) ) HER MAJESTY THE QUEEN – v. –, 2017 ONSC 1309

CITATION : R. v. White and Martineau, 2017 ONSC 1309 COURT FILE NO.: 15-56 DATE: 2017/03/03 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN – and – ROBERT MARTINEAU Accused ) ) ) ) ) ) ) ) Jessica Legrand, counsel for the Crown P.Giancaterino counsel for the Accused Robert Martineau ) ) HEARD: March 3, 2017 reasons for judgment LAFRANCE-CARDINAL, J. [ 1 ] On June 27 th , 2016 Mr. Robert Martineau plead guilty to count number 7 on the Indictment dated June 17, 2015.

He plead guilty to having conspired with others to commit the indictable offence of unlawful possession or sale of tobacco products that were not stamped and of conspiring with others to commit the indictable offence of possession of property knowing that all or part of it was obtained or derived directly or indirectly as a result of the commission of an offence in accordance with the provisions of the Excise Act and contrary to section 465(1) (

c) of the Criminal Code of Canada . [ 2 ] Mr. Martineau plead guilty to having conspired with others and being linked to the sale and trafficking of 384 cases of cigarettes that were not stamped in accordance with the provisions of section 32(1) of the Excise Act. All in all, Mr. Martineau has plead guilty to being a leader of his own cell, his own network. He would get his cigarette supplies directly from Mr. Trudell and Mr. Morency who were the two ring leaders of a project called O’Titan. Mr.

Martineau would have his own network who were delivering and storing the cigarettes for him; the cigarettes were mostly distributed and sold in the Ottawa region. It was his idea, together with Mr. Morency to rent a waterfront property in order to facilitate the delivery of cigarettes via the water way. He hired two individuals to be the watch dogs of the residence and to help with the loading and unloading of cigarettes. All in all Mr.

Martineau is linked to possession or conspiring relating to 384 cases- during 15 different events. [ 3 ] The Federal Prosecutor is seeking a period of custody of two years less 124 days of pre- trial custody with enhanced credit if deemed appropriate by the Court. The defence counsel is asking that I impose an 18 to 24 months conditional jail sentence with strict conditions and a house arrest component. [ 4 ] The aggravating factors can be summarized as follows:

a) Mr. Martineau was not just involved peripherally but rather he was a cell leader with his own network of distribution- involved in 15 different events, we are talking of 3.8 million individual cigarettes. Smuggling of cigarettes is prevalent in our community. Many of the Ontario Court Judges in this jurisdiction have made strong statements to the effect that general deterrence is such that we need to impose periods of custody in order to eradicate this sort of behaviour; R. vs. Lamoureux , Justice MacPhee, January 9 th , 2014; R. vs. Arquette , Justice Adams, May 2012; R. vs. Trudell , June 3 rd , 2015 and R. vs. Morency , December 1 st , 2015 both decisions of Renaud J.

b) Mr. Martineau failed to report for his interview to prepare the pre-sentence report on numerous occasions showing disrespect for the court system.

c) In his pre-sentence report, the offender minimized the crime and his involvement in the conspiracy. He voiced no remorse. At page 5 of the pre-sentence report, it states and I quote :

“Robert admits that he pleaded guilty to a very serious offence but he vehemently denies doing anything other than “knowing someone that rented a house under a fake name”. He further stated that: “I pleaded guilty so I guess I must have done it”. The only thing that the subject states that he fells guilt about is that he “should have stopped a stranger from signing a lease”. Asked to clarify his statement, the subject once again indicated that he does not feel that he committed a criminal act and he has no knowledge of any crime that he could have committed.

He was reminded that he pleaded guilty and he may want to take some time to be more introspective and ask some serious questions. He then indicated to this writer that he “ did not realize it was a serious criminal offence” before being charged and he feels bad that he has faced five years of consequences including abiding by conditions of release awaiting Court. He seems to feel bad that he has faced consequences rather than showing any remorse for his acts”.

d) The pre-sentence report cannot be described as being positive, it is neutral at best.

e) The crime is motivated by profit, by greed, by the lure of easy money.

f) Mr. Martineau continued this illegal activity even after members of his own network were arrested on May 10, 2013 and on May 16, 2013. Mr. Martineau himself was arrested with a load of contraband in his vehicle on June 10, 2013 it did not deter him from continuing the activity until the police take down on June 18, 2013. [ 5 ] The mitigating factors are that:

a) Mr. Martineau has plead guilty, albeit at the 10th hour, acknowledging guilt saving the tax payers many weeks of trial;

b) Mr. Martineau has a criminal record but it is dated and, most importantly, he has been subject to serious release conditions since 2013 with only one breach being a curfew breach for which he plead guilty and was sentenced. [ 6 ] The Crown contends that a sentence of 2 years less time served is warranted under s. 718.2 (

b) of the Criminal Code which we commonly call “parity of sentences” being persons who have been convicted of similar offences under similar circumstances should get similar sentences. The conspiracy before the Court was labelled “O’Titan Project” by the police investigators. The Crown has filed Exhibit #1 which is an outline of the Martineau Organized Crime Group that were charged in “ Project O’Titan “. There were 4 individuals working under Mr.

Martineau, the most serious sentence was given to Robert Brun who was a courier and distributor in Ottawa, he received a 10 month period of incarceration, he had a related record. Ms. Lynn Meagher received a 90 day conditional jail sentence; she had a drug related criminal record. She was living for one month in the house on the waterfront which had been rented to facilitate the transportation of cigarettes on the St. Lawrence River. The two other individuals received conditional jail sentences. [ 7 ] Defense is asking me to impose a conditional jail sentence for Mr.

Martineau, having regards to the principles of S.718.2 (

d) and (e). S.718.2 (

d) and (

e) specifies: (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [ 8 ] The question becomes whether a conditional jail sentence would satisfy the fundamental purposes and principles of sentencing as set out in s. 718 to 718.2. I believe it would not. The aggravating factors in this case warrant a jail sentence. There must be denunciation and deterrence.

Michael Morency and Blake Trudell both received penitentiary terms of four years. They were the leaders but Mr. Martineau bought his cigarettes directly from Mr. Morency. Mr. Robert Brun who was working under Mr. Martineau obtained a jail sentence of 10 months. He was involved in 5 events and 191 cases of cigarettes. [ 9 ] Parity of Sentence would make it such that a conditional jail sentence would not be a proper Sentence, taking into consideration Mr. Martineau’s role in the conspiracy. It would fail to be a similar sentence for a similar offense. Mr.

Martineau led a sophisticated organization, with a rental home on the waterfront, a stash house in Ottawa, 2 couriers that would travel to and from Ottawa, 2 stash house caretakers that would help with the loading and unloading of cigarettes. The sentence must reflect the seriousness of the crime, the gravity of the offence, his role in the organization and the need for general and specific deterrence. [ 10 ] I believe a proper sentence is one of eighteen months incarceration less 6 months’ time served on an enhanced credit of 2:1 leaving a balance of twelve months incarceration.

However, the Court must take into consideration that this accused has been subject to strict release conditions since June 2013.

There are 19 release conditions which included: − You shall provide Constable Joe Corrigan of the RCMP, or his designate, with a copy of your monthly telephone statement of the landline at your place of residence within seven days of receipt of same by sending it by fax or postal mail. − You shall report in person to the Ottawa RCMP at 155 McArthur Road in Ottawa every Monday between 8:00am and 4:00pm, commencing next Monday, March 17, 2014, with at least two pieces of personal identification, one of which shall be a piece of identification which includes a photo.

− You are not to be away from your place of residence except in the presence of your surety and must be in residence between11:00pm and 6:00am. − You are to present yourself at the door of your residence within five minutes of a police request made at any time when you arerequired to be in your residence, and ensure that the police have access to the door of your residence to enable such bail compliancechecks to be conducted. − You shall remain within a 150km radius of the City of Ottawa, Ontario save and except for attending at previously scheduledappointments with your counsel or court appearances, or previously scheduled medical appointments.

When attending the saidappointments, you shall take the most direct route to and from the specified location. − You shall deposit with Constable Joe Corrigan of the RCMP, or his designate, your passport and/or Certificate of CanadianCitizenship within 24 hours of your release from custody and you are not apply for a replacement of same.

If you do not have a passportor Certificate of Canadian Citizenship, you shall not apply for or attempt to obtain one. − You shall not possess or attempt to possess or acquire the benefit of any pagers, cellular phones, other portable communicationdevices or public telephone. − Upon your release, carry a copy of your release document on your person at all times and show the document to police upondemand. − Report to the John Howard Society Bail Program at 550 Old St.

Patrick St., Ottawa, on March 17, 2014 at 10:30am and thereafteras directed by Bail Supervision Program. − Provide written verification of residence to your Bail Supervisor as directed (examples of such: mail, I.D, letter from Landlord.) [11] The Ontario Court of Appeal in the decision of Queen v. Downes, (ON CA), 79 O.R. (3d) 321 indicates that asentencing judge must explain why pre-trial house arrest was not taken into consideration. Although Mr.

Martineau was not under stricthouse arrest the length of the conditions (44 months) the onerous conditions enumerated above are such that some credit must beconsidered as a mitigating factor while sentencing. It is known through the Pre-Sentence report, that Mr. Martineau’s life has been put onhold awaiting disposition on these charges. He explained that it was difficult to look for a job considering he did not know the outcome of the sentencing hearing. He does have a job lined up in April if he is put on house arrest and permitted to work.

Justice Rosenberg J.A. in Downes supra concedes at para 28: “Trial judges do not need evidence or even submissions to understand the impact of ordinary pre-trial custody on an offender because they can take judicial notice that the ordinary consequences of pre-trial custody involve a severe loss of liberty”. [12] Rosenberg J.A. further states that it is in the discretion of the sentencing judge and that there is no set formula to be applied.Having regards to the 44 months that have lapsed since the offense was committed, the loss of liberty, the fact that there was only one breach being one of curfew, the fact that no credit should be given after September 29th 2017 as many of the delay in preparing the Pre-Sentence Report is attributable to Mr.

Martineau, an appropriate credit is one of 4 months leaving 8 months incarceration remaining to beserved. I will not be imposing probation following the period of incarceration. I believe Mr. Martineau has learned his lesson, he has been under strict conditions since June 10th 2013 there is no need for further surveillance. [13] Are there any other ancillary orders being requested by the Crown? Madam Justice Lafrance-Cardinal Released: March 3rd , 2017 CITATION: R. v. White and Martineau, 2017 ONSC 1309 COURT FILE NO.: 15-56

DATE: 2017/03/03 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – ROBERT MARTINEAU Accused REASONS FOR JUDGMENT Madam Justice Lafrance-Cardinal Released: March 3 rd , 2017