, four months, and two weeks, this leaves Mr. Berquas with three years, seven months, and two weeks left to serve. Released: July 24, 2018 Signed: Justice Heather Pringle