Court File and Parties

Court File No.: 4811-998-17-15002176 Date: 2018-07-24 Ontario Court of Justice Toronto Region - Old City Hall

Between: Her Majesty the Queen — and — Alexander Tagebe Berquas

Before: Justice H. Pringle

Heard: June 22, 2018

Reasons for Sentence Released: July 24, 2018

Counsel:

• Sarah Shaikh, counsel for the Crown
• Darren Sederoff, counsel for the accused Alexander Berquas

Reasons for Sentence

PRINGLE J.:

Agreed Statement of Facts

[1] Unbeknownst to Alexander Berquas, police were intercepting his communications from February 21, 2017 and April 21, 2017. As a result, they captured him engaged in drug-dealing negotiations over the course of three days in mid-March, 2017. They overheard Mr. Berquas negotiating the purchase of three kilograms of a controlled substance, asking for "three" for his "regular guy", and referencing the price for one kilo as $70,500. In another call, Mr. Berquas revised his order to "two and a half" because he would "cut later". Finally, a deal was struck to obtain "three" on "Sunday". The parties scheduled to meet at the Keg Restaurant to complete the deal.

[2] On Sunday, March 19th, 2017, Mr. Berquas arrived at the Keg carrying a weigh scale in a bag. Police, watching, saw him enter the restaurant with two males. When the three males exited, they drove to a parking lot. Mr. Berquas entered an SUV with one male while the other waited.

[3] Mr. Berquas exited the SUV carrying a red bag. He hailed a taxi and left. Police executed a vehicle stop on the cab shortly afterwards. When the taxi was stopped, Mr. Berquas had the red bag with him. Inside was the weigh scale and two shoe boxes. Inside the shoe boxes was 2984.77 grams of heroin, in three separate packages. The value of the heroin would be, if sold at the kilo level, between $70,000 to $90,000 per kilo. If sold at the gram level, its value would be $540,000 to $720,000 and if sold at the point or user level, the value of this amount of heroin would be $600,000 to $900,000.

[4] Two samples from each of the three packages were tested for purity levels. The first package samples were 18 percent pure and 20 percent pure, the second package samples were 19 percent pure and 11 percent pure, and the third package samples were 19 percent pure and 11 percent pure.

[5] Although Mr. Berquas made reference, in one call, to his "regular guy" needing the heroin by the end of the month, the Crown fairly conceded she could not prove Mr. Berquas' involvement in trafficking aside from this one incident.

[6] Mr. Berquas and his two co-accused were jointly charged for their alleged roles in this enterprise. They elected trial in the Ontario Court of Justice. Their trial is scheduled to begin in November 2018. However, on June 22, 2018, Mr. Berquas pled guilty to a sole count of Possession of Heroin for the Purpose of Trafficking, contrary to section 5(2) of the CDSA.

[7] But for a brief stint on bail, Mr. Berquas has been in presentence custody since his arrest. The parties jointly submitted Mr. Berquas should be credited for two years and three months presentence custody as of June 22, 2018. This enhanced figure is authorized by R. v. Duncan, 2016 ONCA 754. Adding the time my decision was under reserve, Mr. Berquas has served the equivalent of two years, four months, and two weeks.

[8] Mr. Berquas has a prior criminal record. It does not contain any related or statutorily aggravating convictions on it. In 2006, he was found guilty as a youth of assault. In 2009 he was convicted of Fail to Comply Recognizance, and in 2015 he was convicted of Impaired Driving and Refuse to Provide Breath Sample. He is 27 years old.

Sentencing Principles and Range of Sentence

[9] The sentence for possessing such a substantial amount of heroin must favour the principles of general deterrence, specific deterrence, and denunciation above all else. Severe sentences must be imposed to outweigh the financial incentives in trafficking this "pernicious and addictive narcotic": R. v. Pimentel [2004] O.J. No. 5780 (S.C.J.) at para. 14. A significant price has to be paid for transacting in a drug with such evil effects. This price, in the form of loss of liberty, must stop Mr. Berquas from re-engaging in drug trafficking again. It must stop those of like mind.

[10] Separation of the offender from society, for the protection of society, must also discernibly factor into Mr. Berquas' sentence. As the Court of Appeal held in R. v. Nguyen, (1996), 92 O.A.C. 200 at paragraph 9, "[t]his court has consistently held that heavy sentences are called for in cases of this nature. Society must be protected from the untold grief and misery occasioned by heroin, the most addictive and destructive of the hard drugs." It is for this reason that a significant penitentiary sentence must be imposed here.

[11] The Crown and defence agree that a penitentiary sentence is necessary to address general deterrence, specific deterrence, and denunciation. They differ, however, on quantum. For the Crown, Ms. Shaikh sought a sentence of eight years' incarceration less presentence custody. For the defendant, Mr. Sederoff sought between four and five years' incarceration less presentence custody.

[12] Both parties helpfully provided me with case law to assess range of sentence. While cases from other provinces proved insightful, I am bound by the cases from the Court of Appeal for Ontario and best guided by trial level sentencing decisions from our courts and our community.

[13] Neither Crown nor defence provided any cases which spoke to the range for multi-kilo heroin trafficking cases, although Ms. Shaikh submitted it was between fourteen and sixteen years. The Crown's position of eight years concedes that a sentence below the multi-kilo range is appropriate for Mr. Berquas, in his individual circumstances and given the guilty plea.

[14] Accordingly, I was provided with cases assessing the range of sentence for possessing ½ kilogram to 1 kilogram of heroin. To begin, the oft-cited case of R. v. Shahnawaz (2000), 137 O.A.C. 363 set an initial range of between nine and twelve years for this type of misconduct. The total quantum of heroin sold in Shahnawaz, over four separate drug deals, was 650 grams, and the respondent egregiously involved his small children in two of these four drug deals.

[15] The respondent received a conditional sentence after a contested trial. Our Court of Appeal found that sentence over-emphasized the respondent's personal circumstances. Those circumstances, while tragic, were unconnected to the respondent's offending and should not have received significant weight. The Court of Appeal substituted six years' incarceration. Despite this sentence, the Court noted that between nine and twelve years was the applicable range of sentence for this much heroin.

[16] In 2013, the Court of Appeal for Ontario upheld six and five year sentences, respectively, imposed by the trial judge in R. v. Giammarco and Burchell, [2012] O.J. No. 1053 (S.C.J.). While range was not specifically commented upon, the Court of Appeal held that the trial judge gave full force to the relevant mitigating factors and accordingly reduced sentence from what "might ordinarily be imposed for this amount of heroin": see R. v. Giammarco and Burchell, 2014 ONCA 242 at para. 4.

[17] The trial judge, Hourigan J. (as he then was), had imposed these five and six year sentences after a contested trial. The total weight of heroin was 3848 grams, or approximately 1 kilogram more than in the case at bar, and the purity levels ranged from 14 to 15 percent. Both men were first offenders who had given "valuable assistance to the police": see paragraph 37. The sentencing judge characterized this cooperation as a "relevant mitigating factor": see paragraph 41.

[18] Nine years' incarceration was upheld by the Court of Appeal for Ontario in R. v. Bains and Pannu, 2015 ONCA 677. The appellants were first offenders with good antecedents, found guilty after a jury trial of trafficking approximately one kilogram of heroin. On appeal, the appellants submitted the applicable range to be between six and twelve years. The Court did not explicitly disagree with that submission, but referenced authority which said the range starts at nine years. In any event, Watt J.A. upheld the sentences, noting that nine years was in the range that the appellants accepted as correct.

[19] Finally, in R. v. DiBenedetto, 2016 ONCA 116, our Court of Appeal overturned a three year sentence and substituted six years' incarceration for possessing ½ kilogram of heroin and proceeds of crime. At paragraph 9, the Court observed that "[t]he case law establishes a range of sentence from six to twelve years for offences involving trafficking of between approximately 0.5 to 1 kilograms of heroin: see R. v. Pannu, 2015 ONCA 677."

[20] The Crown provided two additional trial level decisions that I found to be of import, albeit for different reasons. Goldstein J., in R. v. Brown, 2016 ONSC 2997, imposed nine years in a post-trial sentencing where the offender had just over one kilogram of heroin couriered to his home. The purity level was between 41-48%. The defendant had a criminal record which included cocaine possession and a weapons offence. He had instructed his sister to sign for the package, knowing that because of her record for importing, police suspicion would be drawn to her. The trial judge characterized this as "an extraordinarily serious aggravating factor": see para. 19.

[21] At para. 17, Goldstein J held that "In my view, and with great respect to those with the opposing view, I cannot see how the range of sentence for trafficking in a kilogram or more of heroin can start any less than eight years absent exceptional circumstances". He distinguished the sentences imposed in R. v. Giammarco and Burchell, supra, because the mitigating feature of police cooperation was not present in his case.

[22] In R. v. Pearce, [2007] O.J. No. 1597 (S.C.J.), the accused pled guilty, a factor echoing the most important factor in Mr. Berquas' case. The counts pled to were conspiracy to traffic and trafficking heroin, but the facts established seven temporally separate acts of trafficking in heroin and cocaine, the possession of slightly over 1 kilogram of heroin when arrested, a search warrant seizure of 191.76 grams of heroin and a search warrant seizure of ½ kilogram of marijuana. The accused had a criminal record which included three prior convictions for trafficking, one of which had attracted a six year sentence.

[23] The ongoing nature of the offence aggravated sentence. So did the criminal record. The related convictions proved that drug trafficking was an ongoing life choice. Dambrot J. concluded that the appropriate sentence would truly fall between twelve and fifteen years. However, given the guilty plea and other mitigating factors, he imposed a lesser sentence of nine years.

Aggravating and Mitigating Factors

[24] Although none of the statutorily aggravating factors are present here, the mere nature of this drug must aggravate sentence. I wholeheartedly adopt the dicta in Brown, supra, at paragraph 9:

Possession of heroin for the purpose of trafficking is a serious offence that has a devastating impact on users and the community generally. The Court of Appeal has consistently identified it as the most serious of all drugs. Although certainly our society has adopted a more humane approach to heroin addiction, which can be seen as a more general willingness to treat heroin addiction as a form of illness, that in no way applies to the commercial trafficking in large quantities. Commercial traffickers exploit the weaknesses of vulnerable and marginalized people for commercial gain.

[25] The quantum of heroin involved must also aggravate sentence. Multi-kilogram heroin dealers apportion out human misery on a widescale basis. The product they sell, out of greed, breeds addiction, disease, crime, and death. On the street level, the buyers invariably become estranged from society. They commit crime to feed their addiction. They will lose their job, their family, their dignity, their liberty, because the pull of that addiction is so strong. Ms. Shaikh submitted I must consider the impact that this amount of heroin would have had, had it reached the street. I have. It is heartbreaking.

[26] The purchase price of this heroin, from the defendant's end, was between $70,000 and $90,000. The resale value, at the gram level, was between $540,000 and $720,000. No doubt that financial profit was Mr. Berquas' motive to get involved in this scheme. No mitigating reason was offered for trafficking heroin in this quantum. It is near impossible to imagine one. The financial motive, his sheer greed, must aggravate his sentence. It must send the message to Mr. Berquas that the cost of trafficking heroin will always outweigh the financial incentive that drew him into committing this offence in the first place.

[27] I was provided with a number of authorities on the issue of purity of heroin and its impact on sentence. Here, six samples were tested for purity. Two were 11 percent pure, one was 18 percent pure, two were 19 percent pure, and the last was 20 percent pure. Ms. Shaikh invited me to rely on the facts in R. v. Pimental, supra, where expert testimony established that "the usual purity level of heroin sold on the street is 7 to 10%". Respectfully, I cannot rely on the factual findings of another judge as my own. Nor can I use his 2004 fact finding as the foundation to base judicial notice.

[28] The Court of Appeal held that the purity level of a controlled substance may aggravate sentence. In R. v. Hamilton, (2004), 189 O.A.C. 90, at para. 151, Doherty J.A. held:

I agree with the trial judge that the purity of the cocaine imported, while usually not known to the courier and therefore irrelevant to personal culpability, can have some effect on the seriousness of the specific offence (para. 174). The purer the cocaine, the wider its potential distribution and therefore the greater the harm it may cause in the community. However, I do not think that the purity of the cocaine imported will be a particularly significant factor in assessing the seriousness of the sentence. Certainly, there should be no mathematical-like reduction in the seriousness of the offence based on the exact purity of the cocaine. I see little difference, for the purposes of assessing the seriousness of the crime, between cocaine that is eighty per cent pure and cocaine that is ninety per cent pure.

In the case at bar, especially given the absence of evidence on the topic, I am not satisfied beyond a reasonable doubt that the purity levels here would aggravate sentence. However, I see this as the absence of an aggravating factor, as opposed to the presence of a mitigating factor. The absence of this mitigating factor would, however, distinguish it from cases where purity was explicitly relied upon to aggravate sentence.[1]

[29] Mr. Berquas has a criminal record. He is not entitled to the leniency accorded first offenders. However, I must temper this conclusion by noting that his criminal record is unrelated, minor, and generally dated. He has no prior convictions for drug possession or drug trafficking. The longest period of incarceration he served was six days of presentence custody, plus one day, for the fail to comply offence.

[30] Absent exceptional circumstances, trafficking such large amounts of heroin must attract a significant penitentiary sentence. Mr. Berquas' case can be no different. Today, his sentence will send him into the penitentiary system for the first time. But the length of that first penitentiary sentence cannot be determined solely by reliance on denunciation and general deterrence: see R. v. Borde (2003), 186 O.A.C. 317 at para. 36. I must assess his rehabilitative prospects.

[31] There are factors which mitigate Mr. Berquas' sentence. He is now 27 years old. His future path is hardly written in stone at that age. Looking at the specific entries on his criminal record, I can hardly characterize him as being committed to a life of crime. This conclusion was affirmed when I considered the family support Mr. Berquas is lucky to have surrounding him. When the defendant's father spoke to the court, I saw a constellation of responsible family members waiting, and willing, to support Mr. Berquas upon release. There is a correlation between the presence of community support and a person's chances of successful rehabilitation. I see good rehabilitative prospects in the network that will help put and keep Mr. Berquas on the right path.

[32] Mr. Berquas addressed the court, both in writing and in his s. 726 allocution. He aspires, upon release, to pursue a career in construction. In reading about the lack of affordable housing in Toronto and across Ontario, he developed the desire to build and fix up houses. His letter made no excuses for his behaviour. It acknowledged the seriousness of his offending, and the harm his actions personally caused his family and friends. I saw potential for rehabilitation here, too, and accepted the defendant's remorse and regret as genuine and heartfelt. This finding was corroborated by the fact that Mr. Berquas pled guilty to this offence.

[33] Mr. Sederoff submitted the plea of guilt was exceptionally mitigating, given the volume of trial time saved and in light of a strong Jordan motion he has foregone. Respectfully, in my view, the mitigating effect of a guilty plea cannot comfortably rest on such factors. If courts allocated mitigation or leniency based on how many weeks of trial time was saved by a plea, this would create unfair and arbitrary results.

[34] Further, the strength of the defence case, had it gone to trial, should not play a heavy role in fashioning sentence. The Court of Appeal for Ontario has said that "[w]e do not subscribe to the proposition that there should be less weight to a plea of guilty from a person who has been inescapably caught": see R. v. Santos, (1993) 67 O.A.C. 270 at para. 2. The converse should necessarily be true.

[35] That said, foregoing a strong trial argument impacts the sentencing process in a different way. It may, for example, confirm the honesty of an offender's expression of remorse and acceptance of responsibility. I find that to be the case here.

[36] Truly, the salient point is that an accused who pleads guilty gives up their constitutional right to have a trial. Whether that trial is estimated at five weeks or five minutes, it is the surrender of this constitutional right that attracts mitigation. This is because a guilty plea is a strong indicator of rehabilitative potential, of true remorse, of accepting the consequences of one's actions. As Hill J. stated in R. v. Holder, [1998] OJ No. 5102 (Gen. Div.) at paras. 14-17:

A plea of guilt is generally acknowledged to be a mitigating factor in sentencing: Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure and Resolution Discussions (the Martin Committee Report) (August, 1993) at page 310; Regina v. Beier, [1995] O.J. No. 2552 (C.A.) at para. 2 per curiam; Regina v. Sawchyn (1981), 1981 ABCA 173, 60 C.C.C. (2d) 200 (Alta. C.A.) at 210 per Laycraft J.A. (as he then was) (leave to appeal to S.C.C. refused (1982), 39 N.R. 617 n); Guilty Pleas, J. Watson, (1990-91), 33 C.L.Q. 163 at 198.

The effect of a guilty plea in setting the appropriate sentence will vary with the circumstances of each case: Regina v. Faulds et al. (1994), 20 O.R. (3d) 13 (C.A.) at 17 per curiam. A plea of guilt, a confession of wrongdoing, may evidence remorse and public acceptance of responsibility for the criminal wrong-doing: Regina v. Finnis (1978), 3 C.R. (3d) S-54 (Ont. C.A.) at 54 per Martin J.A.; Martin Committee Report, supra at 310. In these circumstances, the prospects for rehabilitation are enhanced.

An early guilty plea is deserving of considerable weight in sentencing disposition: Regina v. Patterson, [1998] O.J. No. 937 (C.A.) at para. 1 per curiam; Regina v. Pitkeathly (1994), 29 C.R. (4th) 182 (Ont. C.A.) at 184-5 per curiam; Regina v. T.(R.) (1992), 17 C.R. (4th) 247 (Ont. C.A.) at 263 per Doherty J.A.; Martin Committee Report, supra at pages 310-311; Regina v. Wijs et al., [1998] 2 Cr. App. R. 436 (C.A.) at 439 per Lord Bingham C.J.

A plea of guilt results in a saving of public cost and expense: Regina v. Johnson and Tremayne, [1970] 4 C.C.C. 64 (Ont. C.A.) at 67 per Gale C.J.O. Even in those instances where a guilty plea is simply a recognition of the inevitable, the plea brings finality, spares judicial resources, and reduces the trauma and inconvenience to victims and witnesses: Regina v. Faulds et al., supra at 17; Regina v. Santos (J.) (1993), 67 O.A.C. 270 (C.A.) at 270-271 per curiam. Indeed, a plea of guilt, entered during a trial itself, may be deserving of mitigation of sentence: Regina v. Garofoli et al. (1988), 41 C.C.C. (3d) 97 (Ont. C.A.) at 153 per Martin J.A. (affirmed on other bases (1991), 60 C.C.C. (3d) 161 (S.C.C.)).

[37] Mr. Berquas' plea was entered well in advance of trial. Timing of a guilty plea remains an important factor in assessing mitigation. Other common law jurisdictions, such as England, have legislated the quantum of sentence reductions based on the timing of the plea: see, for example, Justice Cole's careful analysis of that system in R. v. Ismael, 2014 ONCJ 136 at paras. 21 through 26.

[38] Here in Canada, Parliament has left the degree of reduction to the discretion of sentencing judges. However, in my view for a guilty plea to have any true meaning as a mitigating factor, there should generally be a discernable difference between sentences imposed after a contested trial and those imposed following a plea of guilt.

[39] Dambrot J.'s decision in R. v. Pearce, supra was only one of two Ontario cases presented to me, where sentencing followed a guilty plea and not a contested trial[2]. Justice Dambrot would have imposed a sentence between 12 and 15 years, save and except for the guilty plea and some non-exceptional mitigating factors. Instead, he imposed a nine year sentence, which was between 3 and 6 years lower than the sentence he deemed otherwise appropriate. This case has assisted me in understanding the calculable difference in sentence a guilty plea may have. The difference in quantum should generally be meaningful.

Application to Mr. Berquas' Case

[40] The Crown's position suggests Mr. Berquas' sentence, in all of the circumstances, should fall in the ½ kilo to 1 kilogram range. The defence position seeks a sentence below that range. Given the aggravating factors, I cannot justify a sentence below that range. But in my respectful view the Crown position does not fully give effect to the fact of the early guilty plea.

[41] In R. v. Giammarco and Burchell, almost four kilograms of similar level purity was possessed for trafficking purposes and sentences of five and six years were imposed. These sentences were imposed after a contested trial and, as per Goldstein J. in Brown, supra, because of the mitigating effect of police co-operation. In my view, a guilty plea in the Ontario Court of Justice, entered well before trial, is deserving of the same degree of mitigation as police co-operation.

[42] Applying the principles of sentencing, in the context of both aggravating and mitigating factors including the guilty plea, the appropriate sentence for Mr. Berquas is six years' incarceration. Subtracting presentence custody of two years, four months, and two weeks, this leaves Mr. Berquas with three years, seven months, and two weeks left to serve.

Released: July 24, 2018

Signed: Justice Heather Pringle

Footnotes

[1] Jurisprudential examples where high purity levels explicitly aggravated sentence include R. v. Sidhu, 2009 ONCA 81 at paras. 1 and 5; R. v. Ramos, 2014 ONSC 6822 at para. 114.

[2] The other, R. v. Phu, [1999] O.J. No. 5733 (S.C.J.), involved a 14 year sentence imposed for a similar amount of heroin. However, the offender played an active role in importing this high grade heroin into Canada and was in charge of the Canadian end of the heroin importing operation.