2021 QCCQ 12882, 2021 QCCQ 12882

R. c. Walsh 2021 QCCQ 12882 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL LOCALITY OF MONTREAL "Criminal and Penal Division" No.: 500-01-186771-199 DATE: November 29, 2021 ______________________________________________________________________ PRESIDING: THE HONOURABLE ANDRÉ PERREAULT, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutrix v.

HORBIE JEMMEY WALSH Accused SENTENCING JUDGMENT Introduction [ 1 ] Horbie Jemmey Walsh pleaded guilty to having trafficked two rocks of crack on March 28, 2019, and two others on April 3, 2019, and to having 7.5 grams of crack in his possession for the purpose of trafficking on April 3, 2019. [ 2 ] In March 2019, the police received information indicating that Mr. Walsh was selling crack. [ 3 ] A first purchase of two rocks for $40 by an undercover police officer took place on March 28, 2019. [ 4 ] A similar purchase took place on April 3, 2019.

On that day, a cellular phone, $175 and 4.3 grams of crack were also seized. [ 5 ] A search of Mr. Walsh’s apartment resulted in the seizure of 3.2 grams of crack and a scale. Positions of the parties [ 6 ] The defence is of the view that a sentence of 90 days’ imprisonment to be served intermittently on weekends along with an order of three-years’ supervised probation and 240 hours of community service would be appropriate. [ 7 ] That would take into account Mr.

Walsh’s difficult past and what he has accomplished in the past two and a half years. [ 8 ] The prosecution seeks a sentence of 15 months’ imprisonment with 18 months’ supervised probation. [ 9 ] xx xxxxxxx xxxx xxx xxxx xx xxxxx xxxx xxxx xx xxx xxxxxxx xx xxxxxx xxxxxx xx xxxxx xxxx xxxxxxx xxx xxxx xx xx xxx xxxxxxxxxxxxxxx [ 10 ] It is of the view that Mr. Walsh shows certain signs of rehabilitation, but that it is still not convincing. It notes that the trafficking took place on two occasions and adds that Mr. Walsh has often breached court orders in the past and that a risk of re-offending remains.

Pre-sentence report [ 11 ] Mr. Walsh is 36 years old. He immigrated to Quebec at the age of 24. He has a 15-year-old son who lives in his country of origin, and a 5-year-old son of whom he has custody. He works in a warehouse. [ 12 ] Mr. Walsh has prior convictions. [ 13 ] In 2014, he was granted a conditional discharge and sentenced to six months’ probation on two counts of assault.

[ 14 ] In 2016, he was sentenced to one day in prison in addition to three days of interim detention, a probation order and two suspended sentences for three failures to comply with an appearance notice or summons. [ 15 ] In April 2018, he also had to perform 150 hours of community service in the context of a suspended sentence with two years’ probation for robbery and assault. [ 16 ] He was therefore subject to that probation order when he committed the current offences. [ 17 ] After quitting his job in 2019, Mr. Walsh found himself penniless. A cousin offered to get him involved in drug trafficking, and Mr.

Walsh agreed. [ 18 ] He now acknowledges that this was a serious error, and he is ashamed. However, he tends to relativize his behaviour and to blame external circumstances. His introspection remains embryonic. [ 19 ] Mr. Walsh cooperated well during the assessment process. He maintains good relationships with certain members of his family, but their influence did not have a deterrent effect in the past. [ 20 ] Mr. Walsh says he has not taken any psychotropic drugs for approximately three years, since he was diagnosed with hepatitis B in 2017. [ 21 ] Mr.

Walsh has not had any other trouble with the law since this offence in March 2019. [ 22 ] The probation officer is of the view that the risk of re-offending and committing offences against the person or acquisitive offences is moderate due to his lack of problem-solving skills, coupled with an attraction for ease, lax values and a weak capacity to resist external influences. [ 23 ] The officer therefore recommends that Mr.

Walsh remain active, learn to remain transparent with his loved ones when he encounters difficulty, seek alternative solutions and ask for help when necessary. [ 24 ] The officer believes that the support, supervision and intervention of a professional is necessary. [ 25 ] xxx xxxxx xxx xxxxxxx xxxxxxxx [ 26 ] xxxxxx xxxxxx xx xx xxxxxxxxxxx xxxxxxx xxxx xxxxxx xxxxxx xxxxxxx [ 27 ] x xxxxxxxxxx xxx xxxxx xx xxxxxxxxx xx xxxx xxxxx xx xxxx xx xxxxxxx xx x xxxxxx xx xxxxxxxxxxxxxxx xxxxx xxxxxxxxxx xxxxx xx xxx xxxxxxxxxxx xxx xxxxxxx xxxxxxxxxx xxxx xx xxxxx x xx [ 28 ] xxxxxxxxxxx xxxxx xxx xxxxxxxxxx xxx xxxxxxx xx x xxxxxxxxxxx xxxxx xxxxxxx xx xxx xxxxx xxxxxxxxxxx xxx xxxxxxx xxxxxxxxxxx xx xxxxxxxxxx xxxx [ 29 ] xxxxxxxxx xxxxxxxx xxxxxxxxx xxxxxxxxxxx xxxxx xxx xxx xxxxxxxxx xxxxxxxx xxxxxxxx xxxxxxxx xx xxxxxxxxxx xxxxxx xxxxx xxxxxx xxxxxx xxxxxx xxx xx xxx xxxxxxx xx xxxxxx xx xxxx [ 30 ] xx xxx xxxxxxx xxxxxxxxxxxxxxx xxxxx xxxxxxxx xx xxx xx xxxxxxxx xx xxxxxxx xx xxxxxxx xxxxxxxxxxx xxx xx xxx xxxxxxx xx xxx xxxxxxxxx xx xxxxxxxxxxx x xxxxxx xx xxx xxxxxx xx xxxxxx xxxxx [ 31 ] Mr.

Walsh testified that he learned that his prior convictions were problematic for his status only after he committed these offences. He says that today, he is concentrating on his employment and his son. Analysis [ 32 ] In Mr. Walsh’s case, the Court is of the view that there is no basis for finding the evidence of rehabilitation particularly convincing, as was the case in R . c .

Préfontaine . [1] [ 33 ] At most, he shows certain encouraging signs since the crimes, but his introspection is not very good, and there remains a moderate risk of re-offending. [ 34 ] For trafficking or possession for the purpose of trafficking 8 grams of crack cocaine, the courts impose harsh sentences of imprisonment starting at about 24 months. [2] [ 35 ] The Court is not compelled to adjust a sentence in order to avoid the impact of collateral immigration consequences on the offender. [ 36 ] xxx xxxxxxxxxx xxxxxxxxxxx xx xxx xxxx xx xxxxxxxxxxx is but one relevant factor among many others related to the nature and the gravity of the offence, the degree of responsibility of the offender, and the offender’s personal circumstances. [3] [ 37 ] The Courts takes the guilty plea into account as a mitigating factor. [ 38 ] The Court notes that Mr.

Walsh is working and has had no legal trouble for two and a half years. [ 39 ] He acknowledges his mistake and is ashamed. [ 40 ] The Court considers the accused’s criminal record, which includes failures to comply, to be an aggravating factor.

[ 41 ] Mr. Walsh acted while he was subject to a probation order. [ 42 ] He continues to represent a moderate risk of re-offending because his introspection remains inadequate. [ 43 ] The Court is of the view that a sentence of 15 months’ imprisonment in custody is appropriate. An order of 18 months’ supervised probation should be added to this. CONCLUSION FOR THESE REASONS, THE COURT: SENTENCES the accused to 15 months’ imprisonment on each of the three counts, to be served concurrently; ORDERS Mr.

Walsh to comply with the following conditions set out in an 18-month probation order: • keep the peace and be of good behaviour; • appear before the Court when required to do so; • notify the Court or the probation officer in advance of any change of name or address, and promptly notify the Court or the probation officer of any change of employment or occupation; • report to a probation officer within two working days of his release, and thereafter, when required and in the manner directed by the probation officer; • abstain from the consumption of drugs, except in accordance with a medical prescription; On all counts, the Court: ORDERS that Mr.

Walsh is prohibited from having in his possession: • any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition, and explosive substance during the period that begins on the day on which the order is made, and ends ten years after his release; and • any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life. __________________________________ ANDRÉ PERREAULT, J.C.Q. Mtre Jean-Philippe MacKay Counsel for the prosecution Mtre Daniel Couture Counsel for Mr. Walsh