Court File No. 11-01662
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
KYLE BERTRAND
R E A S O N S F O R S E N T E N C E
BEFORE THE HONOURABLE MADAM JUSTICE M. FUERST
on December 28, 2012, at NEWMARKET, Ontario
APPEARANCES:
M. DiCarlo Counsel for the Crown
A. Herscovitch Counsel for K. Bertrand
SUPERIOR COURT OF JUSTICE
T A B L E O F C O N T E N T S
REASONS FOR SENTENCE
1
Legend
[sic] - Indicates preceding word has been reproduced verbatim and is not a transcription error.
(ph) – Indicates preceding word has been spelled phonetically.
FRIDAY, DECEMBER 28, 2012
R E A S O N S F O R S E N T E N C E
FUERST J. (Orally):
Kyle Bertrand pleaded guilty to possession of cocaine for the purpose of trafficking.
Crown and defence counsel agree that he must receive a jail sentence, but differ as to its length.
The Circumstances of the Offence
On August 17th, 2011, police in Peterborough had information that Mr. Bertrand was involved in the drug trade. That day they watched him drive through a red light, then stopped the car. After he lied to them about where he had been, they arrested him for a drug offence.
He told them that he had 60 oxycodones in his pocket, and cash, cocaine and marijuana joints in the trunk of the car. The officers seized the oxycodone tablets and searched the trunk. They found a bag containing 253 grams of cocaine with a street value of about $25,000; 134.5 grams of marijuana; some marijuana cigarettes; and about $3,000 cash in a cooler bag.
Mr. Bertrand told the police that he agreed to transport the cocaine for a friend in exchange for $500, and that he had no job and did it for the money.
The car that he was driving belonged to his aunt. It was seized, and will be the subject of a forfeiture application by the federal Crown at a later date.
The Circumstances of Mr. Bertrand
Mr. Bertrand is 25 years old. He had a very unstable childhood because of his mother’s use of drugs. He moved between his mother, his aunt and foster homes. He had problems in school including behavioural problems, and was diagnosed with Attention Deficit Disorder. He completed grade 12 and part of a community college Corrections course, but did not have the money to continue his education. He worked in a submarine shop and at a bar, then became a cook in a restaurant.
Mr. Bertrand was unemployed when he committed the offence.
Although Mr. Bertrand is single, he has a son by a former girlfriend.
Mr. Bertrand admits to being a regular user of marijuana. He started smoking marijuana as a very young teenager. Eventually he began to sell it to fund his own use.
Mr. Bertrand has no prior criminal record. He told the pre-sentence reporter that he would like to become an electrician.
Mr. Bertrand has spent a total of 146 days in pre-sentencing custody, largely because of surety revocation of his bail.
The Positions of the Parties
On behalf of the federal Crown, Mr. DiCarlo submits that Mr. Bertrand should receive a jail sentence of two years less a day less pre-sentence custody calculated on a 1-for-1 basis, plus three years’ probation. He also seeks a s. 109 order, a DNA order, and a forfeiture order in respect of the cash and other items seized. There will be a contested forfeiture hearing in respect of the car at a later date. He argues that this is not a case of street level trafficking. The amount of cocaine involved was not insignificant. Mr. Bertrand was transporting cocaine for commercial purposes. His conduct was not driven by a drug addiction. Cocaine is a dangerous drug that puts the community at risk. While rehabilitation must play a role in sentencing Mr. Bertrand, deterrence and denunciation are the other paramount objectives.
On behalf of Mr. Bertrand, Mr. Herscovitch submits that the appropriate sentence is nine months in jail less pre-sentence custody calculated on a 1-for-1 basis, followed by 18 months’ probation. He asks that I not prohibit Mr. Bertrand from using marijuana, because he is addicted to it. Mr. Herscovitch opposes a DNA order, but not a s. 109 order or forfeiture of the items seized other than the car. He agrees that the offence is very serious and the amount of cocaine involved is large. But, Mr. Bertrand is a first offender, he was cooperative with the police, he pleaded guilty as soon as the case came into the Superior Court, and he is remorseful. He was not the person who stood to profit from the sale of the cocaine. He was a courier, albeit he was paid. He committed the offence to make some money when he was out of a job. Individual deterrence and rehabilitation are the paramount sentencing principles at play.
The Principles of Sentencing
The objectives of sentencing long recognized at common law have been codified in s. 718 of the Criminal Code. They are: the denunciation of unlawful conduct, deterrence both general and specific, the separation of the offender from society where necessary, rehabilitation, reparation for harm done to the victims or the community, and promotion of a sense of responsibility in offenders and acknowledgement of the harm done.
Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances. It also requires that a sentence be similar to those imposed on similar offenders in similar circumstances, that the combined duration of consecutive sentences not be unduly long, that an offender not be deprived of liberty if less restrictive sanctions may be appropriate, and that all available sanctions other than imprisonment that are reasonable in the circumstances be considered.
Additionally, s. 10(1) of the Controlled Drugs and Substances Act provides that the fundamental purpose of any sentence for a drug offence is to contribute to respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community.
Section 10(2) requires a sentencing judge to take into account any relevant aggravating factors.
As the Supreme Court of Canada emphasized in R. v. Proulx, [2000] 2 S.C.R. 61, sentencing is an individualized process. There is no such thing as a uniform sentence for a particular crime. In determining a fit sentence, a judge must consider the specific circumstances of the particular offender and the offence.
Analysis
The jurisprudence referred to by Crown and defence counsel indicates that the range of sentence for the offence of possession of cocaine for the purpose of trafficking is very broad. Relatively short reformatory terms have been imposed on first offenders where the amounts involved were low, with lengthier custodial sentences becoming applicable as the quantity of the drug and the commercial aspect of the activity escalated: see, for example, R. v. Woolcock, [2002] O.J. No. 4927 (C.A.), at para. 15; R. v. Capy, 2012 ONSC 3822; R. v. Goncalves, 2011 ONSC 2577.
There are significant aggravating factors in this case. Mr. Bertrand was in possession of a large amount of cocaine destined for commercial distribution. Although it is not suggested that Mr. Bertrand was to be involved in that distribution, by knowingly acting as a courier he set out to facilitate a commercial drug trafficking venture. Further, while it is not suggested that he stood to profit from the ultimate distribution of the cocaine, he acted as a courier to make money for himself. His conduct was not driven by addiction. In addition to the cocaine, he was in possession of two other controlled substances, marijuana and oxycodone.
There are, however, mitigating factors that cannot be ignored. Mr. Bertrand pleaded guilty, which is a sign of remorse and acknowledgement of responsibility for his actions. He was cooperative with the police. He is a first offender. He is a relatively young man. Although he had a difficult childhood, he completed high school and has been able to hold employment in the past. His aunt, who tried to assist him throughout his life, remains supportive of him. He expressed to the pre-sentence reporter his wish to learn a skilled trade after his release from jail.
I agree with Crown and defence counsel that the circumstances of this offence are of such gravity that a jail term is appropriate, even though Mr. Bertrand is a first offender. Cocaine is a dangerous drug with the potential to cause harm to those who use it and to society more broadly. General deterrence and denunciation are important objectives in sentencing an offender convicted of possession of cocaine for the purpose of trafficking. However, Mr. Bertrand is a first offender, and I must also consider his individual deterrence and the potential for his rehabilitation: see R. v. Woolcock, above.
In the circumstances of this case, a maximum reformatory sentence would overlook the favourable prospect of Mr. Bertrand’s rehabilitation, while a sentence of nine months in jail would minimize the seriousness of the offence, particularly having regard to the quantity of cocaine involved. I have concluded that the appropriate sentence is one of 14 months in jail less time spent in pre-sentence custody calculated on a 1-for-1 basis, followed by two years of probation. The purpose of the period of probation is to provide Mr. Bertrand with structure and professional guidance to support his rehabilitative efforts.
Mr. Bertrand, please stand. I sentence you to 14 months in jail less 146 days of pre-sentence custody, for a sentence to be served of nine months and four days, which will be followed by two years of probation. While you are on probation you will be bound by the statutory conditions and in addition the following conditions:
Report within two working days of release to a probation officer and thereafter as required;
Not purchase, possess or consume non-prescription drugs. While you were a regular user of marijuana before your arrest, you have been in custody for several months now and you will continue to be in custody for some time, presumably without access to marijuana. Accordingly, I do not agree with Mr. Herscovitch that this abstention condition is inappropriate;
Attend any assessment and counselling for substance use and/or personal issues as your probation officer may direct and not stop without the prior written approval of your probation officer;
Execute a release of medical, psychiatric or other confidential information to your doctor or counsellor in favour of your probation officer so that they can discuss your progress; and
Not associate with anyone known to you to be involved in the drug trade.
I order forfeiture of the items seized on your arrest, except for the car, which will be the subject of a later application. I make a firearms prohibition order under s. 109(2)(a) for 10 years and s. 109(2)(b) for life. I decline to make a DNA order because I am not satisfied that such an order is in the best interests of the administration of justice. Notwithstanding that an order would have minimal impact on your privacy and security of the person, you are a first offender and your offence had no connection to the kind of information that forensic DNA examination provides.
You can be seated.
So, Mr. DiCarlo and Mr. Herscovitch, do you want to just double-check my mathematics on 14 months less 146 days of pre-sentencing custody. I think nine months and four days is correct but I...
MR. HERSCOVITCH: Yes, ‘cause...
THE COURT: ...I stand to hear from you.
MR. HERSCOVITCH: ...150 would be five months and so the four days on top of that....
MR. DICARLO: I’m content with your calculations, Your Honour.
THE COURT: All right.
MR. DICARLO: Thank you.
THE COURT: The other counts?
MR. DICARLO: The other counts can be marked withdrawn at the request of the Crown please.
THE COURT: Right. Is there anything else that needs to be qualified or clarified?
MR. HERSCOVITCH: I don’t believe so. Let me just confirm with Mr. Bertrand. No, that’s fine. Thank you, Your Honour.
THE COURT: All right, just give me one moment to endorse the indictment. Would you have a forfeiture order with you, Mr. DiCarlo?
MR. DICARLO: I do not, Your Honour. Typically I just ask for a blanket forfeiture order for all items and cash seized. In this case maybe Your Honour can note save and except the vehicle subject – which will be subject of a further forfeiture application.
THE COURT: All right, so I have endorsed that Mr. Bertrand is sentenced to 14 months in jail, less pre-sentencing custody of 146 days on a 1-for-1 basis, leaving a sentence to be served of nine months and four days, followed by two years’ probation on conditions read into the record. There is a s. 109(2)(a) order for 10 years and a s. 109(2)(b) order for life. Forfeiture of all items and cash seized, except for the vehicle which will be the subject of a future application, is ordered and all other counts are withdrawn at the request of the Crown.
...MATTER OF FORFEITURE APPLICATION ADDRESSED BY THE COURT (DULY RECORDED BUT NOT TRANSCRIBED HEREIN)
FORM 2
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))
Evidence Act
I, Pamela Thompson, certify that this document is a true and accurate transcript of the recording of R. v. Kyle Bertrand in the Superior Court of Justice held at 50 Eagle Street West, Newmarket, Ontario taken from Recording of Friday, December 28, 2012, Recording 4911-402-20121228-092514, Courtroom 402.
January 24, 2013 Pamela Thompson
(Date) Pamela A. Thompson, C.V.C.R.
Certified Court Reporter
NOTE: Photostat copies of this transcript are not certified and have not been paid for unless they bear an original signature in blue
and accordingly are in direct violation
of Ontario Regulation 587/91, Courts of Justice Act, January 1, 1990.