HER MAJESTY THE QUEEN, – v. –, 2022 NBKB 247

IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF MONCTON Her Majesty the Queen v. Emma Gilker 2022 NBKB 247 MCR/24/2021 & MCR/12/2022 BETWEEN: HER MAJESTY THE QUEEN, – and – EMMA GILKER DECISION BEFORE: Justice Robert M. Dysart AT: Moncton, New Brunswick DATE OF HEARING: November 25, 2022 DATE OF DECISION: November 25, 2022 (orally) APPEARANCES: Christian Girouard, for the Crown Caroline Albert, agent for Mathieu Boutet, for the Accused

DYSART, J. (Orally) INTRODUCTION [ 1 ] On September 20, 2022, Emma Gilker pleaded guilty to several charges in relation to two separate Indictments. [ 2 ] In Court File MCR-12-2022, Ms. Gilker pleaded guilty to conspiring with others to traffic methamphetamine between July 4 and September 1, 2019, and to conspiring with others to traffic cocaine over the same timeframe. Both offences are in violation of s. 5(1) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19 . I will refer to those charges as the J-Trilogy case. [ 3 ] In Court File MCR-24-2021, Ms.

Gilker pleaded guilty to being in possession of cannabis for the purpose of selling it, contrary to s. 10(2) of the Cannabis Act , S.C. 2018, c. 16 and to being in possession of the proceeds of an indictable offence, contrary to s. 355 (b) (

i) of the Criminal Code . I will refer to those charges as the Kingsmere case. [ 4 ] With respect the J-Trilogy case, the pertinent facts are contained in an Agreed Statement of Facts, marked Exhibit S-1 in Court File MCR-12-2022. They are as follows: 1. In January 2019, the Royal Canadian Mounted Police, the Fredericton Police Force and the Woodstock Police Force joined together for Operation J-TRILOGY, an investigation into the drug trafficking activities of Jesse Todd Logue.

In the following seven months, the investigative team deployed a number of investigative techniques, including surveillance, tracking warrants and wiretap authorizations. Operation J-TRILOGY culminated in a multi-location takedown on the morning of August 28th, 2019, including at a location at 204/206 Dominion Street in Moncton, New Brunswick. 2. The duplex located at 204/206 Dominion Street had been equipped with surveillance cameras, steel doors and became a point of sale for hard drugs. This location was referred to as "the shack" by members of Mr.

Logue's group and it operated like a convenience store, open 24/7 to serve its customers. 3. Emma Gilker worked as an employee of "the shack" in July and August 2019. This employment led her to make repeated street level sales of both cocaine and methamphetamine. 4. The shack's drug "inventory" was tracked by the employees sending periodic messages to Mr. Logue to report on the amount of drugs and cash they had on hand. Jesse Logue would then know when to send someone to pick up the accumulated cash and resupply them with more drugs. Emma Gilker sent several text messages to Mr.

Logue, reporting on the inventory of “hard,” “J, “soft,” “H,” “18’s” and cash on hand during the month of August 2019. 5. In those messages, it is agreed that "hard" referred to crack cocaine; "J" stood for "jib", being crystal methamphetamine; "soft" referred to powder cocaine; "H" referred to heroin; and "18's" referred to the milligram strength of a prescription opioid pill. 6. On August 28th, 2019, the RCMP's Emergency Response Team (ERT) conducted a raid on the fortified duplex building located at 204/206 Dominion Street in Moncton.

The Logue group had installed a surveillance camera system to give the occupants the ability to monitor their surroundings from the inside and had installed steel doors to slow down any attempts at a forced entry. The windows had also been covered with plywood to attempt to defeat the deployment of gas canisters by police. 7. The steel door that protected the main entry had a slot through which drug transactions could be conducted. The access to the attic was also protected by a steel door. 8. After breaching the steel doors, ERT located Emma Gilker in the attic.

ERT was able to put out a fire in the attic's wood stove in which things were burning. Of note, communications involving Emma Gilker intercepted six days prior to the raid indicated that the group's plan in the event of a police raid was for incriminating evidence to be burned. Police were nonetheless able to seize approximately 70 grams of methamphetamine from 204/206, Dominion Street during the search that followed the ERT raid. 9. A work

schedule as well as Emma Gilker's timecard were also located on the wall, indicating she had been active working as an employee at the shack in the days leading up to the police raid. [ 5 ] With respect the Kingsmere case, the pertinent facts are contained in an Agreed Statement of Facts, marked Exhibit S-1 in Court File MCR-24-2021. They are as follows: 1. On January 11th, 2021, Codiac RCMP received a 911 call reporting a possible domestic disturbance incident at apartment #12, 17 Kingsmere Court in Moncton, New Brunswick. Officers entered the apartment to confirm no one inside required police assistance. They

found Emma Gilker and her six-week-old baby inside. 2. While doing a safety sweep of the apartment, police made observations that led them to obtain a search warrant in order to search the apartment for drugs. The following items were seized during the execution of the search warrant: a. 863 grams of cannabis; b. 108 grams of cannabis oil, 456 grams of hash and 14 packs of "shatter", all of which were confirmed to be cannabis concentrates; and c. $3,808 in cash as well as a money-counting machine. 3. The above cannabis products were possessed for the purpose of resale.

The seized cash is the proceeds of an indictable offence, being the sale of drugs. [ 6 ] In addition to those facts, which are stipulated by the parties and which were expressly admitted by Ms. Gilker, the Court also received evidence in the form of a Pre-Sentence Report relating to Ms. Gilker (marked Exhibit S-2 in each file), a letter of support from Ms. Gilker’s aunt, Stephanie Gilker (marked Exhibit S-3 in each file), and the Court also heard from Emma Gilker directly.

PRE-SENTENCE REPORT [ 7 ] In the pre-sentence report prepared by Bianca LeBlanc Normand, the author indicates that Emma Gilker is 23 years of age and has no previous criminal convictions. [ 8 ] Ms. Gilker's parents both struggled with drug addiction and with the law. Her mother lost custody of Ms. Gilker when she was just a baby because her mother was imprisoned and struggling with substance abuse problems. As a result, Ms. Gilker grew up primarily in the care of her grandmother and in the care of the Minister of Social Development. Her father was apparently incarcerated for most of Ms.

Gilker's life, and she had little contact with him. He died in 2017 from a drug overdose. [ 9 ] Until approximately age 11, Ms. Gilker lived with her grandmother, but moved into group homes and foster care due to behavioural problems. This continued until she aged out of the system. [ 10 ] In 2017, she started a relationship with Jessie Logue, who, according to the agreed facts in this case, headed a criminal organization involved in the trafficking of hard drugs. That relationship lasted approximately two years. Ms. Gilker reported to the author of the pre-sentence report that Mr.

Logue was emotionally, verbally and physically abusive towards her. She ended that relationship when she was arrested in relation to the J-Trilogy case in 2019. [ 11 ] Later that year, she started a relationship with Jacob Blakney, which lasted until 2022. Ms. Gilker reported to the author that that relationship was also abusive. [ 12 ] Ms. Gilker has a 2-year-old daughter with Mr. Blakney. Her daughter is in the custody of Ms. Gilker's aunt, Stephanie Gilker.

The Minister of Social Development confirmed to the author of the report that the baby was taken from Emma Gilker due to the presence of drugs and guns in the home, as well as domestic abuse. It would seem that the plan is for her daughter to remain with Stephanie Gilker until Emma Gilker is able to care for her. [ 13 ] Emma Gilker has a Grade 11 education. Since being incarcerated this past summer, she has signed up for a GED high school equivalency through the Women's Correctional Centre. She has also followed several programs, including “Courage to Change”, “Self Improvement” and “Mommy Read to Me”.

She has very little in the way of a past employment history, and it appears that she has primarily lived off social assistance for a number of years and she has also earned income through the sale of drugs. [ 14 ] Ms. Gilker reported no mental health issues to the author of the pre-sentence report, but her grandmother advised that Emma Gilker was diagnosed with borderline personality disorder as a teen. [ 15 ] Ms. Gilker acknowledged to the author that she has a drug addiction problem. She advised that she primarily used methamphetamine, typically on a daily basis over several years.

She has not been followed for drug rehabilitation at any time in the past, but she has been drug-free since her incarceration this past summer.

LETTER OF SUPPORT [16] Stephanie Gilker provides a letter of support for her niece Emma Gilker. She advises that Ms. Gilker has developed arelationship with her daughter, and that she has had a number of visits with her daughter and has learned some parenting skills throughthe assistance of the Minister of Social Development. She reports that she has seen changes and improvements in Emma Gilker'sbehaviour and in her lifestyle and in her parenting skills. [17] At the hearing, Emma Gilker addressed the Court directly. She indicated that she is sorry for her actions.

She advised the Courtthat she wants to put her criminal past behind her, get rehabilitation and then get back to being a mother to her daughter. LAW AND SENTENCING PRINCIPLES [18] The purposes and principles of sentencing are set out in

section 718 of the Criminal Code. They include the followingobjectives: the need to denounce unlawful conduct; to deter the offender and others from committing offences; to separate offendersfrom society where necessary; to assist in the rehabilitation of offenders; to promote a sense of responsibility and acknowledgement inoffenders for the harm they have done; and to provide reparations for harm done. [19]

Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of theoffender. [20]

Section 718.2 also directs the Court to consider aggravating and mitigating circumstances relating to the offence or the offender. It sets out certain circumstances which shall be deemed to be aggravating. In addition, the

section provides that a sentence should besimilar to sentences imposed on similar offenders for similar offences committed in similar circumstances. That is, the sentence shouldrespect the parity principle. [21] With respect to drug offences, section 10(1) of the Controlled Drugs and Substances Act provides that: […] the fundamental purpose of any sentence for an offence under this

Part is to contribute to the respect for the law and themaintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, ofoffenders and acknowledging the harm done to victims and to the community. [22] Our court of Appeal has stated on numerous occasions that the principles of general deterrence and denunciation are of primaryimportance when sentencing drug traffickers. As noted by Justice Quigg in R. v. Frost, 2012 NBCA 94 (NBCA) at paragraph 16: The applicable principles and objectives of sentencing are found in s. 718 of the Criminal Code.

It is clear that, of the principles listed,denunciation and general deterrence must take precedence in cases of trafficking or possession for the purpose of trafficking. Thesesituations involve crimes that are planned with the motive that significant profit can be gained. Generally, these crimes are notcommitted out of desperation or the result of an addiction, crimes for which general deterrence would be of little effect. In cases such asthis, where profit is the offender’s motivation, a significant penalty is generally a deterrent to others who might consider whether or notto undertake such criminal activity.

The necessity to emphasize general deterrence is clear. THE CROWN’S POSITION [23] The Crown seeks a period of imprisonment of five years for these offences. [24] The Crown specifically notes that the J-Trilogy case involved hard drugs. In the texts exchanged with Mr. Logue and EmmaGilker, Ms. Gilker referenced a number of drugs, but it must be recalled that she has pleaded guilty to only two offences related to J-Trilogy, involving conspiracy to traffic cocaine and methamphetamine.

It is conceded by the defence that it was crack cocaine andcrystal methamphetamine (see pre-hearing brief, page 27). [25] The Crown argues that our Courts have indicated that lengthy prison sentences are warranted where hard drugs are involved inorder to denounce and deter would-be drug traffickers. Specifically, the Crown cites our Court of Appeal in Cormier v. R., 2018 NBCA38 , where Justice Quigg had this to say about trafficking in crack cocaine: [31] While I would not, for the reasons stated above, take up the challenge of identifying and setting a definitive range of sentences for

cases involving trafficking in or possession of hard drugs for the purpose of trafficking, I would nevertheless take advantage of theextensive research counsel has provided in order to identify certain principles that might provide guidance to sentencing courts. [32] The first of these principles is that those who traffic in or who possess

Schedule I substances – the so-called hard drugs – for thepurpose of trafficking, will only rarely and exceptionally escape a sentence of imprisonment.

This is so because of the emphasis courtsmust give to the sentencing objectives of denunciation and deterrence for these types of crimes on account of the devastating effectsthese substances have on society in general and on those who fall victim to their nefarious and highly addictive properties in particular. [33] The second principle is that, among the hard drugs, crack cocaine requires particular consideration. […] […] [36] In the cases counsel for both parties provided us, many involved individuals who were found guilty of possession of crack cocainefor the purpose of trafficking.

This jurisprudence generally recognizes that crack cocaine is more dangerous and harmful than traditionalpowder cocaine. The connotation used by courts to describe crack cocaine and the effects of its consumption suggests it should be animportant consideration when crafting an appropriate sentence. There is a general consensus among courts that crack cocaine is a highlyaddictive drug causing harm to society and that the main objective of sentencing in possession or trafficking cases should be deterrence. [26] The Crown also cites the decision of this Court in R. v.

Mazerolle, 2022 NBQB 38 , where Justice Ferguson consideredthe societal impact of methamphetamine, and held that its addictive and destructive nature is similar to that of crack cocaine. The Crownnotes that the offender, Ms. Gilker, has pleaded guilty to conspiracy to traffic both of these addictive and dangerous drugs. [27] The Crown acknowledges that Ms. Gilker is a first-time offender, that she is youthful and that she is a candidate forrehabilitation. The Crown further acknowledges that Ms. Gilker has pleaded guilty to these charges, avoiding two trials. Those aremitigating factors.

That being said, the Crown argues that Ms. Gilker’s involvement with Mr. Logue’s group was over a two-monthperiod and that her role, certainly while not that of a kingpin, was nonetheless more than a mere street-level seller. She hadresponsibility for inventory and cash, and her role must be factored into the sentence. [28] The Crown submits that a four to five year period of imprisonment is justified for the J-Trilogy offences. [29] As for the Kingsmere case, the Crown argues that a mere 18 months after she was arrested in relation to J-Trilogy, Ms.

Gilkerwas back to selling drugs – though, of course, she was not selling hard drugs. That said, possession of cannabis for the purpose of sellingremains an offence. A person convicted of possession of cannabis for the purpose of selling is liable to be sentenced to a lengthy periodof imprisonment. The Crown argues that, regardless of society’s more relaxed attitude towards the use of cannabis, its unauthorized saleremains a serious crime. See R. v. Strong, 2019 ONCA 15. [30] The Crown also notes that Ms.

Gilker has pleaded guilty to being in possession of some $3,808 in cash which is admitted to bethe proceeds of an indictable offence. [31] The Crown points to the case of R. v.

Collins, 2020 NBCA 11, where our Court of Appeal upheld a sentence of 10 monthsimprisonment for possession of less than 3 kilograms of cannabis. [32] In these circumstances, the Crown submits that a 12-month period of incarceration for possession of cannabis for the purpose ofselling would be reasonable, with a sentence of six months for possessing the proceeds of an indictable offence, which would runconcurrently. [33] In the end, the Crown argues that the totality principle should be considered so as to reduce the total period of imprisonment tofive years.

THE DEFENCE POSITION [ 34 ] The Defence acknowledges that Ms. Gilker’s offences will require a period of incarceration of at least two years on a go-forward basis. But the Defence argues there are a number of mitigating circumstances in this case which justify the Court erring on the side of the lowest end of the acceptable range. [ 35 ] Specifically, the Defence argues that: • At 23 years of age, Ms. Gilker is a relatively youthful, first-time offender; • Ms.

Gilker was, with respect to both the J-Trilogy and the Kingsmere cases, involved in abusive relationships with men who were, the Defence argues, violent and controlling; • Ms. Gilker’s role was towards the low end of the criminal organization – she was not a mastermind or kingpin; • Ms.

Gilker has pleaded guilty, and has shown genuine remorse; • She is the mother of a young daughter, and she wants to put these criminal activities behind her and care for her daughter; • She has already started to better herself, enrolling in various programs offered at the Women’s Correctional Centre in Miramichi; • She has suffered from drug addiction for many years; and • Ms. Gilker has had a difficult upbringing, with both her parents struggling with substance abuse and criminality, but that she has the support of her aunt, Stephanie Gilker. [ 36 ] In its pre-hearing brief, the Defence argued that Ms.

Gilker was manipulated and controlled by those around her due to her drug addiction, leading to indebtedness and what the Defence refers to as “indentured servitude.” While there is evidence before the Court that Ms. Gilker’s relationships with Mr. Logue and Mr.

Blakney indeed involved abuse, there is no evidence that she was indebted to them due to her drug addiction or that she engaged in her criminal activity due to any coercion or “indentured servitude.” [ 37 ] The Defence argues that the mastermind or kingpin of this organization, Jesse Logue, was sentenced to eight and a half years imprisonment on a joint recommendation, and that the parity principle calls for a much lower sentence for Ms.

Gilker – at the very bottom of the range, the Defence argues. [ 38 ] As well, the Defence submits that two years from the date of sentencing – excluding credit for time already served (such that the sentence would, in fact, be just over two and a half years, or 30 months) – would be a fit sentence for the J-Trilogy offences. [ 39 ] As for the Kingsmere offences, the Defence argues that the amounts of cannabis and the money that was seized suggests that this was a relatively small operation, and that it is unlikely that Ms. Gilker was earning her livelihood off the sale of cannabis.

The Defence argues that a two-year probation order, consecutive to the term of imprisonment for J-Trilogy, would be a fit sentence for the Kingsmere offences. ANALYSIS [ 40 ] I will begin by determining a fit sentence for the J-Trilogy case. [ 41 ] As stated by our Court of Appeal in Cormier , supra, the exercise of arriving at a fit sentence in drug trafficking cases, is a somewhat fact-specific process. The Court adopted a list of considerations which are intended to determine the level of the offender’s involvement in the drug trade. These are: 1. Types of drugs involved; 2. Quantities in question; 3.

The degree of sophistication of the enterprise; 4. Potential for profit; 5. Length of time the enterprise existed prior to arrest; and 6. Accused’s role or level of involvement in the enterprise.

[ 42 ] As sated above, the drugs involved in this case, crack cocaine and crystal methamphetamine are hard,

Schedule 1 drugs. They are highly addictive and their impact on our communities and on users is devastating. The type of drugs in this case point to a longer custodial sentence. [ 43 ] As for the quantities, the amounts that were seized following the takedown on Dominion street were not particularly high; but based on the totality of the evidence and the information contained in the texts sent by Ms. Gilker to Jesse Logue, the volumes that were the subject of the conspiracy to traffic appear to have been significant.

This also points to a longer sentence. [ 44 ] As for the sophistication of the enterprise, this was a highly organized distribution and sales operation. The duplex located on Dominion Street was fortified with steel doors and surveillance cameras. The attic had a wood stove which was part of a plan to destroy evidence in the event of a police raid. While this organization seems to have involved primarily street-level sales, it operated like a convenience store. [ 45 ] As for the length of time, this is a relatively neutral consideration. The agreed facts indicate that Ms.

Gilker’s involvement was over the months of July and August 2019. This was neither a “one-time” lapse in judgment on her part, nor is there evidence to suggest it was any longer than the stated period. [ 46 ] With respect to the profitability of the operation, the evidence would indicate that Ms. Gilker was paid a salary as a seller. There is no evidence before this Court to suggest that she benefited from gross profits, though she clearly was involved in the sale of drugs for her own financial benefit. [ 47 ] As for the accused’s role in the enterprise, both the Crown and the Defence agree that Ms.

Gilker was not the kingpin or the mastermind. That was clearly Mr. Logue. But nor was Ms. Gilker a pawn, as suggested by the Defence. The evidence establishes that Ms. Gilker was, to some degree, a trusted employee, as well as Mr. Logue’s girlfriend. She was tasked with keeping track of inventory and reporting on cash holdings. She did more than sell at a retail level and was not on the lowest rung of the operation. COMPARATOR CASES [ 48 ] The parity principle requires that Ms. Gilker’s sentence be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

Of course, no two cases are exactly alike, but the Court should do its best to achieve parity. [ 49 ] Here, the evidence indicates that Mr. Logue, the head of the drug trafficking organization targeted by the J-Trilogy, was sentenced to eight and a half years imprisonment. That seemingly, is at the very upper end of the spectrum and suggests that Ms. Gilker’s sentence should be less severe. [ 50 ] The Crown argues that the two above-mentioned cases are indicative of the proper range – R. v. Cormier and R. v. Mazerolle . [ 51 ] In Cormier , the offender was 25 years of age.

He was trafficking in cocaine and oxycodone. The quantities were fairly low. He had a prior criminal record, but not related to drug offences. He was a father of a young child and had a limited education. The drug operation in that case was not particularly sophisticated, but it was being done for profit. The trial judge imposed a sentence of four years imprisonment, but the Court of Appeal reduced that sentence to three years due to the offender being youthful and because there was a genuine desire on his part to better himself. There was hope that he could be rehabilitated.

He was also sentenced to two years of imprisonment, concurrent, for trafficking in oxycodone. [ 52 ] In Mazerolle , the offender was 40 years of age. He had a prior record for possessing drugs for the purpose of trafficking. Police seized 85 grams of methamphetamine and score sheets showing some $20,000 in receivables, suggesting a relatively large operation. The offender was sentenced to 66 months imprisonment, i.e. five and a half years. [ 53 ] The Crown argues that the large-scale of the J-Trilogy operation combined with the fact that they were selling hard drugs warrants a lengthy sentence.

Also, the operation was well-organized, and while Ms. Gilker was an employee, she was nonetheless selling drugs for profit. This was not an isolated instance of poor judgment on her part and as a result, the Crown suggests between four

and five years for the J-Trilogy offences. [54] As for the Kingsmere offences, the Crown relies primarily on two cases – one from Saskatchewan and one from NewBrunswick. [55] In R. v. Neary, 2017 SKCA 29, the Saskatchewan Court of Appeal considered a case involving a youthful first-time offenderwho was a university student and varsity athlete. He was convicted of possession of more than 3 kilograms of cannabis for the purposeof trafficking under the Controlled Drugs and Substances Act, and not under the newer Cannabis Act.

He was also convicted ofpossessing the proceeds of crime and of simple possession of psilocybin. The trial judge issued a two-year suspended sentence on allcharges concurrent. On appeal, the Court of Appeal of Saskatchewan held that the proper sentencing range for trafficking in cannabis atthat time was between 12 and 15 months incarceration and imposed a sentence at the upper range of 15 months, with the other sentencesbeing concurrent. [56] In Collins v.

R., 2020 NBCA 11, our Court of Appeal considered a case involving a finding of guilt for the trafficking ofmarijuana also under the Controlled Drugs and Substances Act. The offender, who held a license to possess cannabis for medicinalpurposes, was in possession of over two kilograms of cannabis and 274.5 grams of cannabis resin – in excess of what he was licensed tohave. He was sentenced by the trial judge to a custodial sentence of 10 months followed by 12 months probation.

The Court of Appealheld that the sentence was well within the appropriate range, and refused to vary that sentence. [57] As noted, of course, both those decisions pre-date the enactment of the Cannabis Act. [58] In the end, the Crown asks for 12 months incarceration for the breach of the Cannabis Act (consecutive to the sentence for J-Thunder), and for a sentence of six months incarceration for being in possession of the proceeds of an indictable offence, to runconcurrently. [59] Under the totality principle, the Crown argues that a sentence of five years total incarceration for these offences is reasonable. [60] As for the Defence, Ms.

Gilker acknowledges that the Court of Appeal has directed trial judges that incarceration for drugtrafficking offences is the norm and not the exception. The jurisprudence referred to by the Defence in their brief would suggest a rangeof at least three to five years, and possibly more for J-Trilogy. [61] Of the cases cited by the Defence, the following are the most instructive, in my view. [62] R. v. Potts, 2011 BCCA 9 : Here, the offender was in his fifties and was affiliated with the Hells Angels.

He entered aguilty plea to conspiracy to produce and traffic in methamphetamine, two counts of trafficking in cocaine, and to unlawful possession ofproceeds of crime. The offender had a number of prior offences. He had the support of his family, and the British Columbia Court ofAppeal determined that the proper sentence for conspiracy to traffic in methamphetamine was five years, with concurrent sentences ofthree years for trafficking in cocaine. [63] R. v. McIntosh, 2013 ONSC 3265: The offender was 32 years of age with no prior criminal record.

She was convicted ofimporting 810 grams of cocaine in her suitcase from Jamaica. She was sentenced to 30 months incarceration, notwithstanding that theusual range of sentence of trafficking and importing cocaine was argued to be three to five years. The sentencing judge held that therewere a number of mitigating factors, including that the offender had volunteered information to police which assisted in the investigationof other suspects. The Court held that, had it not been for the assistance rendered to police, the sentence likely would have been threeyears. [64] R. v.

Byers, 2007 NBQB 224 : The offender pleaded guilty to a charge of conspiring to traffic in controlled substances. It was not disputed by Ms. Byers that she was the “king pin” of the trafficking operation which took place out of two locations in northend of Saint John. She had others working for her. Police seized Dilaudid, marijuana and crack cocaine as well as large amounts ofcash, baggies, cell phones and a police scanner as well as other related drug paraphernalia. The offender cooperated with police, pleadedguilty and was remorseful.

She had prior convictions for drug offences and she was sentenced to three years in prison.

[65] R. v. Majnoon, 2009 ONCA 876 : The offender was arrested as part of an investigation into a drug distribution ringwhich brought cocaine from Montreal and Toronto into the Ottawa region through two distribution networks. The offender and anotherthree individuals were responsible for one of those distribution networks. The evidence established that the group transported cocaine bythe kilo and then sold it by the ounce. The offender was responsible for negotiating prices. He entered a guilty plea to conspiracy totraffic in cocaine. The trial judge sentenced him to two years less a day.

The Crown appealed and the Ontario Court of Appealconcluded that the offender was more than a mere courier, and that while not at the top of the organization’s hierarchy, he did more thanmerely carry drugs. His sentence was increased to five years imprisonment but was reduced to account for pre-sentence detention. [66] The cases cited by both the Crown and the Defence would seem to support a fit sentence with respect to J-Trilogy in the range ofthree to five years, and possibly higher.

It is noted that most of the cases referred to by the Defence are older decisions and may notreflect the modern approach to sentencing in drug offences – which focuses on denunciation and general deterrence. [67] I agree with the Defence that there are a number of mitigating factors in this case, including that Ms.

Gilker is a youthful, first-time offender; she is the mother of a young daughter with whom she hopes to reunite in the future; she was involved in abusiverelationships at the time of these offences by men who apparently were the king pins; she has taken a number of programs and courses injail and has shown a desire to better herself; she has pleaded guilty and she has, in the Court’s view, shown genuine remorse for heractions. [68] For those reasons, I am of the view that a sentence at the lower end of the range for the J-Trilogy cases is warranted.

In myview, a fit sentence for the J-Trilogy offences is 42 months (three and a half years) imprisonment. [69] As for the Kingsmere offences, I agree with the Crown that the legalization of cannabis in Canada has not rendered itsunauthorized sale as any less blameworthy. It remains a serious crime and it must be denounced, and the Court must deter would-besellers from engaging in the practice. Also, it cannot be ignored that Ms.

Gilker returned to selling drugs, admittedly selling soft drugs,just 18 months after her arrest in J-Trilogy. [70] In my view, an appropriate sentence for the Kingsmere offences is 10 months incarceration for violations of the Cannabis Act, tobe served consecutive to the J-Trilogy sentence as they are distinct criminal adventures; as well, a six-month period of incarceration forpossessing the proceeds of an indictable offence, to be served concurrently. TOTALITY PRINCIPLE [71] The totality principle was considered by our Court of Appeal earlier this year in Brown v.

R., 2022 NBCA 33 , whereJustice French adopted the following framework at paragraph 23: […] 1. identify a sentence for each offence, applying proper sentencing principles; 2. consider whether any of the individual sentences should be made consecutive or concurrent, on the ground that they constitute asingle criminal adventure; 3. if this results in two or more sentences being served consecutively, take one “last look” at the combined sentence to determinewhether it is unduly long or harsh, in the sense that it is disproportionate to the gravity of the offence and the degree of responsibility ofthe offender, having regard to the following factors:

a) the length of the combined sentence in relation to the normal level of sentence for the most serious of the individual offencesinvolved;

b) the number and gravity of the offences involved;

c) the offender’s criminal record;

d) the impact of the combined sentence on the offender’s prospects for rehabilitation, in the sense that it may be harsh or crushing, and

e) such other factors as may be appropriate to consider to ensure that the combined sentence is proportionate to the gravity of the offences and the offender’s degree of responsibility; 4. if the combined sentence is not unduly long or harsh and is proportionate to the gravity of the offences and the offender’s degree of responsibility, the sentence must stand; 5. where the combined sentence is unduly long or harsh, determine the extent to which the combined sentence should be reduced to achieve a proper totality by, first, attempting to adjust one or more of the sentences by making it or them concurrent with other sentences, but if that does not achieve the proper result, in addition, or instead, reduce the length of an individual sentence below what it would otherwise have been; and 6. in imposing individual sentences adjusted for totality, the judge should be careful to identify:

a) the sentences that are regarded as appropriate for each individual offence applying proper sentencing principles, without considerations of totality;

b) the degree to which sentences have been made concurrent on the basis that they constitute a single criminal adventure; and

c) the methodology employed to achieve the proper totality that is indicated, identifying which individual sentences are to be made concurrent or to be otherwise reduced. [ 72 ] Here, I have already determined a sentence for each offence, and I have determined whether they are to be served consecutively or concurrently. [ 73 ] The next step is to take a “last look” in order to determine whether the aggregate of the sentences is unduly long or harsh, in the sense that it is disproportionate to the gravity of the offence and the degree of responsibility of the offender. [ 74 ] In my view, a sentence of 52 months aggregate is slightly too harsh in these circumstances.

I believe a fit sentence for Ms. Gilker, taking into consideration all of the circumstances, including the many mitigating factors in this case already listed, not the least of which is that Ms. Gilker is a youthful, first-time offender who can be rehabilitated. In my view, a total sentence of 48 months or four years imprisonment is appropriate.

As a result, I will reduce the sentence for the Kingsmere Cannabis Act offence, which involves a much smaller operation and the sale of a soft drug, from 10 months to six months incarceration; and with a six-month period of incarceration for possessing the proceeds of an indictable offence, to be served concurrently. IMPOSITION OF SENTENCE [ 75 ] Ms. Gilker, please stand. [ 76 ] I have considered the numerous mitigating factors in this case, and I have, to the extent possible, given the benefit of the doubt to you.

Had it not been for those mitigating factors, including the support of your aunt and those around you, including the fact that you are youthful, you have pleaded guilty, you have shown what I consider to be genuine remorse, in my view, those are important mitigating factors in this case. Had it not been for those mitigating factors, the Crown’s suggested five years incarceration would likely have been accepted by the Court. [ 77 ] The fact remains that you were trafficking in hard drugs as part of Mr. Logue’s organization, and crack cocaine and crystal

methamphetamine are destroying our communities and are creating terrible suffering for addicts. I recognize that you, yourself, are an addict. But that does little to lessen your moral blameworthiness in this case, in my view. You played a significant role in the organization.

Denunciation and general deterrence require that this Court impose a lengthy period of incarceration. [ 78 ] Having considered the facts of the case, the ranges proposed by the Crown and the Defence, the aggravating and the mitigating circumstances of the case, I sentence you to 48 months incarceration, made up as follows: • For conspiring with others to traffic methamphetamine between July 4 and September 1, 2019, in violation of s. 5(1) of the Controlled Drugs and Substances Act – 42 months incarceration; • For conspiring with others to traffic cocaine between July 4 and September 1, 2019, in violation of s. 5(1) of the Controlled Drugs and Substances Act – 42 months incarceration (concurrent); • For possession on or about the 11th day if January, 2021 of cannabis for the purpose of selling it, contrary to s. 10(2) of the Cannabis Act – six -months incarceration (consecutive); and • For possession on or about the 11 th day if January, 2021 of a sum of money, $3,808, obtained by the commission in Canada of an offence punishable by indictment, contrary to s. 355 (b)(

i) of the Criminal Code – 6 months incarceration (concurrent). [ 79 ] Because you have been detained prior to sentencing, you are also entitled to a so-called Summers credit of 1.5 days for every day you were in remand.

You have been detained for 128 days, meaning you are entitled to a remand credit of 192 days, which will be subtracted from the sentence I have imposed. [ 80 ] As well, I will issue a Forfeiture Order with respect to the items seized by police in the Kingsmere case, specifically: • $3,808 in Canadian currency; and • a money-counting machine. [ 81 ] Further, with respect to the J-Trilogy offences, I impose a 10-year prohibition, and for the Kingsmere offences, I impose a lifetime prohibition pursuant to s. 109 of the Criminal Code against possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition or explosives. [ 82 ] Finally, I order you to provide a DNA sample in accordance with

section 487.051 of the Criminal Code . DATED at Moncton, New Brunswick this 25 th day of November, 2022. _____________________________________ Robert M. Dysart, Judge of the Court of King's Bench of New Brunswick