r v. SERGIO, 2017 QCCQ 12971

R. c. Bulgarelli 2017 QCCQ 12971 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC CITY OF MONTRÉAL "Criminal and penal division" N° : 500-01-122909-150 500-01-130046-151 500-01-143928-163 DATE : November 9, 2017 BEFORE THE HONOURABLE JUSTICE LORI RENÉE WEITZMAN, J.C.Q. THE QUEEN Prosecutor v. SERGIO BULGARELLI Accused SENTENCE The charges [ 1 ] Mr. Sergio Bulgarelli (“Bulgarelli”) pleaded guilty to the following charges: File 500-01-143928-163 On June 16, 2015: Possession for the purpose of trafficking of 1.5 kg of cocaine (5 (2) (3) (

a) of the CDSA ); simple possession of 3.5 g of psilocybin, (Sec 4 (1) (6) (

a) of the CDSA ); simple possession of 35 g of marijuana (4 (1) (1) (4) (

a) of the CDSA ). File 500-01-130046-151 Between February 4 and March 9, 2015: Using a forged driver’s license as if it were genuine (368 (1) (a) (

c) of the Cr.C . ); on June 16, 2015: possessing 50 credit cards knowing they were obtained, made or altered by the commission of an offence (342 (1) (c) (

e) Cr.C. ); and possessing an instrument that he knew was used for copying credit card data for use in the commission of an offence under 342 (3) (342.01 (1) (

a) Cr.C. ). File 500-01-122909-150 On June 16, 2015: Two breaches of a recognizance: one prohibiting the possession of banking documents not in his name and the other prohibiting the possession of any device or material used to copy, clone or read credit cards. (145 (3) (

b) Cr.C . ). The issue [ 2 ] Bulgarelli spent a little over five and a half months in pretrial custody and then voluntarily entered a drug treatment program at Centre l’Envolée (“L’envolée”). In addition to determining the appropriate the sentence, the Court must decide whether the time Bulgarelli spent in a closed drug treatment facility is to be treated as “time spent in custody” pursuant to section 719(3) of the Criminal Code ( C.Cr. ).

The facts [ 3 ] A police investigation regarding a criminal organization distributing cocaine on the island of Montreal began in December 2013 and eventually led to the arrest of Bulgarelli. [ 4 ] Bulgarelli was spotted on several occasions during the lengthy investigation which involved over 200 hours of police surveillance and covert entries to locate drug stashes. From April to August 2014, one such stash of drugs was located at 4991 Elliott #402 in Laval, where the police spied various “drug type” transactions.

Although no evidence specifically links Bulgarelli to these transactions, he resided at that apartment during that period. [ 5 ] These details merely serve as background information leading up to the present charges, as it must be emphasised that Bulgarelli does not face any charges with respect to that period. [ 6 ] During the course of their investigation, the police uncovered evidence regarding an incident which occurred between February

and March 2015 in which Bulgarelli used a forged driver’s license to collect various items imported from the United States (a poker table, poker chips, and chairs). [ 7 ] On June 16, 2015 a police search at Bulgerelli’s address (1130 Mattawa #503 in Laval) yielded the following: $950 cash, 35 g of marijuana, 2 g of cocaine, 3.5 g of psilocybin (mushrooms), 4 “kilo bags” containing residue of cocaine, as well as material to clone credit cards (50 cards with a magnetic stripe, three instruments used for cloning credit cards “encodeuses” and various gift cards).

In a locker related to this apartment the police seized 1.5 kilos of cocaine, other material designed to forge credit cards and an electronic scale. [ 8 ] Because Bulgarelli was found in possession of the said credit cards which were not in his name, as well as the instruments used to clone credit cards, he was thus in breach of two conditions of a recognizance in an unrelated matter. [ 9 ] Despite suggesting that the Crown’s evidence with respect to the legitimacy of the warrants obtained might have validly been the subject of a Charter motion, Bulgarelli pleaded guilty to all of the charges in May 2017.

He was initially detained in pretrial custody and was then released in order to begin a closed-therapy for the treatment of his drug addiction. [ 10 ] As far as the motive for the crime, the prospect of making easy money to feed his drug addiction was the lure held out to Bulgarelli. He was an easy pawn with no criminal record, who could provide a safe place to stash important quantities of drugs and contraband. The profile of the accused [ 11 ] Bulgarelli is 25 years old. He has no criminal record.

After growing up in an environment fraught with many conflicts, where his parents had unduly high expectations that he could not meet, Bulgarelli now has little, if any, contact with his parents. He began consuming marijuana at the age of 16, leading to a serious drug addiction. [ 12 ] The pre-sentence report notes that the 5 and a half months of pretrial custody had a deterrent effect on Bulgarelli. Nevertheless, the probation officer finds his remorse to be superficial.

She refers to Bulgarelli’s egotistical, impulsive, dishonest and manipulative behaviour and estimates the risk of recidivism to be high: « Son tempérament combiné à la précocité et la chronicité de ses agirs criminels, sa disposition à côtoyer des pairs marginaux et son adhésion à des valeurs et des attitudes procriminelles représentent des besoins criminogènes. L’absence de liens gratifiants avec sa famille et sa parenté représente également un élément préoccupant.

Considérant les éléments qui précèdent et les limites thérapeutique liées à sa rigidité au niveau de ses pensées, nous évaluons le niveau de risque de récidive comme étant élevé. » [ 13 ] The pre-sentence report also notes that Bulgarelli denied having any knowledge of the drugs he was hiding in his apartment. This lead to a request by his lawyer to cease representing him and the announcement by his new lawyer that a withdrawal of the guilty plea would be contemplated. Finally, at the last court date, Bulgarelli confirmed that he accepts full responsibility for his actions.

He explained that he was holding out some faint hope that he could beat the charges, and thus avoid a criminal record. He now fully recognizes his guilt. [ 14 ] The report from l’Envolée, where Bulgarelli completed his drug treatment therapy is somewhat more positive. His disciplinary record was good and he was generally able to benefit from weekend passes from the Center. The counsellor at l’Envolée believes that the jail time he served was a wakeup call for Bulgarelli who now recognizes his poor choices and the deleterious effects of his substance abuse and negative peer influences.

However, the report notes that Bulgarelli became disengaged by the end of the therapeutic process. [ 15 ] Bulgarelli also testified. After grappling with a serious addiction to marijuana, in addition to consuming cocaine, mushrooms and Adderall, he has been sober since he began his treatment at l’Envolée in December 2015. He has created his own companies, “AutoNation” buying and selling cars, and “Throw Back tours”, providing tours in Old Montréal. He also works occasionally for a delivery start-up company called “SnapGrab”, and has proven to be punctual and hard-working.

The Defense position [ 16 ] Bulgarelli asks the Court to consider the mitigating factors and allow him to continue with the progress he has made to date. He feels that any prison term would be a setback for him, considering the difficult time he spent in prison during the pretrial detention, and the fact that he successfully completed his rehab treatment and is now sober. He is willing to perform 240 hours of community service.

Taking into account the equivalent of nine months of pretrial detention, as well as six months spent full-time at l’Envolée, he requests a suspended sentence with a three-month probation and follow up. This will ensure that he continues on the right path, maintaining his sobriety and his full-time employment in order to avoid any risk of reoffending. Referring to some examples of sentences imposed in similar matters [1] , the defence suggests that society would be best served by a sentence that does not require him to go back to jail.

The Crown position [ 17 ] The Crown prosecutor submits that an appropriate sentence would be a global sentence of 24 months in all three files combined. The prosecutor asks that the Court impose a sentence that is sufficiently deterrent, particularly in view of the large quantity of cocaine that was seized, noting that Bulgarelli’s willful blindness as to the quantity of drugs stashed in his care in no way diminishes his moral blameworthiness. The prosecutor reminds the Court of the important role played by the custodian of drugs, and refers to R. v.

Barrett [2] where the Court of Appeal explains: 31 Custodians of hard drugs play an essential role in organized crime. Without them, the proximity between the drug supply and the drug users is difficult to maintain. The dispersal of a drug traffickers' inventory amongst different custodians also leads to a reduction in the dimension of seizures by the police. It allows for the principals in the drug trade to distance themselves from the drugs themselves. In

short, drug trafficking is more difficult and more risky for major drug traffickers without the assistance of custodians. By storing drugs in their homes, custodians take on an important role in the drug trade in that the drugs in their care are often out of reach of the police. General principles [ 18 ] The fundamental principles of sentencing are codified in sections 718 and following of the Criminal Code . The goal of sentencing is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society. This goal is met by the imposition of sanctions intended to meet one or more of the following objectives:

a) to denounce unlawful conduct;

b) to deter the offender and others from committing offences;

c) to separate offenders from society when necessary;

d) to assist in rehabilitating offenders;

e) to provide reparation 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. [ 19 ] The Court must be mindful of the principle that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances.

A sentence should be similar to sentences imposed on similar offenders for similar offences. [ 20 ] 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. [ 21 ] The objective gravity of offences is illustrated by the maximum penalty set out by the legislator. The maximum penalty for the count of possession for the purpose of trafficking of cocaine, is life imprisonment, whereas the other offences in question here carry lesser penalties.

The Court must also consider the appropriateness of consecutive sentences for unrelated transactions without imposing an unduly harsh global sentence. [ 22 ] With respect to the degree of responsibility of the offender, the Court takes into account the aggravating and mitigating factors summarized below. The mitigating circumstances [ 23 ] Bulgarelli is young and has no criminal record- both important mitigating factors. He was 22 years old at the time of his arrest, and he has since learned important lessons from the poor choices he made in the past.

As well, he entered guilty pleas and spared the system the time and expense of a trial, despite an opportunity to present a Charter challenge based on certain issues with the search warrants. However, he only pleaded guilty in May 2017, close to two years after his arrest, so we cannot speak here of a “swift” guilty plea. Further, after registering his guilty plea, he tried to recant his admission of guilt, only to finally accept his responsibility another 5 months later.

As such, although this factor remains a mitigating one, it is not an unequivocal reflection of remorse and responsibility. [ 24 ] Since his release form prison, Bulgarelli, has respected his court–imposed conditions, and has made serious efforts to remain on the right path: he works, he no longer consumes any drugs, and he has cut his ties with peers who are involved in crime or who may be negative influences. He fully participated in the program at l’Envolée, living there for 6 months, and acted as a motivator for other residents at the facility.

It must be noted, however, that he did not pursue the recommended follow-up treatment after leaving the facility. Thus, although he remains drug-free, and stated that he is willing to follow any program the Court imposes, his motivation to follow the post–treatment follow-up is lacking. The aggravating circumstances [ 25 ] The nature and quantity of the drugs on the count of possession for the purpose of trafficking cocaine is an important aggravating factor: the sentence must reflect that 1.5 kilos of cocaine were seized from Bulgarelli’s apartment.

The Court need not reiterate the well- known dangers of this drug and the devastating consequences brought on by addiction as well as the cycle of criminal activity that often plagues its users. The importance of deterrence and denunciation in such matters is emphasized by all levels of Canadian courts. Of course the sentence must reflect the rehabilitation of the offender, but it must not be so lenient as to ignore the objectives of general and specific deterrence. [ 26 ] The Court must also consider the many offences committed in arriving at a fair global sentence.

Moreover, while Bulgarelli speaks of having made a mistake, or a poor choice, in fact, allowing the use of this apartment to store cocaine, as well as items used in the cloning of credit cards, is not a momentary lapse in judgment. Bulgarelli was found with a forged driver’s license in March 2015, and the evidence shows that he was peripherally involved with this circle of drug traffickers since April 2014.

The Court also considers the breaches to be particularly aggravating, given that serious offences were committed while he was under the Court’s supervision, awaiting trial in another matter (for which he has since been acquitted). [ 27 ] Finally, despite his serious efforts of rehabilitation, the probation officer maintains that the risk of reoffending remains high- a significant aggravating factor. Pretrial detention

[ 28 ]

Section 719 of the Cr.C . provides:

(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.

(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody (…). (Emphasis added) [ 29 ] As the Supreme Court of Canada explains in R. v.

Summers , [3] offenders should receive credit for time spent in custody while awaiting sentence, and this credit should reflect the nature of such custody, both quantitatively and qualitatively: “Time in a remand centre does not count for the purposes of eligibility for parole, earned remission or statutory release, and this can result in a longer term of actual incarceration for offenders who were denied bail.

Moreover, conditions in remand centres tend to be particularly harsh; they are often overcrowded and dangerous, and do not provide rehabilitative programs”. [ 30 ] In the present case, both parties agree that the period spent detained in pretrial custody from June 16 to December 4, 2015 (5.65 months) should be subtracted from any incarceration imposed, as enhanced credit on 1.5:1 basis.

The issue raised by the accused is whether he should be granted a further credit on a 1:1 or 1.5:1 basis for the 6 months spent at l’Envolée. [ 31 ] With respect to the credit due for time spent in a closed rehabilitation facility, there is no doubt that such time -particularly where an offender has made the significant effort required to successfully complete such a program- can be considered as a mitigating factor on sentence. This is so whether the treatment program was court-ordered, or voluntarily undertaken, as here, by the offender himself.

Whether the consideration of this mitigating factor can specifically lead to the credit referred to in

section 719 of the Cr.C . is a different question. [ 32 ] Many decisions in this jurisdiction have specifically awarded a credit commensurate with the amount of time spent in a rehabilitation facility. Recently, in R. v. Rivet [4] , the Superior Court of Québec allowed for a credit of 1.5 days per day spent in full-time therapy. In R. v. Brunet-Ducharme [5] , the Court of Québec canvasses several examples of such credit applied in first instance, [6] and refers to three Québec Court of Appeal cases which condone the practice of granting sentencing credit in such circumstances [7] .

However, the foundation for this type of credit calculation is not examined. In R. v. Brunet-Ducharme , the judge specifically grounds the applicable credit in the wording of

section 719 Cr.C . , opining that an offender is essentially “detained” and as such “in custody” [8] during the course of closed treatment. [ 33 ] Conversely, in R. v. Hamelin [9] , the Court of Québec held that time spent 24 hours a day in a rehab facility cannot be considered as “time spent in custody” pursuant to section 719 (3) and (3.1) of the Cr.C . The Hamelin decision applies the reasoning of the Québec Court of Appeal in R. v. Larouche [10] which addressed the issue credit for time spent while an offender was released on bail, subjected to 24-hour-a-day house arrest.

In Larouche , the Québec Court of Appeal concluded that stringent bail conditions may be considered as a mitigating factor but not in the sense of a “sentence reduction”, calculated to lessen the sentence otherwise imposed [11] . [ 34 ] This Court is of the view that the more compelling reasoning recognises that pre-trial release, even under stringent circumstances, and even where an offender is “detained” in a rehabilitation facility, is not pre-trial custody [12] , or, as stated plainly by the Manitoba Court of Appeal, “bail is not jail”. [13] As summarised by Clayton Ruby [14] : 13.61 While stringent bail conditions may function as a mitigating factor, they do not function as “credit” in the same way as pre- sentence custody.

Likewise, an offender is not eligible for pre-trial custody credit for time spent in a treatment facility. [ 35 ] In the present case, the Court will consider as a mitigating factor the time spent at l’Envolée, where Bulgarelli received positive reports for his commitment and involvement in the program. For the first two months he remained at the facility 24/24, and for the next four months he was granted weekend leaves. This period need not operate as a mathematical reduction of an otherwise appropriate sentence.

However, as a tangible consideration of this mitigating factor, the time spent at l’Envolée will effectively serve to reduce the sentence by 5 months, reflecting the serious commitment required to complete such a program and the importance of encouraging Bulgarelli and similar offenders to remain drug-free and sober as a concrete measure to reduce recidivism.

Conclusion [ 36 ] For these reasons, the Court imposes a global sentence of 19 months, apportioned as follows: In file 500-01-143928-163 : ▪ Count 1: 19 months, less a credit of 5 months at l’Envolée and less a credit of 8.5 months for time served in custody (5.65 months x 1.5), amounting to 5.5 months from today; ▪ Count 2: 1 month concurrent; ▪ Count 3: 2 months concurrent. In file 500-01-130046-151 : ▪ Count 1: 4 months concurrent; ▪ Count 3: 5.5 months concurrent; ▪ Count 4: 5.5 months concurrent.

In file 500-01-122909-150 : ▪ On both counts of breach, 15 days, concurrent with each other, but consecutive to the sentence in file 500-01-143928-163. The global sentence to be served as of today is 6 months. In files 500-01-130046-151 and 500-01-143928-163 : ▪ A 3-year probation order is imposed with 2 years of follow-up.

He will have to meet with a probation officer within 72 hours of his release from prison and thereafter as required; ▪ He will perform 120 hours of community service within the first year of probation; ▪ He will enter and complete any program recommended by the probation officer, namely psychotherapy, and NA meetings; ▪ It is forbidden for him to consume or possess any drugs except with a validly obtained medical prescription; ▪ It is forbidden for him to communicate with persons who, to his knowledge, have a criminal record or a pending case; ▪ The mandatory order pursuant to

section 109 is imposed, prohibiting the possession of all weapons listed in 109 (

a) for 10 years and in 109 (

b) for life; ▪ The Court orders the forfeiture and destruction of all drugs and material seized and further orders that the amount $950 seized be forfeited for the benefit of the Attorney General of Québec. __________________________________ LORI RENÉE WEITZMAN, J.C.Q. M e Éric Poudrier Attorney of the DPCP M e Jonathan Abramovici Attorney of the accused Date of hearing: October 17, 2017 [1] R. c. Lavertue , 2010 QCCQ 3163 ; R. v. Aabedi , 2010 BCSC 1095 ; R. v. Kane, 2011 NLTD(G) 159; R. v. Innes , 2012 ABCA 283 ; R. v. Quesnel , 2015 QCCQ 14832 .