2021 QCCQ 11454, 2021 QCCQ 11454

R. c. Carre-El-Dib 2021 QCCQ 11454 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF GATINEAU LOCALITY OF GATINEAU “Criminal Division” No.: 550-01-120547-213 DATE: November 5, 2021 ______________________________________________________________________ PRESIDING: THE HONOURABLE RICHARD LAFLAMME, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutrix v. NOAH-GEORGE CARRE-EL-DIB Defendant ______________________________________________________________________ JUDGMENT ON SENTENCING ______________________________________________________________________ [ 1 ] The defendant pleaded guilty to a

summary offence of possession of ten and a half grams of cocaine. The defendant was 21 years old at the time of the offence and had no prior convictions. He must now be sentenced. He is liable to a $1,000 fine or imprisonment for a term not exceeding six months, or both. I. FACTUAL BACKGROUND [ 2 ] On September 5, 2020, the defendant purchased a bag of drugs in the bathroom of a bar. [ 3 ] A short time later, while patrolling, police officers noticed the defendant and a woman inside a parked vehicle. As they approached, they caught them consuming cocaine. He also had a bag of cocaine between his legs.

He was immediately placed under arrest. Ten and a half grams of cocaine were seized. [ 4 ] Because of the nature and quantity of the drug in the accused’s possession and the need to prioritize the objectives of denunciation and deterrence, the prosecution requests 15 to 30 days of imprisonment. In the alternative, should the Court find the suggestion too harsh, it suggests a sentence of 50 to 100 hours of community service. [ 5 ] Counsel for the young defendant instead recommends that his client be discharged.

He argues that the impact of a criminal record would close many doors to his client, both professionally and financially, such that a discharge would be in his best interests. The defendant is willing to perform community work to repair the harm caused to society. He is also willing to submit to supervised probation and, if the probation officer deems it necessary, enter treatment for drug addiction. [ 6 ] The Crown is firmly opposed to that proposal. II . ANALYSIS

A) SENTENCING PURPOSES AND PRINCIPLES [ 7 ]

Section 718 Cr. C. states that the 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. The sentence must achieve 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 or to the community.

[ 8 ] It is useful to recall that sentencing must be proportionate to the gravity of the offence and the degree of responsibility of the offender. It must also be individualized and personalized. Moreover, it should not reflect vengeance or a classification of offences, but instead the imposition of a moderate punishment focused on the individual. [ 9 ] To achieve the cardinal principle of proportionality in sentencing, the Court must consider, among other things, the aggravating or mitigating factors relating to the commission of the offence or the offender’s situation. [ 10 ] The following aggravating factors will be considered:

a) A hard drug is involved;

b) The quantity is relatively significant. [ 11 ] The Court will consider the following mitigating factors:

a) The guilty plea;

b) The defendant’s youth (22 years old);

c) The lack of prior convictions;

d) It is an isolated event that he regrets;

e) He has ceased all consumption;

f) He returned to the job market following his arrest;

g) He is working towards completing high school;

h) Although embryonic, he has a plan for his postsecondary and professional studies that is realistic;

i) He is willing to do community work to repair the harm done to the community by the commission of his offence. [ 12 ] The prosecution faults the defendant for failing to begin community work as proof of his rehabilitation. A remark is in order: the Court refuses to infer a lack of rehabilitation or willingness to repair the harm caused to society from this fact. As long as his guilty plea had not been accepted by the Court, he was presumed innocent and did not have to take any pre-emptive steps to lessen the sentence to be imposed. If such pre-sentence steps may often prove an offender’s rehabilitation and be considered as a mitigating factor, failing to foresee and take

part in such a measure at this stage in the proceedings absolutely cannot be accepted as an aggravating factor. [ 13 ] The prosecution also suggests that the Court should consider as an aggravating factor the fact that the defendant was behind the wheel of a vehicle while consuming cocaine and that he was the designated driver. There is no charge in connection with the operation, care or control of the vehicle. The future use of the vehicle is mere speculation.

At most, the Court considers this place of consumption as a factor that is slightly aggravating, maybe even neutral, given the circumstances of the interception. As the Supreme Court notes in R. v. Suter , [1] facts that are irrelevant to the gravity of an offence and to the level of the offender’s moral blameworthiness with respect to that offence cannot be relied on as aggravating in the sentencing analysis.

To consider such facts is an error in principle, which may cause a court to punish the offender for an offence for which he or she was neither tried nor convicted, and result in the imposition of an unfit sentence. [ 14 ] In addition to these circumstances, the Court must consider the principle of parity of sentences, whereby a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

Ensuring parity in sentencing is in itself a desirable objective, but the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. [2] [ 15 ] In fact, the scope, that is the limit, of that principle could not have been better described than it was by the Court of Appeal in Costa : [3] [ translation ] [97] The parity principle accommodates some disparity between sentences imposed on two offenders who have committed the same offence where, of course, the circumstances of the case so warrant. 24 Similarity remains a question of degree, the analysis of which is based on the nature of the offences at issue, similarities in the personalities of the offenders, and comparable circumstances. 25

[98] Parity of sentences will not always be possible “owing to the very nature of an individualized sentencing process”. 26 Factors such as the offender’s level of involvement and the realistic prospects for his rehabilitation should be taken into account when assessing the level of similarity between two people charged with the same crime. 27 Ultimately, the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender (s. 718.1 Cr.

C. ). [ 16 ] With regard to parity of sentences, the parties refer the Court to Berish , [4] arguing different aspects of that judgment. That judgment does not address the specific sentence imposed on that offender as much as it does the principles that should guide judges with regard to discharges, especially concerning young offenders. The Court will deal with the issue of discharge later. For now, it is worth noting that Berish proved that he had been convincingly rehabilitated. The quantity and variety of drugs possessed for the purpose of trafficking were far superior to those in this case.

With possession of over $70,000 and nearly 1 kilo of marijuana as well as 127 amphetamine pills (a chemical drug that is as hard and as harmful as cocaine) the Court of Appeal upheld a conditional discharge. [ 17 ] The Court has found a few judgments that are useful in sentencing the defendant. [ 18 ] In R. v. Le , police officers found 18 grams of cocaine in the accused’s handbag after searching a residence [5] where the accused’s brother had a “dial-a-dope” trafficking operation. The prosecution recommended a suspended sentence with an 18-month probation. The defence suggested a conditional discharge instead.

The accused was 25 years old and had no prior convictions. She was working part time and living with her sister and her children. Even if the judgment was silent on the best interests of the accused, a conditional discharge was imposed. One of the conditions was that she had to perform 50 hours of community work. [ 19 ] In R. v. Williamson Mercredi , [6] an 18-year-old young woman went to meet some friends in a motel. Police officers carried out a search. The accused was found in possession of 9.7 grams of cocaine and $4,000 she had hidden in her underwear for the accomplices.

She was liable to seven years of imprisonment. She did not have any prior convictions, and her pre-sentence report was favourable. She had since taken control of her life, had completed Grade 10, and was working as an administrative assistant. As in this case, the Crown recommended a short period of imprisonment along with probation. The defence proposed a suspended sentence. The judge accepted the second option while recalling that, generally, this type of offence resulted in a term of imprisonment.

A six-month probation order including, among other things, the condition to perform 60 hours of community work was imposed. [ 20 ] The judgment in R. v. Gosine-Beroog [7] illustrates that, despite large quantities and a great variety of drugs, a discharge remains possible. In that case, a search uncovered 2.4 kilograms of marijuana, 60 grams of psilocybin, and 3.4 grams of cocaine. The last two substances were the subject of

summary conviction proceedings. The prosecution sought a $5,000 fine whereas the defence wanted a conditional discharge. The accused was 25 years old and had no prior convictions. He was in business with a partner. He began using drugs and became addicted. His arrest was an eye-opener and ended what resembled a downward spiral. He took

part in Narcotics Anonymous meetings and reconnected with sobriety and the members of his family. He went back to school to become a real estate agent. He performed 50 hours of community work before sentencing. The bank with which he was doing business at the time of the charges closed his accounts. The prognosis for rehabilitation was excellent according to the judge who deemed that the accused had “slid out of character”. Concluding that a criminal record would have a serious impact on the young man’s career plans, he was granted a conditional discharge.

The judge recalled that many discharges are granted, especially to young offenders who plead guilty and who show a real change following the charges. That judgment is also in line with the argument of counsel for Mr. Carre-El-Dib that the accused might encounter problems in his dealings with banks if he were to have a criminal record. It is worth noting that evidence to this end had been adduced before the judge. [ 21 ] In R. v. Woodcock , [8] the accused was 23 years old, the father of two young children, and had no prior convictions. Police officers were called after shots were fired in an apartment.

The officers searched the accused’s room and found two bags of cocaine totalling 7.6 grams and 0.5 grams of Crystal meth. He was released under strict conditions, which he complied with for over six months, after serving 13 days of pre-trial custody. He pleaded guilty and expressed remorse. The accused had been using cocaine for 10 years. He had always been active on the job market. Despite losing his job with a car manufacturer due to the charges, he quickly found another job. He began and continued to go to counselling. He was working toward finishing Grade 12.

He was diagnosed with a borderline personality disorder for which he was receiving medical treatment. He was excellent at hockey and wanted to coach youths, his sons in particular, in the near future. [ 22 ] The prosecution was requiring 60 days in prison and 3 years’ probation. The accused was seeking a conditional discharge. [ 23 ] The judge recounted the important principle according to which a sentence “should constitute the minimum necessary intervention that is adequate in the circumstances”. [9] That

principle echoes ss. 718.2(

d) and (

e) Cr. C., that is, an offender should not be deprived of liberty if less restrictive sanctions may be appropriate and to consider all available sanctions, other than imprisonment, that are reasonable in the circumstances. Accordingly, Mr. Woodcock was conditionally discharged. [ 24 ] The Superior Court for Ontario [10] conditionally discharged a 29-year-old man who was convicted of possessing 2.4 grams of fentanyl, 12.6 grams of cocaine, and 5 oxycodone tablets. He had no prior convictions. He was the father of two children. He was working toward completing post-secondary studies in the food industry.

Furthermore, he was participating in treatment for his addiction. The prosecution recommended a sentence with a term of imprisonment of 4 to 6 months while admitting that a conditional discharge was a possibility.

The significant rehabilitation efforts deployed by the accused convinced the judge of the fairness of a conditional discharge despite the presence of fentanyl, among other drugs. [ 25 ] Even if the profiles of the defendant and Park are different, the fact remains that for a greater quantity and variety of drugs, not to mention the heightened dangerousness of fentanyl, a discharge was granted. [ 26 ] In R. v. Fink , [11] a 28-year-old accused pleaded guilty to charges of possessing 28.9 grams of cocaine for the purpose of trafficking and possessing 0.6 grams of methamphetamine. She had no prior convictions.

She had been addicted to drugs for many years. She was taking

part in a methadone program to control her addiction. Despite sentences ranging from 4 to 9 months of prison, the judge deemed it inappropriate to imprison the accused. A suspended sentence with an 18-month probation was instead ordered. [ 27 ] The Provincial Court of Newfoundland and Labrador granted a conditional discharge for a 20-year-old young man caught in possession of 3.5 grams of cocaine. [12] He had no criminal record. One of the conditions of the probation order provided for a $1,000 donation to a food bank.

The judge reviewed the range of sentences given in Newfoundland, which varied from an absolute discharge to a 3-month prison term. [ 28 ] In R. v. Nuttall , [13] the Superior Court for Ontario condemned a 37-year-old individual in possession of 29.4 grams of cocaine and a small quantity of methamphetamine to 90 days in prison. The prosecution was seeking a term of imprisonment of 6 to 8 months whereas the defence suggested a suspended sentence and to subject the accused to the conditions of a probation order. [ 29 ] This is only a short array of sentences rendered in cases involving simple possession of cocaine.

Thus, for a young, first-time offender with a similar quantity and a favourable rehabilitation profile, sentences other than imprisonment are not rare. (

B) THE SITUATION OF THE DEFENDANT [ 30 ] The defendant is now 22 years old and has been working full-time for a construction company since December 2020. He also recently enrolled in Algonquin College’s “Academic Upgrading program” to complete his high school English and mathematics. The college’s acceptance letter indicates that he will begin classes on September 13, 2021. [14] As such, he can now apply for financial aid that will help him pay for his tuition, among other things. He testified that he did not enroll in the program earlier because he could not afford the tuition or to purchase a computer.

Once he has completed this core program, he would like to pursue his education in construction project management. Other than the fact that the program is offered at Algonquin College, his knowledge of the program curriculum is no more than embryonic. Moreover, he would like to work as a project manager for one of the two large-scale companies he favours. These two well-known companies obtain government contracts. A friend told him that they perform background checks. [ 31 ] As for the offence committed, he acknowledges that he made a stupid mistake.

Since then, he has stopped using drugs, without seeking treatment. There is nothing to cast doubt on his claim especially since his drug habits were not raised during his testimony. III. THE SENTENCE [ 32 ] The Court sets aside the Crown’s recommendation of a term of imprisonment. It is a disproportionately harsh suggestion that ignores the fact that the defendant has taken himself in hand. To repeat, the objective of separating offenders from society should be considered “where necessary”.

This need cannot be analyzed only through the lens of denunciation and deterrence; it must also meet the other sentencing objectives. Furthermore, the suggested sentence is not similar to sentences imposed on similar offenders who committed similar offences in similar circumstances and who, overall, have similar profiles. The sentence also disregards less restrictive sanctions in circumstances where they are appropriate.

The alternative suggestion of imposing community work is more in line with the sentencing objectives and principles described above. [ 33 ] Is an absolute or conditional discharge a sentence that is proportionate to the degree of responsibility of the accused and the gravity of the offence committed?

[ 34 ] First, the offence alleged against the defendant is eligible for such a sentencing measure. [ 35 ]

Section 730 Cr. C. also provides that a discharge may be ordered when the court considers it to be in the best interests of the accused and not contrary to the public interest.

It is trite law that a discharge is not an exceptional measure limited to minor crimes. [15] [ 36 ] The best interests of the accused presuppose: that he has good morals, that he has no prior convictions, and that there is no need to deter or rehabilitate the accused through a conviction and significant negative consequences. [16] It is worth noting that the offender must simply establish a possibility of professional injury to demonstrate his or her best interests, not that it will be impossible to find a job in his or her field in the event of a conviction. [17] The defendant must present evidence showing that the adverse effects of the conviction are likely to occur: vague allegations are insufficient. [18] This

interpretation is in line with the later teachings of the Supreme Court in Suter , supra .

Tailoring sentences to the circumstances of the offence and the offender may require the sentencing judge to look at collateral consequences. [19] A collateral consequence includes any consequence arising from the commission of an offence, the conviction for an offence, or the sentence imposed for an offence, that impacts the offender. [20] Collateral consequences do not need to be foreseeable, nor must they flow naturally from the conviction, sentence, or commission of the offence; they must relate, however, to the offence and the circumstances of the offender. [21] [ 37 ] In this case, the Court considers that the best interests of the defendant have been proved.

First, he followed through on his plan to go back to school. He already works in the field of construction. Even if he still does not know much about Algonquin College’s construction project management program, his plan is realistic and related to his current job. Even if the evidence concerning the requirement to not have a criminal record to work for one of the companies is not optimal, the Court is aware that a conviction for possession of a

Schedule I narcotic will have consequences on a future security clearance giving access to some work sites, including those belonging to governments. A criminal record could make it difficult for him to not only get the desired job, but gain access to some work sites. Even in his current employment, he might be refused access to some work sites because of a conviction. It is not a hypothetical consequence. At worse, it is at least an indirect consequence that must be assessed for the purpose of determining the sentencing measures, especially where a discharge is considered.

To paraphrase the Court of Appeal in Berish , [ translation ] “at [22] years old, the future remains wide open. The impediment of a conviction could eventually become quite heavy, even if it cannot be determined as precisely today as it could be with an older offender”. [22] [ 38 ] The fact that the defendant has taken himself in hand and that his rehabilitation is well under way have convinced the Court that he presents a low risk of re-offending. He is active on the job market and is completing his education. He stopped taking drugs without any help.

He is ready to submit to the instructions of a probation officer to assess whether therapy is necessary. [ 39 ] That being said, the Court rejects the argument of counsel for the defendant that his client could also suffer banking consequences if a conviction were to be entered in his record. Contrary to the judgment in R. v. Gosine-Beroog , supra , the Court has no evidence concerning the defendant’s situation and considers that it is only a vague allegation. [ 40 ] The lack of a conviction due to a discharge must not be contrary to the public interest.

This does not mean that the discharge must itself be in the public interest. [ 41 ] Even if possession of cocaine is an offence that is highly prevalent in the District of Gatineau and that, generally, denunciation and deterrence are factors that should be given priority, it does not create an obstacle barring discharge. [23] Harbour allows the judge, for the purpose of assessing the public interest, to consider the reaction of a reasonable, informed person.

The defendant’s youth, his taking himself in hand and implementing a plan for his future mean that a reasonable person might conclude that a criminal record as punishment is disproportionate to his wrongdoing. [24] [ 42 ] Thus, a conditional discharge would not be contrary to the public interest. [ 43 ] The Court finds that the defendant’s rehabilitation, which has already begun, should be favoured. The filing of a charge, his passage through the justice system and his quickly taking himself in hand make it possible to find that there is no need to deter or rehabilitate the defendant through a conviction.

As the Court of Appeal stated in Berish , supra , this [ translation ] “young man well on his way to being rehabilitated, should benefit from a new start, free of the ball and chain that a conviction would represent”. Only a conditional discharge can achieve such an objective. It will allow the defendant to pursue his educational and professional plan.

The probationary supervision will also ensure follow-up with the rehabilitation that has begun and allow him to repair the harm caused to society through the performance of community work. [ 44 ] Given the nature of the sentence, the Court will exercise its discretion to exempt the defendant from paying legal costs.

[ 45 ] The victim surcharge set out in s. 737 Cr. C. is a sentence. The objective of a discharge is precisely to avoid entering a conviction in the defendant’s record. An order to pay the victim surcharge would defeat the objective sought. The Court considers that such an order would breach the proportionality of the sentence within the meaning of s. 737(2.1)(

b) Cr. C . Accordingly, the Court exempts the defendant from paying it.

FOR THESE REASONS, THE COURT: CONDITIONALLY DISCHARGES the defendant; ORDERS that the defendant be subject to the following conditions of a probation order for 12 months as of this day: - Keep the peace and be of good behaviour; - Appear before the court when required to do so by the court; - Notify the probation officer of any change of name or address, and promptly notify the probation officer of any change of employment or occupation. - Report to an officer within 2 working days of the making of this order, and thereafter, when required and in the manner directed by the probation officer; - Follow the advice and instructions of the probation officer, in particular concerning any therapy that could benefit the defendant in relation to an addiction to drugs or other intoxicating substances; - Abstain from using drugs or other intoxicating substances or having such in his possession, subject to a validly obtained medical prescription; - Abstain from being in places where illegal drugs are used, sold, trafficked, or distributed; - Perform 50 hours of community work within 10 months and abide by the terms for performing this work given by a probation officer or any other worker designated by that probation officer; - Sign the probation order without delay.

EXEMPTS the defendant from paying the legal costs and the victim surcharge. ORDERS the confiscation and destruction of the seized drugs. __________________________________ RICHARD LAFLAMME, J.C.Q. Mtre Alex Vallière Criminal and penal prosecutor Mtre Laurent-Roger Morin For the defendant Date of hearing: August 20, 2021