2013 QCCQ 13307, 2013 QCCQ 13307

R. c. Kasudluak 2013 QCCQ 13307 JC1649 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF ABITIBI LOCALITY OF INUKJUAK « Criminal division » N° : 640-01-024188-113 DATE : May 13, 2013 UNDER THE PRESIDENCE OF : HONOURABLE PAUL CHEVALIER, J.C.Q. THE QUEEN, c. Jeffrey-Pauloosie KASUDLUAK. SENTENCE [ 1 ] Mr. Jeffrey-Pauloosie KASUDLUAK pleaded guilty for having had in his possession, on or about April 12, 2011 in Inukjuak, 215 g of cannabis for the purpose of trafficking, and for trafficking in marihuana at the same place and at the same date, to wit 215 g of cannabis. [ 2 ] Mr.

Kasudluak accepted that another person use his P.O. BOX to receive the drug and he received 400$ for that.

He fully cooperated with the police during the investigation. [ 3 ] The Crown, insisting on the importance of denunciation an deterrence when imposing a sentence in the North for that type of offence, and relying on many cases where jail sentences were imposed ranging from 4 months to 22 months of imprisonment, asks the Court to sentence the accused to a term of incarceration of 8 months. [ 4 ] Defense counsel asks that the sentence be served in the community. [ 5 ] The mitigating factors are the plea of guilt registered by the accused, his cooperation with the investigation, the fact that he is has been attending a training program in a specialized field since January and that this course is supposed to last a year. [ 6 ] The aggravating factors are the fact that the accused accepted to be involved in this criminal activity just to get extra-money, the fact that trafficking in drugs in Nunavik causes much more social problems than in the South, and the fact that accused has previous convictions. [ 7 ] In October 2008, for breaking an undertaking, accused received a suspended sentence and was placed under probation for a period of three months.

In February, 2008, for two counts of possession of cannabis he was fined, on each count, one hundred dollars and placed under probation for a period of six months. In April 2008, for possession of a weapon for a dangerous purpose, the sentence was again suspended and the accused placed under probation for a period of nine months.

In October 2008, for failing to comply to a promise, for possession of a weapon for a dangerous purpose, for disturbing the peace, for being unlawfully in a dwelling house, for a theft and for a breach of probation, he was again placed under a supervised probation for a period of one year and ordered to perform a total of 170 hours of community service. In March 2009, for a breach of probation, an other probation was ordered for a period of one year and accused was ordered to perform another 20 hours of community service.

On March 14, 2011 he pleaded guilty to a charge of disturbing the peace and to a charge of possession of cannabis, for which he was finally sentenced a year later to another probation with 40 hours of community service to perform. [ 8 ] The accused therefore committed the present offences on April 12, 2011 while he was awaiting sentence, in particular for an offence related again to drugs, showing that he was still hanging around with people involved in drugs.

[ 9 ] The judgments referred to by the Crown sentenced the accused they were dealing with to different terms of incarceration, because these accused persons had not shown full rehabilitation. [ 10 ] On the other hand, in the file of Poasie Kaitak, a judgment of the Honourable Claude Bigué on December 21, 2010, the accused was ordered to serve a sentence of imprisonment of 20 months in the community for having in his possession over 4Kg of cannabis for the purpose of trafficking.

The mitigating factors outweighed the aggravating factors, that sentence was the result of a joint submission and accused had only one unrelated previous conviction for assault. [ 11 ] In order for a Court to allow a sentence of imprisonment to be served in the community, it must be satisfied that it would not endanger the safety of the community and that it would be consistent with the fundamental purpose and principles of sentencing. [ 12 ] Most of the crimes for which accused was previously sentenced were committed while he was under probation or awaiting a sentence.

Two of his prior convictions are for a breach of probation and three of them for breach of an undertaking, which indicate that he did not show much respect in the past for Court orders and for his own undertaking to abide by the law. [ 13 ] On the other hand the fact that for over two years he has not been charged with an other offence is reassuring.

The fact that accused is attending a long term course indicates that he wishes to lead a positive and law-abiding life, which also comforts the Court that he would not do anything to jeopardize his course and his future. [ 14 ] The Court is satisfied that a conditional sentence order in this case would not endanger the safety of the public. [ 15 ] But would such a sentence be consistent with the fundamental purpose and principles of sentencing ? [ 16 ] A jail term is certainly more deterrent and denunciatory than a conditional sentence order but, as the Supreme Court of Canada said in Proux , a C.S.0. can achieve these goals with restrictive conditions and a longer term of imprisonment than if the sentence had been one of incarceration. [ 17 ] More over the Criminal Code states, as a principle of sentencing, that a Court should consider "all available sanctions other than imprisonment that are reasonable in the circumstances with particular attention to the circumstances of aboriginal offenders." (sect. 718.2e) [ 18 ] The Court, in assessing accused's blameworthiness considers that someone who, on one occasion, accepts to lend his P.O.

BOX for 400$ to another person to allow that person to receive by mail half a pound of cannabis that he will then sell to many people is certainly less blameworthy than the one who organizes the delivery of the drug and then is repeatedly involved in drug trafficking to clear his stock. [ 19 ] The accused deserves a sentence of imprisonment.

Considering his involvement in his course to rehabilitate himself and live a positive life and the fact that for the past 25 months he was not charged with anything, considering that the mitigating factors outweigh the aggravating factors, the Court considers that the sentence of the accused can be served in the community. [ 20 ] The accused is therefore sentenced to a term of imprisonment of fifteen months to be served in the community if he respects the compulsory conditions of a C.S.O., and the following conditions : − Be on a house arrest for 8 months except : ➢ to meet whit his supervisor; ➢ for medical or religious or training purposes; ➢ for employment purposes; ➢ for performing community service; ➢ once a month, during 48 hours, with the consent of his supervisor, to perform traditional activities; ➢ for exceptional reasons with the consent of his supervisor; ➢ for shopping 3 consecutive hours once a week; ➢ December 24, 25, 31 st , 2013 and January 1 st 2014; − Be at his residence from 10:00 P.M. to 6:00 A.M. for the 7 following months with the same exceptions; − Perform 50 hours of community service within 5 months under the supervision of the supervisor; − Abstain from consuming or having in his possession any drug unless legally prescribed; [ 21 ] The accused will also be under a supervised probation which will be in force for a period of one year at the end of the conditional sentence order.

The accused will have to comply with the compulsory conditions of such order and will abstain from consuming or having in his possession any drug, unless legally prescribed; [ 22 ] The accused will have to pay the fine surcharges, 200$, within 6 months;

[ 23 ] The Court is also making the order provided by

section 109 of the Criminal Code prohibiting the possession of firearms and other weapons for a period of 10 years, with the exception provided by

section 113 of the Code. [ 24 ] The Court orders the forfeiture of the drug seized and its destruction. PC/nc PAUL CHEVALIER, J.C.Q. Me Nicolas Bigué, For the Crown. Me Jacques Stuart, For the accused. Date of the hearing : February 27, 2013