R. v. Brown, 2020 NLSC 103

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Brown , 2020 NLSC 103 Date : July 22, 2020 Docket : 201901G2014 Her Majesty The Queen v.

Thomas Brown PUBLICATION BAN: It is ordered that no person or entity shall publish or broadcast the name of or any other information which would lead to the identity of Nicklaus Travis, Jonathan Mahon, Steven Noseworthy, Michael Smith or Charlotte Toomey, in relation to the facts recited in the Agreed Statement of Facts and this decision until such time as all charges under the Criminal Code and the Controlled Drugs and Substances Act pertaining to the period between May 1, 2017 and March 20, 2018, against any of those individuals have been fully and finally adjudicated or otherwise fully and finally disposed of according to law.

Before: Justice Sandra R. Chaytor Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: June 18, 2020

Summary: An offender pled guilty to one count of conspiracy to traffic in cocaine involving a large commercial venture that resulted in the importation and trafficking of significant quantities of high purity cocaine into this Province. The Court determined that the offender was more than a courier. He was a trusted and integral player who filled a necessary and multi-faceted role in the conspiracy. The Court imposed a sentence of forty-four months’ imprisonment. The Court also granted a firearms prohibition order, a forfeiture order, and a DNA order. Appearances:

Brenda P. Boyd, Q.C. Appearing on behalf of the Crown Candace G. Summers Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. c. LaCasse, 2015 SCC 64; R. v. Kang-Brown, 2008 SCC 18; R. v. Oates (1992), (NLCA), 100 Nfld. & P.E.I.R. 289, 16 W.C.B. (2d) 485 (Nfld. C.A.); R. v. Pittman, 2018 NLSC 135; R. v. Silveira, (SCC),[1995] 2 S.C.R. 297; R. v. Careen (1993), (NL SC), 105 Nfld. & P.E.I.,R. 263, 19 W.C.B. (2d) 238 (Nfld. C.A.); R.v. Melvin, 2000 NFCA 17; R. v. Snow, 2006 NLTD 3; R. v. Payne, 2012 NLTD(G) 106; R. v. Kane, 2012 NLCA 53; R. v. Stewart, 2012NLTD(G) 187; R. v.

Blok-Anderson, 2014 NLTD(G) 141; R. v. Hillier (2015), 370 Nfld. & P.E.I.R. 61, 124 W.C.B. (2d) 395 (NLPC); R.v. Stapleton (2016), 129 W.C.B. (2d) 181, 2016 CarswellNfld 110 (NLPC); R. v. Gould, 2016 NLTD(G) 97; R. v. Parsons, 2017 NLCA64; R. v. Noftall, 2017 NLTD(G) 128; R. v. Mitchell, 2017 NLCA 26; R. v. Noseworthy, 2019 NLSC 23; R. v. C.(R.), 2005 SCC 6; R. v.Rodgers, 2006 SCC 15 STATUTES CONSIDERED: Controlled Drugs and Substances Act, S.C. 1996, c. 19; Criminal Code, R.S.C. 1985, c.

C-46 REASONS FOR JUDGMENT Chaytor, J.: INTRODUCTION [1] Thomas Brown pled guilty to one count of conspiracy to traffic in cocaine thereby committing an offence under section465(1)(

c) of the Criminal Code, R.S.C. 1985, c. C-46, in respect of section 5(1) of the Controlled Drugs and Substances Act, S.C. 1996,c. 19 (“CDSA”). The basis of the charge against Mr. Brown, as stated on the indictment, was that between May 1, 2017 and March 20,2018, at St. John’s, and elsewhere in Canada, he and Nicklaus Travis conspired with Jonathan Mahon, Steven Noseworthy, MichaelSmith, Charlotte Toomey and others to traffic in cocaine. [2] An Agreed Statement of Facts with voluminous appendices was filed and read into the record. The appendices includedtranscripts of intercepted communications of Mr.

Brown and his alleged co-conspirators, statements to the police by Mr. Brown and hisalleged co-conspirators, and certificates of analysts from Health Canada regarding the substances seized in the investigation. [3] The facts are as detailed in the Agreed Statements of Facts. A summarized version of the facts which are of particularrelevance to Mr. Brown’s involvement in the conspiracy follows: 1. The charge against Mr. Brown arose following an investigation (“Project Broken”) by the RCMP Federal Serious and OrganizedCrime Unit into the activities of Jonathan Mahon and his associates.

Source information had been received that Mr. Mahon was asignificant cocaine trafficker in the St. John’s area. 2. The investigation began May 1, 2017 and concluded March 20, 2018 with the arrest of Mr. Brown and his alleged co-conspirators. The conspiracy continued throughout the time of the investigation. Mr. Brown was involved throughout that period until afew days before March 20, 2018 when he and Mr. Mahon had a falling out. 3. Throughout the investigation, Michael Smith was incarcerated. The police intercepted communications regarding drug traffickingand related financial transactions between Mr.

Smith and his common-law spouse, Charlotte Toomey, of Montreal. There weresignificant conversations between them directly linking them to Mr. Mahon and Mr. Brown. It was clear from the calls that Mr. Smithand Ms. Toomey supplied Mr. Mahon with cocaine which they themselves obtained from third parties.

4. In Michael Smith’s police statement, he stated that Mr. Mahon was the only person he was supplying cocaine to in this Province and that Mr. Mahon was selling large amounts – between 5-7 kilograms per month. Charlotte Toomey stated that Mr. Mahon usually received cocaine every 1 to 2 months and most recently had received 4 kilograms. 5. The police identified Mr. Brown as Mr. Mahon’s “right hand man”. Mr. Brown would conduct the majority of drug transactions on Mr. Mahon’s behalf, including meeting couriers, collecting money, and traveling to Montreal to meet with Charlotte Toomey and/or other drug suppliers.

During his trips to Montreal, Mr. Brown would transport large sums of money in return for cocaine obtained directly or indirectly from Charlotte Toomey. 6. An apartment in Elizabeth Towers in St. John’s was utilized as a stash house to store the cocaine and/or the profits. Investigators believe only Mr. Mahon and Mr. Brown had keys to the apartment. On numerous occasions during the investigation, Mr. Brown was observed entering and/or exiting Elizabeth Towers carrying bags immediately before or after having been observed conducting activity consistent with drug transactions at various locations throughout St.

John’s such as parking lots of food establishments, malls, and grocery stores. 7. Intercepted communications obtained from within the stash house, in addition to other evidence, clearly established that Mr. Mahon, Mr. Brown, Mr. Smith and Ms. Toomey were directly engaged in a joint criminal enterprise to transport drugs from Quebec and to redistribute them in this Province. 8. Two methods were identified by which Mr. Smith and Ms. Toomey distributed cocaine to Mr. Mahon. If their supplier in Ontario, was providing the cocaine, he would send a courier with the cocaine to this Province.

The courier would then meet with someone working for Mr. Mahon, likely Mr. Brown. If Ibrahim Nassar, their supplier in Montreal, was supplying the cocaine, Mr. Brown would drive to Montreal and meet with Ms. Toomey. She would then make arrangements for Mr. Brown and Mr. Nassar to meet and conduct a cash for product exchange. Mr. Brown would provide Ms. Toomey with the cash. 9. On two occasions during the investigative period, Mr. Brown travelled to Montreal, obtained cocaine and then transported the drugs back to this Province. The first occurred in October 2017 and the second in October 2018. These trips and Mr.

Brown’s involvement is detailed in paragraphs 44 and 60, respectively, of the Agreed Statement of Facts. 10. Mr. Brown assisted Mr. Mahon in the collection of outstanding drug debts as described in paragraphs 54, 55, and 58 of the Agreed Statement of Facts. Communications were intercepted between Mr. Brown and Mr. Mahon in which they discussed an individual in Grand Falls-Windsor, NL owing money for outstanding drug debts. On February 2, 2018, Mr. Brown, on the direction of Mr. Mahon, travelled to Grand Falls–Windsor and met with the individual involved and others. Continued interceptions suggested that Mr.

Brown was collecting money. 11. Physical evidence related to drug trafficking was seized at the time of the arrests. This included the following items from Mr. Brown’s residence: kitchen and digital scales with cocaine residue; a container of a substance that is sometimes used as a cutting agent for cocaine; four cell phones; a money counter; and vacuum sealer bags. 12. Mr. Mahon and Nicklaus Travis were arrested inside the stash house. At the time, 6 one-kilogram bricks of cocaine were found at the premises along with 12 empty packages consistent with each having contained one kilogram of cocaine.

The cocaine was analyzed and found to be between 86-93% in purity. Mr. Brown had not been involved in this shipment of cocaine as it occurred after his falling out with Mr. Mahon. 13. Other items located at the stash house included vacuum sealer bags - some of which had happy face markings. Ms. Toomey stated that $199,499 of the money located at her residence was from Thomas Brown. This money was in vacuum-sealed bags with happy face markings. Ms. Toomey stated that the money was vacuumed sealed in St.

John’s and transported to her with the markings already on the bags. [ 4 ] I was satisfied based upon the evidence adduced that the Crown had proven all elements of the offence and Mr. Brown was convicted as charged.

issue [5] The sole issue for determination is the imposition of an appropriate sentence for the offence committed by Mr. Brown. [6] For the reasons that follow, I find that an appropriate sentence is forty-four (44) months’ incarceration plus ancillary orders ofa firearms prohibition pursuant to

section 109 of the Criminal Code, a forfeiture order regarding the seized items pursuant to

section 16of the CDSA, and a DNA order pursuant to

section 487.051(3) of the Criminal Code. SENTENCING Objectives AND PRINCIPLES [7] Determining an appropriate sentence starts with the principles set out in

section 718 of the Criminal Code. The sentence mustcontribute to respect for the law and the maintenance of a just, peaceful, and safe society. It should meet one or more of the followingobjectives: denunciation, deterrence, separation of offenders from society (where necessary), rehabilitation, reparation, and generalpromotion of a sense of responsibility in offenders and an acknowledgement of the harm done to victims and to the community. [8] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

In R. c.LaCasse, 2015 SCC 64, Wagner, J. (as he then was), in commenting on the principle of proportionality, stated at paragraph 12 that, themore serious the crime and its consequences, or the greater the offender's degree of responsibility, the heavier the sentence will be. Inother words, the severity of a sentence depends not only on the seriousness of the crime’s consequences, but also on the moralblameworthiness of the offender. Proportionality is determined both on an individual basis and by comparison with sentences imposedfor similar offences under similar circumstances. Mr.

Brown is the first person involved in this conspiracy to be sentenced so theprinciple of parity with respect to his alleged co-conspirators is not an issue. His role in comparison to theirs in the conspiracy ishowever, a factor considered in assessing the degree of Mr.

Brown’s responsibility. [9] For the purpose of this sentencing, I must also give consideration to subsection 10(1) of the CDSA, which provides that thefundamental purpose of any sentencing for an offence such as trafficking in cocaine, 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. [10] Trafficking in hard drugs such as cocaine is widely recognized as a serious problem in our society.

As noted by Deschamps, J.,in R. v. Kang-Brown, 2008 SCC 18, at paragraph 184, the use of such drugs not only fuels organized crime, but can destroy lives.Although usually there is no identified victim in offences of this nature, it is undeniable that there are many victims. They arewidespread and some of them are the most vulnerable members of our society including those with severe addictions. But the victims ofthis crime and its consequences extend far beyond the end user. As Marshall, J.A. stated in R. v. Oates, (1992), (NLCA), 100 Nfld. & P.E.I.R. 289, 16 W.C.B. (2d) 485 (Nfld.

C.A.), trafficking in cocaine, in itself, is grave as it preys upon the addictionof others for profit leaving in its wake inestimable individual and social damage and desolation. In R. v. Pittman, 2018 NLSC 69, atparagraph 11, Goodridge J., referenced the types of social damage arising from cocaine trafficking that is often seen in courts. Thisincludes, “… families destroyed, children removed from addict parents, addicts living in deplorable conditions, crimes (sometimesviolent) committed to fund the habit, suppliers using violence to enforce payment.

This reality… is the dark truth behind cocainetrafficking.” [11] In R. v. Silveira, (SCC), [1995] 2 S.C.R. 297, L’Heureux-Dubé, J. noted that cocaine trafficking is a blight onsociety and every effort must be made to eradicate it. This is why cocaine trafficking warrants heavy sentences for offenders. Bearingthat in mind, I must nonetheless craft a sentence that fits the personal circumstances of Mr. Brown and the offence he committedincluding any mitigating or aggravating factors. [12] General deterrence and protection of the public are paramount considerations in offences of this nature.

Although rehabilitationplays a secondary role in such cases, it is nonetheless an important objective of our criminal justice system, particularly when sentencinga first-time offender. CROWN and defence POSITIONs [13] The Crown seeks a period of incarceration between 4 to 6 years. It contends that Mr. Brown’s role was more than a courier; hewas an integral part of a commercial enterprise to import large amounts of cocaine into this Province. [14] The Defence submits that a sentence of two and half to three years’ incarceration would be appropriate. In making thissubmission, the Defence contends that Mr.

Brown’s role in the conspiracy was more of a mid-level courier. The Defence emphasizes thatMr. Brown is a first time offender whose involvement was partially motivated by his own drug dependency and that he has takeninitiative to address his underlying issues since his arrest. circumstances of the offenDER [15] A Pre-Sentence Report (“PSR”) dated May 11, 2020 was completed. It outlines Mr. Brown’s personal circumstances. Mr.Brown is a single, 32 year old without any dependents. He reports having a positive childhood. Mr.

Brown’s mother recalls that,beginning at age 12, he became difficult to control and made poor choices in friends. His parents had little contact with him for severalyears leading up to his arrest. Since his arrest, they have reunited. He lives with them and they are supportive of him. His motherreported that things have been going well and they are enjoying getting to know him again. [16] Mr. Brown claims he developed an opiate addiction as a result of having been prescribed Oxycodone for back pain a numberof years ago. Over time, he purchased the drug off the street to supplement his prescription.

At the same time, he was using cannabis,cocaine and an “occasional pill”. He states that his involvement in the trafficking conspiracy was to support his addiction and his livingexpenses. [17] Since his arrest, Mr. Brown has taken initiative to address his opiate issue. He has also severed ties with his co-conspirators

and past cohorts who had connections to the drug trade. He is enrolled in a Methadone program with Dr. Todd Young. He is meeting expectations of the program and continues to pass drug screening tests. Mr. Brown indicates that, since starting the program, he has not consumed drugs and is no longer prescribed opiates for his back injury. He now takes Celebrex which he does not find as effective and claims to spend some days in bed incapacitated due to his back pain. [ 18 ] Over the past two years, Mr. Brown has been treated for anxiety and depression.

In June 2019, he unintentionally overdosed on Ativan in an attempt to feel better. He was treated at hospital and was referred for counselling. He attended 10 sessions between July and November 2019 with addictions counsellor, Tracy Smith. Due to transportation difficulties, he was unable to continue. Ms. Smith reported that Mr. Brown made great progress during the sessions. [ 19 ] In terms of educational and employment background, Mr. Brown has a grade 12 equivalency. He was employed with Costco from 2009 to 2014. Since leaving that job, his employment has been limited.

He most recently worked with a garbage disposal company for three or four weeks in the fall of 2019. He states that he was unable to maintain that employment because his working hours conflicted with the timing of his Methadone treatment. Mr. Brown does not have any definitive plans for the future although he has articulated a goal to pursue a crane or heavy equipment operator’s licence. His mother is encouraging his pursuit of a trade. Mr. Brown has not taken steps towards pursuing his goal. Counsel for Mr.

Brown advised this is partly because he is awaiting the conclusion of his court matter and also because of a health issue that has recently arisen. Approximately 15 months ago, Mr. Brown began experiencing seizures. As a result, his driver’s licence has been suspended. He most recently had a seizure in May 2020, less than six months since his last seizure. As such, he has not been able to have his driver’s licence reinstated. [ 20 ] Mr. Brown spoke at the sentencing hearing and expressed that he truly regrets what he has done.

He stated it is the first crime that he has committed and that it would not happen again. He will accept whatever punishment he is given and learn from his mistakes. He is looking forward to moving his life towards better things once this is behind him. [ 21 ] Mr. Brown was 30 years of age at the time of committing this offence. He has no prior criminal record. I accept that his participation in this conspiracy was driven, at least in part, by his opiate issue.

I also accept that he has made genuine efforts since his arrest to overcome his dependency and that he is sincere in wanting to move forward with a prosocial lifestyle. He has been compliant with the Methadone program and has not used opiates since May 2019. He has also attended counselling sessions in an effort to address his issues. The PSR suggests referral for Mr. Brown to Correctional Services of Canada’s Integrated Correctional Program Model, a program that targets offenders who have been assessed as having a medium to high risk to reoffend.

Such programs are designed to teach offenders skills that help reduce their risky and harmful behaviors and to change their attitudes and beliefs. [ 22 ] Based upon Mr. Brown’s demonstrated motivation since his arrest to deal with his drug issue, his acceptance of responsibility for his actions, together with his positive family support, and with his continued involvement in appropriate programming during his incarceration, he should have reasonable prospect for rehabilitation.

I have taken this into consideration in determining the sentence. circumstances of the offenCE [ 23 ] In Oates at paragraph 58 , Steele, J.A. outlined primary factors that are ordinarily considered on sentencing for conspiracy to traffic in prohibited drugs where there is evidence of a large-scale commercial distribution.

Those factors are: 1. the type of drug involved; 2. the quantity; 3. the sophistication of the organization and its potential for profit; 4. the period of time during which the organization existed prior to the arrest; and 5. the role or level of the offender within the hierarchy of the criminal organization. Type of Drug [ 24 ] The drug involved is cocaine at 86%-93% purity level. Cocaine is considered to be a ‘hard’ drug compared to other substances such as marijuana in that its consumption results in greater harm to society.

Quantity [ 25 ] I am satisfied that the evidence establishes that the amount of cocaine involved in this conspiracy was substantial such as to constitute this as a large-scale commercial enterprise. The police search of the stash house yielded 6 kilograms of cocaine along with 12 empty packages consistent with each having contained a kilogram of cocaine. [ 26 ] Intercepted communications show that Mr. Mahon purchased the uncut cocaine for about $49,500 per kilogram for a total price of $297,000 for the six kilograms.

Paragraph 79 of the Agreed Statement of Facts, describes the street value of this amount of drugs as follows: If uncut and sold at gram level on the street, the six kilograms would have a value between $480,000 and $600,000. However cocaine at 86% - 93% purity is likely to be mixed at a 2-1 ratio of cut-cocaine which would bring the purity in the range of 30% which is the range commonly seen in cocaine sold on the streets in this province. This would make the street value between $1,440,000 and $1.8 million. [ 27 ] Mr.

Brown was not involved in the transportation of the six kilograms of cocaine found in the stash house as he and Mr. Mahon had a falling out shortly before that shipment of drugs. He admits however that prior to then, and throughout the time-period of the police investigation commencing May 1, 2017, he was Mr. Mahon’s right hand man and that he would transport large sums of money in return for cocaine obtained directly or indirectly from Charlotte Toomey. During the investigation, he was involved in two such shipments.

In her police statement, Charlotte Toomey stated that $199,499 of the funds seized from her residence at the time of her arrest, was money she had received from Mr. Brown. [ 28 ] According to the police statements of Michael Smith and Charlotte Toomey, Mr. Mahon was bringing anywhere from 4-7

kilograms of cocaine into this Province every month or two. At this rate, over the course of the conspiracy, this would have resulted in significant quantities of cocaine coming into this Province. Sophistication of the Organization and Potential Profit [ 29 ] I conclude that there was at least a moderate degree of sophistication of the organization of this conspiracy and a high potential for profit. [ 30 ] At the top of the organization were two suppliers – one in Ontario and Ibrahim Nassar in Montreal. Next in the hierarchy was Michael Smith and Charlotte Toomey.

The arrangements for the supply of the cocaine were done by Mr. Smith, through Ms. Toomey, while Mr. Smith was incarcerated. Jonathan Mahon was next in the chain followed by Mr. Brown, as his right hand man. If the cocaine was obtained from Ontario, a courier would be sent to deliver the drugs to this Province. If the cocaine was coming from the Montreal supplier, Mr. Brown would travel in his vehicle to Montreal and transport the cocaine back. He would also return payment for the cocaine to Charlotte Toomey.

Once the cocaine arrived in this Province, the stash house was used to store and prepare it for distribution. Mr. Mahon or Mr. Brown would then distribute it to local dealers. [ 31 ] As noted above, the quantity and quality of the cocaine was high. As such, there was potential for high profit by the organization. Mr. Brown, expected to personally profit from the enterprise and was paid for his participation. According to the PSR, Mr. Brown had no other source of income at the time and was involved in this conspiracy because he needed money to fund his drug habit and living expenses.

There is no evidence to suggest that he personally received any significant financial gain, however he was making enough to maintain his lifestyle and cover his expenses. Period of Time [ 32 ] The operation continued at least throughout the period of the police investigation, from May 1, 2017 to March 20, 2018. It ended that date because of the arrests of Mr. Brown and his alleged co-conspirators. Mr. Brown was involved in the operation throughout that period except for shortly before his arrest. Thomas Brown’s Role in Hierarchy [ 33 ] The Crown submits that Mr.

Brown was an important and integral member of the conspiracy. The Defence contends that he was merely a mid-level courier. I accept that Mr. Brown was not as high up the hierarchy of this organization as Mr. Mahon. I also accept that Mr. Brown was not a guiding mind in this venture; rather he was directed by Mr. Mahon. Further, although Mr. Brown played a necessary role, he was not personally a necessary participant for the conspiracy to exist. Mr. Brown’s role was quickly replaced in the conspiracy as the last shipment of cocaine occurred without his involvement and within days of his falling out with Mr. Mahon.

The business of the conspiracy continued without Mr. Brown with no apparent interruption. [ 34 ] I do not accept, however that the extent and nature of Mr. Brown’s involvement was limited to that of a courier. Mr. Brown was involved in most aspects of this enterprise including the schemes related to the importation and distribution of the cocaine. Mr. Brown was Mr. Mahon’s “right hand man”. While this included couriering cocaine into this Province and delivering it to the stash house, his duties were more than that. He conducted the majority of drug transactions on Mr. Mahon’s behalf. He was also utilized by Mr.

Mahon to collect drug debts as evidenced by the events surrounding his trip to Grand Falls-Windsor in February 2018. [ 35 ] Furthermore, once the cocaine arrived into this Province, Mr. Brown’s involvement did not end there. He was involved in the distribution of the cocaine to dealers. A substantial amount of paraphernalia related to drug trafficking was seized from Mr. Brown’s residence at the time of his arrest.

Items included kitchen and digital scales with cocaine residue, a container of glutamine (sometimes used as a cutting agent for cocaine), four cell phones, a money counter, and vacuum sealer bags. [ 36 ] Mr. Brown was entrusted by the organization with large sums of money and substantial quantities of cocaine. He was trusted to travel to Montreal and meet directly with persons high up in the chain such as Charlotte Toomey and Ibrahim Nazzar. Mr.

Brown’s place of trust within the organization was also evidenced by the fact that he had keys to the stash house and would access the premises by himself. [ 37 ] I conclude that Mr. Brown was more than a mid-level courier in this conspiracy. He was a trusted and integral player who filled a necessary and multi-faceted role. aggravating and mitigating factors [ 38 ] None of the aggravating factors pursuant to section 10(2) of CDSA were present in this case.

I find, however, the following aggravating factors to be relevant: (1) this offence involved trafficking in cocaine with high purity level; (2) the high volume and value of drugs involved; (3) the moderate degree of sophistication and high potential for profit for the organization;

(4) Mr. Brown’s involvement was not comprised of a single act following which he had no intention to continue with the operation; rather, he carried out many acts in furtherance of the objectives of the conspiracy; and (5) the duration of the conspiracy as a continuing enterprise for approximately 10 months. The longer a crime of this nature continues the more harm is done. [ 39 ] Relevant mitigating factors include:

(1) Mr. Brown pled guilty which saved witnesses from having to testify and valuable court time and resources, which in this case could have been a complex trial. The guilty plea also demonstrates that Mr. Brown takes responsibility for his actions;

(2) Mr. Brown’s post-arrest lifestyle: he has disassociated from his co-conspirators and taken initiative to address his drug habit which was, in part, the motivation for his participation in this illegal activity; and (3) he has no criminal record. prescribed sentence [ 40 ] Consideration of an appropriate sentence must begin with what is statutorily prescribed by the Criminal Code with respect to the offence. Mr. Brown is convicted of conspiracy to traffic in cocaine having committed an offence contrary to section 465(1) (

c) of the

Criminal Code in respect of section 5(1) of the CDSA. He is therefore liable to the same punishment as a person who is convicted oftrafficking in cocaine – the principal offence. A person convicted of trafficking in cocaine is liable to imprisonment for life. There is nominimum sentence on the facts of this case.

Sentencing authorities [41] I have considered the range of sentence imposed for this offence in cases with similar fact situations, including those submittedby counsel and the cases referenced within those cases. [42] In Oates, the offender pled guilty and was sentenced to imprisonment for two years less a day for conspiracy to traffic in 412.8grams of cocaine. The Court of Appeal found this sentence to be too lenient but it was not varied as Mr. Oates had already been releasedfrom prison. To re-incarcerate him would have been counterproductive to the rehabilitation steps he had already taken.

Goodridge,C.J.N. noted that three and one-half to four years’ incarceration would have been an appropriate range of sentence. Similarly, Steele,J.A. considered that a sentence of imprisonment for up to four years would have been appropriate where a conspiracy, amounting to acommercial enterprise with the object of monetary gain, was involved in the delivery and distribution of significant amounts of cocaine. I note that the amount of cocaine in Oates was much less than that involved in this conspiracy. [43] In R. v. Careen (1993), (NL SC), 105 Nfld. & P.E.I.,R. 263, 19 W.C.B. (2d) 238 (Nfld.

C.A.), the Court ofAppeal upheld a sentence of four years imprisonment imposed on Mr. Careen following a guilty plea to conspiring to traffic in cocaine. Aggravating factors in that case which are not present in Mr. Brown’s case were Mr. Careen’s serious criminal record and the fact thathe had become involved in the conspiracy shortly after his release from prison. Similar to this case, the conspiracy went on for a periodof months and involved what the court described as a fairly large quantity of cocaine with a street value of $100,000. [44] In R. v.

Snow, 2006 NLTD 3, a 25 year old with a prior record for drug offences was sentenced to three and one-half years inprison for conspiracy to traffic in cocaine. Mr. Snow arranged to have delivered to him 279.5 grams of cocaine from a courier. The trialjudge commented that drug trafficking in cocaine in quantities greater than small amounts (less than half an ounce) attracts prison termsranging from two to five years. He described the sentence imposed as being on the lower end of the spectrum for the offence. Thecocaine in that case was of high quality but the volume was much less than in this case.

I would not consider the circumstances of theoffence in Snow to be of the same nature as the large-scale commercial enterprise in this case. [45] In R. v. Payne, 2012 NLTD(G) 106, two spouses were involved in a complex operation that involved the inter-provincialmovement of large quantities of cocaine and other drugs. Neither offender had a prior criminal record. At paragraph 31, the court statedthat most of sentences for trafficking or conspiracy to traffic in cocaine (other than small amounts) fall between 2.5 to 5 yearsimprisonment. The court found Mr.

Payne to be the mastermind and main player in the operation which placed him near the high end ofthe range. He was sentenced to five years’ and four months’ imprisonment. Ms. Colbourne, on the other hand, was found to be merely ahelper. She was sentenced to two years and two months’ and 20 days’ imprisonment. An aggravating factor in that case which is notpresent here is that while on release from their first set of charges, the offenders were found in possession of more drugs. In Mr.Brown’s case, the Crown contends that his involvement was more like that of Mr. Payne than Ms. Colbourne. I find Mr.

Brown’s rolewas more than that of Ms. Colbourne but less than that of Mr. Payne. Mr. Brown was more than a helper but not a mastermind of thisconspiracy. [46] I find that Mr. Brown’s role was similar to that of the offender in R. v. Kane, 2012 NLCA 53. In Kane, the Crown appealed aconditional sentence of incarceration of two years less one day imposed on Mr. Kane following his guilty plea to conspiracy to traffic inmarijuana and cocaine. The conspiracy involved commercial quantities of drugs and required planning, deliberation, cooperation, andtrust among the conspirators, including Mr.

Kane, over an extended period of time. It ended only when the players were arrested. TheCourt of Appeal found that the trial judge had misapprehended Mr. Kane’s role in finding it to be minor. Instead, it concluded his role tobe integral to the operation of the conspiracy. Like Mr. Brown, Mr. Kane did more than carry drugs (as in the case of a courier) andmore than act as a conduit for the drugs and money. Mr. Kane was responsible for setting up a stash house and for seeing to thedistribution of large amounts of drugs.

He was entrusted with significant sums of money and should have been distinguished from meretraffickers who had no role in the importation and distribution scheme. Although the Court of Appeal did not modify Mr. Kane’ssentence, it found it to be unfit for an offender who had played an integral role. At paragraph 23, Welsh J.A. noted that the case lawsupports a higher range of sentence where the charge involves, not simply trafficking, but a conspiracy to import large quantities ofcocaine. The court stated that an appropriate sentence for an offender like Mr.

Kane who, for the purpose of monetary gain, has played atrusted and necessary role in a sophisticated, commercial level conspiracy to traffic in significant amounts of cocaine, would be in therange of four years imprisonment. [47] In R. v. Stewart, 2012 NLTD(G) 187, the court imposed a two-year sentence for possession of cocaine for the purpose oftrafficking. Aggravating factors present in that case but not in Mr. Brown’s was that Mr. Stewart had a prior criminal history for similaroffences and was on probation at time of offence. Similar to Mr. Brown, since the charges, Mr.

Stewart took positive steps towardrehabilitation. The case is distinguishable from that of Mr. Brown, however, in that there was no evidence of a sizable commercialventure. Mr. Stewart was in possession of just over four ounces of cocaine, an amount consistent with operating solely as a mid-levelstreet dealer. [48] In R. v. Blok-Anderson, 2014 NLTD(G) 141, Mr. Blok-Anderson and Mr. Strongitharm were involved in the trafficking of 28kilograms of cocaine for the benefit of a criminal organization. Mitigating factors included their expression of remorse and that they hadlittle or no criminal records.

Aggravating factors included the quantity of drugs, the threatening of violence (in Mr. Blok-Anderson’scase) and the offences were committed for the benefit of a criminal organization. Mr. Blok-Anderson was the directing mind in ensuringthe transport of cocaine and in the supervision of others. He was sentenced to four and a half years for the charge of possession for thepurpose of trafficking and one and a half years for committing the offence for the benefit of a criminal organization to be servedconsecutively. Mr. Strongitharm was convicted of four offences including one charge of trafficking in cocaine.

He was sentenced tofour years imprisonment for that offence. The court found that Mr. Strongitharm played a role similar to that of Mr. Kane and that anappropriate range of sentencing for such an offender was between 2 to 5 and half years. I find that Mr. Brown filled a similar role to thatof Mr. Strongitharm, however it appears that Mr. Strongitharm had less of a trusted role in his organization than that filled by Mr. Brown

in his. Mr. Strongitharm had acted as courier in transporting drugs into this Province on one occasion and although he was involved in day-today operations, he had only entered the stash house on his own on one occasion. [ 49 ] In R. v. Hillier (2015), 370 Nfld. & P.E.I.R. 61, 124 W.C.B. (2d) 395 (NLPC) , Mr. Hillier, who had an extensive criminal record including other drug related offences, pled guilty to a number of charges including possession of cocaine and narcotics for the purpose trafficking and one count of conspiracy to traffic in cocaine.

The later charge resulted in the sale of 3 grams of cocaine to an undercover police officer. Mr. Hillier was found in possession of an ounce of cocaine, 98 Oxycodone tablets and 47 Benzodiazepine tablets along with drug dealing paraphernalia. The court determined that Mr. Hillier was higher up in the distribution system than a simple street level dealer. He was sentenced to 6 months for conspiracy charge and 3 years’ imprisonment for possession for the purpose of trafficking. Although Mr. Hillier was operating above a street level dealer, I find the circumstances of the conspiracy in which Mr.

Brown was involved and the role he played in it to be more egregious than that of Mr. Hillier. There was no evidence that Mr. Hillier was involved in a relatively sophisticated commercial venture that saw the importation of large volumes of cocaine or narcotics into this Province. [ 50 ] In R. v. Stapleton (2016), 129 W.C.B. (2d) 181, 2016 CarswellNfld 110 (NLPC) , a first time offender whose motivation was his own drug habit, was convicted of a number of drug offences including trafficking in oxycodone. He was sentenced to 18 months’ incarceration plus 2 years’ probation.

I find this case not to be comparable to that of Mr. Brown’s in that Mr. Brown was involved in a large scale commercial enterprise which involved him travelling out of this Province and bringing substantial quantities of cocaine back. [ 51 ] In R. v. Gould , 2016 NLTD(G) 97, Mr. Morrissey, a 69 year- old retired accountant, pled guilty to a single count of possession of cocaine for the purposes of trafficking after having been found with 945.3 grams of cocaine. Although Mr.

Morrissey acknowledged he had a prior drug conviction, the court found that the Crown had not proven the conviction and therefore did not consider it for purposes of sentencing. The court accepted a joint submission on sentence of four years’ imprisonment. Similar to Mr. Brown, Mr. Morrissey was genuinely remorseful and committed to working towards his rehabilitation. The amount of drugs in Gould was substantially less than that in this case and there was no evidence that Mr. Morrissey was involved in ongoing numerous transactions. [ 52 ] In R. v. Parsons , 2017 NLCA 64 , Mr.

Parsons was convicted of conspiracy to traffic in cocaine and sentenced to 25 months’ imprisonment. The conspiracy related to a single transaction involving a package containing 305.4 grams of cocaine. Another member of the conspiracy arranged for delivery of the package via mail to a residential address and then delivered it to Mr. Parsons. The trial judge concluded that while Mr. Parsons had agreed to be part of the transaction knowing the package contained cocaine, he was not a significant player in the conspiracy. Rather, he was a courier.

On appeal, the Court of Appeal set aside the custodial sentence and replaced it with a conditional sentence of 2 years less a day. It found that the trial judge erred by focusing on general deterrence to exclusion of rehabilitation and by failing to distinguish Mr. Parsons’ antecedents from those of his co-conspirators. The offence was an “outlier” incident in Mr. Parsons’ non-criminal life. This case is distinguishable from that of Mr. Brown in terms of the amount of drugs involved, that it was a single transaction and Mr. Parsons’ role was much less than that of Mr. Brown. [ 53 ] In R. v.

Noftall , 2017 NLTD(G) 128 a 39 year old, with a prior record for trafficking was convicted of conspiracy to traffic in cocaine after an 8-9 month police surveillance operation. He was determined to be a mid-level local player in the conspiracy and was sentenced to three years’ imprisonment. The value of the drugs was in the thousands of dollars and Mr. Noftall expected to profit by approximately $8,000 per kilogram of cocaine. His role included making his garage available for the trafficking business, repackaging drugs, counting proceeds from sales and debt collection.

The court found that his role was less than that of Mr. Kane and not integral to the operation of the conspiracy. Furthermore, unlike Mr. Brown, Mr. Noftall had no role in sending monies back to the suppliers in Quebec. He was one of a few mid-level participants and had no direct dealing with the main suppliers or promotors in Quebec. I find Mr. Brown played a more integral role in this conspiracy than the role played by Mr. Noftall in his case. [ 54 ] In R. v. Mitchell , 2017 NLCA, a 21 year old first time offender was convicted of one count of trafficking in oxycodone.

She had trafficked in the substance on an irregular basis to finance her own addiction. Similar to Mr. Brown, she took positive steps to address her addiction after being charged. Utilizing a sentencing range of 15 to 24 months incarceration, the trial judge imposed a sentence of 15 months’ imprisonment and 2 years’ probation. The Court of Appeal reduced the sentence to 7 months. In doing so, the court noted that for a range of sentence to be helpful in determining an appropriate sentence, it must be sufficiently broad to account for proportionality.

A nine-month range was too narrow and set the low end of the range at too high a level to accommodate the principle of proportionality. The circumstances of Ms. Mitchell’s offence and her role differed significantly from that of Mr. Brown. Ms. Mitchell was more of a street level dealer who trafficked in oxycodone on an irregular basis. Mr. Brown on the other hand, as detailed above, had an integral role in several aspects of a relatively sophisticated large commercial operation to import and distribute cocaine into this Province.

As noted in Kane , the case law supports a higher range of sentence where the charge involves, not simply trafficking, but a conspiracy to import large quantities of cocaine. [ 55 ] In Pittman , the court accepted a joint submission on sentence of two and a half years’ imprisonment on a conviction of trafficking in cocaine. The offender was 50 years old with seven prior convictions for designated substance offences. This case differed from that of the conspiracy in which Mr. Brown was involved in that there was one incident of trafficking in a much smaller amount of cocaine (1055 grams) with 31% purity.

At paragraph 13, the court noted the broad range of sentences for trafficking convictions involving this volume to be roughly between two and five years’ imprisonment. [ 56 ] In R. v. Noseworthy , 2019 NLSC 23 , the Court imposed a sentence of 30 months’ incarceration. Mr. Noseworthy was a co- conspirator of the offender in Noftall . The sentencing judge acknowledged that the normal range of sentence for the offence of conspiracy to traffic in cocaine would be four years’ imprisonment. In arriving at the sentence, the court noted that Mr.

Noseworthy’s involvement in the conspiracy was lower than that of his co-conspirators who took lead roles in the operation. Mr. Noseworthy was not involved in the importation and unloading of the drugs, nor did he have a role in the overall direction of the operation. He also became a part of the conspiracy at a late point. As such, his involvement was on the lower end in terms of his participation and duration. As Mr. Noftall was sentenced to 36 months’ imprisonment, the court in applying the parity principle, stated it would be unacceptable to impose a sentence on Mr. Noseworthy that was higher than that of Mr.

Noftall, who had a greater role. I have already stated that in my view Mr. Brown played a more integral role in this conspiracy than the role played by Mr. Noftall in his situation.

[ 57 ] I am satisfied based on a review of sentences imposed for this offence in similar circumstances that a sentence in the range of four years’ imprisonment is appropriate for an offender who played a trusted and necessary role in a sophisticated, commercial level conspiracy to traffic in significant amounts of cocaine. I am mindful however that sentencing ranges are guidelines and not hard and fast rules. In taking into consideration the circumstances particular to Mr.

Brown’s situation, including that he pled guilty, is a first time offender, was motivated in the commission of the offence, in part, by his opiate dependency, and has taken steps to address his underlying issue since his arrest, I conclude that a fit and proportionate sentence for Mr. Brown is forty-four months’ imprisonment. disposition Period of Incarceration [ 58 ] Mr. Brown, please stand while I impose your sentence. You are hereby sentenced as follows to imprisonment for a period of forty-four (44) months. Forfeiture Order [ 59 ] The Crown sought a forfeiture order under

section 16 of the CDSA in respect of certain property and cash seized during the investigation. The Defence agreed the order was appropriate and it has been granted. Firearm Prohibition [ 60 ] A firearm prohibition is mandatory for offences relating to contraventions of subsection 5(1) of the CDSA . Therefore an order will be issued under section 109(1) (

c) of the Criminal Code prohibiting Mr. Brown from having any firearm, ammunition or other item referred to in

section 109 . The prohibition is effective immediately and is a lifetime prohibition in the case of any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition. It is a 10-year prohibition for other firearms, crossbows, restricted weapons, ammunition and explosive substances. DNA Order [ 61 ] The Crown sought a DNA order. The Defence did not consent. As this is a secondary designated offence, pursuant to

section 487.051(3) of the Criminal Code . I have discretion to make the order if I am satisfied that it is in the best interests of the administration of justice to do so. In R. v. C.(R.W.) , 2005 SCC 61 , the Supreme Court of Canada noted that the public interest in a DNA order lies in the protection of society through the early detection, arrest, and conviction of offenders.

In deciding whether to exercise my discretion, I am to balance the offender’s privacy interests against the public interest by taking into consideration the following factors: the offender’s criminal record, the nature of the offence, the circumstances surrounding its commission and the impact such an order would have on the offender’s privacy and security of his person. [ 62 ] Mr. Brown does not have a criminal record. The circumstances surrounding the commission of the offence are such that Mr.

Brown was involved in the importation and trafficking of large amounts of cocaine into this Province for a period of some ten months. This was not a singular act on his part. In considering the nature of the offence, as previously articulated, this is a serious offence with potential for grave consequences to many facets of society. The Crown submits that obtaining a DNA order could assist in the early detection of such offences. Clearly, the longer this type of offence goes undetected, the likelihood for more harm results . [ 63 ] In considering Mr.

Brown’s privacy interests, any DNA order obviously engages the privacy of the person. As observed in C. (R.W.) there is a minimal effect on privacy of the person because the procedure for collecting samples is non-invasive; informational privacy, however, is seriously engaged in the taking of DNA because DNA contains the highest level of private and personal information. In R. v.

Rodgers , 2006 SCC 15 , at paragraph 5 , Charron J., writing for the majority, stated however, that “The potential invasive impact on the right to privacy has carefully been circumscribed by legislative safeguards that restrict the use of the DNA data bank as an identification tool only.” [ 64 ] Having considered the factors, although Mr. Brown does not have a prior criminal record, I am satisfied that the seriousness of this offence and the circumstances surrounding its commission, are such that the public interest outweighs Mr. Brown’s privacy interest. As such, I am prepared to exercise my discretion.

I order the taking of a number of samples of bodily substances from Mr. Brown that are reasonably required for the purposes of forensic DNA based upon his conviction for a secondary designated offence. _____________________________ Sandra R. Chaytor Justice