2015 QCCQ 205, 2015 QCCQ 205

Unofficial English Translation R. c. Charron-Gauthier 2015 QCCQ 205 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL "Criminal and Penal Division" No.: 500-73-004073-132 DATE: January 14, 2015 ______________________________________________________________________ PRESIDED BY: THE HONOURABLE NATHALIE FAFARD, J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutrix v.

Audrey Marie CHARRON-GAUTHIER Accused ______________________________________________________________________ SENTENCING JUDGMENT ______________________________________________________________________ 1. Introduction [ 1 ] JF1000 The accused, Audrey Marie Charron-Gauthier, pleaded guilty to the offence: on or about July 13, 2012, in Richmond, British Columbia, did possess "2CB", a substance included in

schedule III, for the purpose of exporting it, thereby committing an offence under section 6(2) of the Controlled Drugs and Other Substances Act. [ 2 ] On July 13, 2012, as she was about to leave Canada for Australia, the accused was searched at customs at the Vancouver airport and an illegal substance was found in her flight bag. The accused immediately admitted to the authorities that she also had substances hidden in her body cavities. A total of 10,140 2CB pills were recovered. [ 3 ] Shortly before the incident, the accused had met two individuals in a bar.

She told them of her dreams to travel and her financial difficulties. One of the individuals then suggested that she transport a quantity of drugs in exchange for money. [ 4 ] A few days later, this individual called her to give her instructions about where she could retrieve the drugs, how to transport them, and her destination. When the accused voiced some concerns, she was made to understand that she could not back out or she would have to pay for the value of the drugs. [ 5 ] Faced with this threat, the accused agreed and followed the instructions.

She was promised a reward in the amount of $30,000, which she would never receive. 2. Analysis [ 6 ] The offence is punishable by a ten-year maximum prison sentence. There is no minimum sentence stated under the law and conditional sentences were possible when the offence was committed. [ 7 ] The prosecution seeks a custodial sentence between eighteen and twenty-four months. In support of this, it submits a table of judgments concerning the importation of ecstasy.

In these judgments, the sentences vary from two years to forty-four months of imprisonment. [1] The judgments submitted date from a time when ecstasy was a substance included in

Schedule III of the CDAOSA. [ 8 ] The defence, for its part, acknowledges that a prison sentence would be appropriate for this type of offence. In light of the accused's personal situation, however, it seeks to have this sentence served in the community. To this end, it submits judgments mainly concerning offences for trafficking and possession for the purpose of trafficking substances. [2] [ 9 ] In

section 718, the Criminal Code provides that 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: to denounce, to deter, to separate, where necessary, to assist rehabilitation, to provide reparations for harm done, and to promote a sense of responsibility in offenders, and acknowledgement of the harm done. [ 10 ] The possibility of treatment for offenders in the cases listed under

section 10 of the CDAOSA is added to these objectives. [ 11 ] The fundamental purpose stated under

section 718.1 is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Thus, sentencing must be individualized, guided by the purposes and principles set out in the Criminal Code and apply to the offender's actual situation. [ 12 ] To do so, the Court must consider the aggravating or mitigating circumstances related to the commission of the offence or the personal situation of the offender. 2. 1 Mitigating factors and situation of the accused [ 13 ] The Court accepts the following mitigating factors: the age of the accused, the guilty plea, the lack of a criminal record, and the remorse expressed. [ 14 ] The accused is a young woman of twenty-eight.

She does not have a criminal record. She asked to have her case transferred from Vancouver to Montreal to plead guilty.

She has been released since the beginning of the proceedings. [ 15 ] She collaborated with the authorities from the moment the substances were discovered in her bag and admitted to having a quantity of them inside her body. [ 16 ] In the pre-sentence report prepared for the Court, the probation officer describes a young woman with no particular criminal past, from an adequate family, and who has never had any run-ins with the law. [ 17 ] After leaving a difficult relationship, the accused worked at Bell for two years. She decided to quit that job and use her savings to travel.

That was when she met the individuals who suggested that she transport drugs. [ 18 ] The accused did not mention this to her family and it was only after her arrest that they found out.

Today, she is both ashamed and, to a degree, relieved that she was arrested. [ 19 ] The report refers to [ translation ] "circumstantial criminality, resulting from her foolishness and naiveté" where greed was at the core of the criminal actions since the accused has no personal consumption issues. [ 20 ] She spoke of her remorse to the probation officer, who concluded that there was little chance of re-offending. [ 21 ] Since the commission of the offence in 2012, however, the accused has not, strictly speaking, reintegrated into the work force.

She is living with a family friend who pays for all her needs, and in exchange, she takes care of the home and the children who are there in accordance with a shared custody agreement.

This work is not declared. 2.2 Aggravating factors [ 22 ] As for the aggravating factors, the Court accepts: the gravity of the offence, the dangerousness of substance, the quantity transported, the greed. [ 23 ] This is an offence of possession for the purpose of exporting a substance rather than possession for the purpose of trafficking. [ 24 ] According to the expert report that was filed, 2CB is a synthetic drug that causes severe hallucinations and effects that are compared to MDMA when taken in small doses, and to LSD in stronger doses.

Often sold as speed or ecstasy, 2CB is inexpensive and has a young customer base. It is considered dangerous because the combination of substances from which it is made cannot always be identified. [ 25 ] The quantity transported was significant (10,140 pills). The individual market price of these pills varies between $3 and $10. [ 26 ] Greed was the only factor motivating the accused to commit the crime. She is not struggling with an addiction that compelled her to commit an offence. She does not use drugs.

Although at one point she expressed doubts about her involvement in the suggested plan, she did not seek counsel or disclose the situation, but gave in to the threat of having to repay the value of the drugs and to the lure of the reward. [ 27 ] It is well established that the role drug mules play in the importation and exportation of substances is an important one.

There is no doubt that the accused was an ideal candidate for evil-minded individuals seeking to have illegal substances transported overseas. [ 28 ] Drug mule recruits must be aware of the risks involved in agreeing to participate in this type of activity. The sentences imposed by the courts in these matters are and must be exemplary to deter anybody else from agreeing to take on such a role. [ 29 ] In this context, although the accused may appear to be a good candidate for a prison sentence to be served in the community, the principles of denunciation and deterrence must take precedence.

Thus, a prison sentence to be served in the community would not be an appropriate sentence. [ 30 ] The sentence sought by the prosecution is at the lower end of the range of sentences imposed for similar offences. 3. Conclusion [ 31 ] Considering all the factors;

[ 32 ] Considering the case law in similar matters; [ 33 ] The Court imposes a custodial prison sentence of two years less one day. [ 34 ] This sentence will have an accompanying probation order of two years, with the following conditions: - Keep the peace and be of good behaviour. - The accused is prohibited from being in possession of drugs or narcotics, except with medical prescription; - The accused is prohibited from communicating with or being in the presence of persons who she knows use or sell drugs or narcotics; [ 35 ] Order pursuant to

section 109 Cr. C. for ten years. [ 36 ] Order of forfeiture and destruction of the seized substances. __________________________________ NATHALIE FAFARD, J.C.Q. Mtre Isabelle Desrosiers For the prosecution Mtre Gilles Pariseau For the accused Date of hearing: January 24 and September 11, 2014