2022 NBPC 2, 2022 NBPC 2

CANADA PROVINCE OF NEW BRUNSWICK PROVINCIAL COURT Sentencing Hearing Date: July 8th, 2022 Decision Date: August 17 th , 2022 Docket No.: 159379, 159380, 159381 Neutral Citation: 2022NBPC02 HER MAJESTY, THE QUEEN - and - MARC BOURGEOIS Decision of the Honourable Judge Scott A. Brittain Provincial Court of New Brunswick Note: This decision was delivered orally with subsequent non-substantive grammatical corrections being made prior to its publication.

APPEARANCES: Christian Girouard-Leclerc, on behalf of Her Majesty, The Queen (Federal Crown) Melanie MacAulay, on behalf of Her Majesty, The Queen (Provincial Crown) Maude Malson, on behalf of the Accused INTRODUCTION 1 . This is the sentencing decision of this Court for Marc Bourgeois respecting eight counts, spanning three Informations, all of which arise from the single event date of March 23 rd , 2022. 2 . Mr. Bourgeois is charged with the following eight counts: a. two

summary counts arising under the Motor Vehicle Act : (1) driving a motor vehicle while his driving privileges were suspended, contrary to Section 345(1), and (2) operating a motor vehicle with fictitious registration plates, contrary to

Section 70(d); b. four indictable counts arising under the Criminal Code of Canada : (1) failing to stop while being pursued by a peace officer, contrary to

Section 320.17 ; (2) operating a motor vehicle while prohibited by reason of an order made by N. LeBlanc, PCJ under

Section 320.24, contrary

Section 320.18(1)(a); (3) possession of property obtained by the commission of a criminal offence with a value over $5,000, namely a stolen motor vehicle, contrary to Section 354(1)(a), and (4) possession of a prohibited weapon, namely a knife with a blade that opens automatically, without a valid license, contrary to Section 91(3); c. two indictable counts arising under the Controlled Drugs and Substances Act : (1) possession of benzimidazole (protonitazene) for the purpose of trafficking, contrary to Section 5(3)(d), and (2) possession of Methamphetamine, contrary to Section 4(3)(a). 3 . Mr.

Bourgeois, where applicable, elected to proceed before this Court and entered pleas of guilty on all eight counts on June 21 st , 2022. Before me on July 8 th , 2022,

Section 606 of the Criminal Code of Canada was reviewed with Mr. Bourgeois and the two Crown Prosecutors then provided a recitation of the facts respecting each of the eight counts to the Court. The Provincial Crown has carriage of

the Motor Vehicle Act and Criminal Code of Canada charges while the Federal Crown has carriage of the Controlled Drugs and Substances Act charges. Mr. Bourgeois’ guilty pleas on all eight counts were accepted by this Court on confirmation with him that he agreed with the facts, as presented by the Provincial Crown and Federal Crown, respectively. 4 . Mr. Bourgeois has been remanded since the date of his arrest, being March 23 rd , 2022. Counsel agrees that he has now been remanded on these charges for a total of 148 days, inclusive of today’s date.

When the multiplier of 1.5 is applied to that number, the Court arrives at a “remand credit” calculated to be 222 days. THE FACTS 5 . The facts underlying the eight counts set out in the three Informations are not in dispute. Accordingly, it is not the intention of the Court to revisit the facts chapter, line and verse. The Court relies and incorporates by reference into this decision the full recitation of the facts, as presented by the Crown and accepted by Mr. Bourgeois on July 8 th , 2022, for the purposes of this decision. 6 .

That being said, a high-level overview of the facts is in order to provide context for the reasoning of the Court in imposing what the Court concludes to be a fit and appropriate sentence in the circumstances of Mr. Bourgeois, having regard to the facts and the law and also taking into consideration the submissions of counsel at the sentencing hearing. 7 .

On May 23 rd , 2022, a Dodge Grand Caravan bearing New Brunswick license plate number CSC-694 was observed traveling approximately 120kmh in an 80kmh zone by an oncoming RCMP officer at or near Tabusintac, New Brunswick, at which time the facial features of the driver were observed and noted by him. 8 . The RCMP officer completed a U-Turn and attempted to intercept the driver; however, the driver fled and the interception was called off. The RCMP officer provided a description of the vehicle’s driver. Shortly thereafter, the arresting RCMP officer, Constable Michel Karagiotis, stopped and identified Mr.

Bourgeois based on the description provided. 9 . Upon stopping the vehicle in question driven by Mr. Bourgeois, Constable Karagiotis ran the license plate affixed to the Dodge Grand Caravan, discovering that it actually belonged to a Toyota Yaris. Mr. Bourgeois claimed at the time of arrest that he had not been the driver of the Dodge Grand Caravan, explaining that it was all a “misunderstanding” and that he did not even have the keys to operate it, however, a set of keys found on the ground next to Mr.

Bourgeois at the time of his arrest was used by Constable Karagiotis to successfully start the Dodge Grand Caravan. 10 . Further investigation by Constable Karagiotis at the scene of the arrest revealed that the Dodge Grand Caravan had earlier been reported stolen by its registered owner, Francine Allain. Ms. Allain was contacted for a Victim Impact Statement; however, as is evidenced by correspondence received by the Court from Katia Power of Victim Services, dated June 23 rd , 2022, Ms. Allain declined the invitation of the Court to submit a Victim Impact Statement. 11 . Incidental to arrest, Mr.

Bourgeois was searched and found to possess a knife with a blade that opens automatically, for which he was discovered to have no valid licence. It was also discovered at the time of arrest by Constable Karagiotis that Mr. Bourgeois was not only a suspended driver pursuant to the terms of the Motor Vehicle Act but also a prohibited driver on a Canada-wide basis. 12 . During his arrest, Mr. Bourgeois was observed by Constable Karagiotis trying to hide two small Ziploc bags in the nearby snow.

Upon further inspection, the first of these two bags was found by Constable Karagiotis to contain 105 white pills marked with an “8” on one side and “DD” on the other, which are commonly known as “Shady Eights” - a street term for counterfeit opioid pills. The second of these two bags was found to contain an additional 30 “Shady Eights” together with a one-gram rock of crystal methamphetamine. Also seized from Mr. Bourgeois’ person at the time was the amount of $529.50, a glass bong and the aforementioned knife with a blade that opens automatically. 13 .

The seized pills were sent to Health Canada for analysis and Health Canada confirmed that they contained benzimidazole, namely protonitazene, a

Schedule I controlled substance under the Controlled Drugs and Substances Act . Health Canada also confirmed that the one-gram rock of what was believed to be crystal methamphetamine at the time of arrest was indeed that illicit substance, which is also a

Schedule I controlled substance under the Controlled Drugs and Substances Act . 14 . Accompanying the Federal Crown’s factual submissions, which were marked as Exhibit C-1 at the sentencing hearing, was an informative chart entitled “Potency Comparison”, which shows the relative potency of protonitazene compared to other commonly known opioids.

To place the potency of protonitazene into perspective, it is 200x more potent than morphine, 100x more potent than oxycodone and twice the potency of fentanyl , the last of which is an opioid that has captured a significant amount of media attention and jurisprudential consideration in recent years owing to its devastatingly lethal potency and, correspondingly, the rapidly rising role it has played in the deaths of innumerable users. THE ISSUE 15 . The single issue this Court must decide is what is a fit and appropriate sentence for the eight counts set out in the three Informations to which Mr.

Bourgeois has pleaded guilty. THE SUBMISSIONS OF THE PARTIES Provincial Crown 16 . As noted earlier, the Provincial Crown has carriage of the two

summary counts under the Motor Vehicle Act and the four indictable counts under the Criminal Code of Canada , as earlier enumerated. The submissions of the Provincial Crown were substantially animated by the Prior Defendant History Record of Mr. Bourgeois, which was marked as Exhibit C-2 at the sentencing hearing. Simply stated, Mr. Bourgeois is no stranger to the criminal justice system. His record is five pages long and punctuated by recent past convictions for

fleeing police, dangerous driving, driving while his privileges were suspended, six prior theft related convictions, including the theft of amotor vehicle, and 14 prior convictions for breaches of court orders. It bears mentioning as well that Mr. Bourgeois, who is 40 years-old,had more than 17 years pass between his first Criminal Code of Canada conviction in 2002 and his second in 2019. Since 2019, it is notunfair to say that the record of Mr. Bourgeois has exploded. 17. The Provincial Crown submits that a global consecutive sentence for the four indictable counts should be in the order of 16-18months while a minimum fine of $500.00 should be imposed for the

summary breach of Section 345(1) of the Motor Vehicle Act and theminimum fine of $292.50 should be imposed for the

summary breach of

Section 70(

d) of the Motor Vehicle Act. Additionally, theProvincial Crown seeks a five-year driving prohibition under

Section 320.24(2)(

b) of the Criminal Code of Canada. Federal Crown 18. The submissions of the Federal Crown were similarly animated by Exhibit C-2. Though it was acknowledged that Mr. Bourgeoishas no past record of possession for the purpose of trafficking under the Controlled Drugs and Substances Act, he does have two recentconvictions for simple possession. It is the Crown’s recommendation to the Court that Mr. Bourgeois should be sentenced to four yearsconsecutive for the possession for the purpose of trafficking count and 30 days concurrent for the simple possession count. 19.

The Federal Crown anchored its recommendations in recent case law, referencing R. v. Sauve, 2017 ABPC 19 , [2017] A.J.No. 195, in which Allen, PCJ had before him a joint recommendation of 42 months for a first-time trafficker. In that case, the accusedhad received fentanyl as a payment for mechanical services he had provided and, in turn, attempted to sell those illicit opioids to anundercover police officer. The accused came before the court with “an extremely positive” pre-sentence report. He was steadilyemployed, in a stable relationship, was raising four children and did not have a background of criminality.

Though Allen, PCJ reluctantlyaccepted the joint recommendation, he observed the following beginning at paragraph 48: [48] Fentanyl traffickers in Alberta can expect severe sentences. The Alberta Court of Appeal has adopted a starting pointapproach to those who traffic in hard drugs. Two such starting point sentences have been established by the Court: three years forcocaine traffickers and five years for heroin traffickers.

The paramount sentencing factor supporting these starting points is generaldeterrence to those who would seek to profit from preying upon those addicted to hard drugs, or those who might wish to experiment intheir use. Sentencing judges are expected to give due consideration to guideline sentences, but maintain a measure of discretion to applythem to the individualized circumstances of the offender. Starting point sentences do not apply to all trafficking in hard drugs.

Exceptions are made in circumstances where the trafficking is of a social nature, is an isolated sale, or is commercial trafficking on aminimal scale. [49] The Court of Appeal has yet to set out a starting point for fentanyl. If it does so, the starting point will likely be in the rangeof at least five years, and perhaps more. This is because the judicial sentencing precedents recognize that fentanyl is a dangerous andeven fatal drug if misused in small doses.

After all, if Alberta courts are hostile to heroin traffickers, they should be even more hostile tofentanyl traffickers. [50] It is for the Alberta Court of Appeal to create such a starting point and not for a trial judge. Nevertheless, it is clear even inthe absence of such a starting point, a severe exemplary sentence of five years is appropriate for most individuals who traffic in fentanyl. 20. It bears repeating, based on the aforementioned “Potency Comparison” found in Exhibit C-1, that protonitazene is twice as potent asfentanyl. 21. In R. v. Davison, [2021] O.J.

No. 4930 (O.C.J.), Wendl, J. sentenced a mid-level addict-trafficker in fentanyl and cocaine with arelatively unnoteworthy record of criminality, which included a couple of impaired driving convictions, some property-relatedconvictions and a conviction for simple possession, to a period of 72 months. At paragraph 12 of his decision, Wendl, J. noted “[t]he 6-year sentence proposed by the Crown is fit and accords with the evolving case law. Much has been written about the dangers of fentanylwhich I will not repeat here. However, the bottom line is this: fentanyl kills, and sentences need to reflect that fact.” 22.

In R. v. White, [2020] N.S.J. No. 131 (C.A.), the Nova Scotia Court of Appeal overturned a 72-month sentence imposed on a “mid-level trafficker” at first instance in favour of a 96-month sentence. In that case, the accused was found to have over 2,000 fentanyl pills inhis apartment and over $12,000 in cash upon the execution of a search warrant. The fentanyl pills were stamped to look like OxyContin.Also seized were quantities of cocaine and crack cocaine. The estimated street value of the seized drugs was between $55,500 and$101,100.

The criminal record of the accused was described as “extensive”, including prior convictions for possession for the purpose oftrafficking and manslaughter. At paragraphs 101-104 of its decision, the Nova Scotia Court of Appeal went on to provide a helpful andcomprehensive survey of sentencings across Canada for trafficking in fentanyl.

In setting aside the decision at first instance andimposing a 96-month sentence, it found that the trial judge had failed to conduct a proper proportionality analysis and that the sentencedid not adequately address the seriousness of the offences or the moral blameworthiness of the offender. Moreover, adding to the gravityof the situation was the volume of fentanyl seized and the fact that it was disguised as OxyContin.

Though this decision is helpful for thepurposes of better understanding the evolving sentencing landscape in Canada involving possession for the purpose of traffickingfentanyl, the circumstances of the accused before the Nova Scotia Court of Appeal in that case differ markedly in magnitude from thecircumstances at play in Mr. Bourgeois’ case. Defence Counsel 23. Counsel for Mr. Bourgeois emphasized certain key elements outlined in his Pre-Sentence Report, dated October 15, 2020 and theaddendum to same, dated January 25, 2021. According to same, Mr.

Bourgeois has struggled since his early teens, if not before, with

substance abuse problems. He started consuming marijuana when he was about 11 years old, graduating to acid and mescaline between the ages of 11 and 13. At 19, he moved on to ecstasy and opiates and, eventually, crystal methamphetamine. Mr. Bourgeois has undergone drug addiction treatment in the past, experiencing periods of relapse and depression. He has completed a GED and has some partially completed post-secondary education under his belt. It appears from his Pre-Sentence Report and Exhibit C-2 that Mr. Bourgeois’ circumstances really began to unravel in or about 2018 or 2019.

He lost his employment of two years as a technical consultant for a national telecommunications company and experienced periods of homelessness. He has been unemployed for an extended period, which aligned with the onset of COVID-19. He last worked intermittently in the fast-food industry. Mr. Bourgeois notes that he is not working now “so he can focus on his addiction issues”.

He enrolled in a 10-month addiction recovery program with Village of Hope in October 2020 but left that program after only 9 days, stating “he was not comfortable and felt there would be another program more adapted to his needs.” It is clear to the Court that Mr. Bourgeois is a drug addict and the Court finds it appropriate to refer to him as a lower to mid-level “addict-trafficker”, as that term is used in the case law. 24 . Even though a significant quantity of illicit drugs was found on Mr.

Bourgeois’ person on March 23 rd , 2022, his counsel points out that “little is known about his motives” as he wasn’t being investigated, no “score sheets” were found and the seizure in this case was not the result of a search warrant. Counsel for Mr. Bourgeois submitted that there is more instructive authority for the Court on the drug matters before it found in the recent decisions of my colleague, Gunn, PCJ in his December 14 th , 2021 sentencing decision in R. v. Hare as well as the even more recent decision of my colleague, Michaud, PCJ, in his June 23 rd , 2022 sentencing decision in R. v. Baisley .

I will return to these decisions in due course. 25 . In

summary, the position advanced by counsel for Mr. Bourgeois is that the trafficking charge under the Controlled Drugs and Substances Act would appropriately attract a consecutive sentence in the order of 24-30 months, with the simple possession charge running concurrent for a short duration of perhaps 30 days. As for the Criminal Code of Canada offences, it was the submission of Mr. Bourgeois’ counsel that the sentence should run concurrent to the trafficking sentence and be in the global order of 6-12 months.

It was noted that what the Provincial Crown is seeking amounts to a “significant jump” relative to past convictions having regard to the so- called “ladder principle”. Finally, as it relates to the Provincial Crown’s position on the Motor Vehicle Act charges, counsel for Mr. Bourgeois is ad idem . APPLICABLE LAW 26 . The Supreme Court of Canada has recognized that the fitness of a sentence imposed can establish or diminish the credibility of the criminal justice system in the eyes of the public. 27 .

The task is governed by the provisions of the Criminal Code of Canada but it 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. The purpose and principles of sentence, as set out in the Criminal Code of Canada , allow for “sentence individualization" and guide the sentence this Court must impose. 28 .

Section 718 of the Criminal Code of Canada describes the fundamental purpose of sentencing. It reads: 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. 29 .

Section 718 of the Criminal Code of Canada provides further that the imposition of a just sentence requires sufficient manoeuvrability to tailor sentences to the circumstances of the particular offence and the particular offender. 30 . Given the two counts before this Court under the Controlled Drugs and Substances Act , it is necessary to consider

Section 10 of that statute as well: Purpose of sentencing 10

(1) Without restricting the generality of the Criminal Code , the fundamental purpose of any sentence for an offence under this

Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community. Factors to take into consideration

(2) If a person is convicted of a designated substance offence for which the court is not required to impose a minimum punishment, the court imposing sentence on the person shall consider any relevant aggravating factors including that the person (

a) in relation to the commission of the offence,

(

i) carried, used or threatened to use a weapon, (ii) used or threatened to use violence, (iii) trafficked in a substance included in

Schedule I, II, III, IV or V, or possessed such a substance for the purpose of trafficking, in or near a school, on or near school grounds or in or near any other public place usually frequented by persons under the age of 18 years, or (iv) trafficked in a substance included in

Schedule I, II, III, IV or V, or possessed such a substance for the purpose of trafficking, to a person under the age of 18 years; (

b) was previously convicted of a designated substance offence, as defined in subsection 2(1) of this Act, or a designated offence, as defined in subsection 2(1) of the Cannabis Act; (

c) used the services of a person under the age of eighteen years to commit, or involved such a person in the commission of, the offence. 31 . Before considering the circumstances of the offence and the offender, I will briefly address the objectives and principles of sentencing and highlight those that are predominant in this case. 32 . The objectives described in

section 718 may have predominance in a set of circumstances dictated by the offence, the offender or both. This Court is required to attribute to the objectives of denunciation and deterrence their proper predominant influence in the crafting of a just sentence. 33 . Deterrence is subdivided into specific and general elements. Specific deterrence is designed to convince the offender before the Court not to re-offend. The circumstances of the offender and the prospects for rehabilitation must be considered.

A court must look at the individual, his record and attitude, his motivation and his reformation and rehabilitation. 34 . General deterrence is aimed at persuading others who may be inclined to commit the same offence from so doing. If this is the aim, the sentencing court must consider the gravity of the offence, the incidence of the crime in the community, the harm caused by it either to the individual or to the community and the public attitude toward it. 35 . The separation of an offender from society is sometimes necessary. The application of the objective must be read in concert with

section 718.2(e), which essentially requires that imprisonment be the sentence of last resort. There are circumstances of both offender and offence, however, that require Mr. Bourgeois to be imprisoned. 36 . The maintenance of a just, peaceful and safe society, as is mandated by

section 718, can often best be achieved by the rehabilitation of offenders. As the Supreme Court of Canada has held, “Rehabilitation is one of the fundamental moral values that distinguish Canadian society from the societies of many other nations in the world” ( see R. v. Lacasse , 2015 SCC 64 at para. 4 ). 37 . The Criminal Code of Canada also holds that the fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. This is a codification of the proportionality principle and is found at

section 718.1. 38 . Other principles are important in crafting an appropriate sentence here. First,

section 718.2(

b) of the Criminal Code of Canada states that "a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances." This is the codification of the parity principle. 39 .

Section 718.2 (

a) of the Criminal Code of Canada indicates that a "sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender."

Section 718.2 also dictates that: (

d) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

e) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

f) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. APPLICATION OF THE LAW TO THE FACTS 40 . It is not the intention of this Court to revisit the background of Mr. Bourgeois here, as it has already been canvassed in detail in the Court’s consideration of the Submissions of the Parties. Suffice it to say that Mr.

Bourgeois’ background is one punctuated by unresolved and longstanding addiction issues which appear to have experienced an aggressive crescendo, at least as it relates to his criminality, beginning in or about 2018 or 2019. This is, very sadly, a frequent outcome of addiction given that addicts turn to various forms of criminality to feed their addiction, including trafficking in the very drugs to which they are addicted. The destructive toll wrought by drug addiction in this community cannot be understated. Put bluntly, it is the root cause of most criminality and functions like a metastatic tumor.

It is endemic and that needs to be recognized and addressed accordingly. 41 . I have reviewed the decisions of my colleagues, Gunn, PCJ and Michaud, PCJ, in R. v. Hare and R. v. Baisley , respectively, and I am on all fours with them regarding their respective determinations of the law applicable to sentencing matters in the context of possession for the purpose of trafficking cases. The same observations apply to the recent decision of Ferguson, J. in R. v.

Mazerolle, 2022 NBQB 38 , a possession for the purpose of trafficking methamphetamine case, where he canvasses the sentencing principles that apply and the corresponding progression of the common law at paragraphs 45 to 55. Moreover, the Supreme Court of Canada recently provided guidance to sentencing judges in R. v. Parranto , 2021 SCC 46 , finding at paragraph 86 as follows:

[86] I find it necessary, however, to write separately to raise what I believe to be an issue of overriding concern in these cases. Specifically, I wish to focus on the gravity of largescale trafficking in fentanyl for personal gain and the need to impose severe penalties, ranging from mid - level double digit penitentiary terms up to and including life imprisonment, for those who do so. In R. v.

Friesen , 2020 SCC 9 , this Court held that appellate courts can and should depart from prior sentencing precedents when those precedents no longer reflect “society’s current understanding and awareness of the gravity of a particular offence and blameworthiness of particular offenders” (para. 35; see also paras. 108 and 110). In my view, society’s understanding of the gravity of largescale fentanyl trafficking has increased such that an upward departure is mandated. 42 . The Court adopts Ferguson, J.’s examination of the applicable law here without repetition.

It bears mentioning that Ferguson, J.’s decision in R. v. Mazerolle preceded the recent additional guidance from the New Brunswick Court of Appeal, as expressed in its very recent decision in Brown v. R. , 2022 NBCA 33 , which this Court has also considered in fashioning its sentence for Mr. Bourgeois. 43 .

After considering the law as it pertains to sentencing in this context, Ferguson, J. made the following observations about the prevalence of illicit drugs, particularly crystal methamphetamine, in this community, noting at paragraph 57: [57] The parties do not dispute that methamphetamine use in this judicial district, where I have been a resident judge for eighteen years, is problematic. Our criminal and family courts are filled with cases involving its use, its trafficking and the human toll addiction to the drug causes to individuals and their families.

On literally a weekly basis I am asked to adjudicate on Ministerial child protection cases in which the most prominent factor is far too often long-term addiction to hard drugs such as methamphetamine. Regularly, family court child protection orders in this district for either temporary custody or guardianship interrupt or extinguish, respectively, parental rights and are issued due to parental addiction to methamphetamine and other types of hard drugs. 44 . By extrapolation, quite frankly, the same observations extend to protonitazene. 45 .

Turning to the eight counts before this Court, I will begin by addressing, in turn, the mitigating and aggravating factors at play in this case. Mr. Bourgeois has entered pleas of guilty to all eight counts and he did this at a very early stage of the process, which has been described by the New Brunswick Court of Appeal as a “powerful mitigating factor” because it, at once, is an acceptance of responsibility on the part of the accused and curtails the necessity of expending limited judicial resources through the trial process. It is also clear to the Court that Mr. Bourgeois is remorseful for his actions.

His ongoing addiction issues have, in a significant way, fueled a tragic and aggressive trajectory of criminality in recent years beginning at an age - his late 30s - when most people are not journeying for the first time down such a path. This reinforces the grip that addiction has on Mr. Bourgeois. 46 . As for aggravating factors, Mr. Bourgeois’ record of criminality is highly concerning to the Court on a number of levels. First, as just mentioned, it didn’t really begin (save for a single Criminal Code of Canada conviction in 2002) until 2018 or 2019, after which it took off very aggressively.

Moreover, there is a symmetry between the eight counts before this Court and the recent entanglements and encounters of Mr. Bourgeois with the criminal justice system that are evidenced in Exhibit C-2, as was already pointed out. 47 . Most of the counts before the Court are very serious and show a blatant disregard for the interests of or well-being of others. The Criminal Code of Canada offences, namely, failing to stop while being pursued by a police officer in a stolen vehicle, the identity of which was obscured through the use of a stolen license plate, is very troubling.

As it relates to the Controlled Drugs and Substances Act offences, of particular note is the wildly potent properties of protonitazene, which makes the risks associated with consumption extremely high with a recognized devastating impact in an already vulnerable community experiencing the scourge of illicit drugs. If people using protonitazene don’t pay the ultimate price with their lives, as many are, the price is extracted in various other ways that collectively work the effect of causing extraordinary trauma and decay in this community. 48 .

Denunciation and deterrence, both specific and general, figure prominently in this case, as does the moral blameworthiness of the accused. The Court strongly denounces the string of criminal conduct that brings Mr. Bourgeois before it today. It is painfully obvious to the Court that a message of specific deterrence is required in this case in view of the rapid escalation of Mr. Bourgeois’ criminal record and the fact that he has engaged in significant criminality in the very recent past that overlaps or dovetails with almost every one of the eight counts before this Court. 49 .

His recent record of flouting court orders, some 14 in total since 2019, is also a compelling indicator to this Court that previous attempts at rehabilitation have largely failed to date, necessitating a considerably more drastic and escalated approach. This is not to say that Mr. Bourgeois is beyond rehabilitation. Rather, it is to say that the approaches of the past have failed and that needs to be reflected, and is reflected, in the sentence imposed by this Court today. 50 .

Having regard to general deterrence, given the prevalence of possession for the purpose of trafficking in this community and its devastating cascading effect, it is necessary to send a powerful message to those who are or might be contemplating engaging in such illicit activities that serious and growing consequences must and will flow from same. Indeed, this arc is entirely consistent with the recent instruction of the Supreme Court of Canada to sentencing judges in R. v. Parranto , as earlier cited. 51 .

Similarly, the Court has considered the proportionality principle and the position ultimately being taken by this Court on sentencing “is similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”, having regard to the case law already canvassed by this Court. The Court has also considered the recent guidance of the New Brunswick Court of Appeal in Brown v. R. and has given a second - indeed a third and fourth look - at the global sentence being imposed in this case having regard to the “totality principle”.

In particular, the Court has given careful and deliberative consideration to the observations outlined by French, J. at paragraph 23 thereof. 52 . It should be noted as well, and I confirm for completeness, that there is no evidence before the Court that Mr. Bourgeois is an indigenous man. Consequently, the Court need not consider the specific guidance of the Supreme Court of Canada as it pertains to the sentencing of indigenous peoples.

CONCLUSION 53 . In conclusion, the sentence of this Court is as follows for Mr. Bourgeois: a. The Court imposes a sentence of 42 months, consecutive to any other sentence, for the possession for the purpose of trafficking charge under Section 5(3)(

a) of the Controlled Drugs and Substances Act . The charge of simple possession under the same statute is subject to a concurrent sentence of 30 days, which the Court so imposes. Pursuant to

Section 16 of the Controlled Drugs and Substances Act , the Court orders the forfeiture of both the glass bong and the knife with a blade that opens automatically, each of which were seized on the arrest of Mr. Bourgeois on March 23 rd , 2022. Additionally, the Court orders a weapons prohibition under

Section 109 of the Criminal Code of Canada for a period of 10 years and makes a DNA order pursuant to

Section 487.04 of the Criminal Code of Canada . b. The Court imposes a sentence of six months, consecutive to any other sentence, for the possession of stolen property charge under Section 354(1) (

a) of the Criminal Code of Canada . The charges of failing to stop while being pursued by a peace officer under

Section 320.17 of the Criminal Code of Canada and of operating a motor vehicle while prohibited from doing so by order of this Court under

Section 320.18(1) (

a) of the Criminal Code of Canada are each subject to a consecutive sentence of three months, which the Court so imposes. The charge of having in his possession a prohibited weapon without a license under section 91(3) of the Criminal Code of Canada is subject to a consecutive sentence of two months, which the Court so imposes. Moreover, the Court imposes a driving prohibition for a duration of five years pursuant to

Section 320.24 (

b) of the Criminal Code of Canada . In imposing this sentence respecting the Criminal Code of Canada violations, the Court respectfully rejects the submission of counsel for Mr. Bourgeois that the law requires that these sentences all run consecutive to the concurrent sentence imposed by this Court on the trafficking charge under the Controlled Drugs and Substances Act . c. Finally, the Court imposes the minimum fine applicable for each of the Motor Vehicle Act charges, namely a $500.00 fine for the violation of Section 345(1) of the Motor Vehicle Act and a fine of $292.50 for the violation of

Section 70(

d) of the Motor Vehicle Act . Mr. Bourgeois will have 90 days to pay those fines, as is dictated by the terms of the Provincial Offences Procedure Act . d. As for the Victim Fine Surcharges, those are all waived given there is clear evidence before this Court that Mr. Bourgeois’ personal financial circumstances coupled with the fact that he has been remanded for an extended period of time would make the imposition of the Victim Fine Surcharges a real and appreciable hardship for him to bear. e. As for remand time, there is agreement that Mr.

Bourgeois has been remanded on these charges for a total of 148 days, inclusive of March 23 rd , 2022, and today’s date. When the multiplier of 1.5 is applied to that number, the Court arrives at a “remand credit” calculated to be 222 days, which shall be applied against the global consecutive sentence of 56 months, as imposed by this Court today. 54 . That concludes the decision of the Court on sentencing subject to any questions from counsel. The Court wishes you well, Mr.

Bourgeois, as you continue to address your addiction issues with the sincere hope that you can pull yourself out of your current circumstances with the assistance of the treatment and programming resources available at the institution where you will be incarcerated. Brittain, PCJ