Court Information

Date: August 19, 2019

File No: 4811-998-18-2990-00

Ontario Court of Justice

Location: Old City Hall, 60 Queen St. West, Toronto, Ontario

Parties

Her Majesty the Queen

v.

Yogendra Gosine-Beroog

Appearances

I. Bell – Counsel for the Crown

K. Schofield – Counsel for the Defence

Before

The Honourable Mister Justice Band

Reasons for Sentence

BAND, J. (Orally):

These are my reasons for sentence in the matter of Yogendra Gosine-Beroog.

Charges and Guilty Pleas

Back in February Mr. Gosine-Beroog pleaded guilty to the following offences: possession for the purpose of marijuana in an amount not exceeding three kilograms. It was, in fact, approximately 2.4 kilograms. The Crown proceeded by indictment on that charge. He was also charged with simple possession of Psilocybin in the amount of 60 grams. The Crown proceeded by summary procedure in that matter. And, also, simple possession of cocaine in the amount of about 3.4 grams. The Crown proceeded by summary procedure in relation to that charge.

Position of the Parties

The parties do not agree as to the appropriate disposition in this matter. The defence seeks a discharge, absolute or conditional, with probation, should I see fit. The Crown seeks a fine of $5,000 and no probation.

The Crown advises that there is a forfeiture order ready to be signed if I have not signed it already in relation to some materials that were seized by police.

The Facts

The facts and circumstances surrounding the offences were presented by way of an agreed statement of fact that was carefully drafted by the parties. It was brief and it can be summarized as follows:

Mr. Gosine-Beroog became known to police as a result of a wiretap investigation, the target of which was a friend of his from school, Mr. Chung. As a result, warrants and authorizations for electronic intercepts were obtained and Mr. Gosine-Beroog's residence was ultimately searched in July 2018.

Inside, police found 2.4 kilograms of marijuana and the other substances I have referred to already, the cocaine and the Psilocybin. Mr. Gosine-Beroog admits that he was in possession of those substances. Other things were found as well, including over $150,000 in cash and other items of the drug trade.

It is important that I underscore that Mr. Gosine-Beroog did not admit that those items, that is the money and paraphernalia, were his and the Crown did not seek to prove the contrary. The Crown acknowledged that there was at least one other person who may have had a claim on the money. As a result, I make no finding in regard to the money. This is important because a different finding would have put this matter in a very different light.

The Crown asks me to look at the quantity of marijuana in conjunction with the other substances. I agree with the Crown that the quantity of marijuana is evidence of a commercial trafficking enterprise that is larger than "the lowest level", as the Crown put it. It is also larger than the amount trafficked in R. v. D'Souza, 2015 ONCA 805, which is among the cases upon which the defence relies. Those are facts.

However, I do not join the Crown in the unspoken inference that he asks me to draw based on Mr. Gosine-Beroog's possession of the other more serious drugs, albeit in smaller quantities. I believe, based on the evidence, that those are more likely artefacts of Mr. Gosine-Beroog's addiction problems, which were disclosed in the defence materials. Again, had that been different this case would stand in a different light.

The Circumstances

The circumstances of Mr. Gosine-Beroog are as follows:

Mr. Gosine-Beroog is a 25-year-old man whose family came to Canada from Trinidad when he was three. He is now a Canadian citizen. Right after high school he enrolled in a business and marketing course at Seneca College. He completed it and went on to Ryerson. He left Ryerson to get into business. He ultimately began to operate his own business with a partner.

He has numerous family members, friends and business relations who think very highly of him. These include employees, employers and his business partner.

At the time leading up to these offences Mr. Gosine-Beroog began to use drugs, at first recreationally, then it grew into an addiction. It ended up having far-reaching impacts on his life. It affected his relationships with family and friends who perceived changes in his personality and behaviour. He grew distant from his parents. His engagement and performance in his business were also affected. He veered off the promising path he had set for himself.

Since these charges were laid Mr. Gosine-Beroog has turned his life around. In a way, he has pressed reset. He has tightened up his relationship with his family. He has returned to the people who are his true friends and left the others behind. He has been tackling his substance abuse problems in Narcotics Anonymous and has collected sobriety chips to prove it. He is currently abstaining from drug use.

While still operating his business endeavor, he has returned to studies to become a realtor. With a 92 percent in his first course he shows great promise. His goal is to work in that field while also using his skills to buy, renovate and sell houses.

He has performed 50 hours of community service.

While it may sound like a cliché to those who sit in these courts every day, I do accept that the charges for this young man have been an eye-opener. The proof is in all the things that he has done since, a number of which require real commitment beyond merely sending in an application form to a college or university.

The fact that the matter came to be known not only to his immediate circle, but to family in Canada as well as Trinidad has been for Mr. Gosine-Beroog a call to action to earn back their esteem for him. I was advised that in cases like this it is not unusual for banks to be notified and to close accounts when notified. In this case, two bank accounts of Mr. Gosine-Beroog's were closed. While he expects to have his money returned, this did cause him and the business he shares with a partner some inconvenience.

Aggravating Factors

The aggravating factors are the not insignificant quantity of marijuana and the nature of the other drugs.

The quantity of the marijuana does lead one to conclude that there was the type of trafficking involved that I have characterized earlier in agreement with the Crown.

Mitigating Factors

There are numerous mitigating factors in this case. Mr. Gosine-Beroog pleaded guilty. I was advised that negotiations with that goal in mind had been ongoing for a long time. By doing so, he has taken responsibility for his actions. He has shown remorse by doing so in this case as well. His words to the court make this clear, as do the numerous letters filed in support of him.

I accept that, given the nature of the Project as a whole, this matter would have occupied significant court time at both levels. The guilty plea spares the public and the justice system those costs.

Mr. Gosine-Beroog has no prior criminal record. He is a youthful first offender.

Prior to these charges and his problems with drugs, Mr. Gosine-Beroog was of good character. He was industrious, he was motivated and ambitious and had a very promising future ahead of him. Mr. Gosine-Beroog has tackled his substance abuse problem head-on. He has performed 50 hours of community service. While his substance abuse issues are not excuses per se, they do put this case into a different context than those involving pure greed.

Mr. Gosine-Beroog enjoys support in the community in the form of family, friends and business acquaintances.

Conclusion

Taking all this into consideration leads me to the conclusion that Mr. Gosine-Beroog's use of drugs, which took over his life in a very real way, was, although a gradual process, nonetheless life-changing. It took him from the young promising man he was to someone who became involved in the criminal drug trade. In that sense, he slid out of character. I also view Mr. Gosine-Beroog as an excellent candidate for rehabilitation.

Collateral Issues

While being careful not to give them undue weight, I must consider collateral or attenuating consequences as I try to fashion a fit disposition. See R. v. Suter, 2018 SCC 34. In this case they are the fact that Mr. Gosine-Beroog's business banking has been disrupted. The media coverage which reached Trinidad is also relevant. Again, I do not want to over-state it, but I am satisfied that the Internet coverage, which is permanent, is one of the factors that has led Mr. Gosine-Beroog to tailor the scope of his ambitions and to try to limit them to self-employment.

Also, a criminal record per se is likely to have a more serious impact on Mr. Gosine-Beroog's career plans in realty than a conditional discharge.

Applicable Principles

I believe the Crown fairly indicated that I must consider the principles of denunciation and deterrence, but he was careful not to say that they occupied a priority or a central position in this case. That is consistent with what the Court of Appeal said in D'Souza, which I have referred to above.

Other principles and factors, such as restraint, parity, rehabilitative prospects, promoting a sense of responsibility and providing reparations are also involved in this case.

I have reviewed the authorities presented by both parties as they were filed before the last court date. There is no minimum penalty in a case like this and it is difficult to identify an applicable range. The Crown has not pointed to one in this matter.

There are many cases in which conditional discharges have been granted. Those tend to involve youthful offenders who have pleaded guilty and demonstrated a real change post charge. They also reflect concerns about the lasting impact of criminal records on employment prospects. They have also been granted in cases viewed as exceptional in some way. I note and instruct myself that exceptionality is not so high a standard as to demand uniqueness.

In general, from Justice Durno's decision in R. v. To, 2015 ONSC 1169, and the cases he cites within it, I draw the following guidance:

(1) Discharges are not limited to the most trivial matters. They can be used judiciously even where deterrence and denunciation are called for.

(2) They are not necessarily less effective in terms of deterrence than criminal convictions, such as suspended sentences and probation, and they should be given serious consideration where a criminal record will have a tendency to interfere with employment prospects.

In my view, a conditional discharge is clearly in Mr. Gosine-Beroog's interests for obvious reasons that can be gleaned from what I have already said. I have come to the conclusion that this case is exceptional.

The circumstances of this offender, before the charges and since, as well as the constellation of other factors I have tried to summarize, not the least of which is the turn-around Mr. Gosine-Beroog has been able to make in his life and his promising career prospects, mean that it is not contrary to the public interest to allow him to continue to be rehabilitated without a criminal record standing in his way.

A period of probation will assist Mr. Gosine-Beroog in his continued rehabilitative efforts, including counselling as required. Also, an additional 50 hours of community service will allow him to continue to make reparations to the community he has harmed by his offending.

Disposition

Therefore, Mr. Gosine-Beroog will be allowed to benefit from the second chance that a conditional discharge provides offenders. He will be placed on probation for 12 months. He will keep the peace and be of good behaviour. He will let his probation officer know of any change of address, occupation or employment. He will report to probation immediately in this building and thereafter as they might require. He will take such counselling as directed by his probation officer regarding substance abuse, if necessary, and he will sign releases or consent forms to allow his probation officer to monitor his progress. He will also perform 50 hours of community service before the expiry of this 12-month probation order.

The net result is a conditional discharge concurrent on all charges with 12 months probation with the terms I have just listed.

ADJOURNED