R. v. Boudreau, 2023 NSSC 131

SUPREME COURT OF NOVA SCOTIA Citation: R. v. Boudreau , 2023 NSSC 131 Date: 20230419 Docket: CRPH 515188 Registry: Port Hawkesbury Between: His Majesty the King v. Glen Gerard Boudreau Sentencing Decision Judge: The Honourable Justice Robin C. Gogan Heard: March 28, 2022 in Port Hawkesbury, Nova Scotia Counsel: Scott Millar and Drew MacQuarrie, for the Crown Alexander J. MacKillop, for Glen Boudreau By the Court (Orally): Introduction [ 1 ] The matter before the Court today is the sentencing of offender Glen Boudreau.

On October 10, 2022, Boudreau pled guilty to one count contrary to s. 5(2) of the Controlled Drugs and Substances Act ( the “ CDSA ” ) . A Presentence report was ordered. Written submissions were provided by the Crown and offender. [ 2 ] This matter was before the Court for a sentencing hearing on April 14, 2023. The parties made oral submissions on sentence. There is a Presentence Report ( Exhibit 1 ) and an Agreed Statement of Facts ( Exhibit 2 ) for consideration. Boudreau made a brief statement to the Court. There is no victim impact statement.

As I said at the completion of the hearing, both parties’ written and oral submissions were excellent and I thank counsel for them. It was necessary for the Court to reserve and consider them further. [ 3 ] I have now reviewed the submissions and the evidence offered on sentence. What follows is a sentencing decision. I will review the circumstances of the offence and offender. The sentencing principles will be reviewed and key authorities canvassed. I will conclude by imposing sentence on Mr. Boudreau. Circumstances of the Offences [ 4 ] The context for all that follows is the circumstances of the offence.

Boudreau is being sentenced for the possession of cocaine for the purpose of trafficking. He was charged with three other offences which the Crown intends to withdraw once the sentence is imposed for the s. 5(2) offence. [ 5 ] What I know about the circumstances of the offence comes both from the Charter application brought by Boudreau and the Agreed Statement of Facts ( Exhibit 2 ). The central facts are: On December 8, 2019, at approximately 4:30pm, RCMP Cst. Len MacDonald initiated a traffic stop on Glen Boudreau for speeding and erratic driving.

Glen Boudreau was the registered owner of the vehicle he was driving: a black Suzuki Swift. The stop occurred on Highway 104 near Whiteside, Nova Scotia.

Upon reaching the driver’s side window, Cst. MacDonald could smell an overwhelming smell of cannabis marijuana coming from the window. Mr. Boudreau provided his driver’s licence, vehicle permit, and insurance. He was detained for illegal transportation of cannabis. Subsequent arrest and search resulted in the following seizures: 775.4 grams of cocaine, packaged as follows: • Approximately 27 grams in a bag in his pocket, and • The remainder in 50 and 100 gram vacuum sealed packages in a shoe box in the vehicle, $12,085.00 in Canadian currency, most of which was in his personal possession, 82 grams of crystal meth, a

Schedule I substance under the CDSA, 50 grams of psilocybin, a

Schedule III substance under the CDSA, 30 grams of cannabis marijuana, packaged in five clear plastic bags, 3.5 milligrams of anabolic steroids, A digital scale, 1 Samsung cell phone, and 1 Apple iPhone. [ 6 ] Boudreau was arrested on May 8, 2019, and released on an Undertaking with conditions. The Undertaking was varied on February 7, 2020, to permit Boudreau to consume alcohol and travel outside the Province of Nova Scotia.

He remains subject to conditions now almost 4 years later. [ 7 ] Before moving to consider the circumstances of the offender, I note that Boudreau brought an application for Charter relief on August 6, 2021, on his first appearance in Supreme Court. The Charter application was heard on August 31, 2022, and a decision dismissing the application released on September 14, 2022. Boudreau entered a guilty plea on his next appearance on October 11, 2022. No trial date was ever set. [ 8 ] There are several things that stand out here as I consider Boudreau’s sentence.

The first is that on the date of the offence, Boudreau was in possession of a very large quantity of cocaine. He was also in possession of significant quantities of other

Schedule I and III substances, a large amount of cash, and paraphernalia associated with trafficking. It is uncontested that the quantities involved and the other evidence put Boudreau in the category of mid to high-level retailer or low-level wholesaler. A long line of authority in Nova Scotia says that this category of offender merits a significant custodial sentence. [ 9 ] However, it is also significant that Boudreau entered a guilty plea to count one of the Indictment before a trial date was set.

In my view, this deserves much weight as a mitigating factor, along with others I will address in a moment. [ 10 ] Having reviewed the notable aspects of the offence, I turn to a review of Boudreau’s personal circumstances. Circumstances of the Offender [ 11 ] Boudreau was 22 years old at the time of the offence and is now just shy of 26. He has no other criminal convictions. He has a grade 12 education and some post-high school technical training. He has plans for further upgrading of his skills. He is employed on a full-time basis and is described as a reliable employee who gets along well with his co-workers.

Beyond his current employment, Boudreau has a solid employment record and has never been terminated from previous employment. Boudreau also reports being in good physical health. [ 12 ] Boudreau reports having a difficult childhood. His mother and father separated when he was two years old and he was raised by his mother and step father until he was 14. Children’s services were involved with the family. He reports being kicked out of his family home at 15 because his mother’s boyfriend did not like him. After a year on his own, Boudreau went to live with his maternal grandmother.

At 18, Boudreau moved to Halifax and has been on his own since. He has not been in contact with his mother in over four years or his father in over six years. He reports no significant or positive relationships in his life except with his grandmother. [ 13 ] Boudreau maintains a good relationship with his grandmother. When contacted by the Probation Officer, she said that Boudreau had a difficult upbringing and did not receive “the proper support” from his parents growing up.

She describs him as kind and helpful and felt that he had learned from his mistakes. [ 14 ] Boudreau has been living at the same location in Halifax since April of 2021. His landlord describs him in positive terms and noted that he was reliable. He is aware of this proceeding and said that he felt Boudreau had “turned his life around”. [ 15 ] Boudreau reports being introduced to alcohol at 13 and having a “problematic period” with it at age 21. He also says he “experimented” with marijuana, crack, cocaine, MDMA and opiates.

He admits that crack cocaine- became problematic for him from ages 22 to 24 and contributed to his conflict with the law. He says that he has been clean for a year but does smoke marijuana daily. I note that this admission to post-offence use of crack raises the issue of non-compliance with the conditions of his Undertaking. [ 16 ] When asked about the offence, Boudreau “readily accepted responsibility for his actions and expressed remorse for the offence”.

He said that he “knew what he did was wrong”. He said his actions were fueled by addiction and financial gain. [ 17 ] Boudreau’s personal circumstances are the basis for several conclusions. He had a difficult childhood and lacked much, if any, parental support or guidance. He was introduced to drugs and alcohol early on but only reported them becoming problematic in his early twenties. He says that addiction issues were partly responsible for the offence, but there is no evidence of any counselling or treatment, and he admits ongoing drug use well beyond the date of the offence.

If he has learned some lesson from the offence he committed, it seems that did not happen until about a year ago. [ 18 ] Boudreau is a youthful offender who has not had much guidance or support in his life. Although details are scant, it seems reasonable to conclude that his early years were unstable and traumatic, truncated only by the time spent with his grandmother. He admits to having addiction issues.

In spite of his challenges, he graduated from high school and has upgraded his skills, he has a good work history, is described by his employer and landlord in positive terms, and he has no previous criminal convictions. His youth means that some weight must be given to the goal of rehabilitation in fashioning an appropriate sentence. His personal history is some basis to consider a reduced level of responsibility. [ 19 ] Boudreau accepts responsibility and expresses remorse. I accept these statements. I am confident he now knows what he did was wrong.

But I am not persuaded that Boudreau fully understands the impact of his trafficking activity. He expresses regret, but the basis for his regret is not well explained. On this point, I note that his motivation for involvement in trafficking was contested. I am satisfied that an addiction played some role. Overwhelmingly, however, the facts support that the offence was fueled by financial gain. Impact on the Victim and Community [ 20 ] In this context, I consider the impact of cocaine trafficking offences on the community.

In Nova Scotia, there is a long standing recognition of the devastation that drug trafficking, and cocaine in particular, has on our citizens. Recently, Russell, JPC, reflected on the impact in R v. MacKinnon , 2022 NSPC 12 , at para. 36 : The sentencing objectives and principles are very well established in cases involving “hard drugs” such as cocaine … A long line of judges well before me have seen the daily devastating effects drugs such as cocaine have on our communities.

This poison inevitably finds its way into the hands of our most vulnerable citizens including teenagers and those from marginalized communities. It destroys families, friendships, and the lives of children. It turns otherwise pro-social friends and family members into a fraction of who they once were. It is worth repeating that these drugs are often at the very core of human trafficking, intimate partner violence, robbery and homicide. These are just a few examples. It tears at the fabric of our society in countless ways. Cocaine quickly rips through communities leaving behind devastation, decay and death.

That is the sad reality. [ 21 ] I agree with Judge Russell’s observations of the havoc and devastation caused by cocaine. Similar statements were made in R. v. Donaldson , 2013 NSPC 41 at paras 4-5 , and R. v. Greencorn , 2014 NSPC 10 at para. 4 . [ 22 ] Our Court of Appeal has been consistent in recognizing the impact of cocaine trafficking and directing just sanctions. The decision in R. v.

Kleykens , 2020 NSCA 492 , referenced “decades of binding authority in this province” and said at para. 56: [ 56 ] There is nothing speculative about the devastating societal damage caused by trafficking drugs like cocaine, and the grave threat it represents to public safety. Over 30 years ago, this Court said explicitly that no one could be so naïve as to think otherwise.

At this stage, there is no need to require the Crown to prove the deadly and devastating consequences of cocaine trafficking – a fact that has been recognized by courts across Canada for decades. [ 23 ] The Court of Appeal in Kleykens demonstrated its long standing and consistent approach to sentencing drug traffickers with reference to its reasons in R. v. Huskins , [1990] CanLII 2399 (NSCA) at p. 4, R. v. Scott , 2013 NSCA 28 at para. 113 , R. v. Knickle , 2009 NSCA 59 , at para. 17 , and to its recent guidance in R. v.

White , 2020 NSCA 33 at para. 76 : [ 76 ] In Nova Scotia there developed a long tradition of recognizing that the severity of a sentence should match the dangerousness of the drug involved, all other factors being equal. As our judicial understanding of the danger of “hard drugs” evolved, so too did the approach taken in sentencing those convicted of participating in their distribution.

Using very explicit language, this Court has repeatedly directed that the approach to be taken in sentencing those convicted for trafficking, and possession for the purpose of trafficking, in so-called “hard drugs” requires as its principle objective the protection of society, such that our primary emphasis must be placed on the principles of deterrence and denunciation.

The majority of these pronouncements have been made in relation to cocaine trafficking … [ 24 ] At this point, it must be said that the impact of cocaine trafficking on our community is well recognized and the approach to sentencing offenders well settled. Positions of the Parties [ 25 ] Before discussing the sentencing principles, I will briefly review the positions of the parties. The Crown [ 26 ] The Crown submits that the sentencing objectives can be achieved with a four-year custodial sentence. It strenuously contests the imposition of a Conditional Sentence Order (“ CSO ”).

It argues that binding authority calls for a lengthy custodial sentence. While acknowledging that there is no minimum sentence for the offence, and that a CSO is now an available disposition, the Crown relies on the maximum penalty of life imprisonment as an indication of the very serious nature of the offence of trafficking in a

Schedule I substance. [ 27 ] The Crown takes the view that the circumstances of the offence establish that Boudreau is a mid to high-level trafficker who was found in possession of more than 775 grams of cocaine, as well as significant amounts of other controlled substances and trafficking

paraphernalia. The type of drug and the amount involved are significant aggravating factors, while Boudreau’s age, the absence of acriminal record, and a guilty plea, are mitigating factors. [28] The Crown relies on the long line of authority from our Court of Appeal to support its position. Most recently, those authoritiesinclude the decisions in White and Kleykens. It notes the circumstances in Kleykens bore some similarity to the present case. It alsorelies on recent decisions in R. v. LeBlanc, 2019 NSSC 192, R. v. Green, 2021 NSSC 134, and R. v.

MacKinnon, 2022 NSPC 12, allcontaining significant analysis of parity and proportionality. It distinguishes the decisions relied on by Boudreau, most often on the basisthat a much smaller amount of cocaine was involved. [29] The Crown also seeks a weapons prohibition under s. 109 of the Criminal Code, a DNA order under s. 487.05 of the Code, and aForfeiture Order. Offender Boudreau [30] Boudreau submits that a CSO is available and appropriate.

While recognizing that the amount of cocaine is an aggravating factor,Boudreau relies heavily on the mitigating circumstances to support the imposition of a community-based sentence. Boudreau argues thatthere is support for the position that sentencing objectives can be met without incarceration. He relies on R. v. Rushton, 2017 NSPC 2,at paras. 81-87, R. v. Moore, 2018 NSPC 48, R. v. Taylor (unreported decision of Landry, JPC dated January 28, 2020), Kelykens,supra, R. v. Livingstone; R. v. Lungal; R. v. Terris, 2020 NSCA 5, R. v. Chase, 2019 NSCA 36, R. v. Christmas, 2017 NSPC 48, and R.v.

Masters, 2017 NSPC 75. [31] Boudreau is not opposed to the imposition of the ancillary Orders sought by the Crown. I note here that those Orders were grantedat the conclusion of the sentencing hearing. The Sentencing Regime and Principles of Sentencing [32] I turn now to a discussion of the sentencing parameters and sentencing principles. [33] Today, this Court will impose a fit and proper sentence on Boudreau for the offence of possession for the purpose of traffickingcontrary to s. 5(2) of the CDSA. Sentencing is well known to be challenging because it is driven by the unique circumstances of eachcase.

The guardrails for this exercise come from the offence parameters and the sentencing principles. The guideposts come from theauthorities. [34] For this offence, there is no minimum penalty that applies. The maximum penalty is life imprisonment. This creates the mostbroad range of options, including the CSO sought by Boudreau. [35] Further guidance comes from the sentencing principles that are found in ss. 718, 718.1 and 718.2 of the Criminal Code, along withs. 10 of the CDSA. I adopt the concise

summary of these principles set out by Buckle, JPC, in Rushton, at paras. 59-63: General … [59] The ultimate objectives of sentencing are the protection of the public and to contribute to respect for the law and the maintenanceof a safe society.

Section 718 instructs that this is to be done by imposing just sanctions that have, as their goal, one or more of thefollowing: denunciation; general and specific deterrence; separation from society where necessary; rehabilitation of the offender;promotion of responsibility in offenders; and acknowledgment of harm done to victims and the community. [60]

Section 718.1 says that the fundamental principle of sentencing is that a sentence must be proportionate to the gravity of theoffence and the degree of responsibility of the offender. [61]

Section 718.2 requires that I consider the aggravating and mitigating factors relating to the offence and the offender, the principlesof parity and proportionality, and that an offender not be deprived of liberty, if less restrictive sanctions may be appropriate in thecircumstances; and that all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with theharm done to victims or to the community should be considered for all offenders. [62]

Section 10 of the CDSA incorporates these principles and specifically requires that a sentence encourage treatment of offenders inappropriate circumstances. [63] The overarching goal of long term protection of the public informs how I balance the principles and purposes of sentencing andapply them to the facts to arrive at a fit sentence. The common law provides me with guidance as to how I should interpret and balancethese principles and how they should be applied to different categories of offence.

However, the best means of addressing the principlesand attaining the ultimate objective will always depend on the unique circumstances of the case. Because of that, it has been consistentlyrecognized that sentencing is a delicate and inherently individualized process (R. v. Lacasse, 2015 SCC 64, at para. 1 and R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500, at paras. 91-92).

Sentencing Decision [36] Having reviewed the circumstances of the offence and the offender, as well as the sentencing parameters and principles, I turn tothe application in the present case. [37] The question to be answered is what sentence is fit and proper for Boudreau. Proportionality

[ 38 ] The first part of the assessment is proportionality, requiring consideration of the gravity of the offence and degree of responsibility of the offender. [ 39 ] As noted, the offence of cocaine trafficking is grave. Properly recognizing its impact and striving for the objective of public safety means that denunciation and deterrence are required. Sentences for those who traffic cocaine must send a message to others that the harm done cannot be tolerated and must be condemned in strident terms.

This does not mean that rehabilitation is not a sentencing objective, especially for youthful offenders, but for such a serious offence, it must take less priority. [ 40 ] In terms of Boudreau’s degree of responsibility, I must consider factors bearing on his culpability or moral blameworthiness. These include his personal circumstances, mental capacity, and motive for involvement in the crime. What I know about Boudreau’s personal circumstances has been reviewed.

I consider that he was only 22 years old when he committed the offence and that he did not have the parental support and guidance one would hope for in his formative years. [ 41 ] Although contested by the Crown, I consider Boudreau’s admission that he was introduced to both alcohol and various drugs at an early age and then struggled with addictions. Aside from his grandmother, Boudreau was left to fend for himself. I recognize that he was a vulnerable person and, in his early youth, was the type of person prayed on by drug traffickers.

In the absence of a support network, his addiction progressed and escalated to trafficking. These circumstances are a basis to say that there is a reduced moral responsibility. [ 42 ] However, I must also consider that there was no evidence of anyone else involved in the offence. As well, the amount of cocaine, cash, and drug paraphernalia support that Boudreau was seriously embedded in the drug trade with financial gain as the primary motivation.

This, in spite of the fact that he has the ability and health to be gainfully employed. [ 43 ] I note Boudreau’s statements that he continued to use drugs himself for a number of years after the offence and while he was on conditions. In my view, this is evidence of a level of immaturity that is consistent with his background. There is no evidence that he recognizes the significance of his addictions history or that he has taken any treatment or counselling. [ 44 ] Boudreau says that he has been clean for a year.

But he admits taking marijuana daily and varied his Undertaking in 2021 to eliminate the prohibition on alcohol. Awareness is progress, but the evidence says to me that Boudreau is in the early days of recognizing the significance of his addiction and the real impact of the offence he has committed. The fact that he has achieved his high school education, steady employment, and now a year of sobriety from hard drugs, given his personal circumstances demonstrates some grit and resourcefulness. But I am not confident that he will be successful without support and maturity.

The sentence imposed here must emphasize deterrence, both specific and general, over rehabilitation. Parity [ 45 ] In the context of these findings, I must consider parity. This principle requires similar sentences for similar offenders who commit similar offences. The drivers of the parity comparisons here are the mitigating and aggravating factors in this case. I would highlight the following: Aggravating Factors - The nature of the offence/ trafficking in a

Schedule 1 substance; - The amount of cocaine involved/more than 775 grams/as well as the presence of significant quantities of other controlled substances; and - Motivation of financial gain. Mitigating Factors - His age; - No previous record of any kind; - Positive aspects of his presentence report; - Acceptance of responsibility and expression of remorse; and - A guilty plea before a trial date was set. [ 46 ] In assessing parity, I consider these factors and the evidence, especially the amount of cocaine involved, placing Boudreau in the category of a mid to high-level retailer or low-level wholesaler. I adopt the detailed parity assessment conducted in LeBlanc and note the

summary of ranges at para. 22 of that decision. There, Justice Rosinski found that the range for a mid-level retailer was between 5 and 8 years. Even if Boudreau was a small scale retailer, the range would be between 2 and 6 years. In my view, this means a CSO, although available, is not in the range of sentences available here. [ 47 ] On this latter point, I refer to the decision in R. v. Knickle , 2009 NSCA 59 , at para. 18 , which noted that our Court of Appeal, “has never approved or endorsed a conditional sentence on charges of possession for the purpose of trafficking or trafficking in cocaine”.

In that case, the appeal court substituted a sentence of 3.5 years after the offender was found guilty of possessing 311.9 grams of cocaine, along with other drug paraphernalia and 19 firearms. I also reference subsequent decisions from the court of appeal in R. v. Convoy , 2009 NSCA 95 and R. v. Oickle , 2015 NSCA 87 . [ 48 ] More recently, in Green , Justice Muise refused a CSO or suspended sentence in the case of a 42 year old found in possession of 20.4 grams of cocaine, along with crack cocaine and over $7,000.00 in cash. The sentence was two years in custody.

[ 49 ] Returning to the present case, I accept that the range for similar offences, based on the type and amount of controlled substance, is in the 5 to 8 year range. Here, the offence involves cocaine in very large amounts, much more than in any of the cases I was referred to by counsel. There was also a large amount of cash. It is somewhat unusual to have such serious offence circumstances in a case where there is no previous record of any kind and a youthful offender.

The question is whether a proper application of the sentencing principles merits movement outside the range. [ 50 ] In recognition of the mitigating factors, I conclude that the deterrence and denunciation can properly be effected by a sentence that is slightly below the range recognized in LeBlanc . The overwhelming concern is to speak to Boudreau and to others in the community that cocaine trafficking will not be tolerated and will be condemned, even for youthful, first-time offenders.

Recognizing that Boudreau pled guilty at an early stage, accepts that his conduct was wrong, and has taken some steps toward controlling his use of controlled substances, I conclude that the four-year custodial sentence proposed by the Crown is a fit and proper sentence. Sentence [ 51 ] For the reasons given, I impose the following sentence in addition to Orders already granted: [ 52 ] Glen Gerard Boudreau - I sentence you to serve a period of four years custody. You are remanded into custody to serve your sentence. Gogan, J.