R. v. Claude Melanson, 2011 NBPC 22

R. v. Claude Melanson – 2011 NBPC22 PROVINCE OF NEW BRUNSWICK File: 04219011 PROVINCIAL COURT HER MAJESTY THE QUEEN - v – CLAUDE MELANSON JUDGMENT rendered by Judge Ronald LeBlanc in Bathurst Provincial Court on May 19 th , 2011, regarding sentencing for four offences under the Controlled Drugs and Substances Act . Appearances: Paul J. Veniot, Q.C., Agent for the Attorney-General of New Brunswick Mr. Mario Lanteigne, Esq., for the accused _____________________________________________________________________________ 1 .

JUDGE LEBLANC: The only issue raised in this matter is whether or not Claude Melanson should be sentenced to a conditional sentence. The parties agree that a sentence involving a custodial term is warranted. The defence alleges that such a sentence should be allowed to be served in the community under supervision as allowed by

section 742.1 of the Criminal Code . The prosecution takes no position, allowing the judge to determine the fit sentence. THE FACTS: 2 . The execution of a Search Warrant at the residence of the accused resulted in the seizure of five different types of illegal drugs. The police also seized drug paraphernalia including 3 digital scales, a marihuana pipe and baby bottle liners. The amount of $2,517.90 was found and admitted by the accused to be drug money. Mr. Melanson pleaded guilty to the four charges which included:

(1) Possession of cocaine for the purpose of trafficking: the police seized 30.6 g of cocaine;

(2) Possession of cannabis resin – 1.8 grams;

(3) Possession of marihuana – 31.4 grams; and

(4) Possession of amphetamine (speed) – 99 tablets 3 . He also had in his possession 12 prescribed tablets of hydromorphone, another Schedule-I drug for which he has not been charged. 4 . Mr. Melanson did not immediately open the door when the police came knocking armed with the search warrant. There was an

attempt at concealment of the drugs while the police were waiting for him to open the door. He was seen trying to store the drugs on his rooftop patio. Also, during the search, one of his clients appeared at his door looking to purchase marihuana. 5 . Mr. Melanson gave a detailed statement to the police. He told them that he had been selling cocaine on and off for a while and that he had about 100 customers but only about 10 were regulars. He insisted that he did not sell to children. He bought the cocaine by the ounce for $1,600.00 and sold 1.7 grams of cocaine for $120.00.

He said he never made good money but sold about 1 ounce a week, making between $500.00 to $800.00 each week from his sales. He occasionally exchanged certain types of drugs for cocaine. 6 . Mr. Melanson had had a good job working at the local newspaper, the Northern Light, for the past 17 years. He was their graphic manager, a job which he enjoyed. He eventually was promoted to Department Manager. When he lost his job as a result of downsizing in 2010, he turned to selling drugs. He is currently unemployed and in receipt of Employment Insurance.

He has recently been accepted into an accounting program at the New Brunswick Community College, where he hopes to attend in the fall. He ’s now 38 years old. His parents divorced when he was 14, thereby ending what had been up to that point a happy family life. His life became more difficult living with his mother, a newly single parent. Financial problems beset the family. He did manage to keep in contact with his father who had moved to Moncton and later remarried. 7 . He was introduced to the world of drugs years ago as a result of an ex-girlfriend’s influence.

He was thusly initiated to the lifestyle of the people and places where drugs were consumed. He himself, over time, lead this lifestyle, including drug trafficking. He first experienced drugs while a teenager in high school. At first it was marihuana and cannabis resin. His consumption escalated to acid, which did not become problematic. Although he sold cocaine and speed, he did not consume them or become addicted to them. He prefers marihuana which he only sporadically smokes. In the past, he had problems with alcohol, which affected his work.

Since his arrest on these charges, he only consumes occasionally and now drinks moderately. 8 . He has no prior convictions. He states that he sincerely regrets his actions and will not reoffend. He cooperated with the police in their investigation by providing them a full statement. He has pleaded guilty to the offences. His counsel admits he lacked good judgment but explains that these events happened during a stressful time in his life, having lost a good job.

He further states that his intention is to start fresh, to get a new direction in life by attending Community College, branch out in the accounting field and once again be a contributing member of his community. For these reasons, he advances the proposition that his client is a low risk to reoffend, that prison is not an appropriate sentence, and that a community-based sentence would be a better alternative considering that Mr. Melanson is not a source of danger to his community. He relies upon two judgments in support of this request: R. v. Daniel Doiron

(2007) NBBR 079, a decision of Madam Justice LaVigne of the Court of Queen’s Bench of N.B. and R. v. Byrne

(2009) NLCA 3, a decision from the Newfoundland and Labrador Court of Appeal. THE JURISPRUDENCE 9 . Admittedly, the facts in Doiron are similar to those in this case. Mr. Doiron had pleaded guilty to two offences: possession of hydromorphone and possession of cocaine for the purpose of trafficking. A search warrant executed at his residence resulted in the seizure of 21 packets of cocaine and a bottle of pills containing 99 hydromorphone tablets, having a total value of $1,900.00. The total cocaine seized was 10.2 grams, having a street value of $1,020.00. The accused was 41 years old.

He grew up in a dysfunctional family where violence and alcoholism was present. At the time of sentencing he was in a stable family relationship with a spouse and two children. He had been employed as a trucker and was a contributing member of society but lost his employment as a result of a motor vehicle accident 3 years previous. He was no longer able to work. He became a cocaine user after the accident. He admitted selling drugs to finance his habit and to support his family. He had no prior convictions, had cooperated with the police and entered guilty pleas to the charges.

He stopped consuming following his arrest. He regretted his actions and stated he realized he exercised poor judgment. He intended on returning to work as a trucker following his physiotherapy sessions under the guidance of the Occupational Health and Safety Commission. It was determined that his chances of rehabilitation were excellent. 10 .

Madam Justice LaVigne, early on in her decision, refers to the well-known proposition that the process of sentencing is far removed from being an exact science and that it is in fact very much subjectively based and characterized by a vast discretionary power granted the sentencing judge. She granted his request for a community-based sentence, imposing 12 months for the possession for the purpose of trafficking charge and 4 months for the possession of hydromorphone charge, both to be served concurrently under the conditions of a conditional sentence order. 11 .

The Byrne decision involved a 28 year-old first offender who pleaded guilty to possession of cocaine for the purpose of trafficking. He was found in possession of 10 ounces of cocaine divided into one ounce lots, together with $10,410.00 in cash, digital scales, score sheets and drug paraphernalia. The cocaine was valued at $18,000. He had been steadily employed for the past 9 years doing bodywork on automobiles. He sold drugs to get money to buy a new car. The Newfoundland and Labrador Court of Appeal confirmed the two-year-less-a-day conditional sentence imposed by the sentencing judge.

That Court granted leave to appeal because

they felt it was important to clarify what, in that province, would be the lower end of the sentencing range for offences of possession ofcocaine for the purposes of trafficking. The Court then did a thorough cross-country check-up on sentences imposed at the appellatelevel for similar types of offences. This review is very edifying in my view. 12. The Court in Byrne arrives at the conclusion, at paragraph 30, that appellate Court decisions establish that a two-year-less-a-dayconditional sentence is at the lower end of the range for offences of this nature, citing cases from Manitoba (R. v.

Ramos (2007) 2007MBCA 87 , 214 Man. R. (2d) 280), British Columbia (R. v. Kozma (2000) 2000 BCCA 440 , 142 BCAC 195 and R. v.Schneider (2007) 2007 BCCA 560 , 248 BCAC 187), Ontario (R. v. Ploumis (2000) (ON CA), 150 C.C.C.(3d) 424) and its own court in R. v. Barrett (2008) 2008 NLCA 23 , 275 Nfld & PEIR 308. As for the Western provinces ofAlberta and Saskatchewan, the Court found the sentencing range to be higher. The Court referred to R. v.

Ma (2003) 2003 ABCA 220, 177 CCC (3d) 535 from the Alberta Court of Appeal, where that Court stated that for trafficking in cocaine, three years was thestarting point for a commercial operation on something more than a minimal scale and 4½ years was the starting point for wholesaletrafficking, which included the case of Mr. Ma who had ½ pound of cocaine in his possession. A sentence of three years was imposed,overriding the conditional sentence imposed by the sentencing judge for a naïve 20 year-old first offender having good prospects forrehabilitation. The Court then cited R. v. Pankewich; R. v.

Gaveronski (2002) 2002 SKCA 7 , 161 CCC (3d) 534 from Saskatchewan wherethat province’s Court of Appeal established that the sentencing range for trafficking in cocaine in quantities between 10 and 16 ounceswas from 18 months to 4 years custodial. That Court felt that a conditional sentence of incarceration did not provide sufficientdenunciation or deterrence. 13. Recently, the Alberta Court of Appeal reviewed its sentencing principles in R. v. Tran

(2010) ABCA 317. In that case a, 24 year-old first offender was caught attempting to swallow a small amount of cocaine in a candy container. Police seized two empty candycontainers containing cocaine residue. He also had $2,230.00 in cash in his vehicle. While in police custody, the offender’s cell phonereceived calls from prospective purchasers.

Conditional sentences of two years less 16 days for possession of cocaine for the purpose oftrafficking, six months for possession of proceeds of crime and 15 days for obstruction of police were overturned in favour of 2 years and6 months for the possession charge, one year concurrent for the proceeds charge and six months consecutive for obstruction of the policeofficer. The Court reiterated that its starting point sentence for possession for the purpose of trafficking was 3 years in jail.

The Courtheld that there were only very slight aggravating circumstances and modest mitigating circumstances and concluded that the mitigatingfactors outweighed the aggravating circumstances, but only minimally. 14. The Nova Scotia Court of Appeal recently reviewed the case of a 43 year-old first offender found to be in possession of 311.9grams of cocaine, having a street value of between $23,000 and $31,000.00 in R. v. Knickle

(2009) NSCA 59. Mr. Knickle pleadedguilty to offences of possession of cocaine for the purpose of trafficking and careless storage of a firearm. He was sentenced to two yearsconditional sentence for the cocaine charge (which is an illegal sentence), and one month concurrent for the firearm charge. He was adivorced single parent of two teenagers, had no previous record, had a grade 9 education, had completed some courses in forestry andfishing and was qualified as a marine fishing master, class III. He worked as a fisherman until 2004 when he suffered a serious shoulderinjury, preventing him from working.

He was in receipt of worker’s compensation benefits. He intended on opening an auto dealershipand repair shop on his property and owned a home valued at $500,000.00. The mitigating circumstances considered by the sentencingjudge included the fact the accused had financial difficulties, had a good reputation and support in the community, was a hard workerand an excellent father.

The Court of Appeal stated that the sentencing judge erred by ignoring existing jurisprudence in Nova Scotiathat established a sentencing range for cocaine traffickers that exceeded two years imprisonment and by according little regard to theprinciples of general deterrence and denunciation. At paragraph 18, the Court stated that it had never approved or endorsed a conditionalsentence on charges of possession for the purpose of trafficking or trafficking in cocaine. It reiterated its stance citing from R. v.

Steeves(2007) NSCA 130 at paragraph 26: 26 “The importance of deterrence in sentencing cocaine traffickers must again be endorsed and reiterated as indicated by thiscourt recently in Steeves: 18. This court has been steadfast in emphasizing that deterrence is a primary consideration in sentencing for drug offences. InR. v. Robins, [1993] N.S.J. No.152 (C.A.), Chief Justice Clarke stated at p. 1: …The position of this court, repeated in many of our decisions since Byers, [1989] N.S.J. No. 168, is that there are no exceptionalcircumstances where cocaine is involved.

We are persuaded that general deterrence must be prominently addressed if the publicis to be protected from the nefarious trade that has developed in this drug that is so crippling to our society. See also, for example, R. v. McCurdy [2002] N.S.J. No. 459 at paragraph 15.

19. Trafficking in cocaine, or its possession for the purpose of trafficking, has traditionally attracted a federal term ofincarceration. In R. v. Dawe, 2002 NSCA 147 , [2002] N.S.J. No. 504, this court confirmed that a penitentiary sentence isthe norm in Nova Scotia in cases involving trafficking in cocaine. There the appellant had been sentenced to 15 monthsincarceration on charges of possession of four grams of cocaine, 200 grams of hashish and 225 grams of marijuana for thepurpose of trafficking, to be served concurrently. Hamilton J.

A. for the court, at paragraph 6 wrote: “The appellant has not satisfied us that the sentence is demonstratively unfit. To the contrary, the sentence is, if anything, undulylenient. Possession of cocaine for the purpose of trafficking typically results in sentences of two years or more, as the judgepointed out.” 15. The Court substituted the conditional sentence order that had been imposed by a penitentiary term of 3½ years.

Notwithstandingthe personal characteristics of the offender, the Court held that there were no extraordinary or exceptional circumstances in Mr.Knickle’s case that deserved consideration of the possibility of deviation from the normal range of sentence. 16. In New Brunswick, to my knowledge, the Court of Appeal has never directly addressed a sentence appeal for possession ofcocaine for the purpose of trafficking for street level trafficking cases. Their most recent pronouncement comes from an appeal againstsentence in a case involving trafficking in marihuana: R. v. Collier 2006 NBCA 92 , [2006] N.B.J. No 371.

In Collier, theprosecution appealed two concurrent conditional discharges handed down for trafficking in marihuana. The facts were unusual to say theleast. The accused, a 42 year-old taxi driver, picked up two attractive female passengers who were, unbeknownst to him, undercoverpolice officers. On both occasions, one of the females asked Mr. Collier to supply them with marihuana. On each occasion he arrangedto sell them the drugs. He himself was not a drug dealer but he acquiesced to the requests because the females were young and veryattractive.

He wanted to impress them hoping he could score with them and convince them to go out with him. He had to obtain thedrugs from a third party as he did not have any in his possession. He had one prior conviction for possession of stolen property whichhad occurred 17 years before. Both sales were less than $30.00 each. He lost his taxi license as a result of the convictions but expressedthe desire to continue working as a trucker. To do so, he needed to be able to cross the border between Canada and the United States,which would not be possible if he had convictions for trafficking.

He wanted to continue to support his family. He had three childrenand was expecting a fourth. The Court of Appeal overturned the sentences and stated its position concerning sentencing drug offendersat paragraphs 18 to 22 as follows: 18 “The guiding principle in sentencing drug traffickers in this province has long been held to be general deterrence. This wasarticulated by Hoyt J.A. (as he then was) in R. v. Madore (1986), (NB CA), 75 N.B.R. (2d) 230 (C.A.), [1986]N.B.J. No. 146 (C.A.)(QL) as follows (at paragraph 5 N.B.R.): This Court in R. v. Robichaud (1969), (NB CA), 2 N.B.R. (2d) 123; in R. v.

Cusack (1973), (NB CA), 6 N.B.R. (2d) 324; in R. v. Sutherland (1974), (NB CA), 10N.B.R. (2d) 221 and in R. v. Richardson (1977), (NB CA), 17 N.B.R. (2d) 105, pointed outthat courts, when sentencing drug traffickers, must give great weight to the principle of general deterrenceand that lengthy jail sentences are necessary to deter persons from entering this highly lucrative and hard todetect activity. Thus this Court recognizes, as have other courts, that emphasis must be placed on generaldeterrence when sentencing for this type of activity. 19. Of course, other factors must also be considered.

Hoyt J.A. continues at paragraph 6-7: In R. v. Cormier (1977), (NB CA), 16 N.B.R. (2d) 710 Hughes, C.J.N.B. pointed out thatgeneral deterrence was not, however, the only factor to be considered when soft drugs are involved.

At p.712 he said: Where, however, the offence involves trafficking or possession for the purpose of trafficking ofthe so-called soft drugs such as marijuana and hashish the courts must consider in addition tothe deterrent aspects of the sentence other matters such as the extent to which the accused isinvolved in the illicit trade, his character, background, criminal record if any, mode of life, andthe likelihood of his rehabilitation.

In my view, the former Chief Justice was not suggesting that these additional considerations have equalimportance to general deterrence when sentencing for trafficking in soft drugs. He was merely reminding usthat those factors must also be taken into account.

20. In R. v. Bourque (1989), (NB CA), 93 N.B.R. (2d) 423, [1989] N.B.J. No. 1166 (QL), our Court warned(at paragraph 6): […] To put it more plainly we are of the general view that convicted drug traffickers, whether dealing in hard or soft drugs, canlook forward to incarceration. 21. These principles were applied by this Court in Beckwith, a case involving an accused with a previous conviction fortrafficking, dating back five years, who had pleaded guilty to two charges of trafficking in marijuana after she had sold smallamounts of the drug to undercover police officers.

Sentences of nine months and three months imprisonment to be servedconsecutively resulted. 22. In my view, the sentencing principles adopted by this Court for trafficking offences are consistent with the requirements ofthe Criminal Code that govern sentencing generally and that are set out in ss. 718 to 718.2. Considering these principles, I am ofthe view that Mr. Collier should have been sentenced to terms of imprisonment for the trafficking offences he committed. Mr.Collier, who committed the offences on two separate occasions, must be deterred from such conduct.

Moreover, trafficking indrugs is conduct that must be denounced and, importantly, those who might be tempted to engage in such unlawful conduct mustbe deterred by appropriate punishment. Imprisonment is generally necessary to achieve those goals.” 17.

Notwithstanding that fit sentences for the offences committed by the taxi driver would have featured imprisonment, the Courtnonetheless imposed two consecutive two-month conditional sentences based on the fact the accused had complied with the probationorders imposed and on the fact the prosecution indicated it would not have appealed sentence had a conditional sentence been imposed inthe first instance. 18. A number of sentences involving trafficking or possession for the purpose of trafficking in cocaine have been dealt with in theCourt of Queen’s Bench of New Brunswick.

These are aptly summarized by Judge Walsh when he was in Provincial Court in the case ofR. v. Timothy Clayton Price

(2009) NBPC 34, at pages 10 and 11. The absence of conditional sentences as a sentencing option is quitestriking. 19. In two cases decided by the Court of Queen`s Bench in this region specifically dealing with similar offences, the learned Justiceexpressly refused to grant the request for a conditional sentence: R. v. Hachey and Wiley

(2008) NBQB 052 and R. v. Frenette (2009)2009 NBQB 81 , N.B.J. No 190. 20. In the Hachey and Wiley matter, Ms. Wiley was driving a vehicle in which Mr. Hachey was a passenger. They had beencohabiting for five years. In her purse, following her arrest, police found approximately 55 grams of cocaine. She also had jointpossession with Mr. Hachey of a fanny pack found in the glove compartment of the vehicle which contained 71 hydromorphone tablets,39 squares of LSD, 9 bags of cocaine totaling 28.64 grams and approximately 26 grams of marihuana.

Other drugs were found at Mr.Hachey’s residence following the vehicle search. The total value of the drugs was approximately $2000.00. The police believed theywere dealing with low level street traffickers. Both were convicted after trial on several counts of possession for the purpose oftrafficking charges involving the drugs seized. Mr. Hachey had a lengthy criminal record which included narcotics offences for whichhe had been incarcerated. Ms.

Wiley, a 29 year-old unemployed first offender who did not consume drugs, had her request for aconditional sentence refused notwithstanding she was not the primary target of the police investigation. She was sentenced to one yearjail on each charge, to be served concurrently. Mr. Hachey was sentenced to two years less one day on each charge. The judgeconsidered the harmful effects of drugs on our society and the principle that general deterrence is of paramount importance in sentencingdrug offenders. 21.

The Frenette case serves as an example of the importance judges must place on general deterrence in sentences involving drugtraffickers, even when dealing with well-respected members of our communities. Mr. Frenette sold one gram of crack cocaine toundercover operatives for $80.00 on three separate occasions. Following the third sale, a search warrant executed at his residenceresulted in the seizure of 64 grams of cocaine having a street value of $5000.00. Drug paraphernalia was also seized. The police hadindicated that they had him under surveillance for some time prior to his arrest. Mr.

Frenette was 59 years old and had no priorconvictions. Two years previously, he had befriended a female who was using and selling cocaine. When she left the area, he decided tocontinue the business. He completed high school, obtained a university degree in Economics, had two adult children and worked asassistant manager for the Royal Bank for twenty years before embarking on a very successful career in real estate sales. He had anestimated net worth of over a million dollars. He was also an active member in his community, including his church. He generouslygave of his time to charities.

In addition, he had a serious heart condition which necessitated regular consultations and meetings with hiscardiologist and suffered from depression. He was not a drug user, nor did he abuse alcohol. He requested but was denied a conditionalsentence by the learned justice. 22. In response to his lawyer’s plea that Mr. Frenette fell “within the limited and narrow window of suitability of a conditionalsentence” as being the appropriate sentence, Mr.

Justice Léger, recognizing that there could be exceptional circumstances where aconditional sentence might be appropriate held nonetheless that the conditional sentence in the case of Mr. Frenette would not meet therequirements of the principles and objectives of sentencing as set out in sections 718 to 718.2 of the Criminal Code. He stated thefollowing at paragraph 33: 33 “In my view, convicted drug traffickers, especially when dealing with hard drugs such as crack cocaine, can look toincarceration.

The principle of deterrence must be given great weight not only to specifically deter the accused, but also as ageneral deterrence to others like him who must be deterred from such criminal activities. Furthermore, trafficking in drugs, asin this case, must be denounced and those dealing in crack cocaine who might be tempted in getting involved in the lucrativedrug trade must be denounced and deterred. The principle of general deterrence must be emphasized. As stated by our Court ofAppeal, imprisonment is generally necessary to achieve these goals.” 23. Mr. Justice Léger sentenced Mr.

Frenette to a jail sentence of two years less one day. He also stated that had the prosecution not

taken the position that it was not requesting a penitentiary term and had Mr. Frenette not had such serious health problems, he would have imposed a longer prison term. STATUTORY PROVISIONS ON SENTENCE 24 . The most serious offence for which Mr. Melanson is to be sentenced, possession of cocaine for the purpose of trafficking, carries a maximum of life imprisonment: section 5(3)(

a) Controlled Drugs and Substances Act . Cocaine is a Schedule-I drug, which is classified with the most addictive of the drugs found in the schedules . 25 . Section 10(1) of the Controlled Drugs and Substances Act deals with the purpose of sentencing in drug matters but since it mirrors

section 718 of the Criminal Code , I will recite sections 718 to 718.2 of the Code only. 718 The fundamental purpose of sentencing is 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; (

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 and to the community. 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender… (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

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

(

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. 26 . The conditional sentence order is governed by

section 742.1 which reads in part as follows: 742.1 If a person is convicted of an offence...and the court imposes a sentence of imprisonment of less than two years and is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2, the court may, for the purpose of supervising the offender's behaviour in the community, order that the offender serve the sentence in the community, subject to the offender's compliance with the conditions imposed under

section 742.3. AGGRAVATING CIRCUMSTANCES 27 . The following are what I consider to be the aggravating circumstances in this case: (

a) The seriousness of the offence of possession for the purpose of trafficking in cocaine. Mr. Melanson had 30 grams of cocaine in his immediate possession which he attempted to hide from the police. He admitted that he had been selling cocaine for some time and that he had regular customers. This is not a case of a simple lack of judgment. It was deliberate, wilful and flagrant. He sold drugs for a living . (

b) Mr. Melanson had other drugs in his possession: cannabis resin, cannabis marihuana, hydromorphone and amphetamines which admittedly were for his personal use. He did not limit himself to one type of drug, rather he diversified. The 99 tablets of amphetamines is not an insignificant amount. (

c) Mr. Melanson was in the trade for profit. He was motivated by greed. He was not involved in order to support any habit he had but instead sold cocaine and other types of drugs in order to make a profit. He profited to the tune of $500.00 to $800.00 per week, which again is not insignificant. He was a fairly active dealer on a street level. He admitted that the $2,517.90 in cash seized by the police was drug money. MITIGATING FACTORS 28 . There are several mitigating factors.

a) Mr. Melanson has no prior convictions. At age 38, he is a first offender before the court.

b) He has never been a burden to society, having always worked to support himself. He had steady employment for 17 years prior to losing his job due to downsizing.

c) He has ambitions and goals. He wants to attend the N.B. Community College and get an accounting certificate. He wants to work again, be a part of his community and be a contributing member of society.

d) He has co-operated fully with the police by providing a statement to them and has co-operated with the justice system by pleading guilty to these offences. He must be given credit for pleading guilty: R. v. Parent

(2001) NBCA 60.

e) He apologized to the Court and admitted he made an error. I believe his expression of remorse to be genuine and his desire to get on with his life sincere. The likelihood of recidivism is small. His chances of rehabilitation are good. ANALYSIS 29 . In this matter in my opinion both a penitentiary term and a non-custodial sentence are excluded as being fit and proper sentences under the circumstances of this case. This allows for the possibility of the imposition of a conditional sentence.

That type of sentence addresses both punitive and rehabilitative objectives but requires the Court to consider in a comprehensive manner the sentencing principles attendant to the charges and circumstances of the offender. 30 . I must consider whether allowing Mr. Melanson to serve his sentence in the community would endanger the safety of his

community. I have determined that I really have no concern about the safety of the community should such an order be granted. I am convinced that Mr. Melanson would not resume the sale of drugs should he be allowed to serve his sentence in the community. He has learned his lesson and I believe he is at a low risk to repeat any such type of activity in the future, particularly since he has been accepted in a course at the community college which could serve him well in finding employment in the future.

Consequently, there is also little concern about any risk that could befall the community should he reoffend. 31 . I am of the opinion however that a conditional sentence order would not adequately address denunciation and the pressing need to deter the general public from embarking on such very lucrative ventures. The granting of a conditional sentence must be consistent with the fundamental purpose and principles of sentencing and in this case this requirement has not been met in my opinion. 32 . Cocaine is a powerful drug. It is highly addictive.

It is an odious drug which causes health problems to those who are addicted to it. It is a strong nervous system stimulant for which there is a direct and unassailable link to criminal activity. It is an expensive drug yet has no social barriers – people from all walks of life use it and become addicted to it. Its use can result in a high degree of psychological dependence and result in a great psychological injury. Its use and abuse must be dealt with sternly by the courts in order to curb its spread.

It is no wonder courts across the country have insisted that denunciation and general deterrence be the primary principles to be applied in their attempts to stop the sale of this type of drug. Prison sentences are typically imposed in cases involving trafficking in hard drugs because they are necessary to comply with the fundamental purpose of sentencing that all sentences must be proportionate to the gravity of the offence and the responsibility of the offender. They are necessary to deter not only the offender, but others tempted to engage in such activities: R. v. Dubai [2008] S.J.

No 229 at paragraph 5 . 33 . Mr. Melanson willfully became involved in the very lucrative field of selling drugs. He had a regular customer base and sold to make a profit. His product was highly addictive and promotes crime in his community. He had been selling cocaine for some time and made a good living at it. A conditional sentence in my opinion is not a fit and proper sentence for this offender for these crimes. A lengthy term of imprisonment is necessary to give true effect to the principles of deterrence and denunciation. 34 . For the offence of possession of cocaine for the purpose of trafficking, Mr.

Melanson will be prohibited from having in his possession any firearm, cross-bow, restricted weapon, ammunition and explosive substance for 10 years following his release from prison, and he is also prohibited from having in his possession any prohibited firearm, restricted firearm, prohibited weapon, prohibited device or prohibited ammunition for life. Any such items in his possession are forfeited to the Attorney General of New Brunswick. This is mandatory under section 109(2) of the Criminal Code . Also, I will order forfeiture of the money, scales and the marihuana pipe. Finally, for this offence, Mr.

Melanson will be sentenced to a jail term for a period of two years less a day. 35 . For each of the remaining three offences, a jail term of 4 months concurrent on each count is imposed. 36 . Considering the jail sentence imposed, I will waive payment of a victim fine surcharge. Dated at Bathurst, New Brunswick, this 19 th day of May, 2011. ___________________________ Ronald LeBlanc Provincial Court Judge