COURT FILE NO.: CR-10-90000504-0000

DATE: 20140925

ONTARIO
SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Sabrina Montefiore, for the Crown

• and -

JEREMY GAUVIN

Royland Moriah, for the Defendant

Defendant

HEARD: September 25,2014

REASONS FOR SENTENCE

M.G.J. Quigley J.

Overview

[1] Jeremy Gauvin was convicted on June 26, 2014, of two counts of possession of prohibited substances and possession of 1,077 ecstasy pills, divided into two counts of possession for the purposes of trafficking, one of MDMA and the other of methamphetamine. The issue on this sentencing is the fit sentence for this offender.

The Facts

[2] These charges were laid just short of eight years ago. There were a number of reasons that resulted in that delay, largely caused by adjournments and a changed trial date required by the defence. Those delays have no bearing on this sentencing, other than that some of Mr. Gauvin’s convictions that post-date these offences ought not to be taken into account as aggravating factors on this sentencing.

[3] Mr. Gauvin was arrested and charged for these offences at about 8:15 in the evening on October 20, 2006. He was pulled over in Scarborough near the intersection of Coxwell Avenue and O’Connor Drive for valid Highway Traffic Act purposes. The speed with which Mr. Gauvin pulled out of a strip mall and took off up Coxwell Avenue, combined with a broken headlight and the fact that the licence plate on the vehicle was not registered as associated to that particular vehicle, attracted the attention of two uniformed police officers in a marked scout car and caused them to decide to stop it. They followed the vehicle as it turned left on to O’Connor Drive. A short distance later, the vehicle was pulled over on O’Connor Drive. The driver exited the vehicle. He was arrested when he acknowledged being in possession of prohibited substances.

[4] In a search of the vehicle incident to arrest, police located a small quantity of marijuana, a number of ketamine pills, and most importantly, 1,077 ecstasy pills, that is, MDMA methamphetamine, weighing approximately 320 g and having a street value, depending whether sold individually or in bulk, of between $10,770 and $21,540. The police also located what they considered to be a prohibited push-dagger in the rear storage compartment of Mr. Gauvin’s vehicle.

[5] Mr. Gauvin was charged with five offences: possession of marijuana, possession of ketamine, two counts of possession of MDMA/methamphetamine for the purpose of trafficking, and possession of a prohibited weapon. When the Crown failed to produce any evidence that would permit it to be determined beyond a reasonable doubt that the push-dagger found in the rear of Mr. Gauvin’s vehicle would meet the prescribed definition of a push-dagger that caused it to be classified as a prohibited weapon, I directed the jury to enter a verdict of acquittal on that count. Otherwise, on June 26, 2014, the jury returned with a verdict of guilty on each of the four other charges.

Circumstances of the Offender

[6] Mr. Gauvin is now 39 years of age. He lives in Barrie, Ontario. He was born in Scarborough, Ontario. His mother and father were not married. His two older siblings have a different father than Mr. Gauvin. The parents separated shortly after his birth and he has never had a relationship with his father. His mother struggled with mental health issues and the Children’s Aid Society (CAS) became involved. That required him to go to live with his aunt, Sue Phillips, when he was 15 months old. He continued to live with her and her three children throughout childhood.

[7] His siblings, a brother and sister, were raised by his maternal grandmother. He did not learn that his siblings were actually his brother and sister until he was seven years of age. He thought they were cousins. He learned they were his brother and sister at the time of his mother’s death. His brother has been in and out of jail his whole life. Mr. Gauvin has not seen him for the past 15 years.

[8] Mr. Gauvin attended three different public schools before entering grade 9 at Walkerton District High School. He left in grade 11. He needs 8 credits to complete his grade 12 diploma. Due to depression and issues at school, he claims to have had counselling with a child psychologist commencing from the age of 7 to 13 years of age. He claims to have been diagnosed with ADHD. His employment history is sporadic. He has been supported by Ontario Disability Support Program (ODSP) disability payments for the past four years. He had a son in 2000 with a woman in Barrie, A.H., who had children from a prior relationship. However, that relationship ended after five years when Mr. Gauvin was convicted of domestic violence against A.H. Nevertheless, she signed a consent to permit him to continue to live with her, and they lived together until 2005.

[9] His next relationship with another woman also resulted in him being convicted of domestic violence, but once again, the woman consented to allowing him to continue to live with her. Mr. Gauvin told the probation officer that the two of them abused drugs together and both have criminal records. In December 2013, this woman revoked her consent to have him associate with her. He is now associated with another woman in Barrie. Mr. Gauvin’s son, now 12, continues to reside with his mother, A.H. Mr. Gauvin pays no child support and has only seen his son about twice a year for the past four years. The CAS has arranged for supervised meetings between Mr. Gauvin and his son at the Barrie Native Friendship Centre, but the offender has not followed through with those arrangements.

[10] Mr. Gauvin appears to have anger control issues, having been convicted of those domestic assaults on two occasions in the past with different partners. The pre-sentence report also records that he has been found guilty of institutional misconduct while incarcerated between 2007 and 2010. His probation officer believes he would benefit from ongoing counselling in that area, as well as relative to his general mental health.

[11] Mr. Gauvin admits to having heavily abused drugs in the past. He has used marijuana since the age of 13. He got into crystal meth at age 16 until he was 19. At that point, he turned to opiates, heroin and prescription opiates until he was in his 30s. He also used crack cocaine, has been on methadone treatment twice, completed a 21-day drug program at Renascent in the summer of 2013, and presently reports to smoke marijuana regularly but not to have used so-called street drugs over the past year, since September 2013.

[12] He has three drug-related convictions on his criminal record, two possession offences in 2013 and possession for the purposes of trafficking in 2009. He has five fail to comply convictions, six driving while suspended convictions, two assault convictions, and one conviction of conspiracy to commit an indictable offence entered in September 2009, at the same time that he was convicted of possession of a prohibited substance for the purpose of trafficking. Those convictions yielded the highest sentence he has ever received, namely, three months in jail on each count, served concurrently. He has also been sentenced to numerous periods of probation. His failure on numerous occasions to comply with the terms of probation is what gave rise to four of the five fail to comply convictions. During his last period of incarceration in 2013, Mr. Gauvin completed an intake for substance abuse counselling but did not continue with that support in the community. He also claimed to have had an intake to obtain a mental health worker, but once again missed three appointments, and in the view of his probation officer, does not appear motivated to follow through with that support.

[13] His probation officer wrote his most recent pre-sentence report on March 4, 2014, in connection with charges of driving while suspended before Justice LeBlanc of the Ontario Court in Cobourg, for which he was sentenced on May 14, 2014, to a 21-day intermittent sentence and two years’ probation. That report makes plain that Mr. Gauvin has not responded well to community supervision:

The offender has a lengthy criminal record that includes seven convictions for failing to comply with probation and two convictions for failing to comply with recognizance/undertaking. He has been convicted of driving while under suspension six times in the past, and received jail sentences on all counts. The subject is currently on three probation orders, and serving an intermittent sentence at Central North Correctional Center. He has been sentenced to various periods of incarceration every year, since 2008. He has 24 outstanding Highway Traffic fines, totalling approximately $13,000. He also has a criminal fine and restitution equalling $2000. It does not appear the accused has learned from his encounters with the legal system.

[14] Now, Mr. Gauvin is once again in remand at the Central North Correctional Centre since August 27, 2014, as a result of further police contact and the completion of his most recent 21-day intermittent sentence remains outstanding. The addendum to the earlier pre-sentence report, that was specifically prepared for this sentencing hearing, records that Mr. Gauvin continues to be supported by the ODSP and has received support for addictions and mental health over the past four months, but importantly, it also records that he has been inconsistent in his commitment to change.

[15] He was admitted to the Royal Victoria Hospital in Barrie for one week in May 2014 after allegedly hearing voices and having suicidal thoughts. He was seen at that time by Dr. Livermore. The doctor wanted to prescribe antipsychotic medication to Mr. Gauvin but he refused. He was prepared to prescribe medication, which according to the doctor was duplicated by the accused, at a local clinic. That gave rise to a conclusion on the doctor’s part that he needed to dispense Mr. Gauvin’s medication on a weekly basis. In his view, Mr. Gauvin is “a very difficult individual” who is “extremely inconsistent” in following through with appointments and takes his medication in “inappropriate ways”. The doctor is not prepared to continue seeing the offender at this time.

[16] Mr. Gauvin also received support from the Canadian Mental Health Association and Centre for Addictions in Barrie. In January 2014, he obtained drop-in support before being assigned to a counsellor in May 2014. He attended and was seen about four times, and he applied to attend a 21-day program at the Royal Victoria Hospital, but he was deemed not to be an “appropriate fit”, and was denied entry into the program. Mr. Gauvin was frustrated by that decision and has not contacted the addiction service in the past six weeks, according to the parole officer. While he has expressed a desire to attend treatment in the past, his lifestyle appears to have hindered any consistency in following through with that type of intervention.

[17] The revised assessment of Ms. Little, Mr. Gauvin’s probation officer, is as follows:

The accused continues to associate with a negative peer group. It would appear that he has not discontinued his criminal lifestyle. He makes attempts to comply with the Court’s wishes but has continued to reoffend, often making excuses for his lack of success. It is questionable whether the offender possesses the dedication and motivation to remain crime free. Should the subject be sentenced to a further period of community supervision, continued addiction and mental health support would prove beneficial.

[18] In summary, plainly Mr. Gauvin has had struggles in his life. He has struggled with addiction. He has struggled with anger management. However, he has also plainly shown himself to be a person who has difficulty regarding orders of the court as being something substantially more than mere suggestions. His failure to adhere to conditions previously imposed on him makes it difficult to consider him realistically for a conditional sentence, though I do accept that relative to rehabilitation, which must also be considered here as well as the twin imperatives of denunciation and deterrence, his efforts to rid himself of his serious drug addiction do merit recognition. He may show no remorse, but he has at least evidently tried to rid himself of his drug addiction. Hopefully the sentence I will impose today will provide him with further opportunity to achieve that goal.

Positions of Crown and Defence

[19] Crown counsel seeks a global sentence in the range of three to five years of imprisonment, as well as ancillary orders, including a forfeiture order relative to $4,000 found in the offender’s possession at the time of the offence and an order requiring the offender to provide a sample of DNA. In support of the position she takes, Crown counsel provided the court with a book of authorities together with a chart that summarizes the contents of that casebook, reviewing the cases put forward for consideration, and permitting the circumstances and the sentences imposed in those cases to be compared. I have included that chart in Appendix 1 to these reasons.

[20] On the other hand, counsel for the defence argues in favour of a sentence of two years less a day imprisonment to be served as a conditional sentence, with a period of probation of two years. He also advances the casebook containing authorities that claim the support of his position, and a chart in the same format as that by the Crown, which permits those cases and their circumstances and the sentences imposed also to be compared. I have also included that chart in Appendix 1 to these reasons.

Mitigating and Aggravating Factors

[21] It will suffice for present purposes to say that I do not find the pre-sentence report prepared with respect to this offender to be encouraging, either relative to future prospects for this offender, or for his determination to remain crime-free and to comply with court orders and terms of release. Plainly, that is an aggravating fact on this sentencing, and it calls into question whether there is any realistic foundation to support a conditional sentence in this case.

[22] The offender plainly has a lengthy criminal record that includes numerous convictions for failing to comply with probation and failing to comply with recognizance/undertakings. He has been convicted of driving while under suspension numerous times in the past, and received jail sentences on all counts. I can appreciate that if his sole means of support is ODSP, it would be difficult for him to pay his 24 outstanding Highway Traffic Act fines that are referenced in the pre-sentence report prepared in connection with his May 2014 sentencing in Cobourg for driving while suspended, or to make the restitution he is required to make. As his probation officer observes, it does not appear the accused has learned from his encounters with the legal system.

[23] On the other hand, he has been convicted here of possession of ecstasy pills consisting of MDMA and methamphetamine for the purposes of trafficking, and those drugs have an estimated value of between $10,700 and $21,540. Moreover, the accused continues to associate with a negative peer group and has not discontinued his criminal lifestyle. He appears to have made half-hearted attempts to comply with the court’s orders but continues to reoffend, often making excuses for his lack of success. It is questionable to the probation officer whether the offender possesses the dedication and motivation to remain crime-free. Regardless of whether he is sentenced to a period of incarceration or community supervision, she strongly recommends that the offender continue to receive addiction and mental health support.

[24] There are few if any mitigating factors present here. Unlike in a number of the cases advanced by the defence, the accused did not plead guilty to these charges or any of them. We held a trial that took two weeks to complete. The jury convicted the accused at the end of that trial, which necessarily means that they rejected his evidence. I realize this is not aggravating, but neither is there any mitigation that can arise in that way. There are no expressions of remorse. Instead, the probation officer, who has clearly known this offender for some time, says that he quickly slips back into drug-related criminal conduct, or driving while suspended. Those factors show disrespect for the law and an unwillingness to be governed by our law. That is aggravating in this case.

[25] Defence counsel claims that Mr. Gauvin’s background, with the difficulties he faced, is itself mitigating. I will discuss the background further in my reasons that follow, but it will suffice for present purposes to say that while I accept that Mr. Gauvin has made efforts to rid himself of his drug addiction, he does not appear to have had the same motivation to leave his life of criminality behind, and that must necessarily be a concern on the sentencing.

Principles of Sentencing

[26] Section 718 of the Criminal Code states the fundamental purposes of sentencing and lists its underlying objectives. The fundamental purpose of any sentence is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by the imposition of just and appropriate sanctions. Among the specific objectives listed in section 718 of the Criminal Code, there are several that are relevant here. They are to denounce unlawful conduct, to deter the offender and others from committing offences and to separate offenders from society where necessary. In a case such as this, general deterrence to others is paramount, and specific deterrence of this offender also occupies a prominent place in deciding what sentence to impose.

[27] Section 718.1 of the Code requires that the sentence be proportionate to the offence and the degree of the offender’s responsibility. An offender is not to be deprived of his liberty if less restrictive sanctions may be appropriate in the circumstances of the case. All available sanctions, other than imprisonment, that are reasonable in the circumstances must generally be considered for all offenders.

[28] Nevertheless, given that the Code and the decision of the Supreme Court in R. v. Proulx create at least a theoretical obligation on the court to consider the imposition of a non-custodial or conditional sentence on the offender rather than a term of incarceration, I would note that in R. v. Hamilton and Mason, 2003 2862 (ON SC), [2003] O.J. No. 532, Hill J. observed that serious drug offences, such as these, are not to be punished by conditional sentences. In circumstances such as these with the enormous damage caused by drugs to Canadian society, the need for general deterrence and specific deterrence of the offender, and this offender in this case, calls for a custodial sentence, a proposition fully endorsed by the Court of Appeal of this province. I endorse this sentiment in the circumstances of this case. While it may be that there are circumstances in which a conditional sentence could be appropriate, as suggested by defence counsel, in my view this is not that case. Given the seriousness of the drugs he was in possession of, and the offender’s prior failure to comply with numerous court orders, and the opinion of his probation officer, it is plain that this offender does not respond well to community supervision. That factor must necessarily weigh heavily in the equation of whether or not a conditional sentence could be granted in a case such as this.

[29] When looking at the sentence of an accused person, as the Supreme Court of Canada observed in R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, a court such as this one is to strive to ensure that the sentence imposed respects the principles of proportionality and consistency of sentences for similar offences:

The principle of proportionality is central to the sentencing process set out in the Criminal Code and it requires that a sentence must speak out against the offence, but may not exceed what is just and appropriate given the moral blameworthiness of the offender and the gravity of the offence. The determination of a fit sentence is, subject to some specific statutory rules, an individualized process that requires the judge to weigh the objectives of sentencing in a manner that best reflects the circumstances of the case. No one sentencing objective trumps the others and the relative importance of any mitigating or aggravating factors will push a sentence up or down the scale of appropriate sentences for similar offences.

[30] One other sentencing principle that is relevant here, or I should say not relevant, is the step principle. In my view, the fact that Mr. Gauvin has previously been convicted of the offences that he has, and sentenced to relatively minor terms of imprisonment does not cause the jump principle to come into play when the base sentence for a conviction for a serious offence such as possession of a significant quantity of ecstasy pills for the purposes of trafficking is a significantly lengthier term of incarceration, possibly and probably including incarceration for more than two years in a federal penitentiary. To use another example, if the court was faced with an offender who had committed numerous minor crimes, each of which resulted in an increased sentence of number of days or months in jail, it would be incorrect to suggest that the jump principle was applicable, apart from the existence of mandatory minimum sentences for illegal gun possession that now exist in Canada, if an accused person was found to be in possession of a loaded prohibited or restricted firearm and was carrying it around on the streets of Toronto. Regardless of any prior sentences that offender might have received for such a gun offence, he would necessarily have to be sentenced to a term of incarceration in a federal penitentiary for three or more years. The jump principle or the step of principle would have no application whatsoever. In my view, that is the case here. The offences for which Mr. Gauvin was convicted by the jury on June 26 represent a different quality of offence that is to be punished on a different scale according to the mandates of the Criminal Code. I do not deny that Mr. Moriah was able to put forward one case, R. v. Zarisky, the decision of Justice Bonnie Brown of the Ontario Court of Justice, where an offender who was in possession of 461 g of methamphetamine, but who was 31 years old, suffered from facial disfigurement, and from drug addiction, and who was regarded as a drug addict trafficker, received a conditional sentence of two years less a day plus three years of probation and 240 hours of community service. In my view, however, that would not be an appropriate sentence in this case.

Reasons

[31] The Crown’s position on this sentencing commences with her emphasis that the possession of methamphetamine for the purpose of trafficking means that this offender possessed a very significant amount of one of the most serious of drugs controlled under the Controlled Drugs and Substances Act. In 2005, methamphetamine was moved from being a Schedule III substance to a Schedule I substance under the CDSA. As such, that caused the maximum penalty that could be imposed for trafficking in that substance or for possession for the purpose, as well as for importing, exporting and possession for the purposes of importing or trafficking, to increase from 10 years to life.

[32] Plainly, Parliament regards the possession of methamphetamine as a most serious offence. In R. v. Copeland, Spies J. of this court wrote eloquently of the deleterious effects and consequences associated with use of methamphetamine at paragraphs 15-24 of her reasons, passages that show why Parliament increased the potential penalty for trafficking, possession and possession for the purposes of trafficking. That was a case where the accused, who had no prior lengthy incarceration but did have a drug-related prior record, was regarded as a low-level trafficker who trafficked for profit, who was in possession of methamphetamine totaling 280 g, along with 7.42 g of powder cocaine and 5.29 g of crack cocaine, and who was sentenced to a term of incarceration of three years.

[33] Nevertheless, it is also clear here that this offender was not found guilty solely of possession of methamphetamine. He was found guilty of possession of ecstasy pills. Expert evidence of Detective John Margetson at trial established that ecstasy pills are typically comprised of 50% MDMA with the other half comprising a filler or methamphetamine. He went on to say that in 2006 ecstasy pills commonly consisted of about 50% MDMA and methamphetamine. While I acknowledge the point made by defence counsel in his submissions on the sentencing that we do not know the precise amount of methamphetamine that was in Mr. Gauvin’s possession, in light of his expert opinion that ecstasy pills comprise at least 50% MDMA, a Schedule III drug, clearly the methamphetamine component of those ecstasy pills could not have exceeded 50%. As such, I would not regard this as a case where the accused ought to be sentenced on the basis that he was in possession of 320 g of methamphetamine, but rather, on the basis of the evidence at trial that the methamphetamine component of the 1,077 ecstasy pills that were found in his possession had no more than 160 g of methamphetamine at the most, but also on the basis of the expert evidence that the street value of those pills was about $21,000.

[34] I previously made mention of the decision of Justice Spies in R. v. Copeland. In that case the offender was sentenced to three years. The other cases that to my mind are most relevant were those put forward by the Crown in her submissions, namely R. v. Pitvor and R. v. Francis. R. v Paper, a 2011 decision of our Court of Appeal, is also a case of some relevance, which affirmed the lower court decision imposing a sentence of two years less a day incarceration, and two years’ probation, against an offender who had no prior record who was operating a “drug boutique”, with a vast array of drug choices, and who in that case was in possession of just over 60 g of methamphetamine, 36 g of ketamine, 330 MDMA pills, and other illicit street drugs, as well as a significant quantity of marijuana, hashish, and Valium pills. I note that in that case the quantity of MDMA pills that was comprising part of the pharmacy the offender was operating was significantly smaller than in this case, as was the quantity of methamphetamine that he possessed.

[35] In Pitvor, the offender was sentenced to 2 1/2 years in the penitentiary on the basis that he was an above street-level trafficker, had a prior record, and was in possession of methamphetamine that had a street value of $25,000. That is a value not dissimilar to the expert opinion put before this court relative to the street value of the 1,077 MDMA pills that were possessed by this offender for the purposes of trafficking.

[36] While the Crown suggested that this is an offender who is an above street-level trafficker – that was a suggestion that was made by Detective Margetson, but it was not a definitive opinion – he simply indicated that the offender occupied a position somewhere in that range of importance in the drug subculture.

[37] In Francis, the decision of the B.C. Court of Appeal, at a time when methamphetamine was still listed in Schedule III rather than Schedule I, the offender was sentenced again to 30 months of imprisonment with respect to possession of less than 400 g of methamphetamine for the purposes of trafficking and possession of 670 g of marijuana and 69 g of hashish.

[38] In the result, I am satisfied that the range of sentence in this case would be a penitentiary sentence of between two and three years. It is not a case where a conditional sentence could be appropriate, in my view, given Mr. Gauvin’s prior failure to comply with terms of community supervision that were imposed upon him, and given my view if he has any hope of succeeding in his efforts to rehabilitate himself from his drug addiction and his life of criminality, to be in a facility for a sufficient period of time where he can receive appropriate treatment and counselling relative to his drug addiction. Provincial corrections facilities do not have this ability. He needs to spend time in the federal penitentiary in order to achieve this aspect of the rehabilitation that he seeks to achieve.

[39] Nevertheless, while the quantity of drugs that were in his possession might command a sentence of the upper end of that range, the fact that Mr. Gauvin has tried repeatedly to rid himself of his addiction to drugs and has had some success in doing so, through two successive methadone programs, causes me to reduce the global sentence that I intend to impose upon him from three years to 2 1/2 years in recognition of that rehabilitation prospect. This puts the sentence that he would receive in this case precisely on line with those imposed in Pitvor and Francis, and not significantly below that imposed in Copeland.

[40] In terms of its breakdown, I would sentence Mr. Gauvin to 2 1/2 years of incarceration on counts 1 and 4, to be served concurrently; one year on count 3, possession of ketamine; and six months on possession of cannabis resin, both to be served concurrently to the sentences on counts 1 and 4.

Ancillary Orders

[41] The order requiring Mr. Gauvin to provide a sample of DNA will go unopposed, and he will provide that sample if he has not already done so on a prior occasion.

[42] There was argument about the suitability of a forfeiture order sought by the Crown. Counsel for the defence argues that there is no evidence that the jury necessarily found the monies that were in Mr. Gauvin’s possession to be attributable to his activity of possessing drugs for purposes of trafficking.

[43] However, it seems plain to me that in reaching the conclusion that they did, even recognizing that the jury can believe some, all or none of a witness’s testimony, the jury is also admonished to take into account the entirety of the evidence in reaching their verdicts. In my view, the quantity of cash that was found in Mr. Gauvin’s possession at the time that he was arrested for these offences would not have been disassociated from the allegation that he was a person who possessed these drugs for the purposes of trafficking. So, on the whole of the evidence, in determining whether the evidence satisfied the jury beyond a reasonable doubt that the purpose for Mr. Gauvin’s possession of those drugs was to traffic in them, it is inescapable to my mind that the presence of that significant amount of money would not have had an influence on their thinking.

[44] Moreover, given the evidence of Detective Margetson that this quantity of ecstasy pills would never be possessed for the purposes of personal consumption, but rather only with a commercial purpose or intent, it is counterintuitive that the jury would not have considered the $4,656 found in his possession at that time to be attributable to anything other than that purpose and enterprise. The forfeiture order will go as well.

Final Decision

You will now stand up, Mr. Gauvin.

[45] For the foregoing reasons, I sentence you to a term of imprisonment of 2 1/2 years in the federal penitentiary. I hope that while you are there, you will be able to get the support and treatment that you need to finally rid yourself of your addiction to illegal drugs. I sincerely hope that you will be able to turn your life around and leave your criminality behind once you have served this sentence.

M.G.J.Quigley J.

Released: September 25, 2014