R v. JEFFREY, 2017 QCCQ 8133

R. c. Colegrove 2017 QCCQ 8133 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Criminal Division No: 500-01-112556-144 DATE: July 18, 2017 ______________________________________________________________________ BY THE HONOURABLE MÉLANIE HÉBERT, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN PROSECUTOR v. JEFFREY COLEGROVE ACCUSED ______________________________________________________________________ JUDGMENT ______________________________________________________________________ THE CONTEXT [ 1 ] On July 14, 2014, Mr.

Colegrove was granted statutory release with conditions from the Donnacona Institution. He was serving a sentence of 9 years and 6 months. [ 2 ] While on release, he took Rivotril without mentioning this to his probation officer and without having a valid prescription. [ 3 ] On September 29, 8 days prior to his full release, the presence of Aminoclonazepam was detected in his urine sample. A meeting with his probation officer was scheduled for the next day at 9:00 AM. [ 4 ] He did not attend the meeting.

He called to further inquire about the situation and he was told that providing a prescription for Rivotril would dispense him from attending the meeting. [ 5 ] On October 1, Mr. Colegrove’s doctor wrote to the probation officer confirming that he had received a prescription for Rivotril in the past, and that this drug could be prescribed to him in the future. [ 6 ] The parole officer considered Mr. Colegrove in breach of his statutory release conditions as he had been taking Rivotril without a valid prescription. He scheduled a disciplinary meeting for October 2. [ 7 ] Mr. Colegrove was aware of this meeting.

He had several discussions with his parole officer. Yet, he did not attend the meeting on October 2. A warrant for his arrest was issued. [ 8 ] Mr. Colegrove was advised of the pending warrant. He told his parole officer that he would report to the police but instead, he fled. [ 9 ] On February 25, 2015, the police intercepted Mr. Colegrove. He identified himself properly even though he had a false identity card in his possession. He was arrested for being illegally at large.

He was also arrested for drug possession for the purpose of trafficking and for possession of three firearms. [ 10 ] On October 29 2016, a jury found Mr. Colegrove guilty of possession for the purpose of trafficking cocaine. The jury was dead- locked on the three charges regarding the firearms. Mr. Colegrove was ultimately acquitted of these charges. [ 11 ] On January 13, 2017, Justice Brunton sentenced Mr. Colegrove to 12 years of prison for the drug charge.

[ 12 ] On June 15, 2017, Mr. Colegrove pleaded guilty to the charge of being illegally at large. A joint statement of facts setting out the circumstances of the offense was filed by the parties [1] . THE EVIDENCE [ 13 ] At the sentencing hearing, the prosecution filed Mr. Colegrove’s criminal record [2] . It shows that this was not the first time that he was convicted for being illegally at large. He was convicted in December 1988 and was sentenced to 4 months in prison to be served consecutively to any other sentence.

He was again convicted in May 2014 and was sentenced to 30 days in prison to be served consecutively to any other sentence. [ 14 ] His criminal record also shows numerous convictions for administration of justice type offenses as well as for narcotic-related offences, culminating in a sentence of 9 years and 6 months of prison in 1997. In fact, Mr. Colegrove has been in and out of prison since the late 80’s, when he was in his 20’s. He is now in his 50’s and has just been sentenced to 12 years of prison [3] . [ 15 ] The prosecution filed a correctional plan which bears two dates: March 7, and August 5, 2014 [4] .

It is not signed but appears to emanate from the Correctional Service and to contain excerpts from Mr. Colegrove’s file. The correctional plan indicates that Mr. Colegrove’s deviant and criminal lifestyle began fairly early on and has been persistent. His criminal behaviour is guided by lure of gain and desire for immediate gratification of his psychological and financial needs. He has prosocial values but his lifestyle has been guided by antisocial values. While in custody, his involvement in his correctional plan was limited.

His reintegration potential was assessed as being low. [ 16 ] The prosecution also filed a “Prosecutor’s information Sheet” to which various documents were attached including a “Rapport d’InfoPol” [5] . The “Rapport d’InfoPol” summarises Mr. Colegrove’s criminal history and states that the risks of recidivism are present given his low motivation level and reintegration potential. [ 17 ] Evidence of the offender’s character and reputation or risk of re-offending is relevant at the time of sentencing for the purpose of determining the appropriate sentence for the offence for which he has been convicted [6] .

That being said, in the matter at hand, the correctional plan and the “Rapport d’InfoPol” bring little additional information on these issues as Mr. Colegrove’s criminal record speaks for itself. [ 18 ] As for Mr. Colegrove, he called no witnesses and elected not to testify. He filed a transcript of the sentencing hearing before Justice Brunton [7] .

THE POSITION OF THE PARTIES [ 19 ] The prosecution is seeking a sentence of 12 months of imprisonment to be served consecutively to any other sentences. [ 20 ] While it recognizes that this sentence is in the higher tier of the range of sentences generally given for this type of offense, it argues that it is nevertheless appropriate in Mr. Colegrove’s case, citing the following aggravating factors:

(1) He has a lengthy criminal record, which, amongst other things, shows a recidivism pattern for administration of justice type offenses.

(2) He committed serious crimes while he was at large, as is evidenced by the decision of Justice Brunton.

(3) He actively avoided capture and was proactive in hiding, as is evidenced by the false identity card found when he was arrested.

(4) His criminal liability is high. He chose to flee and to remain at large.

(5) His profile is that of a career criminal. He has no network of family or friends to support him. He has no perspective of employment. He surrounds himself with criminals and has always chosen to revert to a life of crime after being released from prison. [ 21 ] The prosecution adds that there is only one mitigating factor in the matter at hand, that is his guilty plea. But this factor has limited weight given that the plea does not ensue from remorse or acknowledgment of responsibility. [ 22 ] Mr. Colegrove believes that a sentence of 60 days concurrent to the one imposed by Justice Brunton is appropriate.

Adding time to what he calls a harsh sentence would violate the totality principle of sentencing, that is render the global sentence unfit. [ 23 ] He adds that the aggravating factors identified by the prosecution have not been proven, except for his past convictions.

In addition, the prosecution is double dipping: it asked Justice Brunton to consider the fact that he was unlawfully at large when he was caught in possession of cocaine as an aggravating factor and it is now asking this Court to consider the fact that he committed crimes while being illegally at large as an aggravating factor. [ 24 ] He also adds that there are mitigating factors: (1) he pled guilty; (2) although he had a false identity card, he did not use it when intercepted by the police; and (3) he collaborated with the police, telling them about the guns.

[ 25 ] He points to the proportionality principle, stating that the circumstances in which the offense was committed do not command a sentence in the higher tier of the range of available sentences.

These circumstances include: (1) he had 8 days left to serve when he fled; (2) he was not taking illicit drugs, rather he was taking a drug that had been prescribed to him in the past but without a valid prescription; and (3) it was not planned nor premeditated and he was not actively evading capture as he properly identified himself when caught. [ 26 ] Finally, he asks the Court to take into account Charter violations ensuing from his detention and police searches, citing two decisions on voir-dire rendered by Justice Brunton in the drug case [8] .

ANALYSIS [ 27 ] The maximum sentence for being unlawfully at large is two years. [ 28 ] In R. v. Wolfe [9] , the Saskatchewan Court of Appeal reminds us that the conditions and supervision which are part of the statutory release are imposed for the purpose of managing the risk of reintroducing the offender in the community. When the offender breaks his conditions and flees, he poses a significant and unmanaged risk to the community. There lies the gravity of this offense. [ 29 ] In R. v.

Park [10] , the Court of appeal of Manitoba states that the range of sentencing for this offense falls between three months to a year. It concludes: “[ 45 ] In conclusion, upon considering these cases, it seems that lower sentences of three months or less are generally imposed where the circumstances point to an accused “overstaying” a pass or curfew. Sentences of four to six months are usually given in circumstances where the accused has been at large for a longer period and/or escaped from a minimal custodial facility.

Sentences over six months are generally reserved for those accused persons with a prior record for being unlawfully at large, or sometimes in situations where an accused has committed a serious crime while at large. As always, I add the caution that these are guidelines only and must be adapted to suit the facts of each individual case with their unique aggravating and mitigating factors.” [ 30 ] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. In the matter at hand, the evidence shows that Mr.

Colegrove, while on statutory release with conditions, took Rivotril , a drug for which he has had, and could have had, a valid prescription. He did not, however, have a valid prescription for this drug. He was advised by his parole officer that this constituted a breach of his statutory release conditions. With only 8 days to serve, he fled. [ 31 ] The Court considers that the following aggravating factors have been proven beyond reasonable doubts : 31.1.

His lengthy criminal record, which shows amongst other things, recidivism for administration of justice type offenses, including two prior convictions for being illegally at large. 31.2. He made the decision to flee and to remain at large. While this decision may not have been planned days in advance, he still chose to flee as opposed to dealing with the consequences of his actions. 31.3. His profile. His criminal record shows that he is a career criminal, having been in and out of jail since his 20’s. After fleeing, he found his way back to crime.

There is no evidence that points to an existing will to change this behaviour. [ 32 ] As for mitigating factors, the Court considers that the following ones apply : 32.1. The guilty plea. It is true that the mitigating strength of a guilty plea depends on the circumstances in which it is made [11] . In this case, the evidence was strong and would probably have led to a guilty verdict. In addition, the guilty plea does not reflect an acknowledgement of responsibility deriving from a will to move on or to change. While this reduces the weight to be given to the guilty plea, it does not mean that it has no weight.

The Court recognises that a guilty plea, even if entered in light of overwhelming evidence, spares the Court resources by avoiding a trial to which the accused is entitled. 32.2. The collaboration with the police at the time of his arrest [12] . However, the Court does not consider as a mitigating factor the fact that Mr. Colegrove gave his real name to the police officer who intercepted him instead of using the false identity card to which he had access. This fact is neutral.

Concluding otherwise would bring the Court to consider as a mitigating factor the fact that the accused did not commit a further crime to avoid capture. [ 33 ] In light of the foregoing, the Court concludes that rehabilitation is not the sentencing goal on which to focus in this case. Mr. Colegrove is a career criminal. He has not shown nor expressed a will to change his behaviour.

Thus, deterrence and denunciation are the goals that should guide the sentencing process. [ 34 ] In balancing the circumstances in which the offense was committed, including the aggravating and the mitigating factors, and keeping in mind the proportionality principle, the Court imposes a sentence of 6 months of imprisonment. [ 35 ] Should this sentence be served concurrently or consecutively to the sentence that Mr.

Colegrove is now serving? [ 36 ] In principle, crimes that do not arise from the same events or series of events, call for consecutive sentences unless ordering consecutive sentences would hurt the totality principle [13] . In applying the totality principle, the Court has to take into account the unexpired sentence still to be served by the offender to ensure that the total sentence does not crush the offender, annihilate his prospects

for rehabilitation or cause him to lose all motivation to reintegrate society upon release[14]. In doing so, the Court also has to take forgranted that the unexpired sentence being served by the offender is fit. In other words, when imposing a sentence, the Court should notuse the totality principle as a tool to remedy what is argued to be a previously imposed “harsh” sentence. The proper manner to remedythat situation is to file an appeal. [37] The crime for which Mr.

Colegrove is being sentence and the crime for which he was sentenced by Justice Brunton do not arisefrom the same events or series of events and thus, call for a consecutive sentence. Adding 6 months to the sentence that Mr. Colegrove isalready serving does not hurt the totality principle in that it does not crush him or annihilate his prospects for rehabilitation. Rather,ordering that the sentence be served consecutively to the one that he is now serving meets the relevant principles and goals of sentencing. [38] Finally, the sentence will not be reduced to take into consideration alleged violations to Mr.

Colegrove’s rights under the Canadian Charter of rights and freedoms as these alleged violations do not meet the threshold set out in R. v. Nasogaluak[15]. [39] In conclusion, the Court imposes a sentence of 6 months of imprisonment to Mr. Colegrove, to be served consecutively to thesentence that he is now serving. __________________________________ MÉLANIE HÉBERT, J.C.Q. Me Christina IgorovMe David MoffatAttorneys for the Prosecutor Me Thomas WalshMe Charles ShearsonAttorneys for the Accused Date of hearing : June 15, 2017 [6] R. v. Angelillo, 2006 SCC 55 , [2006] 2 S.C.R. 728, par. 32. [8] R. v.

Colegrove, decision of November 2, 2016 (ref : 2016 QCCS 6675) and R. v. Colegrove, decision of January 13, 2017 (ref. :2016 QCCS 6675).