SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

DEVON GILCHRIST

REASONS FOR SENTENCE

BEFORE THE HONOURABLE MADAM JUSTICE M. FUERST

on February 6, 2013

at NEWMARKET, Ontario

APPEARANCES:

C. Shirtliff-Hinds Counsel for the Federal Crown

D. Wilcox Counsel for Devon Gilchrist

WEDNESDAY, FEBRUARY 6, 2012

REASONS FOR SENTENCE

FUERST J. (Orally):

Mr. Gilchrist pleaded guilty to possession of a large quantity of marijuana for the purpose of trafficking. A jail term is warranted given the obvious commercial nature of the activity. The issue is the length of that term.

The Circumstances of the Offence

On January 4, 2012, the police conducted surveillance outside Mr. Gilchrist's home. After a male left the residence with a backpack, the police stopped the vehicle he travelled in and found half a pound of marijuana in the backpack, and another ounce in the vehicle.

The police executed a search warrant at Mr. Gilchrist's home. They found a box containing several pounds of marijuana in the kitchen, several pounds of marijuana in the living room along with a metal pistol that fired blanks, several pounds of marijuana in a laundry basket in the bedroom, and also in the bedroom a York Regional Police sweater, a large gun locker

containing several pounds of marijuana, a debt list, and $2,380 cash. In total the police seized 41 pounds of marijuana.

The Circumstances of Mr. Gilchrist

Mr. Gilchrist is 22 years old. He has no prior criminal record. He has a high school education. He is mid-way through his apprenticeship as a plumber. He is described as a hard worker who seems motivated.

Although Mr. Gilchrist denied to the pre-sentence reporter that he has a drinking problem, he admits that he likes to drink beer to the point of intoxication. He has used a variety of drugs, most particularly marijuana on a weekly basis, although he says he now avoids it.

Mr. Gilchrist and his girlfriend have an infant daughter. Following his daughter's birth, he abandoned his “partying” lifestyle and his negative peers who were involved with drugs. He supports his girlfriend and their daughter financially. His girlfriend reports that he is a good father to their daughter. The three of them live with his mother and his brother.

Mr. Gilchrist has a close relationship with his parents and brother. They are supportive of him. His family and friends describe the offence as out of character for him.

Mr. Gilchrist admitted to the pre-sentence reporter that he committed the offence for financial gain. In court, he told me that he recognized what he had done, and took responsibility for his actions.

The Positions of the Parties

On behalf of the Federal Crown, Ms. Noordegraaf submits that a sentence of nine months in jail is appropriate. She emphasizes the quantity of marijuana seized, and the commercial nature of the activity as demonstrated by the amount of cash found, the debt list, and the imitation pistol. Denunciation and deterrence are the primary objectives in sentencing Mr. Gilchrist for this offence.

On behalf of Mr. Gilchrist, Mr. Wilcox agrees that there are a number of aggravating factors, but submits that Mr. Gilchrist is a youthful first offender who pleaded guilty. He is a hardworking person who supports his young family. He abandoned a lifestyle that involved partying and experimenting with drugs, and settled down after the birth of his daughter. Mr. Wilcox reluctantly concedes that this is not a case for a conditional sentence of imprisonment, but asks that I impose the shortest jail term possible.

The Principles of Sentencing

The objectives of sentencing long recognized at common law have been codified in Section 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 sets out various aggravating factors. 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.

Section 10(1) of the Controlled Drugs and Substances Act states that the fundamental purpose of any sentence for a designated substance offence is to contribute to respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, treatment, and acknowledgement of the harm done to victims and the community.

While offences involving marijuana are sometimes regarded as less serious than those involving “hard” drugs such as cocaine and heroin, the Controlled Drugs and Substances Act classifies marijuana as a Schedule II drug. Parliament has determined that the maximum sentence for possession of marijuana for the purpose of trafficking is life imprisonment. This reflects that possession of marijuana for the purpose of trafficking is a serious offence: see,

R. v. Hill, 2007 BCCA 309, at paragraphs 39 to 40.

Analysis

The aggravating factors in this case are significant. Mr. Gilchrist was in possession of a large amount of marijuana, kept in different areas of his residence. It is concerning that, in addition, he had an imitation pistol. He admits that he was carrying on the commercial sale of marijuana to make money. This is consistent with the debt list and the quantity of cash seized. All of these circumstances indicate that there was some degree of sophistication to his activity. Until relatively recently he was a regular user of marijuana, and he used an array of other drugs in the past. Even now he consumes alcohol to the point of intoxication.

In mitigation, Mr. Gilchrist is a young first offender. He pleaded guilty, which is a sign of remorse and acceptance of responsibility for his offence. He has settled down since the birth of his daughter, holds a full-time job with the goal of becoming a skilled tradesman, and supports his young family financially. He has strong family ties, and enjoys the support of his parents in particular.

In the circumstances of this case, denunciation and deterrence, both general and specific, are paramount goals of sentencing, but Mr. Gilchrist's very positive rehabilitative potential cannot be overlooked. Were it not for the steps that he has taken since his arrest and the birth of his daughter, I would agree with Crown counsel that a sentence of nine months in jail is required even though he is a first offender. In light of his efforts at rehabilitation and to encourage him to continue with them, I am persuaded that a somewhat shorter sentence is necessary.

Mr. Gilchrist, please stand. I sentence you to seven months in jail. I recommend that you be considered for early release. I make a Section 109(2)(a) weapons prohibition order for 10 years and a Section 109(2)(b) order for life. Crown counsel did not seek a DNA order. I decline to make one in the circumstances of this case and given that Mr. Gilchrist is a first offender.

FORM 2

CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))

Evidence Act

I, TRACEY BEATTY, certify that this document is a true and accurate transcript of the recording of the R. v. Devon Gilchrist in the Superior Court of Justice held at 50 Eagle Street West, Newmarket, Ontario, on February 5, 2013 taken from Recording No. 4911-401-20130206-084035, which has been certified in Form 1.

Tracey Beatty

Tracey Beatty, Certified Court Reporter

March 13, 2013

Transcript Ordered: February 27, 2013

Transcript Completed: March 12, 2013

Ordering Party Notified: March 13, 2013