R. v. Green, 2020 NSSC 222

SUPREME COURT OF Nova Scotia Citation: R. v. Green , 2020 NSSC 222 Date: 20200722 Docket: 490960/494476 Registry: Halifax Between: Her Majesty the Queen v. Daniel Green - AND - Her Majesty the Queen v. Daniel Gerald Shawn Green and Matthew Steven MacFadyen DECISION: Sentencing Judge: The Honourable Justice Joshua M.

Arnold Heard: July 22, 2020, in Halifax, Nova Scotia Written Decision: September 3, 2020 Counsel: Glen Scheuer, for the Crown Paul Neifer, for the Defence By the Court: Overview [ 1 ] Daniel Green was facing two sets of charges: one involving allegations of money laundering and possession of proceeds of crime alleged to have occurred October 18, 2017, and the other alleging that Mr. Green and a co-accused, Matthew Steven MacFadyen, were in possession of cocaine for the purposes of trafficking on November 22, 2018.

The second set also included firearms charges arising on the same date. [ 2 ] On July 22, 2020, part way through a pre-trial application, Mr. Green entered guilty pleas to the following charges: 1. That on or about 22 November 2018, at or near Middle Sackville, Nova Scotia, they did unlawfully have in their possession for the purpose of trafficking, Cocaine, a substance included in

Schedule I of the Controlled Drugs and Substances Act , S.C. 1996, c. 19 , and did thereby commit an offence contrary to Section 5(2) of the said Act; … 10. And further that they, at the same time and place aforesaid, did possess a prohibited or restricted firearm, to wit a handgun, together with readily accessible ammunition capable of being discharged in said firearm, without being the holder of an authorization or license under which they may possess the firearm in that place, and the registration certificate for the firearm, contrary to Section 95(1) of the Criminal Code ; 11.

And further that they, at the same time and place aforesaid, did possess a prohibited or restricted firearm, to wit a handgun, together with readily accessible ammunition capable of being discharged in said firearm, without being the holder of an authorization or license under which they may possess the firearm in that place, and the registration certificate for the firearm, contrary to Section 95(1) of the

Criminal Code ; [ 3 ] The Crown and Mr. Green presented the court with a joint recommendation on sentence as the result of a negotiated plea agreement. Facts [ 4 ] The facts as read into the record by Crown counsel, and agreed to by Mr. Green, were as follows: Generally speaking, My Lord, I can indicate that there are very specific amounts that are indicated that were seized. I will be reading some of those amounts in. There is a draft forfeiture order, which contains an exhibit report on it and all of those amounts would be, you know, listed within there.

I can indicate in a general fashion, that this file would involve slightly over 1,000 grams of cocaine and over 5,000 grams of cutting agencies along with some mixing tools. In July of 2018 officers with the Integrated Guns and Gangs Unit commenced an investigation into Mr. Green. Information was received that he had been trafficking large amounts of cocaine at that point in time. Tracking and TDR warrants were authored, and data began to be collected in relation to Mr. Green's movements.

Analysis of the data indicated that LBS along with transition data recorder data corroborated the source information received indicating where Mr. Green was reported to be delivering cocaine. On November 19th of 2018 source information was received that Mr. Green would be obtaining cocaine and making deliveries. Surveillance had previously noted that Mr. Green was associated with a black Nissan Sentra vehicle and was also associated with the address of 24 Cochrane Drive in Sackville. On the date in question, November 22nd, surveillance was conducted on Mr. Green. Officers followed Mr.

Green in his black Nissan Sentra to Truro, Nova Scotia, where he was observed meeting an unknown male in a black Jeep Cherokee bearing Quebec license plates. Mr. Green was observed entering the passenger's side of the jeep. He exited the jeep less than one minute later and both vehicles left the area. The Quebec plated vehicle leaving toward the highway which would be indicative of the direction travelling out of Nova Scotia. Mr. Green returning to the Halifax Regional Municipality area. He was observed to attend at 23 Hamilton Drive in Middle Sackville. Mr.

Green was observed to use a key to unlock the door and enter the residence. Approximately 25 minutes later, Mr. Green exited the residence, locked the door and returned to his vehicle. Officers continued to conduct surveillance until Mr. Green was eventually arrested in the parking lot of 518 Sackville Drive, where he was observed meeting a female. The search incidental to arrest at that point in time located 17 grams of cocaine divided into three bags weighing 11.5 grams, 2.2 grams and 3.3 grams in a bag, along with $2,630.00 in Canadian currency on Mr. Green.

While two cell phones and a yellow bag containing packaging consistent with cocaine at the kilo level was also located in his vehicle. Members subsequently attended at 23 Hamilton Drive and 24 Cochrane Drive in order to hold and maintain continuity of the scene. Search warrants were authored for those locations. Members located $710.00 in a bedroom at the 24 Cochrane Drive and 1,085.9 grams of cocaine in a bag, 5,552 grams of cutting agent also in a bag, mixing tools, several presses, ammunition and two hand guns were located at the 23 Hamilton Drive, as well. Those are the facts as relied upon by the Crown.

Background of Daniel Green [ 5 ] Counsel for Mr. Green advised the court that he has a good relationship with his family, was helpful and attentive to his grandmother and wants to move on with his life. Procedural History [ 6 ] I have been case managing Mr. Green’s files since October 2019. The money laundering and proceeds of crime trial was scheduled to commence on December 7, 2020. The trafficking and firearms related charges were scheduled for trial starting on April 6, 2021. [ 7 ] A number of pre-trial motions were held in relation to Mr.

Green’s money laundering and proceeds matters, including: • A Crown application on February 11 and 12, 2020, to determine threshold admissibility of discreditable conduct evidence. My decision on that issue is found at R. v. Green , 2020 NSSC 148 ; • A defence disclosure application on February 11, and 12, 2020. Part way through that application the Crown and defence came to a resolution of the outstanding issues; • Mr. Green’s application on May 8, 2020 to cross-examine the affiant of an ITO used to obtain a search warrant. My decision on that issue can be found at R. v. Green , 2020 NSSC 171 . • Mr.

Green’s Charter motion in relation to the search warrant, a cell phone search and a strip search was scheduled for July 20, 21, and 22, 2020. Part way through that hearing the parties came to a resolution of all of Mr. Green’s matters. [ 8 ] As a result of my decision on one of the pre-trial motions, Mr. Green had requested at least five additional days of court time in advance of his trial to conduct new pre-trial Charter motions. The current court

schedule is challenging due to the COVID-19 pandemic. Accommodating the Charter motions that Mr. Green intended to make as a result of the Crown’s application to introduce evidence of discreditable conduct would have required considerable disruption to the court’s already strained schedule. Mr. Green’s guilty pleas have now saved approximately 15 court days.

True negotiated plea and joint recommendation [ 9 ] There were a number of pre-trial motions during which Crown and defence communicated with each other about all of Mr. Green’s matters. The parties reached a resolution during the latest pre-trial motion and I was presented with what was described by both parties as a true negotiated plea agreement. [ 10 ] In R. v.

Anthony-Cook , 2016 SCC 43 , Moldaver J., for the unanimous court, discussed plea agreements and joint submissions : 25 It is an accepted and entirely desirable practice for Crown and defence counsel to agree to a joint submission on sentence in exchange for a plea of guilty. Agreements of this nature are commonplace and vitally important to the well-being of our criminal justice system, as well as our justice system at large. Generally, such agreements are unexceptional and they are readily approved by trial judges without any difficulty.

Occasionally, however, a joint submission may appear to be unduly lenient, or perhaps unduly harsh, and trial judges are not obliged to go along with them ( Criminal Code , R.S.C. 1985, c. C-46, s. 606(1.1) (b)(iii)). In such cases, trial judges need a test against which to measure the acceptability of the joint submission. The question is: What test? … 32 Under the public interest test, a trial judge should not depart from a joint submission on sentence unless the proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest.

But, what does this threshold mean? Two decisions from the Newfoundland and Labrador Court of Appeal are helpful in this regard. 33 In Druken , at para. 29, the court held that a joint submission will bring the administration of justice into disrepute or be contrary to the public interest if, despite the public interest considerations that support imposing it, it is so "markedly out of line with the expectations of reasonable persons aware of the circumstances of the case that they would view it as a break down in the proper functioning of the criminal justice system". And, as stated by the same court in R. v.

B.O.2 , 2010 NLCA 19 , at para. 56 , when assessing a joint submission, trial judges should "avoid rendering a decision that causes an informed and reasonable public to lose confidence in the institution of the courts".\ Range of Sentence [ 11 ] In R. v. Leblanc , 2019 NSSC 192 , Rosinski J. undertook a lengthy review of sentences for cocaine traffickers in Nova Scotia. In discussing the appropriate sentences for different levels of traffickers, he said (some citations omitted): 10 Trafficking in illegal drugs involves a hierarchy.

In Nova Scotia, one's position in the hierarchy has been a significant determinant of the sentence that is imposed. As Chief Justice MacKeigan stated in R v Fifield , [1978] N.S.J. No. 42 (CA) , generally there are three categories of traffickers: 6 These sentences obviously must be materially increased.

This is not the case of a young user sharing marihuana with a companion or accommodating another user with a small quantity ; such cases are technically trafficking but are only slightly more serious than mere possession of marihuana, where no previous record is involved. 7 Neither is this the case of a petty retailer who peddles small quantities of marihuana, but who is not shown to be involved in full-time or large-scale commercial distribution or the like. 8 Here a large quantity was involved, indicative of an intention to distribute on a commercial scale and suggestive of similar past experience.

Indeed, one Glasgow was caught with two pounds or so of marihuana leaving the house where the appellant was found; we may assume he got it from the appellant, who had thus actually started wholesaling the drug.

Reported cases which illustrate the obvious principle that such wholesalers or large retailers must be punished and, hopefully, deterred by materially larger sentences than those imposed on the petty retailers, include the following ... [Emphasis in LeBlanc]. 11 Specifically, in relation to cocaine trafficking, Justice Roscoe stated in R v Knickle , 2009 NSCA 597 : 16 The first step of the analysis is a consideration of the appropriate range of sentence for the offence.

Here the judge briefly commented that the sentencing range in Nova Scotia for cocaine trafficking is a penitentiary term in the range of two to five years .

Then without further analysis, indicated that there was nothing to warrant a sentence in a three-and-a-half year range, and finally concluded that the defence had satisfied her that a sentence of two years less a day would be appropriate because of exceptional circumstances. 17 The judge failed to recognize how this court has consistently categorized drug traffickers, based on the type and amount of drug involved and the level of involvement in the drug business, to assist in placing them within the range. In R. v. Fifield , [1978] N.S.J.

No. 42 , the court described the following general categories of drug traffickers: the young user sharing marijuana with a companion; the petty retailer who is not shown to be involved full-time or in a large-scale commercial distribution; the large-scale retailers and commercial wholesalers. Chief Justice MacKeigan noted that the amount of drugs involved helps determine the quality of the act or the probable category of trafficker . The Fifield categories have also been applied by this court to cocaine and crack cocaine trafficking cases. See, for example : R. v. Carvery , [1991] N.S.J.

No. 501 -- high level retailer -- 6 1/2 ounces cocaine [184 g] -- five years' incarceration; R. v. Steeves , 2007 NSCA 130 -- not a lower level trafficker -- 77 grams of cocaine [2.7 ounces], and 100 pills of ecstasy -- 2 years, six months' incarceration;

R. v. Sparks, [1993] N.S.J. No. 448 -- four counts of selling small amounts of crack cocaine and one count of possession for the purpose-- totalling just over 1.5 grams -- not a petty retailer -- 32 months' incarceration. 18 Numerous other sentencing decisions from this court repeatedly and consistently emphasize that persons involved in trafficking incocaine will be subject to sentences of incarceration. This has been absolutely clear since the very first case heard by this court involvingtrafficking in cocaine: R. v. Merlin, (NS CA), [1984] N.S.J. No. 346, 63 N.S.R. (2d) 78.

See also, for example: R. v.Dawe, 2002 NSCA 147; R. v. Jones, 2008 NSCA 99; R. v. Stokes, 1993 NSCA 195 , [1993] N.S.J. No. 412, 126 N.S.R. (2d) 66;and R. v. J.B.M., 2003 NSCA 142. This court has never approved or endorsed a conditional sentence on charges of possession for thepurpose of trafficking or trafficking in cocaine. ... 27 As noted above this Court has never wavered in expressing these principles in cocaine trafficking cases. Another example is found inMcCurdy, supra: ...

"Although it is not necessary that the length of sentence be precisely proportionate to the quantity of drugs involved,commercial distributors and growers require 'materially larger' sentences than petty retailers". [Emphasis in LeBlanc] 12 The hierarchical aspect of drug trafficking requires courts to be mindful of the parity principle in a larger context if we are to fairlyassess the moral blameworthiness of the various participants in this pyramid-like distribution system.

Hence, ranges of sentences for eachof the Fifield categories inform an understanding of the proper ranges for each of the other categories. 13 In R v Chase, 2019 NSCA 36, (who was in possession of 6 g of cocaine for the purpose of trafficking), Justice Saunders stated inrelation to sentencings of such offenders: "... convictions will normally attract a federal prison term.

However, that does not mean that in an appropriate case, depending upon theparticular circumstances of the offence and the offender, a lesser sentence cannot be imposed." (para.48) [12] Justice Rosinski concluded, based on the caselaw, that the appropriate range of sentence, before considering aggravating andmitigating factors, was between two and six years (para. 14). He continued: 15 A number of previous cases have talked in terms of the range of sentence being between 2--5 years for Fifield category 2 (high level)and 3 offenders. For example: 1. R v Clarke, [2005] N.S.J.

No. 358 (SC) per Kennedy CJ at para. 6 (36-year-old with no prior record, for-profit, involved in asignificant level of trafficking in crack cocaine over a two-month period -- became a mother after the offences-2 years custody); 2. R v Smith, 2012 NSPC 82 at para. 82 per Hoskins PCJ; and 3.

R v Jones, 2003 NSCA 48 per Roscoe JA makes clear that the 2 to 5 year range of sentence was premised upon possession of cannabisproducts/ marijuana for the purpose of trafficking, and that it was an aggravating factor if it involves cocaine possession for the purposeof trafficking: 1 This is an appeal by the Crown from a conditional sentence imposed by Justice Robert W. Wright ( [2002] N.S.J.

No. 562, 2002 NSSC247) on charges of possession of cannabis resin for the purpose of trafficking, and possession of proceeds of crime, contrary to ss. 5(2)and 8 respectively of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. 2 The respondent was stopped for speeding, which led to the discovery of a carton containing 4.6 kilograms of cannabis resin and$40,020 cash in the trunk of his vehicle. Justice Wright found that the respondent was "... acting as a courier for someone involved in thedrug trade", and accepted his evidence that he was paid $1,000 to deliver the carton from Halifax to Moncton.

On a voir dire during thetrial, Justice Wright concluded that while it was not proved that the respondent knew the exact contents of the box, he knew it wasrelated to the drug trade. 3 Justice Wright considered the relevant sections of the Criminal Code, the principles of sentencing, the respondent's criminal record andhis role in the venture. The respondent, who is 41 years old, had a criminal record of 11 prior convictions, five of which were for simplepossession and one for cultivation of a narcotic. He claimed to be a user of marijuana for medical reasons.

Justice Wright sentenced therespondent to a term of imprisonment for 18 months, to be served as a conditional sentence in the community, and subject to certainconditions, including house arrest for the first nine months, with specific exceptions, curfew of 10:00 p.m to 6:00 a.m. for the next ninemonths, and 80 hours of community service.

A lifetime firearms prohibition under s. 109 of the Code was imposed, as were forfeitureorders relating to the vehicle and the cash. 4 The rationale for the length of sentence selected is found in the following passage of Justice Wright's decision: para 18 As referred to earlier, s. 718.1 sets out the fundamental principle that sentencing must be proportionate to the gravity of theoffence and the degree of responsibility of the offender. Without question, anyone involved in the distribution of drugs, even as a courier,and even with soft drugs, commits a serious offence. But everything is relative.

Here, it can be readily inferred that the offender knew, orat least held the trust of, someone involved in large scale commercial trafficking of cannabis resin. But there is no evidence before methat the offender was a principal of such an operation himself, or had a stake in the profits, or even that he acted as a courier forsomeone else as a recurring activity.

Although no excuse, nor a mitigating factor in any way, the evidence indicates that he was in adesperate financial situation at the time, trying to emerge from a personal bankruptcy, and saw this as an opportunity to make a fast buckto the tune of $1,000.

He seemingly ignored the consequences of such criminal activity. para 19 While his degree of responsibility is not to be understated, at the same time, it does not rank as egregiously with that of aprincipal of a large scale commercial operation who, generating the trafficking of drugs, receives the proceeds of sale and reaps theprofits in an enterprise of greed.

para 20 Because I make this distinction, as urged by defence counsel, I reject a penitentiary term, as well as a sentence of probation, asinappropriate. I am further satisfied that the offender, having no history of drug trafficking or being a major player in the drug trade, doesnot present a risk of endangering the safety of the community. There is nothing in his Pre-Sentence Report or his past criminal recordthat persuades me otherwise.

Those criteria being met, the question remains whether a conditional sentence would be consistent with thefundamental purpose and principles of sentencing set out in ss. 718 to 718.2. 5 The Crown applies for leave and, if granted, appeals the sentence, submitting that the sentence is demonstrably unfit, based on error inprinciple in characterization of the offences, and that the sentence inadequately reflects the principles of denunciation, deterrence andprotection of the public. ... 7 I agree with the submission of the Crown that the sentence is outside the acceptable range for offences of this nature, and that the trialjudge erred in principle in his characterization of both the offence and the respondent's degree of involvement in the drug trade, and infailing to give sufficient weight to the criminal record of the respondent. 8 Sentences for possession of narcotics for the purposes of trafficking imposed by this court over the last 25 years have consistently beenlargely influenced by the quantity of drugs involved and the function or position of the offender in the drug operation.

Other factorsconsidered either more or less relevant, depending on the circumstances, are the criminal record and age of the offender, whether he wason probation at the time of the offence, and the sophistication and scope of the enterprise. This approach was emphasized in R. v. Fifield(1978), (NS CA), 25 N.S.R. (2d) 407, where MacKeigan, C.J.N.S. said at p. 410: In the various categories one cannot find or expect to find any uniformity of sentence. The cases above are merely random samples toillustrate the apparent categories.

Certainly, sentences are not, and should not be, closely proportionate in their length to the quantity ofmarihuana involved. The quantity is important in helping show the quality of the act or the probable category of trafficker - - the isolatedaccommodator of a friend, the petty retailer, the large retailer or small wholesaler, or the big-time operator.

The categories respectivelyhave broad and overlapping ranges of sentence into which the individual offender must be appropriately placed, depending on his age,background, criminal record, and all surrounding circumstances. 9 I would agree with the trial judge that the respondent's role was not equal to that of the "principal of a large-scale commercialoperation". The trial judge appeared to have found that since the respondent was simply or merely a courier, he was not a significantplayer in the drug trade, and therefore equivalent to a petty retailer.

However, it is indisputable that a courier is an integral part of thedistribution system in the drug business. Drugs and money have to be delivered from the importation or cultivation location to the dealersand the users. Couriers provide that critical link between the wholesalers and retailers, often shielding the major stakeholders fromdetection.

In Nova Scotia, couriers have not traditionally been regarded as less culpable or treated more leniently than other middlemenin the organization. 10 An examination of possession for the purposes' cases, reveals that the typical range of sentences for small wholesalers or largeretailers, the people on the third of the four rungs of the ladder identified in Fifield, is two to five years incarceration. It also appearsfrom this survey that the quantity of cannabis resin necessary to categorize a person at this level is two to ten kilograms, with values inthe tens of thousands of dollars range.

The presence of exceptional mitigating circumstances, such as youth, or previous unblemishedcharacter, may, of course, take an offender out of the normal range. Some of the cases, illustrative of these points, in chronological orderare: [Citations omitted] 11 All of these cases involved possession of a sufficient quantity of cannabis resin to place the offenders in the commercial sector, to usethe Fifield terminology as either a large retailer or a small wholesaler. At the top end of the range, there were other aggravating factors,such as possession of cocaine or large sums of money.

Butler, at one-year custody, was outside the range because of youth and lack of acriminal record. Absent exceptional circumstances, a person involved in a small wholesale or large retail operation, such as this, shouldgenerally attract a sentence in the range. His placement within that range will take into account factors personal to the offender and hisdegree of involvement.

Any suggestion that there is a separate and lower range of sentence for couriers within a commercial operation isrejected. ... 14 I also agree with the submissions in the Crown's factum in this respect: [16] Drug trafficking offences involve considerable planning and deliberation. In deciding to take a chance by breaking the law in hopesof making easy money, drug dealers engage in a rudimentary form of cost-benefit analysis, weighing the chances of getting caught andthe possible consequences against the financial gains they will reap if successful.

This is the very kind of thought process that theRespondent embarked upon when, to paraphrase the pre-sentence report, he chose to avail himself of an opportunity to make $1,000,being aware of the consequences and in spite of his own better judgment. In making decisions like this, drug dealers should know thatthey are likely to receive substantial penalties if caught.

This is the type of conduct which is amenable to the deterrent force of the law. 15 The circumstances of this offence and this offender require a sentence in the usual range, that is a penitentiary term, and is not withinthe eligibility range for a conditional sentence. The circumstances are commensurate to those in R. v. Collette, supra, and R. v.Boudreau, supra.

The sentence was unfit in that it is outside the range of sentence and does not appropriately reflect denunciation andgeneral and specific deterrence. 16 I would grant leave to appeal, allow the appeal, and substitute a term of incarceration of three years, and give credit for six monthsserved pursuant to the conditional sentence, so that the balance remaining as of this date is 30 months.

I would affirm the prohibition andforfeiture orders and revoke the order for community service. [Emphasis in LeBlanc] [13] Justice Rosinski went on to review cases involving similar circumstances to the case before him, which he described as “moreelaborate retail cocaine trafficking operations with offenders having possession of larger amounts of cocaine, criminal records, and

personal circumstances comparable to Messrs. LeBlanc and Benoit” (para. 17): 1. R v Holland, 2017 NSSC 148 (36-year-old with 167 g of cocaine, a sizable quantity of cash, also had 9 mm loaded handgun, withdated but related criminal record -- plead guilty: joint recommendation 5 years accepted); 2.

R v Dann, 2002 NSSC 237 (27-year-old with 300 g of cocaine having value $25-$30,000 -- courier travelling between provinces -- nolengthy criminal record -- "it is clear to me, after a review of these cases and other cases in our jurisdiction that a fit and proper sentencefor this type of offence would be in the range of 4 to 5 years... I am prepared to accept a joint recommendation of 4 1/2 years..."); 3. R v Huskins, [1990] N.S.J.

No. 46 (NSCA) (42-year-old with prior convictions including some drug-related, pled guilty to trafficking(3 ounces/85 g) $5000 worth of cocaine while on parole- 3 years imprisonment; 4. R v Smith, 1990 NSCA 4 , [1990] N.S.J. No. 30 (CA) (35 year old who twice sold 28.5 g of cocaine to undercover officer,plead guilty -- 4 years' imprisonment; 5. R v Carvery, [1991] N.S.J.

No. 501 (CA)-not a petty retailer, but "deeply and deliberately involved in a vicious traffic and the evidencesuggests he had a sales volume on the order of $20,000 in connection with these [6.5 ounces/184 g cocaine] purchases"- 3 year sentenceincreased to 5 years; 6. R v Knickle, 2009 NSCA 59 (43-year-old with no prior record who pled guilty to possession of 312 g of cocaine street value $27,000,and very positive rehabilitative prospects who had been sentenced to a 2 years conditional sentence order and one-year probation, was re-sentenced by the court to 3.5 years custody; 7.

R v Steeves, 2007 NSCA 130 (29-year-old within unrelated minor record and severe neurological condition, pled guilty to possessionof 14 g of powdered cocaine and 63 g of crack cocaine as well as 100 ecstasy pills -- had been sentenced to 2 years conditional sentenceorder and one-year probation, was resentenced by the court to 2.5 years custody.

Notably, the court concluded that case was properlycharacterized as being in category 3 of Fifield. 18 In R v Chevrefils, 2018 NSPC 60, her Honour Provincial Court Judge Elizabeth Buckle found the accused guilty of possession of 250kg of cocaine for the purpose of trafficking contrary to s. 5(2) CDSA.

In her sentencing decision, 2019 NSPC 16, she sentenced Mr.Chevrefils to 10 years in custody on the following basis: he was a trusted courier with close connections to the importer, involvingcocaine of relatively high purity [67 -- 84%] with a purchase price of approximately $2 million and resale value of between $11 millionand $20 million if sold at the kilogram level and gram level respectively (a commercial wholesale operation at the top of the Fifieldcategories); his motivation was profit; he would normally receive for his services $1000-$2000 per kilogram payment; he was 60 yearsold with a dated and unrelated criminal record. 19 Notably, Mr.

Grenier, the captain of the vessel which imported the cocaine that Mr. Chevrefils intended to transport, pleaded guiltyto importing and possession of cocaine for the purpose of trafficking. He had no prior record; was 69 years old at the time of sentencingand received a 13 year sentence.

Apparently, the sentencing judge acknowledged that a 15 year sentence would have been appropriatebut for his age. 20 Judge Buckle opined that sentences in the range of 4 to 8 years are typical in cases involving trafficking or possession of cocaine forthe purposes of trafficking at the kilogram or single digit multi-kilogram level -- see R v Williams, 2016 NBQB 2319; R v Sean Decker; Rv Field, 2013 NSPC 5111; R v Butt, 2010 NSCA 5612; R v Mugford, 2019 NSSC 12713; R v Majnoon, 2009 ONCA 876 -- leave denied[2010] SCCA No. 28814; R v Bajada, (ON CA), [2003] OJ No. 721 (CA)15; R v Bryan 2011 ONCA 273; R v Nero,2008 ONCA 62216. 21 More propos to Mr.

Chevrefils, she concluded that there were no reported Nova Scotian decisions of sentencings for possession ofcocaine for the purpose of trafficking in the tens or hundreds of kilograms.

However, she opined that generally where the quantity ofcocaine involved is in the tens or hundreds of kilograms, the sentences are typically in the 8 to 15 year range: R v Oddleifson, 2010MBCA 44 (leave to appeal regarding conviction refused-[2010] SCCA No. 244; R v Bacon, 2013 BCCA 396 (although as I have notedin R v Murphy, 2019 NSSC 105 at para. 38, sentencing ranges in British Columbia tend to be different than in Manitoba, Ontario andNova Scotia); R v D' Onoforio 2013 ONCA 14517; R v Malanca, 2007 ONCA 859, leave refused [2008] SCCA No 71; R v Buttazzoni,2016 ONSC 1287; R v Couture, 2009 ONCJ 655. [14] Finally, Rosinski J. provided a

summary of “the normal range of sentences for possession of cocaine for the purpose oftrafficking or trafficking in cocaine” (para. 22). He said: 22 To recap, in my opinion, the normal range of sentences for possession of cocaine for the purpose of trafficking or trafficking incocaine appear to be: *as I concluded in Murphy, for a petty retailer the range is from approximately 18 to 30 months in custody; *for small scale retailers (with cocaine up to 1/3 kilogram available for further distribution), such as Messrs.

LeBlanc and Benoit, therange of sentence is from 2 to 6 years in custody; *for medium scale retailers/small wholesalers (distributing more than 1/3 kilogram and up to lower single digit kilograms) the range ofsentence is from 5 years to 8 years; *for larger wholesalers and large scale retailers (distributing higher single digit, double digit or more multi-kilogram quantities), therange of sentence is from 8 to 15 years in custody; *for importers (double digit or more multi-kilogram quantities) the range of sentences is from 12 to 20 years in custody.

[ 15 ] In R. v. Knickle . 2009 NSCA 59 , Roscoe J.A. discussed the sentencing range in a case where the trial judge had imposed a conditional sentence: 28 In this case the sentencing judge erred in principle by imposing a conditional sentence to be served in the community. The range of sentencing for a higher level retailer of cocaine starts at two years in penitentiary. It does not include two years less a day or any other sentence that is available to be served in the community.

The judge erred in excluding the penitentiary term in the first stage and it was not necessary to consider the second stage of the Proulx analysis. There are no extraordinary or exceptional circumstances in this case that deserve any consideration of the possibility of deviation from the normal range of sentence. The sentence is excessively lenient and demonstrably unfit. It was, as mentioned above, also an illegal sentence because conditional sentences are only available for sentences of less than two years. [ 16 ]

Section 95 of the Criminal Code states: 95

(1) Subject to subsection (3) and

section 98, every person commits an offence who, in any place, possesses a loaded prohibited firearm or restricted firearm, or an unloaded prohibited firearm or restricted firearm together with readily accessible ammunition that is capable of being discharged in the firearm, unless the person is the holder of (

a) an authorization or a licence under which the person may possess the firearm in that place; and (

b) the registration certificate for the firearm. Punishment

(2) Every person who commits an offence under subsection (1) (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years and to a minimum punishment of imprisonment for a term of one year; or (

b) is guilty of an offence punishable on

summary conviction and liable to imprisonment for a term not exceeding one year.

Exception ( 3) Subsection (1) does not apply to a person who is using the firearm under the direct and immediate supervision of another person who is lawfully entitled to possess it and is using the firearm in a manner in which that other person may lawfully use it. [ 17 ] Based on the authorities and legislation reviewed above, I am satisfied that the jointly-proposed sentence of four years in custody for Count 1, and three years custody concurrent for Counts 10 and 11, is not contrary to public interest, nor would it bring the administration of justice into disrepute. Conclusion [ 18 ] Mr.

Green will be sentenced as follows: • Count #1- Four (4) years in custody; • Count #10 - Three (3) years in custody concurrent; • Count #11 - Three (3) years in custody concurrent. [ 19 ] As proposed jointly between Crown and defence, Mr. Green will also be given 1.5:1 credit for his time on remand. This equals 394 days of credit for time served. [ 20 ] The remaining charges with respect to the trafficking and firearms indictment are dismissed for want of prosecution as jointly proposed by counsel. [ 21 ]

Section 16 of the Controlled Drugs and Substance Act states: Forfeiture of property 16

(1) Subject to sections 18 to 19.1, if a person is convicted, or discharged under

section 730 of the Criminal Code , of a designated substance offence and, on application of the Attorney General, the court is satisfied, on a balance of probabilities, that non-chemical offence-related property is related to the commission of the offence, the court shall (

a) if the prosecution of the offence was commenced at the instance of the government of a province and conducted by or on behalf of that government, order that the property be forfeited to Her Majesty in right of that province to be disposed of or otherwise dealt with in accordance with the law by the Attorney General or Solicitor General of that province; and (

b) in any other case, order that the property be forfeited to Her Majesty in right of Canada to be disposed of or otherwise dealt with in accordance with the law by the member of the Queen’s Privy Council for Canada that is designated by the Governor in Council for the purposes of this paragraph. Property related to other offences

(2) Subject to sections 18 to 19.1, if the evidence does not establish to the satisfaction of the court that property in respect of which an order of forfeiture would otherwise be made under subsection (1) is related to the commission of the designated substance offence of

which a person is convicted or discharged, but the court is satisfied, beyond a reasonable doubt, that the property is non-chemical offence-related property, the court may make an order of forfeiture under subsection (1) in relation to that property. [ 22 ] Part of Mr. Green’s plea agreement includes forfeiture in accordance with s. 16 of the CDSA , the details of the forfeiture are as follows (Schedule “A” attached): It is hereby ordered that the following items particularized in the attached

Schedule “A”, seized from the said Daniel Green at 24 Cockburn Drive, Lower Sackville, Nova Scotia, and 23 Hamilton Drive, Middle Sackville, Nova Scotia, shall be forfeited to Her Majesty the Queen in right of Canada. [ 23 ] The following ancillary orders, jointly proposed by counsel, are granted: • DNA Order in accordance with s. 487.051 of the Criminal Code ; and • Firearms prohibition order in accordance with s. 109 of the Criminal Code for life. [ 24 ] The charges in relation to the money laundering and proceeds indictment are dismissed for want of prosecution as agreed to by the parties. Part of Mr.

Green’s negotiated plea agreement includes forfeiture of money and items seized in relation to the money laundering and proceeds charges in accordance with s. 16(2) of the Controlled Drugs and Substance Act . The details of that forfeiture are as follows: It is hereby ordered that the following items seized from the said Daniel Gerald Green at 24 Cockburn Drive, Lower Sackville, Province of Nova Scotia shall be forfeited to Her Majesty the Queen in right of Canada: a. $995 cash; b. $268,900 cash; c. 2 Apple iPhones; and d.

Drug packaging. [ 25 ] Additionally, in accordance with the plea agreement, all charges against Mr. MacFadyen in relation to the drug and firearms charges are dismissed for want of prosecution. Arnold, J.