R. v. Pinch, 2012 ONSC 7549

Court of Appeal No. C55019

Court File No. CR-10-435

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

• v. -

GERALD PINCH

S E N T E N C I N G

BEFORE THE HONOURABLE JUSTICE HILL

On February 13, 2012, at BRAMPTON, Ontario

APPEARANCES :

Nora Lapp Counsel for the Public Prosecution
Service of Canada

Randall Barrs Counsel for Gerald Pinch

(i)

SUPERIOR COURT OF JUSTICE

T A B L E O F C O N T E N T S

Sentencing

Page 3

Transcript Ordered: ....................February 21, 2012

Transcript Completed: ..................March 6, 2012

Ordering Party Notified: ...............March 10, 2012

MONDAY, FEBRUARY 13, 2012

HILL J. (Orally)

After a trial, Gerald Pinch was found guilty of conspiracy to export ecstasy, and possession of ecstasy for the purpose of exportation, contrary to the Controlled Drugs and Substances Act , the CDSA. Because the background facts were reviewed in the reasons for conviction, 2011 ONSC 5484 , only summary reference to the factual circumstances is necessary.

Together with Andrew Duncan and others, the offender conspired to export ecstasy from Canada to the Atlanta area. Mr. Pinch acted between the supplier of the MDMA and the Duncan network, running couriers into the United States, and back with cash proceeds of the distribution of MDMA in the United States. The evidence supports intimate involvement in the ecstasy distribution regime over a number of months.

In a wiretap intercept, the offender discussed “85 – 87 pounds of pills,” and in another a reference to what may be inferred as about 90,000 ecstasy pills.

In a separate trial, Andrew Duncan was found guilty of his part in the unlawful scheme and stands to be sentenced by Justice Fragomeni.

MDMA in the form of ecstasy pills can be cheaply produced for a few cents a pill. Relevant case law reviews show street-price ranges of perhaps $20.00 to $40.00 a pill. The value of the 85,000-plus pills here therefore in total would be from one to one-and-a-half to over three million dollars.

On the evidence as said, Mr. Pinch stood between the supplier – whether a foreign supplier or the operator of a domestic lab – and Andrew Duncan who arranged to have the ecstasy pills packaged and couriered into the United States with proceeds returned. The offender’s role was integral to the operation. On the evidence, he was fronted the ecstasy and had either actual or constructive possession before passing it to Andrew Duncan. Mr. Pinch came under pressure when payment was delayed. The wiretap intercepts indicate that he and Mr. Duncan both felt the pressure and urgency of the situation when sufficient funds were not returned from the United States after border seizures from cash couriers. What exact cut or profit Mr. Pinch stood to make is unknown.

The offender is currently thirty-five years of age. He completed high school and one year of community college. He informed the pre-sentence report author that over the last seven years he has been employed, first by ASAP Haulage as a general labourer, and currently is self-employed in the sand and gravel industry.

Mr. Dwayne Simpson, a friend of Mr. Pinch, confirmed that he employed him at the ASAP Haulage outfit from 2005 to 2008 prior to the offender’s “entrepreneurial endeavours.” The PSR makes no reference to the offender having past or present business interests in Millennium Car and Truck Rentals or the Fine Caribbean Catering establishment.

Mr. Pinch has no prior criminal record.

The offender has two sons, age five and ten years, and is in a common-law relationship which has been over an eleven-year time span.

Exhibit No. 1 on sentencing is a collection of nine letters providing evidence that Gerald Pinch has been a good husband and dedicated father, a sponsor of both minor hockey and the World Vision sponsorship program, a good employer and an otherwise responsible person.

Ms. Lapp submitted that a fit and just sentence would be in the range of six to seven years’ imprisonment. Counsel emphasized the harmful risk to consumers of MDMA, the magnitude of the exportation scheme, the expensive nature of the investigation to uncover such crimes, and the profits available for those handling MDMA distribution. In submitting that general deterrence must be the primary objective of sentencing in cases such as the present, Crown counsel characterized Mr. Pinch as having a pivotal role in a large-scale commercial operation. It was said that the gravity of the crimes would make a conditional sentence inappropriate.

On behalf of the offender, Mr. Barrs seeks a conditional sentence of imprisonment of two years less one day. Counsel emphasized a number of factors including the lack of a prior criminal record, the impact of incarceration upon Mr. Pinch’s family, the absence of evidence of profit actually derived by the offender through his participation in the scheme, the successful compliance with his bail conditions, and the fact that Duncan, not he, was the prime mover in the scheme. Mr. Pinch was characterized as a middle-man linking the supplier to the Duncan network controlled by Andrew Duncan.

As an individual steadily employed and with a family to support, it is said that the offender is at no risk to reoffend, and would be amenable to community supervision on restrictive terms. Counsel submitted that ecstasy is not a

Schedule 1 drug and its harm to the community is less than alcohol or drugs such as cocaine.

The aggravating circumstances of the offences are manifestly apparent, including the following:

One: MDMA, or ecstasy, is a hard drug, capable of having dangerous consequences to consumers.

Two: The offender was extensively involved over a period of time in a scheme dealing with tens of thousands of ecstasy pills.

Three: An objective of the unlawful agreement involved export of the illicit substance over an international border.

Four: The offender’s involvement was instrumental to the success of a large-scale commercial operation capable of yielding illicit profits for those who participated in the scheme.

In the balance, in mitigation these factors must be considered:

One: Gerald Pinch is a first offender.

Two: He is involved in a stable relationship, with two young children.

And, three: During a lengthy time period while on judicial interim release the offender has not breached the terms of his bail.

The authorities make it apparent that general deterrence is the paramount sentencing consideration in crimes involving a hard illicit drug on a large-scale commercial level. Those who contribute to the availability of unlawful drugs on our streets and in our schools are engaged in a commercial enterprise often inextricably linked to consequential criminality and other social evils: The Queen v Evans and Evans, ( 1996) 1996 248 (SCC) , 104 C.C.C. (3d) 23 (S.C.C.) page 27 ; Silvera v The Queen, ( 1995) 1995 89 (SCC) , 97 C.C.C. (3d) 450 (S.C.C.) page 496 and 504 ; The Queen v Pearson, ( 1993) 1992 52 (SCC) , 77 C.C.C. (3d) 124 , (S.C.C.) pages 143 to 144 .

In Pushpanathan v Canada (Minister of Citizenship and Immigration,) 1998 778 (SCC) , [1998] 1 S.C.R. 982 (S.C.C.) , Justice Cory wrote of the social and economic costs of illicit drug use in Canada. He stated at page 1039:

“The costs to society of drug abuse and trafficking in illicit drugs are at least significant if not staggering. They include direct costs such as health care and law enforcement, and indirect costs of lost productivity.”

Canada, of course, has a legal duty to honour its international obligations respecting elimination of the global movement of ecstasy. Meaningful sanctions contribute to the defeat of trans-national criminal organizations. A conviction for possession of ecstasy for the purpose of exportation from Canada is punishable, pursuant to section 6(2) of the Controlled Drugs and Substances Act , by a maximum of ten years’ imprisonment. The conspiracy to export ecstasy offence is similarly punishable by a maximum of ten years’ imprisonment.

The sentencing court may take into account in the exercise of its sentencing discretion, not as an aggravating feature of sentencing but as the absence of a factor entitling sentence reduction, and as relevant to whether restorative objectives can be satisfied in a particular case an offender’s lack of remorse and acceptance of responsibility for his or her crime: Regina v Proulx, 2000 SCC 5 () , [ 2000] 1 S.C.R. 61 , at para 113 ; Regina v Valle-Quintero ( 2002) 2002 45123 (ON CA) , 169 C.C.C. (3d) 140 (Ont. C.A.) 164; and Regina v A.K., ( 1999) 1999 3756 (ON CA) , 137 C.C.C. (3d) 554 (Ont. C.A.) at page 570 .

An accused person may not, however, be punished for exercising his right to have guilt decided by a trial. Regina v Valentini, ( 1999) 1999 1885 (ON CA) , 132 C.C.C. (3d) 262 (Ont. C.A.) at paras 81 to 83 ; Regina v Nash, ( 2009) NSCA 7 at paras 29 to 33.

Ecstasy, a Schedule 3 CDSA substance, is considered a hard drug. Regina v Tutt, ( 2007) ONCA 495 at para 2; Regina v Iverson, ( 2007) BCCA 3 at para 15.

As said, the illicit substance can have dangerous consequences for its users. In Regina v Jir, ( 2010) 2010 BCCA 497 () , 264 C.C.C. (3d) 64 (B.C.C.A.) at paras 68 to 69 , Justice Groberman observed:

Finally, the trial judge found that the public interest in the prosecution of the offence was high.

This is an incredibly serious matter. Ecstasy is not a recreational drug one takes for fun on a Saturday evening. It sometimes is portrayed that way but we have had two deaths in the last six weeks in this area from young people who have taken ecstasy. This is incredibly serious in the issues surrounding drug trafficking, importation, exportation, although that is not part of the charge, but it is not a giant leap to assume or to believe what is going to happen to these drugs.’

The trial judge was clearly aware of local circumstances and there was no suggestion that she made a reversible error in her assessment of the seriousness of the case.

See also Regina v Bercier, [ 2004] M.J. 131 (C.A.) (Q.L.) at paras 32 to 37 ; Regina v Huoang [ 2002] 1355 (S.C.J.) (Q.L.) at paras 28 to 41.

Often the risks associated with ecstasy involve adulteration of the product that is being held out as MDMA.

In ecstasy prosecutions, such factors as the number of pills, the value of the product, the strength of the MDMA per tablet, and the number of transactions are all relevant considerations.

The endeavours of counsel have been able to turn up little jurisprudence with respect to the crimes relating to exportation of ecstasy, nor have I been able to find much in that area.

In terms of ecstasy importation cases, the Crown’s material referred to a number of cases.

The Huoang case involved an importation by Ms. Huoang, who had no criminal record and who pleaded guilty and was sentenced to two years and eight months for approximately 18,000 pills.

In the case of R v. Schafer case, [2002] O.J. 3326 (S.C.J.) (Q.L.) after a trial the offender was convicted of importing 27,582 ecstasy pills, and was sentenced to a global sentence of fifty-four months.

In the case of Regina v Revizada, [ 2005] O.J. 421 (S.C.J.) (Q.L.) . After a trial the offender was sentenced to eight years imprisonment relating to the importation of 200,000 ecstasy pills having a street value exceeding $2 million.

In Regina v Daya, ( 2007) 2007 ONCA 693 () , 227 C.C.C. (3d) 367 (Ont.C.A.) at paras 16 to 17 , the court described a sentence of two years and four months for a mid-level dealer of ecstasy involved in trafficking 2,600 tabs of ecstasy over a four-month period, as falling “well short of reflecting the gravity and seriousness” of the offender’s crimes. The court described the 2,600 tabs as a “large amount of ecstasy.”

In Regina versus Ruggeiro, 2008 ONCA 314 at paras 1 to 3 , the court noted the “seriousness of the offence” of possession of 2,000 ecstasy pills for the purpose of trafficking.

In Regina v Chow, 2008 NLCA 10 at paras 6 to 7 , the court upheld a two years less one day conditional sentence of imprisonment for a youthful first offender who pleaded guilty in circumstances of the offender possessing 3,000 ecstasy pills for the purpose of trafficking, not in the context of being a dealer, but holding the substance for a friend. The court described the 3,000 pills as a “significant” quantity.

In another case, with an offender sentenced at trial to a conditional sentence of two years less one day of imprisonment following a plea of guilty to possession of 100 ecstasy pills for the purpose of trafficking, the Crown appealed the sentence imposed at trial. The offender had an unrelated prior criminal record. The Crown appeal was allowed in Regina v Steves, 2007 NSCA 130 at paras 17 to 29 , with the court imposing a sentence of two and a half years’ incarceration. The court noted that the offender’s trafficking of ecstasy would put a “substantial amount” of the drug “on the street with devastating effects for many individuals and their families.”

Mr. Pinch is not a one-off courier employed at a low level role in the ecstasy distribution scheme. His participation in the unlawful agreement to export ecstasy involving tens of thousands of MDMA pills and his possession of the ecstasy for the purpose of trafficking was at the level of a principal. As such, the degree of moral blameworthiness is significant. Only complete deprivation of liberty would be proportionate to his involvement, the gravity of the offence, and the need for general deterrence.

In the circumstances, the offender is sentenced on Counts 1 and 2 to concurrent terms of six years’ incarceration. There will be a section 109(2)(a) order for ten years; a section 109(2)(b) order for life.

There will be a DNA order to be drafted and filed by the Crown to indicate that there will be a DNA sample ordered pursuant to section 487.051(3) (b) of the Criminal Code , not to be executed prior to thirty days from today’s date.

Any questions, Ms. Lapp?

MS. LAPP: No.

THE COURT: Thank you. Mr. Barrs, any questions?

MR. BARRS: No, thank you.

THE COURT: Thank you very much.

...AT WHICH TIME THIS MATTER WAS CONCLUDED

FORM 2 – Certificate of Transcript

Evidence Act, Subsection 5(2)

I, Christopher A. Charles, CVR-CM, certify that this document is a true and accurate transcript of the recording of R. v Gerald Pinch , in the Superior Court of Justice, held at 7755 Hurontario Street, Brampton, Ontario, taken from Recording No. 3199-406-20120213-092657, which has been certified in Form 1.

Date Christopher A. Charles, CVR-CM

Certified Verbatim Reporter.