r v. LAURENCE MICHEL, 2019 QCCQ 4613

R. c. Aurelus-Marmontel 2019 QCCQ 4613 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF GATINEAU LOCALITY OF GATINEAU "Criminal and Penal Division" No.: 550-01-096825-163 550-01-096827-169 DATE: June 21, 2019 ______________________________________________________________________ PRESIDING: THE HONOURABLE JEAN FAULLEM, J.C.S., as authorised under

Section 669.3 of the Criminal Code ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v. LAURENCE MICHEL AURELUS-MARMONTEL Accused ______________________________________________________________________ SENTENCING JUDGMENT ______________________________________________________________________ [ 1 ] On July 16, 2018, Laurence Michel Aurelus-Marmontel admitted the essential facts of the charges laid against him.

He was therefore convicted on the following three counts: [ 2 ] In file number 550-01-096825-163, of having in his possession, on December 5, 2016, a loaded prohibited firearm without being the holder of an authorization or a licence under which he could possess the firearm or of the registration certificate for that firearm (s. 95(1) Cr. C.) [ 3 ] In the same file and on the same date, of having in his possession cocaine in the form of crack for the purpose of trafficking (s. 5(2) (3)(

a) of the Controlled Drugs and Substances Act ). [ 4 ] In file number 550-01-096827-169, also on December 5, 2016, of having in his possession a restricted firearm while prohibited by an order made under the Criminal Code ( s. 117.01(1) Cr. C.) I. ISSUE [ 5 ] Given the rules on proportionality, what is the just and appropriate total sentence to be imposed on Mr. Aurelus-Marmontel for the above-mentioned offences? II. CONTEXT

i) Facts [ 6 ] On December 5, 2016, officers from the Ville de Gatineau police force intercepted an automobile driving over the Champlain Bridge from the direction of Ottawa near the Bate Island exit to check the driver’s licence and other papers. [ 7 ] The licence verification identified the driver as Mr. Aurelus-Marmontel. [ 8 ] While they were verifying Mr. Aurelus-Marmontel’s papers, the police noticed cannabis residue around the car’s gear shifter. [ 9 ] Mr. Aurelus-Marmontel was immediately arrested for possession of marijuana. [ 10 ] The police then conducted an incidental search of the vehicle.

[ 11 ] In the vehicle, the police found two mini-scales and three cellphones, including one that rang 11 times while it was in their possession. [ 12 ] The police discovered $1,092 in one of Mr. Aurelus-Marmontel’s pockets. [ 13 ] The police also found on Mr. Aurelus-Marmontel a Walther pistol 32 mm with seven cartridges, including one loaded into the weapon’s chamber. [ 14 ] The pistol was a functional prohibited firearm for which Mr. Aurelus-Marmontel has no licence. Nor was the firearm registered. [ 15 ] Mr.

Aurelus-Marmontel was subject to an order prohibiting him from possessing any firearm at the time he was arrested. That order was issued in 2015 for a period of 10 years. At the sentencing hearing, the defence admitted that a first such order had been issued in 2013 for a period of 2 years. [ 16 ] The search of the vehicle also revealed two Balaclavas and two pairs of black gloves. [ 17 ] At the time of his booking, during a strip search, the police discovered on Mr. Aurelus-Marmontel two plastic bags containing 13 grams of cocaine in the form of crack. [ 18 ] To date, Mr.

Aurelus-Marmontel has served 2 years and 198 days in pre-sentence custody. ii) Positions of the parties on the sentence [ 19 ] The Crown recommends that Mr. Aurelus-Marmontel be sentenced to 5 years’ imprisonment for the offence of possession of a prohibited firearm without authorization. [ 20 ] Added to that proposal is a consecutive year in custody for the breach of the 10-year order prohibiting the possession of a prohibited firearm issued in 2015 against Mr.

Aurelus-Marmontel. [ 21 ] The Crown recommends adding a seventh consecutive year in custody for the charge of possession of cocaine for the purpose of trafficking. [ 22 ] The Crown also seeks a lifetime order prohibiting the possession of any firearm under s. 109 Cr. C. and an order to take a sample of bodily substances for forensic DNA analysis (s. 487.051 Cr.

C.). [ 23 ] The defence recommends a global sentence of 4 to 4-and-a-half years’ imprisonment. [ 24 ] More specifically, the defence recommends 3 to 3-and-a-half years’ imprisonment for the possession of a prohibited firearm and 6 months to 1 year to be served consecutively for the failure to comply with an order made under s. 117 Cr.

C. [ 25 ] The defence also recommends 1 year’s imprisonment for the drug possession for the purpose of trafficking, but to be served concurrently with the other two sentences. [ 26 ] The defence submits that even though the Crown is asking for sentences for each offence for which Mr. Aurelus-Marmontel has been convicted that meet the case law criteria, a global sentence of 7 years’ imprisonment would violate the rules of proportionality, including the totality principle in sentencing. The defence asks the Court to exercise its discretion with restraint due to Mr.

Aurelus- Marmontel’s age, his family situation, and his guilty plea. [ 27 ] The defence is not challenging, however, the request for a lifetime prohibition order on the possession of a firearm under s. 109 Cr. C. or the order to take a sample of bodily substances. III. ANALYSIS [ 28 ] At the sentencing stage, each case is different and must be analyzed by the trial judge in light of the specific facts. Sentencing falls primarily under the discretion of the sentencing judge. [ 29 ] As stated by Chief Justice Antonio Lamer of the Supreme Court of Canada in 1996 in R. v.

M. (C.A.) : The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community. The discretion of a sentencing judge should thus not be interfered with lightly. [1] [ 30 ] Several years later, in R. v.

L.M. , Lebel J., writing on behalf of the Supreme Court, restated the fundamental principles in the search for a fit sentence as follows: Far from being an exact science or an inflexible predetermined procedure, sentencing is primarily a matter for the trial judge’s competence and expertise. The trial judge enjoys considerable discretion because of the individualized nature of the process (s. 718.1 Cr. C. ; R. v. Johnson , [2003] 2 S.C.R. 357, 2003 SCC 46 , at para. 22 ; R. v. Proulx , [2000] 1 S.C.R. 61, 2000 SCC 5 , at para. 82 ).

To arrive at an appropriate sentence in light of the complexity of the factors related to the nature of the offence and the personal characteristics of the offender, the judge must weigh the normative principles set out by Parliament in the Criminal Code : - the objectives of denunciation, deterrence, separation of offenders from society, rehabilitation of offenders, and acknowledgment of and reparations for the harm they have done (s. 718 Cr. C. ) (see Appendix); - the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the

offender (s. 718.1 Cr. C. ); and - the principles that a sentence should be increased or reduced to account for aggravating or mitigating circumstances, that a sentence should be similar to other sentences imposed in similar circumstances, that the least restrictive sanctions should be identified and that available sanctions other than imprisonment should be considered (s. 718.2 Cr. C. ). [2] [ 31 ] It should also be recalled that Parliament defined the purpose of sentencing in the introductory paragraph of s. 718 Cr.

C., which reads as follows: 718 The fundamental purpose of sentencing is to protect society and 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 that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [ 32 ] In 2012, the Supreme Court, after reaffirming the basic principles stated in the above-mentioned case law and recalling the purpose of sentencing set out in s. 718 Cr. C., supra , confirmed that the fundamental principle of a just and appropriate sentence is that it must be “proportionate to both the gravity of the offence and the degree of responsibility of the offender”. [3] [ 33 ] More recently, the Supreme Court in R. v.

Lacasse repeated that sentencing involves the exercise of a “broad discretion by the courts in balancing all the relevant factors in order to meet the objectives being pursued in sentencing”. [4] The majority also recalled that “proportionality is the cardinal principle that must guide appellate courts in considering the fitness of a sentence imposed on an offender”. [5] [ 34 ] In this case, the presence of multiple offences means that the Court must first determine the just and appropriate sentence for each offence; second, decide whether the sentences should be concurrent or consecutive; and third, if consecutive, make any adjustment required to obtain a total sentence that does not violate the rules of proportionality. [6]

i) Sentence for each offence

a) Prohibited firearm (s. 95(2)(

a) Cr. C.) [ 35 ] The case law filed by the parties amply establishes that the Crown’s recommendation of 5 years’ imprisonment falls within the range of sentences for similar offences. [7] [ 36 ] In R. v. Le , [8] cited by the defence, the accused, 20 years old at the time of the offence, was sentenced to 3 years’ imprisonment for a first offence of possession of a prohibited firearm. Like Mr.

Aurelus-Marmontel, he was arrested in the street in possession of a loaded firearm, ready to be used. [ 37 ] How many times have the courts recalled that the possession of a prohibited or restricted firearm is a [ translation ] “veritable scourge that endangers the citizens of Canada”. [9] In such circumstances, these firearms have no other purpose but to “kill human beings”. [10] [ 38 ] The case law filed by the parties lists numerous decisions rendered in cases involving a first offence under s. 95 Cr. C. In those cases, as summarized by the Honourable Myriam Lachance, J.C.Q., in R. c.

Moisescu , supra , the applicable range for s. 95 Cr. C. offences is between 18 months and 3 years. [ 39 ] In the event of a repeat offence, as is the case with Mr.

Aurelus-Marmontel, the case law confirms that a longer period of imprisonment is called for. [ 40 ] As stated by the Supreme Court in Nur , [11] sentencing in a case involving a repeat offence for possession of a prohibited firearm requires a term of imprisonment, which, depending on the circumstances, may be lengthy. [12] The sentence must emphasize the objectives of deterrence and denunciation. [13] [ 41 ] In that case, the Supreme Court confirmed a 7-year prison sentence for the accused Sidney Charles, a repeat offender, for offences similar to those committed by Mr.

Aurelus-Marmontel for possession of prohibited firearms. [ 42 ] It is true that Mr. Charles had a much longer criminal record than Mr. Aurelus-Marmontel that included approximately 20 convictions, “five of which involved crimes of violence and five other convictions for firearm-related offences”. [14] [ 43 ] Mr. Aurelus-Marmontel, aged 22 years in 2016, does not carry the same judicial baggage. It should be noted, however, that he was previously convicted two times, in 2013 and in 2015, for firearm-related offences.

On April 9, 2015, he was sentenced to 15 months’ imprisonment for possession of a loaded prohibited firearm and 15 months to be served concurrently for breach of a prohibition order issued in 2013. Yet on December 5, 2016, barely 23 months after that sentence, he was again arrested with a loaded prohibited firearm.

[ 44 ] Still in Nur , the Supreme Court confirmed that s. 95(1) covers “a wide range of potential conduct”: [82] Section 95 (1) casts its net over a wide range of potential conduct. Most cases within the range may well merit a sentence of three years or more, but conduct at the far end of the range may not. At one end of the range, as Doherty J.A. observed, “stands the outlaw who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade. . . . [T]his person is engaged in truly criminal conduct and poses a real and immediate danger to the public”: para. 51.

At this end of the range — indeed for the vast majority of offences — a three-year sentence may be appropriate. A little further along the spectrum stands the person whose conduct is less serious and poses less danger; for these offenders three years’ imprisonment may be disproportionate, but not grossly so. At the far end of the range, stands the licensed and responsible gun owner who stores his unloaded firearm safely with ammunition nearby, but makes a mistake as to where it can be stored.

For this offender, a three-year sentence is grossly disproportionate to the sentence the conduct would otherwise merit under the sentencing provisions of the Criminal Code . [15] [ 45 ] The offence committed by Mr. Aurelus-Marmontel under s. 95 Cr. C. falls within the first category in Nur . Therefore, his sentence must fulfill the objectives of denunciation and deterrence, but also separation, due to the real and immediate threat his repeated acts pose to society. [ 46 ] In R. v.

Provost , [16] the Court of Appeal for Ontario, in 2008, confirmed the trial judge’s decision to sentence the accused, a repeat offender, to 4-and-a-half years’ imprisonment for possession of a prohibited firearm. Once again, the accused had a much longer criminal record than that of Mr. Aurelus-Marmontel. It should be noted, however, that the Honourable D. M. Nicholas of the Ontario Court of Justice remarked that she would have considered a sentence of 5-and-a-half years’ imprisonment had it not been for the additional consecutive 12 months’ imprisonment for the breach of an order made under s. 117.02 Cr. C.

We will return to this a little later on. [ 47 ] Mr. Aurelus-Marmontel did not testify at the sentencing hearing as to why he was carrying a prohibited firearm at the time of his arrest. The November 1, 2018, presentence report prepared for the Court states, however, that he apparently said it was for protection. [ 48 ] In 2017, the Court of Appeal of Quebec noted in Colangelo [17] that the possession of a firearm to protect oneself is not a mitigating factor for an offence under s. 95(1). [18] [ 49 ] What are the mitigating factors in this case? There are very few: Mr.

Aurelus-Marmontel’s young age at the time of the offence (22 years old); his guilty plea; the presence of his spouse and three-year-old child in his life; and his somewhat lacklustre participation, according to the presentence report’s author, in four to six information sessions on violent behaviour since he has been in remand. [ 50 ] The defence also suggests that the fact that the accused’s criminal history is limited to only a few years should be considered as a mitigating factor. It is true that Mr. Aurelus-Marmontel had no criminal record prior to 2013.

However, since entering the justice system at the age of 20 for charges of failing to comply with undertakings and drug possession, the objective gravity of his offences has been rapidly increasing. It should be recalled that from 2013 to 2015, Mr. Aurelus-Marmontel was twice convicted for possession of a prohibited firearm. From 2013 to April 2016, he was fined, subjected to probation orders, to discretionary and mandatory prohibition orders and to custody, none of which appear to have had any impact on his behaviour.

As noted in the presentence report, [ translation ] “[i]t is clear that his delinquent conduct is rapidly becoming structured, with a record that is gradually lengthening and that reveals annual appointments with justice.” [ 51 ] This particular situation is more of an aggravating factor, especially since Mr. Aurelus-Marmontel, in this short period, has ignored not once, but twice, court orders prohibiting the possession of a firearm. [ 52 ] The other aggravating factors accepted by the Court are as follows: [ 53 ] Possession of the prohibited firearm while trafficking drugs. [ 54 ] Even though Mr.

Aurelus-Marmontel has no physical or intellectual limitation, he has been unemployed since 2014 and has no concrete plan to return to work after his release from prison. Yet one of the defence’s main arguments relates to the financial support he provides his spouse and their three-year-old child, with whom he does not live. [ 55 ] Mr. Aurelus-Marmontel associates with individuals in the underworld. [ 56 ] Mr. Aurelus-Marmontel has not expressed any remorse for his actions. He poses a real risk of re-offending. [ 57 ] Mr.

Aurelus-Marmontel’s cooperation with the author of the presentence report was limited. [ 58 ] Finally, since he has been in remand, Mr. Aurelus-Marmontel has been punished six times for misconduct and various violations. [ 59 ] Objectively, the maximum sentence for an offence under s. 95 Cr. C. is 10 years’ imprisonment.

Even though the minimum 5- year sentence in para. 2 of that provision was declared unconstitutional by the Supreme Court in 2015, [19] a custodial term of that length, as previously stated, is not unreasonable in itself. [ 60 ] In such circumstances, the Court finds that a sentence of 5 years’ imprisonment is amply justified given all of the above-stated reasons.

b) Order under s. 117.01 Cr. C. [ 61 ] Breach of an order made under s. 117.01 Cr. C. is punishable by a maximum of 10 years’ imprisonment.

[ 62 ] The Court of Appeal of New Brunswick, in R. v. Vroom , confirmed the principle of consecutive prison sentences for s. 117.01 Cr. C. offences “ because of the need to communicate a strong deterrent message for a violation of a firearms prohibition order”. [20] [ 63 ] The Court shares this idea of disassociating the sentence for breach of a firearms prohibition order from the sentence for the main offence. [ 64 ] Moreover, the Court’s sentence must consider the objective of general deterrence under s. 718 Cr. C. [ 65 ] In this case, Mr.

Aurelus-Marmontel violated, for the second time a few years, an order made under s. 117.01. Cr. C. [ 66 ] A consecutive sentence of 12 months’ imprisonment is undoubtedly an appropriate sentence in such circumstances.

c) Drug trafficking [ 67 ] The 1 year of imprisonment proposed by both parties for this offence meets the criteria in the Act and the case law applicable in similar matters. [ 68 ] What remains to be decided is whether this sentence is to be served concurrently or consecutively to the other two sentences the Court has imposed on Mr. Aurelus-Marmontel. [ 69 ] In support of its argument, the defence submits the 2014 judgment by the Ontario Superior Court in R. v. Le . [21] In that case, rendered before the Supreme Court’s ruling in Nur , supra , the Honourable K.L.

Campbell held that the combination of an offence for possession of a prohibited firearm and one for drug trafficking (cocaine) significantly increased the complexity of the accused’s criminal conduct. Relying on the case law at the time, Campbell J. determined that as a result, a consecutive sentence had to be considered. [ 70 ] In R. v. Provost , [22] also cited by the defence, the Court of Appeal for Ontario confirmed a consecutive sentence for the drug trafficking offence associated with the possession of a prohibited weapon. [ 71 ] The Court fully shares these analyses and sentences Mr.

Aurelus-Marmontel to a consecutive 1 year of imprisonment for the offence under s. 5(2)(3)(

a) of the Controlled Drugs and Substances Act . ii) Total sentence [ 72 ] At this stage, the Court must ensure that the sentence of 7 years’ imprisonment it is about to impose on Mr. Aurelus-Marmontel is justified under the rules of proportionality. [ 73 ] The defence submits that Mr. Aurelus-Marmontel is now at a decisive moment where he must decide what he plans to do with his life; turn it around or continue on the criminal path. [ 74 ] The defence states that a lengthy prison sentence would send a negative message about Mr. Aurelus-Marmontel’s chances of rehabilitation.

It is primarily for these reasons that the defence asks the Court to exercise its discretion with restraint, in particular to avoid a residual custodial sentence to be served in a federal penitentiary. [ 75 ] According to his counsel, Mr. Aurelus-Marmontel wants to look after his family and contribute to supporting his child. This statement is not supported, however, by any evidence as Mr.

Aurelus-Marmontel did not testify at the sentencing hearing and the presentence report makes no mention of the accused’s intentions in this regard. [ 76 ] Moreover, it should be noted that when he was arrested in December 2016, Mr. Aurelus-Marmontel’s child had been born, his spouse was in his life, even though they were not living together, and he had the active support of his parents. In addition, at that time, Mr.

Aurelus-Marmontel had just finished serving a prison sentence for possession of prohibited firearms and the judge issued a second order prohibiting the possession of firearms. [ 77 ] With respect, it appears that it was at that point that Mr. Aurelus-Marmontel found himself at a crossroads. Despite everything, he opted for the easy path and decided to continue his illegal activities. [ 78 ] Furthermore, Mr. Aurelus-Marmontel has just spent over two years in pre-sentence custody and the presentence report indicates no tendency to amend his behaviour.

Quite the contrary, the report’s author notes a high risk of re-offending, which is also the Court’s conclusion. Despite Mr. Aurelus-Marmontel’s age, this is not his first brush with crime and his attitude toward the rules of society and his conduct do not weigh in favour of restraint so that he avoids time in a penitentiary. [ 79 ] On the other hand, the Court’s decision to impose two consecutive prison sentences to be served after the sentence for Mr. Aurelus-Marmontel’s s. 95 Cr. C. breach, advocates toward an adjustment in the total sentencing period.

It must be adjusted to deduct 1 consecutive year of imprisonment. This approach is consistent with the rules of proportionality and similar sentences imposed on similar offenders for similar offences committed in similar circumstances. [23] [ 80 ] Therefore, the Court adjusts the prison sentence imposed on Mr. Aurelus-Marmontel for a total sentence of 6 years’ imprisonment. [ 81 ] As previously stated, to date, Mr. Aurelus-Marmontel has served 2 years and 198 days in pre-sentence custody. [ 82 ] The parties suggest that Mr.

Aurelus-Marmontel be credited 1 and 1-half days for each day spent in pre-sentence custody pursuant to the Supreme Court’s decision in R. v. Summers . [24] [ 83 ] The credit granted by the Court, mainly for the fact that the period spent in pre-sentence custody is not taken into consideration for the purpose of eligibility for parole, totals 3 years and 295 days.

[ 84 ] FOR THESE REASONS, THE COURT: [ 85 ] SENTENCES Laurence Michel Aurelus-Marmontel to a total sentence of 6 years’ imprisonment broken down as follows: [ 86 ] In file number 550-01-096825-16; [ 87 ] 5 years on the count of having in his possession a loaded prohibited firearm without being the holder of either an authorization or a licence under which he could possess the firearm or of the registration certificate for the firearm (s. 95(1) Cr. C.); [ 88 ] 1 year on the count of having in his possession cocaine in the form of crack for the purpose of trafficking (s. 5(2)(3)(

a) of the Controlled Drugs and Substances Act ), to be served concurrently with the sentence for the previous count; [ 89 ] In file number 550-01-096827-169; [ 90 ] 1 year on the count of having in his possession a restricted firearm while under a prohibition order issued under the Criminal Code ( s. 117.01(1) Cr. C.), to be served consecutively to the sentence for file number 550-01-096825-163 ; [ 91 ] DEDUCTS from the global sentence of 6 years, a total of 3 years and 295 days for time spent in pre-sentence custody for a remainder of 2 years and 70 days. [ 92 ] ISSUES an order under s. 109 Cr.

C. prohibiting Mr. Aurelus-Marmontel from having in his possession any weapons during his lifetime; [ 93 ] ORDERS samples of bodily substances to be taken under s. 487.051 Cr. C. for forensic DNA analysis; __________________________________ Jean Faullem, J.C.S. Mtre Diane Legault Director of Criminal and Penal Prosecutions Counsel for the prosecution Mtre Michael Smith Counsel for the accused