REASONS FOR SENTENCE

FRIDAY, OCTOBER 4, 2013

REASONS FOR SENTENCE

MULLIGAN J., S.C.J. (Orally)

INTRODUCTION

[1] After a five-day non-jury trial, Richard Durette was found guilty of one count of possession of cocaine for the purposes of trafficking, contrary to s.5(2) of the Controlled Drugs and Substances Act ("CDSA "), one count of possession of cocaine, contrary to

s.4(1) of the CDSA, and one count of possession of property not exceeding $5,000, contrary to s.354(1)(a) of the Criminal Code of Canada. The offender is in custody. His counsel made submissions on his behalf. A pre-sentence report was not requested in this case. Both Crown and defence agree that the sentencing range for offences of this sort is

a period of incarceration in the reformatory range. The Crown submits that a fit sentence should fall the upper range, and defence submits that this sentence should fall in the lower range, time served. As of the sentencing hearing, Mr. Durette had spent thirteen months in custody. The following are my reasons for sentence.

THE OFFENCES

[2] Pursuant to a search warrant executed on a motel room occupied by Mr. Durette, police found and confiscated a quantity of cocaine and crack cocaine. Digital scales, a debt list, and approximately $1,225(sic) in currency were also seized. As confirmed by certificates from Health Canada, 11.18 grams of crack cocaine and 3.21 grams of cocaine were seized. The value of the confiscated drugs was between $796 and $2,453, according to an expert report filed by the Crown.

[3] The search warrant was executed on August 5, 2012. After arrest and booking, Mr. Durette was released on his own recognizance. However, approximately two weeks after his release, he was arrested with respect to other matters. Submissions by counsel indicated that after a bail hearing, he was denied bail by the justice of the peace, primarily on the basis that he did not have acceptable sureties. The transcript of the bail hearing was not made an exhibit, nor were the nature of the charges, and in particular, whether they were summary conviction or indictable offences. Submissions indicated that those changes have not been dealt with yet.

[4] Mr. Durette has been in custody ever since that bail hearing and therefore to the date of the sentencing hearing, September 20, 2013, has been in custody for thirteen months.

DEFENCE EVIDENCE AT THE SENTENCING HEARING

[5] The defence called evidence at this hearing. Sergeant John Beninger is a manager at Central North Corrections Centre ("CNCC"). He gave statistics with respect to the number of lockdowns that took place while Mr. Durette was in custody. According to records he reviewed, there were thirty-nine days when lockdowns occurred. These lockdowns lasted from several hours to several days, and in totality represented forty-eight days during the time Mr. Durette was in custody. Mr. Durette's discipline history was not made an issue, but Sergeant Beninger concluded that because Mr. Durette remained in the same unit throughout his period of incarceration, he assumed that there would have been no serious misconduct issues.

[6] He testified that during lockdowns, individual prisoners were free to attend court or medical appointments, and small groups of prisoners could be released from time to time for purposes of showering or exercise.

THE OFFENDER

[7] Although no pre-sentence report was filed, Mr. Durette's counsel submitted that he was 53 years of age, had a grade 12 education, and resided in New Brunswick during his upbringing. He has a daughter whom he communicates with, but has two sons he has not seen for years. He has had a difficult family life. His brother was killed in a motor vehicle accident, his sister was murdered, his mother had a drug addiction, and his father was an alcoholic. He has worked in factory jobs or roofing, but lost his job in December of 2011, and was unemployed. Just prior to these charges, he spent significant time at the casino. It was submitted that casino records indicated he spent 94 of 154 days at the casino. He hopes to resume employment on his release but no plan was proposed.

MR. DURETTE'S RECORD

[8] Mr. Durette has a significant record for drug related offences. His record filed as exhibit, indicates that his first involvement with the criminal justice system was with respect to drug trafficking charges in 1981, in New Brunswick. He was sentenced to a jail term of eight months, when he was 21 years of age.

[9] His next involvement with the criminal justice system was in 1985, when he again was sentenced for a drug trafficking charge. He received twelve months in custody and two years probation. At that point, he was 25 years of age.

[10] After that, there was a significant gap in his criminal record, and it appears he had no involvement with the criminal justice system for the next twenty years. However, in 2006, he received a sentence of two years and six months for trafficking charges, as well as a concurrent sentence of six months each on two charges of failing to comply with recognizance. At that point, he was 46.

PRINCIPLES OF SENTENCING

[11] Parliament has now codified many former common law sentencing principles in the Criminal Code. Section 718 describes the fundamental purpose of sentencing to be "to contribute along with crime prevention initiatives, to respect for the law and in maintenance of a just, peaceful and safe society by imposing just sanctions."

[12] The Code sets out six objectives for sentencing judges to consider:

(i) to denounce unlawful conduct;

(ii) to deter the offender and others from committing offences;

(iii) to separate offenders from society where necessary;

(iv) to assist in the rehabilitation of offenders;

(v) to provide reparations for harm done to victims or to the community; and finally,

(vi) to promote a sense of responsibility in offenders and acknowledge the harm done to victims and the community.

MITIGATING CIRCUMSTANCES

• Mr. Durette has had a difficult family life, with significant negative events involving his parents and siblings.

• Mr. Durette had a significant gap in his criminal record between his 1985 conviction and his 2006 conviction. He did not have any involvement with the criminal justice system for over twenty years.

• The offences involved here involved a small quantity of cocaine and crack cocaine without the opportunity for vast commercial gain for an individual described as a street level dealer.

AGGRAVATING CIRCUMSTANCES

[13] There are a number of aggravating circumstances here, not the least of which is Mr. Durette's criminal record for involvement with trafficking in illegal substances, which spans a period of over thirty years.

• Mr. Durette has received custodial sentences on three previous occasions, spanning a time period from when he was a younger offender, at age 21 in 1985, until he was a mature offender, at age 46 in 2006.

• There is no dispute that crack cocaine is an extremely dangerous and insidious drug with potential to cause great harm to individuals and to society. See R. v. Woodcock, [2002] O.J. No. 4927 (C.A.).

Credit for Pre-trial Custody

[14] By the time of the sentencing hearing, Mr. Durette had spent thirteen months in pre-trial detention. The Crown concedes that Mr. Durette should receive credit for this detention and it should be applied to a sentence of two years less a day, leaving eleven months to be served.

[15] The defence requests that Mr. Durette receive enhanced credit for time spent in custody based on the principles in s.719(3.1) of the Criminal Code of Canada, which provides sentencing judges with discretion to enhance credit to a maximum of 1.5:1. Defence submits that Mr. Durette ought to be given this credit to account for his loss of remission and parole eligibility while in remand custody. The defence relies on the Court of Appeal decision R. v. Summers, 2013 ONCA 147, [2013] O.J. No. 1068. However, the Supreme Court of Canada has recently granted leave to appeal this decision, as well as the decision of the Nova Scotia Court of Appeal in R. v. Carvery, [2012] N.S.C.A. 107. It should be noted that the British Columbia Court of Appeal adopted a stricter approach to pre-trial custody credit in R. v. Bradbury , [2013] B.C.C.A. 280. A more definitive approach to this issue may be the result of these appeals to the Supreme Court of Canada.

[16] In Summers, Cronk J.A. extensively reviewed the legislative amendments and the appropriate considerations for sentencing judges in considering this section. The statutory provisions are as follows:

S.719(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence. But the court shall limit any credit for that time to a maximum of one day for each day spent in custody. [Emphasis added.]

(3.1) Despite subsection 3, if the circumstances justify it, the maximum is one-and-one-half days for each day spent in custody, unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1), or the person was detained in custody under subsection 524(4) or (8). [Emphasis added.]

[17] Justice Cronk noted that the purpose of the amendment was to eliminate routine crediting at the rate of 2:1, while leaving with the sentencing judge the discretion to determine, if the circumstances justify it, a credit of 1.5:1 as a maximum for time served in pre-trial custody.

[18] The Court provided these comments about crediting pre-sentence custody at para. 37:

The conception or rationale for crediting pre-sentence custody has traditionally been based on three considerations:

(i) as in issue in this case, parole eligibility and statutory release and remission provisions do not take in account of time spent in pre-sentence custody;

(ii) generally, detention centres do not provide educational, retraining or rehabilitation programming for those in custody awaiting trial; and

(iii) due to overcrowding, inmate turnover, labour disputes and other factors, the custodial conditions for remand prisoners can be unusually onerous. [Citations omitted.]

[19] However, in allowing the pre-custody credit requested in Summers, the Court noted at para. 117:

That said, nothing in these reasons should be understood as suggesting that enhanced credit will be available under s.719(3.1) to every remand offender on the basis of the absence of remission and parole eligibility. There must be some basis in the evidence or the information before the sentencing judge to support the conclusion that this factor merits enhanced credit for a particular offender in a given case.

Application of Principles

[20] As noted in the circumstances here, Mr. Durette was not detained in custody as a result of these charges. He was released on his own recognizance. His incarceration began approximately two weeks later as a result of other charges and a bail hearing. As Cronk J.A.

stated in Summers at para. 69:

The concluding language of s.719(3.1) excludes from consideration for enhanced credit those offenders who have been denied bail primarily because of a previous conviction (the Code, s.515(9.1) exclusion) and offenders who have contravened their bail conditions or committed an indictable offence while on bail (the Code, ss.524(4) or (8) exclusion). Enhanced credit for these offenders is expressly prohibited.

[21] In my view, the principles enunciated in Summers do not assist Mr. Durette because he was not incarcerated as a result of these charges.

[22] If Mr. Durette's later arrest was for an indictable offence, a consideration of this section would not be an option. Consideration would be expressly prohibited. If the charge was of a summary nature, I would still not exercise my discretion in this case when Mr. Durette's previous record is considered in its totality. Mr. Durette has not advised the court as to whether or not those charges were indictable offences. Under all the circumstances, I therefore am not satisfied that Mr. Durette is entitled to enhanced credit beyond the 1:1 ratio based on his thirteen months in custody to-date of the verdict.

ANALYSIS

[23] Both Crown and defence submitted Case Books indicating that the range of sentence, based on various sentencing factors may well be in the range of six months to two years less a day, with some offenders being considered for a conditional sentence.

[24] In R. v. Woolcock, [2002] O.J. No. 4927, the Ontario Court of Appeal provided the following guidance at para. 8:

There is no disputing that crack cocaine is an extremely dangerous and insidious drug with potential to cause a great deal of harm to individuals and to society. Likewise, possession of crack cocaine for the purposes of trafficking is a serious offence warranting emphasis on the principles of deterrence and denunciation.

[25] The cases relied upon illustrate the individuality of the sentencing process to determine a fit sentence for an offender convicted of trafficking in cocaine.

[26] In R. v. Speziale, [2011] ONCA, the Court of Appeal replaced a five-year sentence for one of fourteen months for an offender who was 25 years old, and who had expressed remorse and had prospects for rehabilitation. The quantity of cocaine was 14.87 grams.

[27] In R. v. Harrison, [2009] ONCA, 386, the Court of Appeal considered a sentencing decision of twelve months and replaced it with a sentence of eight-and-a-half months in addition to time served. The quantity of cocaine was 8.95 grams. The Court of Appeal decision did not reveal the age of the offender or previous record, if any.

[28] In R. v. Veljkovic, [2006] O.J. No. 1327, the Court of Appeal replaced a fine with an eighteen month conditional sentence consistent with a joint submission which had been made before the sentencing judge.

[29] In R. v. Woolcock, supra, the Court of Appeal reduced a sentence of two years less a day to fifteen months for a 53-year-old offender with a previous record. The Court imposed a shorter sentence to "provide the accused with an opportunity to be rehabilitated while simultaneously learning that this type of crime will not be tolerated" (para. 17).

[30] In R. v. Hayes, [2011] O.J. No. 684, the Court of Appeal varied the sentencing judge's decision to one of a thirteen-month conditional sentence plus time served, having found that the offender was fully rehabilitated by the time the matter came to the Court of Appeal.

[31] In R. v. Roach, [2012] O.J. No. 4633 (Ont. S.C.J.), a 22-year-old first offender received an eight-month sentence. Fifty-nine grams of cocaine was involved.

[32] In R. v. Capy, 2012 ONSC 3822, [2012] O.J. No. 4981 (Ont. S.C.J.), the sentencing judge imposed a twelve­month conditional sentence and noted that remorse was a significant factor in the sentence.

[33] In R. v. Rheaume, [2011] O.J. No. 36 (Ont. S.C.J.), the sentencing judge imposed a fifteen-month conditional sentence. Ten grams of cocaine was involved. This was a young offender with no record and the prospects for rehabilitation were good, according to the sentencing judge.

[34] In R. v. Williams, [2010] O.J. No. 2971 (Ont. S.C.J.), the sentencing judge imposed a sentence of nine months plus probation for a first offender who was 26 years of age. A small amount of crack cocaine was involved.

[35] In R. v Reid, [1997] O.J. No. 2167 (Ont. S.C.J.), the sentencing judge imposed a sentence of thirty months on four counts for an offender who had no record. The quantity of cocaine was one ounce. On appeal, the Court of Appeal did not interfere with the sentence imposed. See R. v. Reid, [1999] O.J. No. 2719.

[36] In R. v. Cummings, [1997] O.J. No. 2581 (Ont. S.C.J.), the sentencing judge imposed a sentence of two years less a day on a young offender who had a record. The quantity of cocaine was 12 grams. As the Court noted at para. 6:

The Court of Appeal has consistently held that general deterrence and protection of the public is a paramount consideration in trafficking in cocaine, and that must be the prime consideration.

[37] In R. v. Grant, 1997 1727 (ON CA), [1997] O.J. No. 3173, the Court of Appeal did not interfere with a sentence of two years less a day. The quantity of cocaine involved was 21.06 grams for an offender who was stated to be highly addicted.

[38] In R. v. Kenyon, [2008] O.J. No. 2486 (Ont. S.C.J.), the sentencing judge imposed a sentence of 19 months after giving credit for time served on a 27-year-old offender with a previous record. The quantity of crack cocaine was 26 grams.

THE PRINCIPLES APPLIED

[39] Mr. Durette is a repeat offender, now 53, who has had previous convictions on three separate dates for drug related trafficking charges. He has been incarcerated three previous times as a result of those charges. I accept that he was a low level street dealer, but it appears his motive was for commercial gain. He was not employed at the time of his arrest and was a frequent visitor to the casino. He has not expressed any remorse with respect to the matters before the court and his prospects for rehabilitation appear to be low. Specific deterrence for Mr. Durette is important here to remind him once again that trafficking in cocaine, an addictive drug with serious concerns for our community, will inevitably lead to further periods of incarceration.

CONCLUSION

[40] Mr. Durette, please stand. On Count 1, I sentence you to a term of imprisonment of twenty months, reduced to six months and fifteen days to be served, taking into account credit for pre-sentence custody which I have rounded to thirteen months, fifteen days from August 21, 2012 to today's date.

[41] I have already stayed Count 2 provisionally on Kienapple principles.

[42] On Count 3, I sentence you to 30 days concurrent to the sentence on Count 1.

[43] In addition, I impose a period of probation of eighteen months containing the usual statutory provisions outlined in s.732.1(2) of the Code. In addition, you shall not consume intoxicating substances or any prescription drugs except in accordance with a medical prescription. Further, you should take such counselling as may be directed by your probation officer.

[44] In addition, there will be the following ancillary orders:

(i) A s.109(3) weapons prohibition order for life;

(ii) DNA order, pursuant to s.487.051(3) of the Criminal Code. The offender has committed a "secondary designated offence" and I am satisfied that it is in the best interests of the administration of justice that such an order by made given Mr. Durette's record and the need to promote the safety of the community; and finally,

(iii) A forfeiture order.

So, Mr. Durette, good luck to you, and counsel, I will sign the necessary orders when Madam Registrar has those ready.

MS. JONES: Thank you, Your Honour. The forfeiture order, is that to be granted?

THE COURT: Yes, did I mention that?

MS. JONES: I didn't check it off as being....

THE COURT: And there will be a forfeiture order as previously prepared and filed.

MS. JONES: Thank you, and I'll just clarify, because Your Honour did indicate earlier in your judgment that it $1225. It's $1525. I just wanted to clarify that so that all that money gets forfeited.

MS. SAUNDERS: Yes, I believe that's correct.

THE COURT: All right, I will note that on the record, Madam Registrar.

MS. JONES: Thank you.

THE COURT: And I will sign the orders in chambers in a few minutes.

MS. JONES: Thank you, Your Honour.

MS. SAUNDERS: Thank you, Your Honour.

THE COURT: Madam Registrar, if you would give a copy of those to counsel.

FORM 2

CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))

EVIDENCE ACT

I, Janice Crane, certify that this document is a true and accurate transcript in the recording of R. v. DURETTE, Richard in the Superior Court of Justice, held at Courtroom No. 2, Barrie Courthouse, 75 Mulcaster Street, Barrie, Ontario, taken from Recordings 3811-002-20131004-091122, which has been certified in Form 1.

4 October 2013

J.L. Crane

Certified Court Reporter

Court File No. 13-012

ONTARIO

SUPERIOR Court of Justice

HER MAJESTY THE QUEEN

-vs-

richard durette

HEARD BEFORE THE HONOURABLE JUSTICE g. mulligan

on October 4, 2013, barrie COURTHOUSE, barrie, Ontario

REASONS FOR SENTENCE

APPEARANCES:

r. jones for the federal Crown

l. saunders for richard durette