R. v. Beaton, 2014 NSSC 186

Supreme Court of Nova Scotia Citation: R. v. Beaton , 2014 NSSC 186 Date: 20140520 Docket: CRH 424438 Registry: Halifax Between: Her Majesty the Queen v. Malcolm Stephen Beaton SENTENCING DECISION Judge: The Honourable Justice N.M. (Nick) Scaravelli Heard: May 20, 2014, in Halifax, Nova Scotia Counsel: Rachel Furey, for the Federal Crown Stanley W. MacDonald, Q.C., for the Accused By the Court: [ 1 ] This is for the sentencing – there is a five count Indictment, counsel, and according to the file Mr. Beaton entered a guilty plea to Counts 4 and 5, leaving the other three to be dealt with later.

Is that correct? [ 2 ] MS. FUREY: That’s right, My Lord, and in fact, at the conclusion of this sentencing hearing, the Crown will apply to have those counts withdrawn or dismissed. The Crown has a number of preliminary matters to take care of before we embark on the substantive portion of the hearing, if I may. [ 3 ] The first issue is the Indictment itself. Mr. MacDonald and I turned our minds to it yet again. It did take some time to draft this particular Indictment.

There was a back and forth with him as there was no Preliminary Inquiry in this matter, and at the end of the day, we’ve turned out minds to it again and we think that the date should be narrowed again so I’m applying, and I understand Mr. MacDonald supports this application so it would be on consent, to change the date. It should say that, “on or about the 25 th day of October, 2012” - this offence did happen on that date – the 25 th day of October, 2012, so the phrase “between the 23 rd day of October, 2012 and” should be removed.

That’s the application I’d like to make. [ 4 ] THE COURT: That on the 25 th day of October, 2012? [ 5 ] MS. FUREY: Yes. And then it corresponds with what we stated as are the charges in the Agreed Statement of Facts which I’m about to present to you. [ 6 ] THE COURT: We’re amending this post-plea. [ 7 ] MR. MacDONALD: Yes, and that’s with the consent of the Defence, My Lord. Thank you. [ 8 ] THE COURT: Thank you. [ 9 ] MS. FUREY: My Lord, there were some materials provided to you. The Crown filed a Joint Book of Authorities. Again, Mr.

MacDonald and I turned our mind to the appropriate cases to put before you, considered the number of cases and settled at the end of the day on these two particular ones, given that they had the most relevance to the proceedings today. So, I trust you have that book – the Calder and David decisions. [ 10 ] THE COURT: I did, thank you, and I’ve reviewed them and I’m particularly interested in Mr. MacDonald’s comment on the last paragraph of his letter submitted today that “this is truly a joint recommendation” as I will be enlightened, apparently today. I wasn’t given anything more than that. [ 11 ] MS.

FUREY: Okay, we will do our best to enlighten you, My Lord. [ 12 ] THE COURT: Keeping in mind, the test on joint submissions with the Court. Go ahead.

[ 13 ] MS. FUREY: Thank you, My Lord. The Agreed Statement of Facts – I think I provided a photocopy of that to you with that Joint Book of Authorities. I do have an original of that now to provide to the Court. Mr. Beaton himself has signed it as well today. So I’d like to file that and make it an exhibit on the sentencing hearing. I’m providing that to the clerk. [ 14 ] THE COURT: Thank you. [ 15 ] MS. FUREY: I think you’ve made reference to the last thing that I would ensure is before you – that is Mr. MacDonald’s materials which, again, he sent to you by courier this morning.

He had written directly to you, ah, to the Court in a letter and attached a CV and a reference letters for Mr. Beaton. Those materials you have as well I understand. [ 16 ] THE COURT: Thank you, I do. [ 17 ] MS. FUREY: The Crown is not alleging, as you know, a criminal record in this matter, so without further ado I will read into the record the agreed facts in this matter, understanding that Mr. MacDonald does have some supplementary comments to make about those facts once I’ve concluded.

Facts [ 18 ] On October 25 th , 2012, Malcolm Stephen Beaton was working as a correctional guard at the Central Nova Scotia Correctional Facility – I’ll call that the jail for ease of reference, My Lord. As a result of a police investigation, Mr. Beaton was arrested in the parking lot of the jail for possession of controlled substances for the purpose of trafficking at approximately 6:35 p.m. [ 19 ] Mr. Beaton was wearing his correctional duty pants, duty belt and a Nova Scotia Department of Justice golf shirt. [ 20 ] Mr.

Beaton was given his rights and he indicated he understood and wished to speak with a lawyer. Mr. Beaton was searched incident to arrest. A large plastic-wrapped package was located in the front inside left pocket of his jacket. The package contained the following items: three plastic-wrapped packages of tobacco that weighed 51.7 grams, 49.47 grams and 55.54 grams; two plastic- wrapped packages of cannabis marihuana that weighed 22.99 grams and 24.56 grams; 18 capsules of hydromorph contin wrapped in plastic; three injection needles and three packages of rolling papers.

In addition to that plastic-wrapped package, Mr. Beaton had $575 in cash and a cell phone on his person. [ 21 ] After speaking to counsel, in a warned statement to the police following his arrest, Mr. Beaton acknowledged that he had been a jail guard for three years and his shift on October 25 th , 2012 – that’s the day in question – was to begin at 6:45 p.m. So that’s about 10 minutes after he was arrested. [ 22 ] Mr. Beaton only brought illegal drugs to the jail on one occasion – that being October 25 th , 2012. [ 23 ] Mr. Beaton took a polygraph test on November 30 th , 2013, administered by P.R. Woolridge.

Mr. Woolridge asked Mr. Beaton whether he had brought illegal drugs into the jail or conspired with anyone to bring drugs into the jail prior to October 25 th , 2012. Mr. Beaton’s response was “no”. In Mr. Woolridge’s opinion, Mr. Beaton was telling the truth. Mr. Beaton does not have a criminal record, as I’ve said. [ 24 ] Those are the facts. [ 25 ] THE COURT: Yes, Mr. MacDonald. [ 26 ] MR. MacDONALD: Yes, My Lord, we are in agreement with those facts. Those are facts that we have negotiated with the Crown.

I would like to elaborate – perhaps this is a good opportunity to do that with respect to the facts, and put before the Court certain additional information and the Crown does not dispute this information. And I will elaborate on this in my submissions but I think now is the appropriate time to read it into the record, and I’m quoting: “Malcolm Beaton was repeatedly pressured by an inmate at the Central Nova Scotia Correctional Facility for several months in an effort to convince Mr. Beaton to bring drugs into the correctional facility for him. Mr. Beaton refused to comply. Subsequently, threats were made to Mr.

Beaton, including threats to harm his daughter. Mr. Beaton was shown a photograph of his daughter exiting a Metro Transit bus in Bedford. Shortly thereafter Mr. Beaton agreed to bring a package of contraband to the correctional centre.” [ 27 ] THE COURT: Let me ask you this question. Did Mr. Beaton disclose to authorities the name of the inmate who made this threat? [ 28 ] MR. MacDONALD: At the time that he was interviewed by the police? [ 29 ] THE COURT: Yes, or subsequently. [ 30 ] MR. MacDONALD: Subsequently, it was disclosed to the Crown and, in fact, Your Honour, this is part of what I will elaborate on. Mr.

Beaton and I, through me, hired a private investigator to actually take a statement from this person and we did, in fact, obtain a statement from that person, and a portion of that statement was provided to the Crown in the context of our negotiations with respect to this matter. [ 31 ] THE COURT: So, just to make sure I understand, Mr. Beaton did disclose to authorities the name of the person that he has alleged has threatened his daughter – is that correct? [ 32 ] MR. MacDONALD: Yes. Is that accurate? [ 33 ] MS. FUREY: To the Crown.

[ 34 ] MR. MacDONALD: To the Crown, yes. [ 35 ] THE COURT: To the Crown? [ 36 ] MR. MacDONALD: I’m not sure if the Crown passed that along to the police or not, but in any event, it was disclosed. [ 37 ] MS. FUREY: No. [ 38 ] THE COURT: And just for clarification, again, you interviewed the inmate? [ 39 ] MR. MacDONALD: The private investigator interviewed the inmate. [ 40 ] THE COURT: And did the inmate acknowledge making the threats. [ 41 ] MR. MacDONALD: Oh, absolutely. [ 42 ] THE COURT: And was that information given to the Crown. [ 43 ] MR.

MacDONALD: Yes, and a portion … we had a transcript made of the audio tape interview of the inmate and I provided a portion of that to the Crown. And you may ask, well, why a portion, but that was because there was information in that statement that pertained to another … a totally different person as well. [ 44 ] THE COURT: Okay, well let me ask Ms. Furey – any comments on this information? [ 45 ] MS. FUREY: No, I don’t object to those comments supplementing the record.

I don’t know, My Lord, if you have any concerns about ... further concerns about whether and how this information may or may not have been provided to the police. It was not directly by me – that being this information that Mr. MacDonald is referring to. There’s a number of reasons for that – I don’t know if I need to get into those. [ 46 ] THE COURT: I don’t think so. My main concern was whether or not he disclosed the name of the person he alleged was threatening him.

That was my main concern and you’ve acknowledged you’ve received the portion of the transcript from the private investigator where this particular inmate acknowledged that he pressured and/or threatened Mr. Beaton. [ 47 ] MS. FUREY: I do, and I think as will become clear, that information – it formed my deliberations and my discussions with Mr. MacDonald from that point forward. [ 48 ] THE COURT: Thank you. Okay, anything further on the facts, counsel? [ 49 ] MR. MacDONALD: No, My Lord. [ 50 ] THE COURT: Ms. Furey? [ 51 ] MS. FUREY: Thank you, My Lord. I’ll start by referring again to the letter that Mr.

MacDonald provided to the Court with respect to this matter. This is, as Mr. MacDonald indicated, a joint submission. Mr. MacDonald joined the Crown in the recommendation that the sentence should be 30 months in jail and that three Orders should signed by you today, those being the DNA Order, the s. 109 Order and the Forfeiture Order. [ 52 ] This is a global sentence – global recommendation for two charges and the Crown would recommend at this stage that 30 months be applied on both charges and they be concurrent to each other. [ 53 ] I agree with Mr.

MacDonald’s comments which you flagged to us at the outset of today’s hearing that this is a true joint submission. There was substantial and significant discussions between Mr. MacDonald and myself over the course of the last several months . . .. [ 54 ] There are significant mitigating factors in this case and I’ll just highlight them. Perhaps they are obvious already to you. Obviously Mr. Beaton has no record and he’s entered a guilty plea.

It’s a significant guilty plea given the nature of what would have had to transpire for a proceeding in this matter and the number of witnesses, including at least one civilian witness in this case. [ 55 ] This has been confirmed on the record to have been a one-time incident and as Mr. MacDonald indicated, Mr. Beaton caved to some pressure from an inmate. He appears to have, based on the documentation Mr. MacDonald provided – no doubt Mr.

MacDonald will say more about this – a positive family background and has made at least some positive contributions to society over the course of his life. [ 56 ] Perhaps I’ll pause here to say, before I refer to the aggravating features of … these offences which probably are obvious to you and should be staring anyone in the face ….. but I’ll pause here first to talk about what’s been alluded to, at least in Mr. Hartson’s letter, as the duress component to this.

I want to make it clear to you that Defence counsel and the Crown, in particular, were alive to the possibility of the legal defence of the duress in this case, and certainly did consider that in assessing this particular file and reviewed the case on that record and in my view, and I think ultimately Mr. MacDonald came to join me in this view, the facts here simply did not meet that defence. There was, as you no doubt know the case law, a reasonable, in my view, safe avenue of escape and Mr.

Beaton could have gone to authorities at any point and he chose not to, is the way the Crown saw it based on all the evidence that I have before me and, as such, the reasonable prospect of conviction remained and the matter proceeded. [ 57 ] In terms of the aggravating features of this, obviously there’s a separate charge which highlights the aggravating feature quite bluntly and that is, of course, the breach of trust.

This is a type of case where bringing drugs into the institution, in particular this institution in this city at this time, creates a host of problems – contraband in this institution as you can see from the David case is a

significant problem that hasn’t gone away and it has a ripple, a very horrible and frightening ripple effect in the sense that it feeds the black market in the jail, if I can call it that.

It feeds violence and certainly it affects … that was a slip of the tongue, but affects the safety .. the safety of the inmates and the officers in the jail making, of course, a dangerous place that much more dangerous and making a dangerous job for other inmates that much more dangerous and difficult. [ 58 ] The Crown would point out that denunciation and deterrence is critical and it’s a guiding feature of this sentencing hearing. The two cases that you do have before you which are in the Book of Authorities – Mr.

David’s case is somewhat different in the sense that he brought into the institution a number of different types of drugs and more serious drugs, if I can call them that. I mean, I’m reluctant sometimes to put drugs on a scale of seriousness but I think just the fact of the amounts and types of drugs makes it somewhat different, and the Court concluded, as this Court, I submit to you, cannot, that it was not Mr.

David’s first time bringing drugs into the institution. [ 59 ] What the Court did say in the David case and what’s, I think, important for you draw from it, is that law enforcement officials, including jail guards are very trusted and have the least security and the most opportunity of this type of offence. They have the highest level of trust and the most access, is what the judge said, and that certainly is significant and was a guiding feature of the Crown’s recommendation in this case. [ 60 ] We also have the case of Ms. Calder before you.

In that case, she got 30 months and we’re recommending the same thing to put it bluntly. She was not a jail guard, she was a lawyer as you know, so a slightly different type of breach of trust – very serious as His Lordship indicated in that sentencing decision. Worth noting, I think as well in that particular case, she did not have a mitigating factor of an early guilty plea, in fact there was a lengthy, I might even go so far as to say a protracted proceeding in that matter. At the end of the day, there’s the absence of that factor which I would say is significant in Mr.

Beaton’s case. [ 61 ] My Lord, as you know this is a joint recommendation. I think it’s a firm and fair recommendation based on all the factors in this particular case. Every offender is unique. Mr. Beaton is no different. He comes before the Court at his particular age, with his particular set of circumstances, having had his particular life, and having admitted to and pled guilty to a very significant and serious offence. This is a serious sentence for a serious offence and I’m sure the irony of it is not lost on Mr.

Beaton, given that he is now going to spend hard time, presumably, in a federal institution against the backdrop of the reality that he himself was once a jail guard trying to, well, not doing a very good job unfortunately, of keeping things working well in that particular institution over in Burnside. It’s unfortunate, I guess, for Mr.

Beaton, but the significant message with respect denunciation and deterrence must be sent and given all the particular circumstances, aggravating and mitigating factors in this case, the principles of s. 718 and the particular principles in the CDSA , setting as the backdrop of the particular case law that we’ve presented before you, the Crown would suggest that this is the appropriate sentence. [ 62 ] THE COURT: Thank you. Was the Crown able to determine the value of the drugs that he was purporting to traffic? Was there any estimation? [ 63 ] MS.

FUREY: Drugs are worth quite a lot more in the jail than they are on the street is my understanding, My Lord. The marihuana in particular, well it may be worth $10 a gram on the street; it could be worth up to $100, is my understanding, in the jail and I would say that also applies with respect to the hyrdomorphone. I’m sorry that I don’t recall what number was on those pills right now so I can’t say what the street value is and, therefore, the subsequent institution value within the institution, but it is, I think, it’s fair to say and I hope Mr.

MacDonald would agree with me, the drug will be worth quite a lot more in the institution. [ 64 ] THE COURT: Thank you. In terms of the threat to Mr. Beaton to perform this act, was that the consideration for bringing the drugs – that his daughter would not be harmed, or was he to receive money, or do you know? Was he to receive payment? [ 65 ] MS. FUREY: If I could just have a moment there to … I don’t want to misspeak but I’m just going to check something with Mr. MacDonald to see if it’s fair. [ 66 ] My Lord, the Crown did have some evidence that there was a financial incentive for this particular transaction.

That said, that evidence would have come … the Crown would have pursued that evidence would this matter have gone to trial. Mr. Beaton has always, through his counsel, maintained that this was not financially motivated and that the motivation was due exclusively to those allegations with respect to his family and the Crown accepts that today. [ 67 ] THE COURT: Thank you, and obviously, there’s no Pre-Sentence Report … no request. [ 68 ] MS. FUREY: We did not request one and I knew Mr. MacDonald would provide those materials that he did provide today.

I expected them and I accept them for what they are. [ 69 ] THE COURT: Thank you. [ 70 ] MS. FUREY: Sorry, I didn’t mean to confuse you, My Lord, there, or take you on a tangent, but I had just provided to the Court those draft documents for the end of the hearing when it’s time for you to sign those orders. [ 71 ] THE COURT: Okay, thank you. Mr. MacDonald? [ 72 ] MR. MacDONALD: Thank you, My Lord. My Lord, Mr.

Beaton has, in fact, pled guilty to these two charges and I would submit that, as My Friend has said, these are … it’s a significant factor in terms of the fact that these guilty pleas were entered without the Crown having to call witnesses at any stage. We didn’t proceed with a Preliminary Inquiry, we didn’t proceed with a trial, and I would submit, My Lord, that in part … well obviously Mr. Beaton gets, I would submit, significant benefit for his early acceptance of responsibility for this, but it’s also, I submit, a testament to the process that Ms. Furey and I were able to engage in. Ms.

Furey is always open to receiving information, always deals with it very fairly, and so I felt that the appropriate way to approach this would be, instead of trying to dig around and get information through a court process, we were able to get a real negotiation and I submit that’s how we ended up where we are today. And the comment that I made, My Lord, in my letter with respect to it being a true joint recommendation, that certainly is something that is reflected in the process that Mr. Furey and I followed here, and I don’t believe that I would be exaggerating

to say that we literally spent hours and hours discussing this matter and reviewing materials. The disclosure materials were lengthy and significant, voluminous. We’ve gone through those materials. We’ve had additional work done on both sides – the police carrying out certain investigations, and we carrying out our own investigations, including a private investigator and a private polygraph examination. We’ve spoken to numerous people. We’ve tried to dig into this as much as possible to show the Crown that this was a one-time event motivated by the pressure that was put on Mr.

Beaton by this inmate, and, My Lord, I submit we were able to establish that at least to the satisfaction of … or at least to the point of establishing that it did occur and I have to agree with My Friend that after analysing it in all respects, we came to the conclusion – Mr. Beaton of course was part of that process – that it probably did not … would not amount to duress as it’s defined in the Criminal Code because there was another avenue that he could have taken. Unfortunately for Mr. Beaton, he didn’t take that avenue at the right time.

He took it subsequently, but he didn’t take it before October 25 th , and there are reasons for that, My Lord, and I believe if we are all able to put ourselves in Mr. Beaton’s position, then we can probably understand those reasons a little better, and that is faced with the kinds of threats from the kinds of people from whom they were coming, it’s a very difficult decision – and he made the wrong one. He should have gone to the police back then, but he didn’t. But he realizes now that he should have, and he is going to pay a significant price.

He’s a 51 year old man who has a family, who had what was a rewarding job and he’s lost all that. And he really was in fear for his daughter’s safety. It is, I think, My Lord, if we can picture it happening, being shown a photograph of your daughter getting off a bus, a Metro Transit bus, by a person, an inmate at the correctional centre, would be a pretty significant event … would be a scary event. [ 73 ] So, My Lord, just a little bit of background with respect to Mr. Beaton. As I mentioned, he’s 51 years old.

I did provide you with his resume and as you can see from that resume, he’s actually had a very productive type of background … employment background, including his employment for a period of 12 – 13 years with the Vancouver School Board where he worked as a support person and obviously to maintain the job for that long, he obviously was productive and it was a rewarding type of career. [ 74 ] Mr.

Beaton is originally from Nova Scotia and so he moved back with his family in 2007 … or 2008, at which time he went to school … I’m sorry, 2007 he went to school – to the Nova Scotia Community College and eventually obtained the designation for the corrections program and he took that job in 2009. So, My Lord, Mr. Beaton is divorced. He’s the father of two children. His daughter is now 20 years of age and his son is 15. As you can see, My Lord, from the letters that have been provided and I can advise you from the contact that I’ve had with Mr.

Beaton’s family, that he is a very dedicated father and has been a very dedicated worker. So, My Lord, we have a situation where we have presented to the Court what I submit to be a circumstance where Mr. Beaton would not have otherwise involved himself in this kind of behaviour except for the pressure that was put on him by this person, this inmate at the correctional centre, and as I’ve mentioned, we did in fact obtain a statement from that person and he did in fact corroborate what Mr.

Beaton said, and I don’t often, My Lord, certainly don’t make a point of relating to the Court my own – I guess I wouldn’t call it personal input – but it’s something that I believe is important here, and that is that the very first time that Mr. Beaton came to meet with me, he described to me what had occurred with this inmate and, of course, I’ve heard that many times before. But I have to say that this would be one of the very few times, if perhaps maybe the only time, that we’ve been able to find corroboration for the information to that effect.

And what was most telling and most significant about the information that Mr. Beaton provided to me in our first meeting was that it was corroborated in many respects in details by the statement of this inmate, not just simply in generalizations. And that is something that I’m sure that Ms. Furey – I’ve made her very much aware of that over time in our many, many discussions about what’s an appropriate outcome for this matter. But at the end of the day, My Lord, Mr.

Beaton understands and accepts that what he did was wrong and that it constitutes criminal offences and for that reason he’s pled guilty and he has accepted responsibility for his actions and he’s here today to be sentenced as a 51 year old man to a penitentiary sentence with no previous criminal record or no involvement in the criminal law whatsoever in the past. [ 75 ] Mr. Beaton has also given up any … he realized that by pleading guilty he’s given up his right to a trial and that he is doing so voluntarily. My Lord, it is extremely important to point out that Mr.

Beaton comes from a large and extremely supportive family. I have had contact with many members of Mr. Beaton’s family. They stand by him 100% and what’s important about that is that we know that those people will be there to support him when he comes out of jail. He’s lost his job – he’s not going to go back to work as a correctional officer or anything like that. When he comes out, he’s going to have to start again and he’s going to have to rebuild a career of some sort, but he’s got a very large and very loving family that is going to help him through that.

He also has his common law spouse who’s here with him today who will also support him and help him through those days when he does get out of jail. [ 76 ] My Lord, I submit that the joint recommendation is certainly an appropriate one in this case and particularly when we look at the case law and My Friend has already referred to this, but the R. v. David case was most certainly a case where the facts established that Mr. David was actively involved in bringing drugs to the correctional centre. It was not his first time.

There was a great deal more drugs involved and certainly more varied in terms of the kinds of drugs that were being brought in. So his circumstances, My Lord, I submit are much different than those of Mr. Beaton’s and we also made reference to the R. v. Calder case which is important in the sense that in that case, as My Friend has pointed out, Ms. Calder did go through and very long and protracted legal proceeding, but also if I understand the case correctly, Ms.

Calder, in addition to those drugs that she was seen passing to the inmate, there were also drugs found in her home and she was found guilty of being in possession for the purpose of trafficking of those drugs as well. So we had circumstances again that I would submit were more aggravating. In the end result, My Lord, and I think this is probably the end of my submission unless Your Lordship has any questions, but this is … and certainly not to try to take away Your Lordship’s role, but this has really and truly been a very involved negotiation and has involved Ms. Furey and me for the most part. Mr.

Beaton has been directly involved. But we have tried to consider all of the circumstances in coming to this conclusion and there certainly has been give and take on both sides, probably more so than in almost every other case because this was a circumstance where, as and when Mr. Beaton and I received information, we made it available to Ms. Furey for her consideration. So it’s been a work in progress and it’s culminated in this joint recommendation which has been fully considered and I would submit that it’s appropriate.

So unless Your Lordship has any questions, those are my submissions. [ 77 ] THE COURT: Thank you. Counsel I just want to take a short break to review my notes if I may, given that I was just today or this afternoon apprised of the background of this negotiated plea, so I just want to take ten to review my notes – perhaps we could break for about twenty minutes. [ 78 ] THE COURT: Does your client, Mr. Beaton, have anything he wishes to say or have you said it all for him?

[ 79 ] MR. MacDONALD: That’s right. I’ve spoken with Mr. Beaton and he has declined the opportunity to speak, My Lord. [ 80 ] THE COURT: Thank you. This matter is here for sentencing on the two counts of possession of hyrdomorphone for the purposes of trafficking as well as committing a breach of trust, contrary to s. 122 of the Criminal Code . This matter deals with smuggling drugs into a prison facility. Smuggling drugs into a prison facility is a serious offence.

The fact that a correctional guard possessed the drugs for the purpose of introducing them into the prison population is a significant, aggravating factor. The offender was in a position of trust in connection with the duties of his office. Clearly drugs foster violence and threats within the institution. Both inmates and correctional staff are at risk for their safety. Moreover, the presence of drugs counters the rehabilitation efforts within the institution. The purpose and principles of sentencing for these offences are set out in the Criminal Code and the CDSA.

Cases submitted jointly by counsel demonstrate that an appropriate sentence for cases of this nature must focus on denunciation and deterrence. Mostly often federal terms of imprisonment are imposed even for a first time offender. [ 81 ] In the present case, there is no Pre-Sentence Report provided to the Court. No value of the drugs that were in the possession of Mr. Beaton have been provided to the Court. Mr. Beaton has entered an early guilty plea, waiving the requirement for a preliminary hearing.

He does not have a criminal record and according to the Agreed Statement of Facts, this offence was his first attempt to bring drugs into the institution. His actions were motivated by a threat to a family member from an inmate in the institution, according to the information provided by the Defence and acknowledged by the Crown. Mr. Beaton has submitted letters of reference. The cases provided to me by counsel were R. v. Calder , 2011 NSSC 312 – a Nova Scotia case, and R. v. Li , [2004] O.J. No. 6269 (Ont. S.C.J.) - both these cases involve smuggling of drugs by lawyers; R. v.

David , 2013 NSSC 83 – from the Nova Scotia Supreme Court, and the cases referred to therein, dealt with the smuggling of drugs by correctional officers and others in positions of trust. [ 82 ] Generally joint recommendations on sentencing are accepted by the Court unless they are outside the range or contrary to the public interest or the proper administration of justice. [ 83 ] I am satisfied under the circumstances this is a case of a true joint submission by Crown negotiated over time by the parties.

I consider the joint recommendation of two and a half years to be on the low range of sentencing but, nevertheless, within the range of cases received with the circumstances in the present case distinguishable from cases that are in the higher range. [ 84 ] I am satisfied that Mr. Beaton is not a candidate that the Court needs to be concerned about further deterrence. The concern of the Court, of course, is the message being sent to other correctional officers with respect to behaviour of this nature which is a problem in this community.

I do accept that the circumstances of this case, including the duress component which was the motivation but not the excuse for committing the offence, demonstrates an exceptional set of circumstances. [ 85 ] I am satisfied that Mr. Beaton is a good candidate for rehabilitation. He’s 51 years of age. At his age he will undoubtedly suffer a serious impact on his future employment possibilities. [ 86 ] In the end, I am prepared to accept the joint recommendation by counsel, recognizing that they put a significant amount of time and effort into this negotiation.

I am satisfied that the sentence of 30 months is in the appropriate range. [ 87 ] Mr. Beaton, would you stand up please. The sentence of the Court is, with respect to the charge of possession for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act, the sentence is 30 months imprisonment.

The offence of breach of trust contrary to s. 122 of the Criminal Code , the sentence is 30 months imprisonment concurrent. [ 88 ] The Court will also issue the ancillary orders – the DNA Order, the s. 109 Firearms Prohibition Order, and the Forfeiture Order, which have been provided to the Court and which I will endorse at this time. [ 89 ] Thank you, counsel, for your submissions. [ 90 ] MR. MacDONALD: Withdraw those other charges? [ 91 ] THE COURT: With respect to the three, I should indicate - Crown, with respect to the three counts on the Indictment – one, two and three? [ 92 ] MS.

FUREY: Yes, no plea being entered, I would apply to withdraw those charges please, My Lord. [ 93 ] THE COURT: Thank you. Scaravelli, J.