ONTARIO COURT OF JUSTICE

CITATION: R. v. Berdan, 2021 ONCJ 476

DATE: 2021 09 01

COURT FILE No.: 198274

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

DARRYL BERDAN

Before Justice Angela L. McLeod

Heard on June 22, 2021

Reasons for Judgment released on September 1, 2021

Amber Meiners.................................................................................... counsel for the Crown

David Wilcox.................................................................................... counsel for the accused

McLeod J.:

OVERVIEW

[1] This matter was judicial pretried before me; subsequently, a plea to one count of possession for the purpose of trafficking was entered.

[2] Mr. Berdan was living at a single-family dwelling in Alliston, Ontario. A search warrant was executed at that residence. A second, non-resident person was located inside.

[3] Police forced open a safe located inside the bedroom. A total of 192 grams of cocaine, contained within ‘several baggies’, and 583 grams of Fenacidin (used as a cutting agent) was located therein. Additionally, baggies, scales, $100 cash and a further 1.5 grams of Fenacidin was located within the apartment.

[4] Mr. Berdan has a criminal record (Exhibit #1). As an adult, his criminal convictions begin in 2003 and end in 2007. There are a total of 13 convictions. There are no convictions for drug offences.

POSITION OF THE PARTIES

[5] The Crown seeks a sentence of 30 to 36 months, a DNA order and a s. 109 order for 10 years.

[6] The Crown submits that while there were some triable issues relating to the Information to Obtain, aggravating is the amount of a SCH 1 substance. Denunciation and deterrence should be at the forefront of the sentencing considerations.

[7] The Crown argues that Mr. Berdan is a mid-level trafficker, however, notes that if the 583 grams of the cutting agent were to be utilized, he would move into a commercial level.

[8] Finally, the Crown acknowledges that while a conditional sentence order is available in law, consideration of the sentencing principles make it inappropriate.

[9] The defence seeks a conditional sentence order for 729 days (2 years less one day), arguing that the appropriate ‘real jail’ sentence would be well below the Crown position at 12-24 months.

[10] The defence submits that general deterrence is of limited value in this case and that the matter has been on a resolution track for some time.

MR. BERDAN’S PERSONAL CIRCUMSTANCES

[11] Mr. Berdan is 36 years old. His last conviction was when he was 22 years old.

[12] He is employed and works fulltime on a farm. His employer, who is aware of the matter before the court, advises that he is both a trustworthy and caring individual.

[13] Mr. Berdan’s girlfriend advised that he is addicted to cocaine and this case is collateral to that addiction. His girlfriend has her own struggles and is working with CAS to have supervised access to her children. At the time in question, his girlfriend had left him because of his drug use.

[14] Mr. Berdan is reconnecting with his 12-year-old daughter as he is currently abstaining from the use of drugs and proving to her mother that he should have greater access.

[15] Counsel advised that Mr. Berdan took significant steps in the last year to overcome his addiction to cocaine and quit ‘cold turkey’ without any counselling.

CASELAW

[16] Each party provided some caselaw.

[17] The salient points can be summarized as follows:

(1) “Cocaine is a hard drug because it is addictive and because it causes significant direct and indirect damage to users, to their families, and to the safety and security of society”. Also, cocaine is not a victimless crime. (R. v. Graham, 2018 ONSC 6817, para. 44);

(2) Denunciation and deterrence are the most important sentencing principles in these cases. Graham, supra, para. 46.

(3) “The well-established ranges for sentences for cocaine trafficking offences depend to some significant degree on the level in the drug trade hierarchy at which the case is situated. As explained above, the present case is situated at the “mid-level” as it involves trafficking in the ounce amounts”. Graham, supra, para. 47.

(4) A “mid-level” trafficker “should be situated above the Woolcock range but below the Bajada and Bryan range. In other words, two to five years is the appropriate range”. Graham, supra, para. 48.

[18] The cases provided by the defence are distinguishable on the facts; each was significantly lower in the amount of cocaine possessed.

ANALYSIS

[19] I find that Mr. Berdan was at the higher end of the mid-level of traffickers, noting that he is being sentenced for possession for the purpose of trafficking, and not actual trafficking. I come to this conclusion based on the amount of cocaine located in the safe, and the packaging material.

[20] I find that Mr. Berdan, being in possession of the very large amount of cutting agent, could well be preparing to move into a commercial level.

[21] I find that Mr. Berdan was not in possession of the cocaine simply to support his own addiction; given the amount of the cocaine he was also in possession to make a financial profit. I am troubled by the notion that on one hand Mr. Berdan claims to have been struggling with a serious addiction to cocaine and in possession to support that addiction; however, on the other hand capable of quitting ‘cold turkey’ without any counselling or support services.

GOVERNING SENTENCING PRINCIPLES

[22] The fundamental purpose of sentencing set out in s. 718 of the Criminal Code is to protect society and to contribute, along with crime prevention measures, to respect for the law and the maintenance of a just, peaceful and safe society by imposing sanctions that have one or more of the following objectives:

(a) denouncing unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) deterring the offender and others from committing crimes;

(c) separating offenders from society where necessary;

(d) assisting in the rehabilitation of the offender;

(e) providing reparations for harm done to the victim or to the community;

(f) promoting a sense of responsibility in the offender, and acknowledging the harm done to victims and the community.

[23] The fundamental principle in sentencing, as set out in s. 718.1, is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[24] The principles of denunciation and deterrence are paramount. Both can be achieved though a conditional sentence order. However, in the circumstances in this case, with the large amount of cocaine, coupled together with the very large amount of cutting agent, a conditional sentence would be inappropriate.

[25] To effectively denounce Mr. Berdan’s level of involvement in the drug trafficking industry a custodial sentence in a ‘real jail’ is required.

[26] Mitigating is his plea of guilt, especially so in light of the Crown’s concession that there may have been some triable issues with respect to the Information to Obtain. Additionally, he has entered his plea during the current global pandemic. As this court noted in R. v. Gabourie, 2021 ONCJ 9, at para. 64, “Guilty pleas eliminate the need for witnesses to attend trials, and thus eliminate the need for difficult decisions about attending in person (and being potentially subject to risk or subjecting other to risk) or attending remotely. A guilty plea, during COVID, serves to help control the community spread of the virus”.

[27] Moreover, as Justice Pomerance held in R. v. Hearns, 2020 ONSC 2365, at para. 15, the impact of the current global pandemic “may soften the requirement of parity with precedent”.

[28] The sentence is 729 days (2 years less 1 day), to be followed by 18 months probation, a DNA order and a s. 109 order for 10 years. There will also be a forfeiture order.

Released: September 1, 2021

Signed: Justice Angela L. McLeod