ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: Cr10-900000844-0000
DATE: 20120713

BETWEEN:

HER MAJESTY THE QUEEN Crown – and – FRANCIS LETEMPLIER Defendant

Hafeez Amarshi, for the Crown
Michael Webster, for the Defendant

HEARD: July 5, 2012

Allen J.

REASONS FOR SENTENCE

BACKGROUND TO ARREST

[ 1 ] At the conclusion of a seven day jury trial, the defendant Francis Letemplier was found guilty of trafficking in crack cocaine, possession of crack cocaine for the purpose of trafficking and possession of proceeds obtained from crime.

[ 2 ] The following evidence was before the jury.

[ 3 ] On December 4, 2009, undercover officers from 51 Division’s drug squad were tasked to conduct surveillance for street level drug trafficking in the area of Sherbourne St. and Queen St. E. in downtown Toronto. This area is commonly known to be populated by marginalized and transient people, considerable foot traffic and street level drug dealing. Undercover Officer Kristie Smith approached two men sitting on the steps of Fred Victor Mission, a men’s shelter, one of whom was Mr. Letemplier and the other Mr. Foley. She asked “Who’s around?” Francis Letemplier responded: “What do you need?” and she said she wanted a “20 piece”. Officer Smith, Mr. Letemplier and Mr. Foley walked down Queen St. E. As they were walking, Officer Smith passed $20 police buy money to Mr. Letemplier and he then passed her some crack cocaine. Both Mr. Letemplier and Mr. Foley were arrested. Mr. Letemplier was found with .18 grams of crack cocaine and the $20 police buy money.

[ 4 ] Mr. Letemplier served 15 days in pre-trial custody. Mr. Foley pleaded guilty at bail court and received a four-month custodial sentence.

MR. LETEMPLIER’S BACKGROUND

Criminal Record

[ 5 ] A Pre-Sentence Report was filed as an exhibit. The supervisor interviewed Mr. Letemplier’s aunt and Mr. Letemplier in preparing the PSR. It contains the following account of Mr. Letemplier’s life circumstances.

[ 6 ] Mr. Letemplier is 41 years of age. He comes to this sentencing hearing with a criminal record that spans from 1994 to 2003. His previous convictions and sentences are as follows:

1994 - theft under - a fine

1995 - unlawful have or sell manufactured tobacco/cigars - fine + 18 months probation

1996 - theft under - fine +12 months probation

1996 - fail to appear - fine + 3 months probation

2002 - theft under, obstruct police officer, fail to attend court -1 day on each charge concurrent + 18 months probation

2002 - criminal harassment, fail to attend court, theft under - 7 days on each charge concurrent + 2 years’ probation

2003 - theft under - suspended sentence + 12 months probation

[ 7 ] Mr. Letemplier’s last conviction was therefore about six years before the charges underlying his current convictions. He has no prior drug related convictions.

Early Life

[ 8 ] Mr. Letemplier was born in Quebec into a single parent family. He never knew his father. For several years he lived apart from his mother. He grew distant from her at a young age when he was sent to live with his aunt and uncle in Newfoundland until age 13. Although he missed his mother, and his aunt and uncle were strict, he says he enjoyed his life with them. He has a brother living in the United States with whom he has never had a relationship. Mr. Letemplier moved to Montreal to live with his mother at age 13 where he attended school. His mother died of cancer in 2002. Mr. Letemplier states he was never close to his mother and the aunt describes her as an emotionally unavailable person.

[ 9 ] Mr. Letemplier describes two rather traumatic events in his life, being sexually abused at age 5 and being in a house fire where a friend died. He says he has gotten over the abuse and does not seek medical assistance for his problems. He deals with them on his own.

Drug Use and Rehabilitation

[ 10 ] Mr. Letemplier reports that at age 14 he began to associate with the wrong crowd. He describes himself as a follower. He began using drugs, marijuana, hash and cocaine, at age 14 and continued to the point he developed a heroin addiction. In 2002 he entered a three year methadone program and as he reports it he successfully overcame his heroin addiction and has not used heroin since. Mr. Letemplier also attended a six week rehabilitation program at age 21 and a ten month program at age 32. Mr. Letemplier states that he committed the previous offences when he was addicted to drugs to support his drug habit.

[ 11 ] He states he has been clean for four years and explains his behaviour on December 4, 2009 as just having had “one toke”. He feels the drugs have no power over him. He continues to insist he only did a $6.00 toke that evening and denies dealing crack to the undercover officer.

[ 12 ] The aunt stated that Mr. Letemplier has been drug-free for a long time. When asked to explain his behaviour on December 4, 2009, she said he was just being stupid that night, suggesting he had just fallen off the wagon on that occasion.

Education, Employment and Health

[ 13 ] Mr. Letemplier completed high school and attended a trade school where he studied welding. He last worked as a welder in 2005 and was last employed in 2009 as a personal care worker. He indicates he is unable to work for health reasons. He is currently in receipt of social assistance and is awaiting the outcome of an ODSP application. He is apparently under a doctor’s care but has not revealed what his medical problems are. The aunt stated she is puzzled why Mr. Letemplier does not work and that she has not been privy to information about his health. She described her nephew as very secretive about his life and health. The supervisor who authored the PSR described Mr. Letemplier similarly, as not forthcoming, guarded and secretive about his health and drug use.

Past Community Supervision

[ 14 ] Mr. Letemplier was last under community supervision from 2002 to 2004. When his mother died in 2002, his drug use increased, he lost his job and he lost control of his life. He was in treatment when she passed away. During this period his attendance was poor and he re-offended. He was in methadone treatment at this time and despite his attempts to abstain from drug use, he would relapse and take cocaine every two weeks or so. He was living with his aunt on and off and was otherwise homeless. He begged, stole, panhandled and conned to support his habit while he was under supervision.

Current Life

[ 15 ] Mr. Letemplier is single, unemployed and since 2007 has lived alone in an apartment some distance from where he was arrested. He has had few relationships in his life but says he keeps busy “doing his own thing” on his own. He enjoys walking, exercising, being on the internet and visiting his aunt and cousin in Scarborough.

SENTENCING PRINCIPLES

[ 16 ] The objectives of sentencing are provided under s. 718 of the Code . The principal objectives are deterrence, denunciation, separation of offenders from society, rehabilitation, reparation to the victims and promotion of a sense of responsibility for the harm to victims.

[ 17 ] The Criminal Code at s. 718.1 also sets down proportionality as a fundamental principle of sentencing. The sentence must be proportionate to the gravity of the offence. An inquiry must be conducted on a case by case basis. The Ontario Court of Appeal has held the “narrow focus” of the sentencing process is directed at imposing a sentence that reflects the circumstances of the specific offence and the attributes of the specific offender. It is not the forum in which to right perceived societal wrongs, allocate responsibility for criminal conduct as between the offender and society, or “make up” for perceived social injustices by the imposition of sentences that do not reflect the seriousness of the crime [ R. v. Hamilton (2004), 2004 5549 (ON CA) , 186 C.C.C. (3d) 129, 72 O.R. (3d) 1 (Ont. C.A.)].

[ 18 ] As provided under s. 718.2 (b) of the Criminal Code , parity is another governing principle. This principle requires that a sentence be similar to sentences imposed on similar offenders for similar offences committed under similar circumstances. Sentencing is however an individualized process which necessarily means that sentences imposed for similar offences may not be identical [ R. v. Cox , 2011 ONCA 58 (Ont. C.A.) and R. v. L.M , [2008] 2 S.C.R. 163, 2008 SCC 31 (S.C.C) ].

[ 19 ] The sentencing judge may deduct the time spent in pre-sentence custody.

AGGRAVATING AND MITIGATING FACTORS

[ 20 ] Section 718.2 (a) of the Criminal Code requires the court in deciding the nature and extent of sentence to consider any aggravating or mitigating circumstances.

[ 21 ] The aggravating factors in this case are as follows:

a) Mr. Letemplier has a prior criminal record that spans from 1994 to 2003, from his early 20s to his early 30s.

b) Mr. Letemplier has a past history of drug abuse and attempts at rehabilitation that was characterized by relapses to drug use.

c) Mr. Letemplier was arrested for dealing drugs in a vulnerable neighbourhood known for its high incidence of street level drug dealing.

d) Mr. Letemplier trafficked in crack cocaine a drug known for its highly addictive quality and very destructive impact on users, their families’ lives and their communities.

e) Mr. Letemplier was not forthcoming in his pre-sentence interview and displayed secretiveness about important information about his life, health and drug use. This leaves the court with an uneasy feeling about how he spends his time particularly since he is unemployed.

f) Mr. Letemplier on a whole had an unsuccessful previous experience with community supervision between 2002 and 2004.

g) Mr. Letemplier lives alone without domestic family support or the support of friends in his everyday life.

[ 22 ] The mitigating circumstances are:

a) Mr. Letemplier did not have a stable family life for much of his life. He never knew his father or sibling. He had to move from Quebec to Newfoundland to live with his aunt and uncle until his teens. He missed his mother and did not understand why she sent him away. His mother was emotionally distant and died in 2002. He seems to have a family relationship only with an aunt and cousin in Scarborough.

b) Many of Mr. Letemplier’s more serious criminal convictions came during the period of his addiction to heroin and relate to activities he was engaged in to support his habit. Many of his failures to attend court occurred during that period. His earlier offences for the most part, except the tobacco offence, resulted in fines and probation.

c) Mr. Letemplier’s last criminal conviction before the current one was six years previous. There is no evidence he has committed any offences during the nearly three years after the arrest on the current charges.

d) Except for the current incident of drug possession, there is no evidence Mr. Letemplier has abused drugs since 2004. His aunt confirms his evidence that he has been clean for years. My reliance on that evidence must of course be tempered by the fact Mr. Letemplier is secretive with his aunt about his life.

e) Mr. Letemplier trafficked in a small quantity of crack cocaine and received a small amount of money in exchange which suggests he trafficked for personal use and not as part of a drug trafficking enterprise.

f) Mr. Letemplier has a stable residence where he has been living in an apartment since 2007.

PARTIES’ POSITIONS

[ 23 ] The Crown seeks a nine-month custodial sentence and the defence seeks a conditional sentence. Conditional sentences were available in 2009 for the offences charged.

The Crown

[ 24 ] The Crown relies on cases that place the range for custody sentences between six months and two years less a day. The Crown focused on the aggravating factors: Mr. Letemplier’s previous criminal record; the fact he trafficked a highly addictive drug in a vulnerable neighbourhood where he did not reside; his lack of remorse; and his previous problems with drug addiction.

[ 25 ] The Ontario Court of Appeal in R. v. Woolcock emphasized that a sentence for trafficking in crack should reflect the principles of denunciation and deterrence in recognition of the reality of the “extremely dangerous and insidious” nature of that drug and its potential to harm individuals and communities [ R. v. Woolcock , [2002] O.J. No. 4927 at para. 8, (Ont. C.A.) ]. The Court found the range of sentence for this type of offence was six months to two years less a day with the sentences at the higher end tending to involve larger quantities of drugs or offences committed while the accused was on probation for a similar offence [ R. v. Woolcock , at para. 15].

[ 26 ] In R. v. Boucaud , the Ontario Court of Justice, citing R. v. Woolcock, supra , imposed a six months jail sentence where the accused was 53 years old when he was arrested for the first time for trafficking in 5.3 grams of cocaine to supplement his family income. The accused had pleaded guilty and had medical conditions that were taken into account.

[ 27 ] In R. v. Bryan the Ontario Court of Appeal upheld a sentence of 12 months jail time for possession of 2.9 grams of cocaine for the purpose of trafficking. The Court’s reasons contained few facts about the circumstances of the accused [ R. v. Bryan , [2007] O.J. No. 1960 (Ont. C.A.) ].

[ 28 ] In R. v. Harris , the accused was sentenced to six months jail time plus 18 months of probation for trafficking .71 grams of cocaine where the Court considered the principle of denunciation and deterrence, the mitigating factor of his guilty plea, family support, gainful employment, the aggravating factors of a prior drug charge and an extensive criminal record [ R. v. Harris, [2008] O.J. No. 1976 (Ont. S.C.J.) ].

[ 29 ] In R. v. MacDonald , (November 6, 2009) (unreported) the Ontario Court of Appeal did not disturb the trial judge’s 100 day custodial sentence with three years’ probation imposed for possession of .2 grams of cocaine for the purposes of trafficking. The Court recognized the case involved a small amount of cocaine and that the accused was on probation at the time. The probation sentence imposed at trial was found to be reasonable in view of the accused’s history of drug problems.

[ 30 ] In a decision by this Court in R. v. Rose , (April 27, 2009) (unreported) the accused was sentenced to a 12 month custodial sentence for trafficking and possession of 6.99 grams of cocaine for the purpose of trafficking in circumstances where the accused was steadily employed, had stable family support, no problems with drug use and no prior drug convictions. The Court found the drug sale was motivated by profit not addiction.

[ 31 ] This Court in R. v. Stevens , (August 4, 2011) (unreported) sentenced the accused to an eight month custodial sentence for trafficking 1.27 grams of crack cocaine. The Court took into account the deal was motivated by profit and that the accused had a prior criminal record and further convictions after the charges then before the court.

The Defence

[ 32 ] The defence relies on the following mitigating factors: that Mr. Letemplier has no prior drug offences; that his last conviction was six years ago; that Mr. Letemplier has had no involvement with the criminal justice system subsequent to his current offences; that Mr. Letemplier was not involved in commercial trafficking, having only .18 grams of crack cocaine in his possession; and that he had successfully overcome his previous addiction to heroin.

[ 33 ] The defence relies in his submissions on propositions articulated in one case by the Supreme Court of Canada and in the other by the Ontario Court of Appeal ― that a conditional sentence can address both the punitive and rehabilitative goals of sentencing and promote the objectives of deterrence and denunciation [ R. v. Proulx , 2000 SCC 5 () , [2000] 1 S.C.R. 61 (S.C.C.)], and that there is no presumption against conditional sentences for trafficking offences in that the circumstances of the offence and the offender should govern [ R. v. Kerr , 2001 21142 (ON CA) , [2001] O.J. No. 5085 (Ont. C.A.)].

[ 34 ] The defence cites four further cases for the Court’s consideration.

[ 35 ] This Court in R. v. Richards imposed a two year less a day conditional sentence in circumstances where the accused had 6.37 grams of cocaine in his possession and pleaded guilty to trafficking in cocaine. The accused was age 58 years at the time of the offences; had a ten year old previous record for drug offences; had glowing references from his employer and bail supervisor; and completed a treatment program and attended follow up AA meetings [ R. v. Richards, [2007] O.J. No 3209 (Ont. S. C.J) ].

[ 36 ] In R. v. Walcott , this court imposed a nine month conditional sentence plus 12 month probation where 1.3 grams of cocaine were involved. The accused had a prior criminal record including a drug offence; he was gainfully employed and his employer provided a positive reference; and he had no previous drug addiction problems [ R. v. Walcott , [2009] O.J. No. 320 (Ont. S.C.J.) ].

[ 37 ] In a decision by this Court in R. v. Otchere-Badu , a conditional sentence was imposed where about one gram of cocaine was involved and the accused was convicted of trafficking in cocaine. The accused had a previous criminal record that dated back about nine years. He was in a stable relationship with a spouse and four children. He had completed a college level law-related course and planned to obtain certification as a paralegal [ R. v. Otchere-Badu , 2010 ONSC 5271 () , [2010] O.J. No. 4447(Ont. S.C.J.)].

[ 38 ] In R. v. Imoro the accused received a two year less a day conditional sentence plus one year probation for trafficking, possession of 6 grams of cocaine for the purpose of trafficking; possession of proceeds of crime; and possession of 550 grams of marijuana for the purpose of trafficking. The accused: was involved in commercial trafficking; pleaded guilty; had not committed any offences in the three years after the charge; was gainfully employed at the time of the offences; and living in a stable relationship [ R. v. Imoro , 2011 ONSC 1445 () , [2011] O.J. No. 996 (Ont. S.C.J.)].

[ 39 ] The defence asks the Court, when applying the parity principle, to consider the circumstances of Mr. Foley, originally Mr. Letemplier’s co-accused. Mr. Foley was charged with similar offences under similar circumstances to Mr. Letemplier’s. He received a four month custodial sentence and the Crown is seeking a nine month custodial sentence for Mr. Letemplier. There are some differences in the circumstances of the two men. Mr. Foley pleaded guilty very early on. He has a more extensive and serious previous criminal record covering from 1989 to 2005, involving several breakings and enterings, assaults, assaults with weapons, obstructions of police officers, two drug possession charges and many failures to attend and failures to comply.

[ 40 ] The defence submits it is inconsistent for the Crown to seek a higher penalty for Mr. Letemplier in the circumstances and that given Mr. Letemplier’s considerably less serious criminal record and no previous drug offences, a conditional sentence would be appropriate.

CONCLUSION

[ 41 ] I have carefully considered the parties’ submissions and reviewed the cases filed. In imposing a 12 month conditional sentence plus 6 months probation, I am mindful of the principles enunciated in R. v. Woolcock, supra , R. v. Proulx , supra , and R. v. Kerr , supra . In Mr. Letemplier’s circumstances I find a conditional sentence with a period of probation will satisfy the punitive and rehabilitative objectives of sentencing and the goals of deterrence and denunciation.

[ 42 ] There are some mitigating factors to be considered.

[ 43 ] Before the current charges, he was last involved with the criminal justice system six years ago. He has not re-offended since his arrest on the offences charged. Although he had a drug problem during his earlier years, he underwent several drug treatment programs up to 2004, and the evidence is that he was able to overcome his drug and heroin addiction. The offences charged are the only drug related offences he has faced. He trafficked in a small quantity of drugs and there is no indication he is involved in a drug trafficking commercial enterprise.

[ 44 ] However, the aggravating circumstances must be accounted for in tailoring the appropriate sentence.

[ 45 ] I cannot ignore that Mr. Letemplier travelled to sell a dangerously addictive drug in a vulnerable neighbourhood plagued by street level drug trafficking. Further, Mr. Letemplier admits he used crack the night of his arrest, although he suggests it was a one-time occurrence. I am not confident of this due to his secretiveness. These circumstances call for denunciation, deterrence and rehabilitation. I think these objectives can be met without a custodial sentence.

[ 46 ] I am also concerned about how Mr. Letemplier occupies his time on a daily basis. He was not forthcoming with his supervisor in his PSR interview. He is unemployed, not in school and has a great deal of time on his hands. This is not a good state of affairs. It is not clear why he has not been working. He says he cannot work for medical reasons. However, he was evasive and secretive about his life and health during his interview and is secretive with his aunt.

[ 47 ] I am also concerned that while he has a stable residence, he lives alone and by his own account lacks the support of friends. He seems to have had and continues to have the support of his aunt. However she lives in Scarborough some distance from where he lives.

DISPOSITION

[ 48 ] Taking the aggravating and mitigating circumstances into account and the sentences imposed by other courts considering similar factors, I find a fit sentence is:

(a) a 12 month conditional sentence to be served as follows:

(i) a three month period of house arrest with the following conditions:

1. Mr. Letemplier shall keep the peace and be of good behaviour.

2. He shall appear before the Court when required to do so by the Court.

3. Mr. Letemplier shall be confined to his apartment 24 hours a day, seven days per week and only permitted to leave his apartment for the following purposes: for Court appearances; for medical appointments of which he is required to give advance notice to his supervisor; for religious observance, the day of the week, time and location for which he shall immediately advise his supervisor; and for shopping and personal errands to be done only on Saturdays between 12 p.m. and 4:00 p.m.

(ii) a nine month period to immediately follow the expiry of the house arrest with the following conditions:

1. Mr. Letemplier shall keep the peace and be of good behaviour.

2. He shall appear before the Court when required to do so by the Court and notify the Court or supervisor in advance of any change of name or address and promptly notify the Court or the supervisor of any employment, occupation or attendance at an educational or training facility.

3. He shall report to a supervisor within two working days of his release from house arrest and thereafter when required by the supervisor and in the manner directed by the supervisor.

4. He shall refrain from going, at any time or for any reason, within 500 metres of the intersection of Jarvis St./Sherbourne St. and Queen St. E where he committed the offence and was arrested.

5. He shall attend for and actively participate in any assessment, treatment or counselling as required by and to the satisfaction of the supervisor. He shall sign whatever consents or releases that may be required by his supervisor in order to monitor and verify compliance with said assessment, treatment or counselling and he shall provide written proof of completion of said assessment, treatment or counselling to his supervisor.

6. He shall within four months of the date of this Order obtain, and promptly provide to his supervisor, an opinion from his family physician on whether he is medically fit to be employed or to attend an educational or training facility and if he is capable of working or attending training with restrictions, an opinion on any restrictions and the type of work he would be capable of performing.

(b) A six month probation period

1. The conditions of the six month probation shall follow and immediately take effect upon the expiry of the conditional sentence.

2. The conditions of probation shall be the same conditions as imposed on the last nine months of the conditional sentence.

Allen J.

Released: July 13, 2012

COURT FILE NO.: Cr10-900000844-0000
DATE: 20120713

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN Crown – and – FRANCIS LETEMPLIER Defendant

REASONS FOR SENTENCE Allen J.

Released: July 13, 2012