SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 12-3423
DATE: 2012-07-05

RE: R. v. Justin Bernard

BEFORE: Mr Justice Ramsay

COUNSEL:
Ms Lisa Mathews, Ms Amber Pashuk for the DPP
Mr Jeffrey Manischen for the accused

HEARD: 2012-07-04 and -05 at Hamilton

ENDORSEMENT

[ 1 ] These are my reasons for sentence.

The case

[ 2 ] The offender pleaded guilty to three counts of trafficking in methamphetamine, a substance in Schedule I of the Controlled Drugs and Substances Act , three counts of possession of proceeds of drug trafficking and one count of possession of methamphetamine for the purpose of trafficking. In the space of a month the offender delivered 12 kg of methamphetamine to an undercover police officer and received $51,000 in cash. When he was arrested he had 14 kg of methamphetamine in his girlfriend’s house. During the same month, he was conspiring with others to sell cocaine. Those others actually exchanged 1 kg of cocaine for $16,000.

[ 3 ] In more detail, on March 8, 2011 the offender was introduced to the undercover officer. The officer posed as a potential buyer of large amounts of cocaine and methamphetamine. The offender told the officer that he was expecting 20-50 kg of cocaine from El Paso and another 12 kg from Los Angeles. He provided a .4 gram sample. He also said that he could sell high quality crystal methamphetamine for $25,000 per kilogram. Later that night the offender provided a .8 g sample of methamphetamine. He offered to provide a further kilo that evening, but the offer was declined.

[ 4 ] On March 13, 2011 the offender fronted the officer 1 kg of methamphetamine as well as a .8 g sample of cocaine and an 8.6 g sample of ketamine. A few days later the officer paid the offender $25,000 in cash for the methamphetamine. The offender told the officer that he had a warehouse where his guys can produce 10 kg of methamphetamine every ten days. The offender also gave the officer a .6 g sample of MDMA.

[ 5 ] On April 6, 2011 the offender gave the officer another kilogram of methamphetamine. They agreed on a further purchase by the officer of 9 or 10 kilograms if the officer was happy with the quality of what was delivered on April 6.

[ 6 ] The next day the officer gave the offender $26,000. The offender said that he was going to pay his “guy”, that is, his supplier, Jason Ing. The offender also gave the officer some more samples. The offender was seen visiting Jason Ing later that day.

[ 7 ] On April 10, 2011 the offender delivered the further 10 kg of methamphetamine to the officer, in boxes wrapped with paper suitable for a child’s birthday present.

[ 8 ] On April 13, 2011 the police closed the operation by executing a search warrant at the home of the offender, where he lives with his wife and children. They found $1,055 in cash, numerous communication devices and a small amount of steroids. They also executed a search warrant at the home of the offender’s girlfriend, where they found 14 kg of methamphetamine. They found no oxycodone or Percocet.

[ 9 ] Intercepted telecommunications show clearly that the officer and the offender were acting on the understanding that the officer was buying the meth in order to re-sell it.

[ 10 ] As additional pertinent facts that are not on the indictment, but which may be taken into account under s.725(1) (b.1) of the Criminal Code , it is admitted that during this period, the offender was overheard on intercepted communications conspiring to traffic in cocaine with at least two others. They were talking about 9 oz of cocaine, which one of the men would re-sell. On March 11, 2011 the offender provided 1 kg of cocaine to Shaun McIntyre, who passed it on to Christopher Dawson. McIntyre and Dawson were both arrested, and found in possession of 1 kg of cocaine and $16,000 respectively.

[ 11 ] The offender has no criminal record to speak of. He has about a week of presentence custody to his credit. The Crown asks for a sentence of 14 years imprisonment. The defence asks for seven years.

[ 12 ] I am asked to take into account in the offender’s favour the restrictive conditions of bail. I do not propose to do so. The terms of release did not have an adverse effect on the offender. He had to stay in his residence unless he was accompanied by his mother or one of his bondsmen. It was beneficial for the offender to be at home, away from his criminal associations. He could have earned a living on line, as he had done in the past, if he had chosen to do so. And he would have had to stay home most of the time to take care of his children, because his wife had to go out to work.

Methamphetamine

[ 13 ] Methamphetamine is a stimulant. It has been used by addicts for decades. In the nineteen-sixties it was known as speed or bennies. Today it is more likely to be marketed as meth, crystal meth or crank. It has the perfect qualities for addiction – a fast reward, a lingering memory of the reward and a craving for further doses. Initially it causes relaxation, pleasure and feelings of power. Significant use leads to loss of brain tissue, which may be irreversible. Meth addicts are more difficult to treat than cocaine addicts because of the higher degree of brain damage. Meth addicts suffer loss of ability to concentrate, learn and recall, and loss of impulse control. We are all familiar with the emaciated speed addict at the extreme end of the spectrum. Most meth addicts, however, are able to function relatively normally until the addiction has reached that stage.

[ 14 ] Methamphetamine has been a phenomenon associated with rural areas because of the availability of anhydrous ammonia in bulk in those communities. Greater controls are now in place on this ingredient of methamphetamine. Police arrest records suggest that meth use is increasing in urban centres. It is not as popular as cocaine.

[ 15 ] Organized crime is involved in producing methamphetamine and in importing its ingredients into Canada. Canada is about fourth or fifth in the world in production of methamphetamine.

[ 16 ] As with other drugs, there are producers, wholesalers, distributors and retailers. There is often overlap between two levels. The two police drug experts who gave evidence for the Crown found the amounts in question and the facts of the case to be consistent with the offender acting as a producer or wholesaler. That conclusion rings true as a matter of common sense, considering the massive amounts that the offender was able to come up with as needed.

[ 17 ] The offender told the undercover officer this:

I just told ya I supply them with the material for to make it … so they always give me first dibs on their product …

[ 18 ] The offender was closely involved with the producers, supplying the materials and wholesaling the product. He must be seen as very high on the supply chain. He came up with significant amounts of the drug very quickly. Even the samples he was giving away were in generous amounts.

Background of the offender

[ 19 ] The offender is 35 years old, the married father of two young boys. After completing his education he worked in automobile manufacturing, and then started two businesses, which failed. For a time he was supporting himself by playing poker professionally on line. He receives WSIB benefits from a work-related injury that occurred, I believe, when he worked for the car company.

[ 20 ] The story that was spun by the offender’s wife and family to the author of the presentence report, of whom no criticism is implied – he simply reported what he was told and expressed scepticism where appropriate – is that the offender led an exemplary life until an abrupt change of character in 2010 that is associated with an addiction to painkillers, which he heroically overcame after his arrest. This addiction is supposed to have turned him to a secret life of crime.

[ 21 ] The offender told the undercover officer that he had been “doing this” since the age of 16. He mentioned 10 years credit with his supplier. He was aware of the latest police techniques. They were doing catch and release, he told the officer. They would arrest someone low down the chain and then let him go and follow him, to see if he led them to someone higher up. The offender also said,

… when it’s all said and done my thing now is more time management if I can manage more time properly with my family and my kids then I’m doing a better job but if I’m going to be seven days a week twelve hours a day I’ll do that too but I’d like to be able you know spend more time with my family … so now it’s cut a few people off deal with a few more smaller but bigger transactions and just go that way there … and that’s how this year it has to be … I have to have it this year like that cause I can’t be running around for nine packs and shit like that …

[ 22 ] Clearly the offender is experienced and sophisticated in the business. He even reached the point where he wanted to make his operation more efficient.

[ 23 ] The offender’s wife testified that she had no idea that her husband was having an affair, selling drugs or abusing painkillers, although she suspected a bit about the pills. She never looked at the bag in the bedroom that had $1,000 in cash and she never knew about him taking steroids, which were also found in her house. She did not keep close enough tabs on his finances to know how much he was making from playing poker on line, when he was earning his contribution to the family’s living that way. I found a lot of her testimony unlikely. Her demeanour was not difficult to read. I think it would come out even on the audio-tape. I did not find her credible. She knew more than she is letting on. The offender did not change in 2010. He had been selling drugs for years. When he was arrested, he underwent withdrawal from his minor Percocet addiction. To get out of prison, he needed a surety and a place to live, so he put away his criminal associations, including his girlfriend, and turned back to his family, and did what was necessary not to aggravate his manifest legal problems.

[ 24 ] The offender filed several reference letters from people who admire him and who were shocked to find out what he had been doing. He had no trouble showing them only his good qualities. People who deal in illicit substances at the level at which the offender undoubtedly did have to be deceptive and unscrupulous. Honest people such as the authors of the reference letters would be no match for them.

[ 25 ] The defence called an expert witness, Dr David Rosenbloom who is a pharmacist with a doctorate in that field. He testified that the offender was seriously addicted to oxycodone and that this addiction motivated him to commit the crimes. For someone who had been successful in business, the risk was not worth the money he was making. He must have been motivated by the need to satisfy his craving for opiates.

[ 26 ] First, the level of consumption of oxycodone comes entirely from the offender and it was overstated. He interpreted to the expert certain annotations that were made on his cell phones by punching in numbers, accompanied by asterisks, and pressing “send,” which resulted in the annotation being recorded as if it were a call out. Instead it would serve as a memorandum. According to the code given by the offender to the expert, it recorded times of taking 20 mg oxycodone pills, and how many pills were taken. On the face of it, on about 17 days in March and April of 2011, the doses were recorded. The offender would have taken between 9 and 11 pills on a few of those days. On most, he took much less. The amount on the offender’s version falls short of what the Crown expert, Dr Cunningham, estimated as an addictive level for this drug, except for those exceptional days. Dr Cunningham thought that an addict, if he had the 20-mg pills, which is a low dose, would take 10 to 20 a day. I accept his evidence on this and every other point on which he testified. Dr Cunningham is a medical doctor who is pre-eminent in the field of treatment of addiction. He was a very knowledgeable and convincing witness.

[ 27 ] I conclude that the offender, through Dr Rosenbloom, overstates his consumption of oxycodone. I doubt the accuracy of these purported self-made records. Dr Cunningham has never heard of an addict who recorded his illicit dosing, apart from alcoholics in a specific programme that calls for it. In addition, the records could easily bear other interpretations, namely that many of the doses were Percocet, rather than oxycodone pills, or that many of the entries have nothing at all to do with drugs that the offender was ingesting. On intake at the detention centre, the offender reported to the medical staff that he had been abusing Percocet, not oxycodone. Percocet contains acetaminophen and a relatively small amount of oxycodone. Taking all this into account in the light of my low opinion of the offender’s character for honesty, I do not accept that the offender was taking more than a relatively small amount of Percocet. The police found no opiates in the offender’s home when they searched it. The offender’s wife testified that she found half a bottle of pills, but I have already said what I think about her as a witness. I do accept that he had a minor addiction to Percocet.

[ 28 ] Furthermore, Dr Rosenbloom thought that the motivation for selling meth could only come from the addiction to oxycodone, because the risk was too great compared to the profit, for a successful businessman. There is scant evidence about what profit the offender might have been making. Some dealers might make $500 or $1,000 on such transactions as the offender conducted, but that is a very general statement made by the Crown expert in cross-examination. Only the offender knows what his profit margin was, and he has not said. I do know that the offender got his hands on $51,000 in the space of a month. I think his risky behaviour is ascribable to greed, arrogance and a lack of appetite for honest work, rather than addiction. He could have afforded a steady supply of Percocet by getting a job, or by getting money from his wife, who had a good job.

[ 29 ] In summary, I found Dr Rosenbloom’s opinion of little use because

a. it relies too much on false information fed to him by the offender;

b. it assumes that the offender was successful in legitimate business, which he was not, and

c. the behaviour of addicts (as opposed to the behaviour of drugs) is not the heart of the witness’s expertise.

Analysis

[ 30 ] At the lower end of the scale, the cases in the Court of Appeal that have been decided since methamphetamine was added to Schedule I, with the result that the maximum penalty for trafficking in it was increased from 10 years to life imprisonment, treat methamphetamine in much the same way in terms of gravity as the cases that deal with cocaine. This court has explicitly said that methamphetamine is at least as serious as cocaine: R. v. Copeland , 2007 37232 (ON SC) , [2007] O.J. 3390 (Spies J.).

[ 31 ] In R. v. Loy , 2011 ONCA 340 , the Court upheld a sentence of five years for possession of 1 kg of methamphetamine for the purpose of trafficking. In R. v. Bryan , 2011 ONCA 273 the Court said that normally, sentences of 5 to 8 years would reflect the proper range for someone, without a record, convicted of possession for the purpose of trafficking in slightly more than a pound of cocaine.

[ 32 ] In R. v. A.S ., 2010 ONCA 441 , in which most but not all of the offence took place after methamphetamine was added to Schedule I, the Court held that a six-year sentence for trafficking in 7 kilograms of methamphetamine and 2.2 kg of marijuana was on the low end, although not low enough to require appellate intervention.

[ 33 ] In R. v. Powell , [2005] O.J. No. 2975 the Court of Appeal upheld a 13-year sentence for a “vast conspiracy to traffic in cocaine” during which at least 22 kilos was actually trafficked in a period of about a year and the offender expressed a need to launder $100,000 a day. In R. v. Lajeunesse , 2006 11655 (ON CA) , [2006] O.J. No. 1445 the Court of Appeal upheld sentences on two co-accused of 12 years and 7.5 years respectively as appropriate for multi-kilogram cocaine trafficking. In R. v. Majnoon , 2009 ONCA 876 the Court approved a range of five to seven years for a mid-level operative in a large cocaine distribution conspiracy.

[ 34 ] In this court I have seen sentences approaching 14 and 15 years for producers who were found with $12 million worth of methamphetamine and related drugs: R. v. Ling , 2012 ONSC 654 , which is to be contrasted with five years for a cook who produced methamphetamine and blew himself up in the process: R. v. Nguyen , 2011 ONSC 6229 .

[ 35 ] The principle of sentence that should be given the greatest weight in the circumstances is deterrence of a very profitable business. Where the case fits in the normal range depends on the gravity of the offence, which for our purposes is the importance or significance of the operation and the position of the accused within it.

[ 36 ] The offender who appears before me has no criminal history. He pleaded guilty in the face of an overwhelming Crown case, but he is still entitled to some credit for saving the system the expense of a trial. His prospects for rehabilitation depend entirely on choices he may make in future. On the other hand, he was wholesaling in a staggering amount of product. Based on his conduct during the month of the investigation, I think it reasonable to take him at his word when he said that he could get his hands on 10 kilos every 10 days. The 26 kilos in his actual possession could have been turned into at least 260,000 1-decigram street level hits, without taking into account the fact that it would have been adulterated. He was willing to contribute to a substantial amount of misery and heartbreak in exchange for significant money.

[ 37 ] I have concluded that a total of 12 years imprisonment would be appropriate. I have endorsed the indictment as follows:

Count 16 12 years

Counts 2, 9 8 years concurrent

Count 12 12 years concurrent

Counts 7, 10 4 years concurrent

Count 15 1 year concurrent

On counts 2, 9, 12 and 16 I make the order under s.109 of the Criminal Code prohibiting the possession of firearms and other specified items for life.

[ 38 ] Given the enterprise nature of the crime, on those counts I order the accused to produce blood for the DNA databank.

[ 39 ] I have already endorsed the forfeiture order. By agreement, part of the forfeiture order obviates the necessity for a fine to reimburse the Crown for the “buy money.”

J.A. Ramsay J.

Date: 2012-07-05