Her Majesty the Queen v. Poirier, 2014 ONSC 5200

COURT FILE NO.: 1707/13

DATE: 20140910

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JEFFREY MICHAEL CHARLES POIRIER

Michael Robb, for the Crown

Kenneth Marley, for Jeffrey Michael Charles Poirier

HEARD: September 5, 2014

DESOTTI, J.

A. Facts on Sentencing Hearing

1The accused was convicted on four counts within a five count indictment. Count 4 of the indictment reflected a determination of guilt on the included offence of simple possession. The quantities of drugs that were seized was 1 and ½ ounces of heroin; 2 ounces of methamphetamine, 7 grams of cocaine, and the possession of a small quantity of hydromorphone.

2The accused concealed these drugs within his anal cavity (wrapped in plastic bags) and then retrieved same to complete sales with known users. I determined that the obtaining of a General Warrant pursuant to s. 487.01 of the Criminal Code by the Sarnia Police Services was an appropriate and necessary procedure to ensure that these secreted and concealed drugs could be discovered and secured. In short, I was satisfied that the judge of the Ontario Court had significant and meaningful information before her to justify the issuance of this General Warrant.

3After the apprehension and arrest of the accused on the suspected concealment of drugs within his anal cavity, he was placed in a dry cell and over a 2 day period the aforementioned drugs were produced.

4The accused has a significant record and the Crown is seeking a lengthy period of incarceration of 12 years and four months net after giving the accused credit for 2 years and 8 months in pre-sentence custody (15 years is the global sentence sought by the Crown). The breakdown of this sentence submission by the Crown is that the accused should be sentenced to 9 years on the heroin trafficking conviction; 5 years consecutive for the trafficking conviction in methamphetamine; 1 year consecutive on the cocaine trafficking conviction; and 60 days concurrent for the simple possession conviction of hydromorphone.

5On the other hand, defence counsel has indicated that an appropriate global sentence of 5 to 6 years less the 2 years and 8 months in pre-sentence custody would be more reflective of a denunciation and a deterrent penalty and thus sufficient to satisfy this primary sentencing principle.

B. Sentencing Analysis and Determination

6Rarely do I have an individual before me that I consider has little if any rehabilitative prospects. I am an eternal optimist and believe that on occasion a third and fourth chance might meet with some success some hope for a better and more rewarding life. I do not share that optimism in the matter that is before me today based on this accused previous record; his failure to ever seek assistance for his addiction; and his age of 39 years.

7The accused’s criminal record concerning the use of drugs commences in 2002 (simple possession); continues with 2 trafficking convictions in 2006; convictions for trafficking in 2008; and finally a trafficking conviction in 2011. In addition, there were numerous other criminal convictions that I infer reflect the need to obtain monies from criminal activities in order to sustain this drug habit. Obviously, to this trafficking record we now must add three more trafficking convictions.

8The pre-sentence report is unremarkable and there is clearly no indication of remorse on the apart of the accused. He is perhaps upset, disquieted, depressed, and morose at the prospect of spending significant penitentiary time in custody, but there is not one shred of concern that Mr. Poirier has ever expressed about the dire circumstances that befall the buyers of these illicit drugs as they continue to live half-lives searching for their next fix.

9Counsel for the accused properly and appropriately referred me to a number of decisions where, for example, in the case of R. v. Qureshi, the accused, a one-time previous trafficker who was a wholesaler of drugs and was found in the possession of firearms was given a net sentence of 9 and ½ year after pre-sentence custody. In other words, there was a significant greater quantity of drugs present on the facts of that case plus the additional aggravating factor of the guns in the presence of the accused.

10In the decision of R. v. Azeez, an exceptional principle is highlighted where an accused who traffics in drugs in order to feed his habit may be viewed differently than the normal commercial trafficker. However, this exceptionality is reserved to those individuals who have made genuine efforts to deal with his substance addiction, and there is evidence that there is a reasonable possibility that those efforts will be successful.

11In the Ontario Court of Appeal decision in R. v. A.S., the court upheld a sentence of 6 years imprisonment for the offence of trafficking in 7 kilograms of methamphetamine and 2.2 kilograms of marijuana but also indicated that this sentence was at the low end of the appropriate range of sentence.

12Finally, in the decision of R. v. Oraha, Justice Archibald held that a first time offender, who trafficked in a large quantity of cocaine, methamphetamine and ecstasy but had a most positive pre-sentence report, should be sentenced to 9 years’ incarceration.

13In considering the aforementioned decisions, and mindful of the principle of proportionality, defence counsel on behalf of the accused submits that the accused trafficked in a much smaller quantity of three type of drugs and thus should be sentenced to a penalty less than what was determined to be appropriate in the sentences in Qureshi, A.S., and Oraha.

14Before I embark on a determination of an appropriate penalty, I should affirm that I do not share any concerns that the Sarnia Police treated Mr. Poirier in an unfair or rough manner, which was a concern reflected by the accused in the pre-sentence report. On the contrary, I conclude that their efforts to apprehend the accused and then keep him in a safe but secure setting, was appropriate and proper police work.

15As previously stated, Mr. Poirier has never sought addictive counselling nor has he tried any drug rehabilitation programme for his addiction. He has presented himself to this court as a repeat offender for drug trafficking. Most significantly, he has devised a most ingenious manner to conceal and protect from theft his commercial drug trafficking routine, his modus operandi. He now hides these drugs in his anal cavity and produces them when a sale is concluded.

16The Crown Attorney describes Mr. Poirier as a ‘well experienced’ drug trafficker. I consider him to be a drug trafficker by choice, a purveyor of perfidy through drug trafficking.

17Over the many years in Sarnia, I note that we have gone from having no indictments with respect to drug trafficking in this jurisdiction to as many as a dozen indictments on a recent ‘Assignment Court’ list. Lengthy trials dealing with all manner of serious drug charges, from trafficking to smuggling; from drugs such as marijuana to the more pernicious and insidious drugs such as Oxycontin, methamphetamine, cocaine, and now to hydromorphone and heroin, are the new norm.

18The Sarnia community is reeling from the many societal problems occasioned by drug trafficking and the wave of drug addictions occasioned in the use of these drugs. Thefts, break-ins, frauds, identity thefts, and even more serious crimes such as aggravated assaults and murders have been the by-products of these addictions and the use of these illicit drugs.

19To see so many young people so troubled and affected by their addictions and then to see their parents so desperate to assist and support their sons and daughters is most heart-wrenching. The destruction of their once productive lives brought on by their drug use requires serious intervention, serious drug rehabilitation, and most importantly a serious commitment to change and avoid this culture of despair.

20I hope that Mr. Poirier gets help in the penitentiary system and I will strongly recommend that the authorities provide him with this assistance, however, ‘wishing and hoping’ is not an appropriate sentencing principle. The real and now is that a significant penitentiary term is warranted for this continued engagement in commercial drug trafficking by Mr. Poirier.

21In considering a global sentence that would satisfy the principles of denunciation and deterrence and be a specific deterrence to this accused, Mr. Jeffrey Michael Charles Poirier, I have determined a sentence of ten years as an appropriate sentence with the following disposition:

On Count # 1, the accused is sentenced to 6 years’ incarceration; on Count # 2, the accused is sentenced to 3 years’ incarceration, consecutive to Count #1; on Count # 3, the accused is sentenced to 1 year incarceration, consecutive to Counts # 1 and Count # 2; on Count # 4, the accused is sentenced to 60 days in custody but concurrent to Counts # 1, Count # 2, and Count # 3. The total global sentence is 10 years’ incarceration. The accused is credited with 2 years and 8 months and 6 days in pre-sentence custody based on enhanced credit of 1 ½ years to 1. The net sentence is thus reduced to a period of net incarceration of 7 years and 3 months and 24 days.

22In addition, the accused, pursuant to section 109 of the Criminal Code, is prohibited for life from the possession of any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition and explosive substance.

23Furthermore, all property seized from the accused or from his residence is forfeited including the $2,000.00 found in the piggy bank. On this issue, I am convinced on a balance of probabilities that these monies are proceeds of crime stashed in this piggy bank for easy retrieval and that this is not a sum of monies that was the balance of the accused’s girlfriend’s pension payout.

24Finally, there will, pursuant to s. 487.051 (3) of the Criminal Code, a DNA data bank sample provided by the accused.

“Justice J.A. Desotti”

The Honourable Mr. Justice J.A. Desotti

Released: September 10, 2014

Cases Considered

R v. Azeez, 2014 ONCJ 311, R v. Oraha, 2012 ONSC 1439, R v. Qureshi, 2011 ABPC 332, R. v. Pimentel, [2004] O.J. No. 5780, R v. Nguyen, [2005] O.J. No. 1948, R v. Brown, Reasons for Sentence Hornblower, J., R. v A.S. (2010) 2010 ONCA 441, 267 O.A.C. 41 (C.A.)