ONTARIO

SUPERIOR COURT OF JUSTICE

(Toronto Region)

COURT FILE NO.: CR13-90000280-0000
DATE: 20141006

B E T W E E N

her majesty the queen

and

Ramkishore JAGESHUR

reasons for sentence

BEFORE THE HONOURABLE MR. JUSTICE CLARK

On Wednesday, May 21, 2014 at 361 University Avenue, Toronto, Ontario.

APPEARANCES:

Counsel for the Crown Mr. C. Bundy
Ms. C. Otter

Counsel for Mr. Jageshur Mr. L. Beechener

REASONS FOR SENTENCE

CLARK J: (Orally) In the matter of Her Majesty the Queen v. Ramkishore Jageshur, the following are my reasons for sentence.

INTRODUCTION

On March 7, 2014, after a trial before this court sitting without a jury, the accused was found guilty of possessing a controlled substance for the purpose of trafficking, to wit: 18 kilograms of cocaine, contrary to s. 5(2) of the Controlled Drugs and Substances Act (S.C. 1996, c. 19).

FACTS

In April 1996, members of the Royal Canadian Mounted Police Milton Drug Squad advised their counterparts at Toronto Integrated Proceeds of Crime (“IPOC”) that the accused was importing cocaine into Canada from South America.

At that time, IPOC was operating what they called a “storefront” under the name “Koffea Imports”. To all appearances, a coffee importing business, RCMP officers working undercover in the business made it known to members of the criminal element that they were actually in the business of drug importation and money laundering. They did this in order to set up controlled deliveries of drugs to persons who would, in turn, be arrested and to induce criminals to bring money to the storefront thinking that it would be laundered, when, in fact, the police intended to seize such monies and eventually arrest the persons involved.

The accused became the target of a joint investigation by both units lasting more than a year and ending with his arrest on August 21, 1997.

On November 29, 1996, during the life of the investigation, the accused sold one kilogram of cocaine to a police agent. He was not arrested at that time, however, because investigators believed that he was a large scale cocaine dealer. They also believed that his then girlfriend, one Ida Castillo, had access to what was believed to be $800,000, or thereabouts, of approximately $3 million stolen in a 1995 armored car robbery. They hoped, by means of a reverse sting, to recover proceeds from the accused’s illicit drug activities and/or the robbery.

As opposed to the more commonplace “sting”, in which an undercover operative buys drugs from a suspected dealer, in the reverse sting the officer offers to sell drugs. If the suspect buys the drugs, he is arrested and, in some cases at least, this being one of them, the purchase money is seized as proceeds of crime.

On December 23, 1996, the accused offered to sell undercover officers ten kilograms of cocaine. On three other occasions, January 10, February 11, and March 7, 1997, the accused expressed an interest in buying from the officers ten, 25, and 50 kilograms of cocaine, respectively. The officers did not act on any of these entreaties.

On July 18, 1997, one of the undercover officers, Constable Benoit Fornier, met the accused at a Toronto restaurant and offered to sell him cocaine from a shipment he said he was expecting to receive in August. The accused expressed interest, but was concerned about the price and wanted time to think about it. Fornier said he would do some calculations over the weekend concerning price, but needed to know the exact amount the accused wanted to buy. After a meeting lasting approximately 90 minutes, the men agreed to speak again the following Monday.

On Monday, July 21, Fornier spoke to the accused. At first, according to Fornier, the accused said he wanted to buy 25 to 30 kilograms, but, when Fornier said he needed a specific number, the accused settled on 30 kilograms. At the agreed upon price of $28,000 per kilogram, however, the accused said he could only pay for 18 kilograms immediately. He asked Fornier to hold 12 more for him in order that he might buy them in a week or so, after selling the first 18 kilograms.

On August 8, 1997, the accused met Fornier and two other undercover officers at a Toronto branch of the Bank of Nova Scotia, at which time he gave them $80,000 as a down payment on the 18 kilograms.

On August 21, the accused met the officers at a hotel and paid the balance owing. Later that day, the accused attended the storefront where he took possession of 18 kilograms of cocaine from Fornier. He was arrested moments later, as he left the building.

Upon arrest, the accused was charged with the count upon which he has been found guilty by this court, with a second count of possession of a controlled substance for the purpose of trafficking in relation to his sale of cocaine to the officers on November 29, 1996, and with a number of weapons offences in relation to a pistol that he had on his person at the time he was arrested.

On November 6, 2000, the accused pleaded guilty to the count respecting the November 29, 1996, sale of cocaine and to one count of possession of a weapon for a purpose dangerous to the public peace, in relation to the pistol. The time he had spent in custody, from his arrest in 1997 until November 6, 2000, was taken into consideration in terms of the sentence he received on those counts.

ANTECEDENTS OF THE ACCUSED

I have had the benefit of a pre-sentence report. The accused is presently 44 years of age. He was born in Guyana, but immigrated to Canada with his family at a relatively young age. He is now a Canadian citizen.

By way of legitimate employment, the accused made his living principally as a car salesman.

The accused has the following record of criminal convictions in Canada.

In 1993, he was convicted of fraudulent use of a credit card. In 1998, he was convicted of possession of property obtained by crime over $5,000. In 1999, he was convicted of breach of recognizance. In May 2000, he was convicted of possession of property obtained by crime, over $5,000. In November 2000, as earlier indicated, he pleaded guilty to trafficking the kilogram of cocaine and to possession of a weapon for a purpose dangerous to the public peace.

The applicant also has the following convictions from the United States. In 2004, he pleaded guilty in Miami, Florida to resisting arrest (without violence) and possession of a firearm, and, in 2011, after several trials in relation to a 2004 homicide, he finally pleaded guilty in Miami to involuntary manslaughter.

POSITION OF THE CROWN

The Crown submits that an appropriate sentence is one of 12 to 14 years' imprisonment and, further, submits that this court should order that the accused not be eligible for parole until he has served one half of his sentence.

The Crown also submits that the court must impose a weapons prohibition and a DNA order pursuant to the relevant sections of the Criminal Code, to wit: ss. 109 and 487.051, respectively.

THE POSITION OF THE ACCUSED

Counsel for the accused submits that a fit sentence is one of nine and a half years before adjusting for pre-sentence incarceration. That suggested quantum reflects what counsel contends would have been an aggregate sentence in the range of 13 to 14 years had the accused resolved this charge in November 2000, at the time he pleaded guilty to trafficking and weapons dangerous.

Mr. Beechener suggests that the pre-trial incarceration should be factored in at a ratio of two-to-one to reflect the norm existing at the time of the commission of this offence. Mr. Beechener vigorously opposes the Crown’s suggestion that the accused should serve one half of his sentence before being eligible for parole. Mr. Beechener does not quarrel, however, with the Crown’s submission respecting the weapons prohibition and the DNA order.

DISCUSSION: GENERAL PRINCIPLES OF SENTENCING

In the words of s. 718 of the Criminal Code:

The fundamental purpose of sentencing is to contribute...to respect for the law and the maintenance of a just, peaceful, and safe society by imposing just sanctions having one or more of the follow objectives:

(a) to denounce the unlawful conduct;

(b) to deter the offender and others

from committing such an offence;

(c) to separate the offender from

society where necessary;

(d) to assist in rehabilitating the

offender;

(d) to provide reparations for harm done

to victims or the community; and

(f) to promote a sense of responsibility

in offenders and acknowledgment of

the harm done to the victims and the

community.

A sentence must be proportionate to the gravity of the offence and the degree of the offender’s responsibility.

REHABILITATION

As in every sentencing, I must be mindful of the principle of rehabilitation: R. v. Stein, 1974 1615 (ON CA), 15 C.C.C. (2d) 376 (Ont.C.A.), at 377. Rehabilitation is particularly important, of course, when dealing with youthful first offenders. Mr. Jageshur is neither youthful, nor a first offender.

Mr. Jageshur has strong family support, as evidenced by the many letters contained in the book of sentencing materials filed on his behalf. Speaking generally, it is often the case that an offender’s relatives, especially close family members, speak of the offender in glowing terms. In this case, while I do not doubt the sincerity of the sentiments expressed by the authors of these letters, they simply underscore the fact that often loved ones only see one side of an offender. That said, although the letters suggest that the offender has better prospects of the rehabilitation by virtue of their support, the letters do not persuade me that this offender is likely to be rehabilitated.

While I do not go so far as to say there is no hope of rehabilitation, given the substantial quantity of cocaine involved and Mr. Jageshur’s admission that he is, in his own words, “a criminal,” I see little realistic prospect that he will be reformed.

RETRIBUTION

In passing sentence, the court is also obliged to consider retribution, not in the vengeful sense, but rather in the sense of conveying society’s denunciation of the offending conduct: R. v. M.(C.A.), 1996 230 (SCC), [1996] 1 S.C.R 500.

DETERRENCE

I turn next to deterrence. For a general statement of the principle, I rely on the following passage from R. v. Johnson, 1996 3148 (BC CA), [1996] 112 C.C.C. (3d) 225 BCCA, where, at page 236, Ryan J.A. stated:

The principle of deterrence as a goal of sentencing is embedded in our law. The Supreme Court has said so in C.A.M., 1996 230 (SCC), [1996] 1 S.C.R. 500. The amendments to the Criminal Code specifically refer to it as a sentencing objective. (see s. 718(b)) We must assume that deterrent sentences have some effect. It is futile to ask whether a particular sentence will deter others. That question can never be answered. Deterrence operates in a general way. Those that would break the law must know, and law-abiding citizens must be assured, that lawbreakers will receive sentences which reflect the seriousness of their crimes. This will deter some potential offenders. It will not deter others.

In cases involving illegal narcotics, because the societal cost of these activities is so high, deterrence becomes a key factor in sentencing.

In Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 778 (SCC), [1998] 1 S.C.R. 982 SCC, at 1039 to 1040, Cory J. spoke of the socio-economic costs of illicit drug use in Canada:

The cost to society of drug abuse and trafficking in illicit drugs are at least as significant, if not staggering. They include direct costs, such as health care and law enforcement, and indirect costs of loss productivity... These significant and often tragic consequences serve to emphasize that the harm caused by trafficking in illicit drugs is very properly a matter of grave concern in Canada as it is throughout the world.

The enormous social cost associated with trafficking in cocaine and other drugs was also recognized by Lamer J., as he then was, in R. v. Smith, 1987 64 (SCC), [1987] 34 C.C.C. (3d) 97, at pages 123 and 124, where he stated:

Those who import and market hard drugs for lucre are responsible for the gradual, but inexorable, degeneration of many of their fellow human beings as a result of their becoming drug addicts.

The direct cost of the hardship cast upon the victims and their families, these importers must also be made to bear their fair share of the guilt for the innumerable serious crimes of all sorts committed by addicts in order to feed their demand for drugs.

In R. v. Hoang and Pham, [2002] O.J. No. 1355 S.C.J., at paragraph 71, Hill J. noted:

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 (citations omitted).

Although the foregoing cases dealt primarily with importing as opposed to possession, they are apropós this case nonetheless, since, although he was not the importer, Mr. Jageshur was the first receiver of what he understood to be freshly imported narcotics.

PREDOMINANT PRINCIPLES OF SENTENCING

As the discussion above reflects, in sentencing an offender the court must heed a number of different principles, which are sometimes in conflict in that the length of sentence required to properly serve one is inconsistent with the length of sentence required to serve another. In such a case, an appropriate resolution may require that one or more of those principles predominate: R. v. Szola, 1977 2041 (ON CA), [1976] O.J. 1229, 33 C.C.C. (2d) 572. In R. v. Nero, [2007] O.J. 2316 (S.C.J.), Dunnet J. said, at paragraph 62:

There is no issue that general deterrence and denunciation are of paramount importance. It is well-documented that the use and distribution of cocaine perpetuates crimes of violence.

In R. v. Farquharson, 2000 5627 (ON CA), [2000] O.J. 60 (S.C.J.), at paragraph 9, Grossi J. held:

The use of illegal drugs, particularly cocaine, is rampant in society. It fetches great amounts of money. There is risk in dealing drugs, the risk of being caught, and also the risk of violence. The gun in the present case is the handmaiden to the trade. It is there for protection and to avoid being ripped off, and as I found above, there is no hesitation to fire it. In my view, deterrence and denunciation are the paramount principles to be considered when sentencing those possessing drugs for the purpose of trafficking. The devastation to lives and the cost to society in confronting this trade is extremely large.

In summary, as Mr. Beechener fairly acknowledged in his oral submissions, the grave societal ill brought by the illicit drug trade makes paramount the principles of denunciation and general and specific deterrence: R. v. Martin, [2001] O.J. 5205; R. v. Osei, [2002] O.J. 5601, at para. 11; and R. v. Revizada, [2005] O.J. 421, at para. 20.

MITIGATING FACTORS

The fact that an accused is addicted to illicit drugs can be a mitigating factor in sentences imposed for drug offences. In this case however, that factor is absent.

The offender had a fairly normal upbringing and suffers from no developmental or other personal difficulties that might explain why he did this, so as to possibly mitigate his situation. Although he indicated that he had used cocaine recreationally, he is not addicted to it.

A great deal of time has elapsed between the commission of this offence and the day of reckoning for it, and the offender is an older, more mature man. In R. v. H.S., 2014 ONCA 323, the Court of Appeal recently said the following in terms of the effect that the effluxion of time should have in determining a fit sentence:

The leading case on the treatment of time lapse in sentencing is R. v. Spence, 1992 ABCA 352, [1992] 78 C.C.C. (3d) 451 (Alta C.A.), adopted by Juriansz J.A. for this court in R. v. W.W.M., 2006 3262 (ON CA), [2006] 205 C.C.C. (3d) 410 (Ont.C.A.). In Spence, at pp. 454 - 456, the court held:

When a period of many years has elapsed between the commission of an offence of sexual assault and its discovery by the authorities, that circumstance dictates review of the degree to which the usual principles of sentencing are applicable in such circumstances.

The lapse of time does not in any way render inapplicable the principles of general deterrence and denunciation. The first of these requires a sentence which will intimidate those, other than the offender, who might be tempted to follow his example. The second requires a sentence by the imposition of which the court will reflect society’s view of the wrongness of the conduct and persuade those who might be confused about what is right and wrong. These two principles may overlap in their effect on the choice of sentence.

The need for the sentence to reflect the community’s desire to denounce offences of the kind with which we are concerned here is not diminished by the passage of time. Conversely, if the court were to impose a lenient sentence because of the passage of time, some members of the community might regard the sentence as judicial condonation of the conduct in question. That would tend to lessen respect for the administration of justice. In the circumstances we are considering in these appeals, the lapse of considerable time and (we assume for the purpose of discussion) the intervening years of unblemished conduct do not lessen the relevance of these two principles.

The only sentencing principles which may be affected by the lapse of time are those of individual deterrence and rehabilitation.

Given the respondent’s circumstances, the principles of specific deterrence and rehabilitation have no relevance. As previously noted, the relevant sentencing principles in this case are denunciation and general deterrence. A fit sentence must reflect the need to respond to those principles. As made clear in the above passages from Spence, these particular sentencing principles are unaffected by the passage of time. (Authorities omitted)

I am therefore of the view that while a delay of over 35 years is a relevant consideration, its mitigating impact is reduced by its lack of relevance to the operative sentencing principles.

I note that the period in the case before me between the commission of the offence and the imposition of sentence is less than half the period in R. v. H.S. and, unlike Mr. Spence, Mr. Jageshur cannot rely on unblemished conduct in the intervening period as a basis upon which to seek to mitigate his sentence. On the contrary, the delay in sentencing was directly a function of Mr. Jageshur having been incarcerated in the United States for the offence of manslaughter.

According to the pre-sentence report, the offender has been a model prisoner throughout the lengthy period of time he has been incarcerated. While that certainly stands to the offender’s credit, I see very little else that mitigates his situation.

Before leaving the subject of mitigation, I note that there is little indication of remorse on the part of this accused. As he was perfectly entitled to do, the offender pleaded not guilty and stood his trial. Thus, while I do not treat his plea as an aggravating factor, he cannot now rely on remorse to mitigate what would otherwise be an appropriate sentence: R. v. Sawchyn, 1981 ABCA 173, [1981] A.J. No. 26, 60 C.C.C. (2d) 200 (C.A.); R. v. Champion, 2009 ONCA 184, [2009] O.J. 829; R. v. Valentini, 1999 1885 (ON CA), 43 O.R. (3d) 178, [1999] O.J. No. 251 (C.A.); R. v. Pavich 2000 16971 (ON CA), [2000] O.J. No. 4209 (C.A.).

I say there is “little” indication of remorse, as opposed to no indication, because when asked if he had anything to say before sentence was passed, Mr. Jageshur made a lengthy statement in which he indicated that he has now seen the error of his ways and hopes, after serving his sentence, to move on with his life in a law-abiding manner. Mr. Jageshur seems sincere. Having said that, coming as it does so many years after the fact and only, presumably, as a consequence of his having been found guilty after trial, his professed remorse counts for little in determining an appropriate sentence.

AGGRAVATING FACTORS

This case has the following aggravating factors:

(i) the pernicious nature of cocaine;

(ii) the quantity of cocaine involved (I note parenthetically that, although he only took possession of 18 kilograms, the proper amount to be considered on sentence, in my view, is the full 30 kilograms that he intended to buy had this reverse sting been an actual drug transaction);

(iii)the offender had no pressing financial problems that caused him to succumb to the temptation the RCMP placed before him; rather, as Mr. Jageshur fairly acknowledged in his evidence, he committed this crime for the sole reason that he saw an opportunity to make a profit; quite indifferent to the social ill he was promoting, he was driven, as he acknowledged in his statement to the court prior to being sentenced, by one of the basest of human motivations, greed;

(iv) the offender was armed with a loaded firearm at the time he committed the offence, CDSA s. 10(2)(a); and

(v) the offender indicated that he was prepared to use the firearm against a police officer in the event that he were pulled over while in possession of the cocaine.

I infer this last factor from the following short excerpt from a conversation surreptitiously recorded by the police on August 20, 1997, between the offender and the undercover officers in connection with his taking position of the cocaine the following day:

JAGESHUR: Well, what if I leave here tomorrow...

FORNIER: Yeah.

JAGESHUR: And I’m like just going down the road...

FORNIER: Yeah.

JAGESHUR: ... with this product...

FORNIER: Uh-huh.

JAGESHUR: ... and I get pulled over? And get, get, they see this. What do you want me to do?

SIMMS: Number one, my name better be the last one on your, on your mind.

JAGESHUR: Let me tell you something, Robert. You guys can follow me any cop pulling me over, he’s getting fuckin’ blasted before I open my trunk, okay, and that’s just the bottom line to it.

SIMMS: Well.

JAGESHUR: And that’s it. I’m not letting my shit go just like that. I’m not just gonna [sic] to say, oh fuck, they caught me, right? I’m not. (Emphasis added)

When the offender met Corporal Simms the next day at the Camberley Club Hotel on King Street West in Toronto, the meeting was video recorded. At one point, the following exchange occurred:

SIMMS: Last night you mentioned that, ah, if anything went wrong you’d be -- you’d be blasting.

JAGESHUR: Yes.

From the forgoing passages, it is clear beyond any question in my mind that on August 20, 1997, the offender was saying that he would shoot a police officer if the need were to arise. For the following reasons, I conclude that this was not mere macho puffery on his part, but, rather, that the accused was in deadly earnest when he made that remark.

First, when the opportunity arose the following day, the offender did not resile from, but, rather, confirmed what he had said in this regard the day before.

Second, when he took possession of the 18 kilograms of cocaine, the offender was armed with a loaded handgun which had several rounds in the magazine and one round in the firing chamber.

Third, several years later, the offender shot a man to death in the United States. I note, parenthetically in this regard, that counsel for the offender relied upon a judgment of the Florida District Court of Appeal, Third District, in which the court set aside the offender’s 2004 conviction for murder and ordered a new trial. Part of the rationale for that reversal was, so the judgment reveals, that there was concern about the evidence of who had brought the gun that was used to kill the deceased to the scene of that homicide. The court evidently had some doubt concerning what it considered to be the dubious testimony of the sole State’s witness, who said that it was the offender who had brought the gun. That said, to the limited degree that I rely on his later possession of a loaded gun in the United States for purposes of this analysis, I note that whoever brought the gun to the scene of the homicide, the accused nonetheless pleaded guilty in 2004 to unlawful possession of that firearm.

On the basis of those facts, I am satisfied beyond any reasonable doubt that, when the offender said he was prepared to shoot a police officer, he was, as I have earlier said, in deadly earnest. At the risk of stating the obvious, that is a gravely aggravating factor. Taken together with his utterances referred to in my reasons on the s. 7 application to the effect that he will do virtually anything to make a profit, irrespective of whether it is legal or not, I conclude that the offender is a person without scruple, who is prepared to be utterly ruthless if anyone should stand in the way of one of his schemes.

SIMILAR SENTENCES

An accused is entitled to be sentenced in keeping with sanctions imposed on similarly situated offenders in similar circumstances: s. 718.2(b).

I have considered the cases proffered by both parties. I have also considered a number of others. One that is worthy of note is R. v. Bacon, 2013 BCCA 396, [2013] BCCA 396, 301 C.C.C. (3d) 97, in which the British Columbia Court of Appeal allowed the Crown’s appeal and raised a 12-year sentence imposed at trial to 14 years. Like this case, Bacon was caught in an RCMP reverse sting in which he agreed to buy a large quantity of cocaine.

Twenty-nine years old at the time of sentence, Mr. Bacon was considerably younger than the offender before me is presently, but the offence took place in Bacon, by my rough calculus, when Mr. Bacon was approximately 26, roughly the same age that Mr. Jageshur was when he committed this offence. Like Mr. Jageshur, the British Columbia Court of Appeal noted that Mr. Bacon described himself as a “criminal.” The trial judge found that Mr. Bacon “appears committed to a criminal lifestyle,” at paragraph 13.

Bacon had eight previous convictions, but none for drug trafficking. A significant difference between the two cases is the amount of cocaine involved. As opposed to the 30 kilograms in the case, Bacon had agreed to buy 100 kilograms. On the other hand, as Mr. Bundy pointed out during his oral submissions, when one is dealing with very large amounts of illicit narcotics, there is of necessity a certain “compression” of the applicable range of sentence, such that the sentence imposed for one amount may not differ a great deal from what is applicable for a much larger quantity. See R. v. Epp, [2006] BCCA 570, where, at paragraph 18, Low J.A., stated:

I have difficulty with the implied proposition at paragraph 15 of the reasons of the sentencing judge in the present case that double the quantity of cocaine should result in a much higher sentence for Mr. Epp. In my opinion, the quantity of the drug involved, particularly when tens of kilograms are involved, although a factor in sentencing, should not be overemphasized.

In keeping with those remarks, notwithstanding the “compression” factor mentioned above, all things being equal, the amount of cocaine in this case would call for a lesser sentence than what was imposed in Bacon. Other considerations, however, dictate that it not be a great deal shorter. Indeed, all things are not equal as between Bacon and this case.

In Bacon, the Court of Appeal noted at paragraph 63 that Cullen, A.C.J.B.C., was entitled, in the exercise of his discretion in determining whether to make an order pursuant to s. 746.3, to consider, as he did at paragraph 53 of his reasons for sentence, that the offence did not involve "unusual violence, brutality, or degradation, which requires a strong expression of denunciation above and beyond what a fit sentence will provide".

In this case, on the other hand, the offender was willing to “blast”, to use his word, a police officer rather than lose his illicit drugs, and he armed himself so as to be in a position to do exactly that. Albeit, there was no actual violence involved in this case, that willingness makes this case one where there was at least a potential for what Cullen J. described as “unusual violence.” That makes the offender’s conduct much more serious, in my mind, than that of Mr. Bacon, and his moral blameworthiness correspondingly higher.

In terms of a fit sentence, that moral blameworthiness goes a long way, if not the entire distance, to eclipsing any difference the respective amounts of cocaine involved might otherwise suggest.

TOTALITY

Defence counsel asserts that the sentence should be nine and a half years because, had the accused been sentenced for this offence at the time he was sentence for the 1996 trafficking offence, the totality principle would have capped the sentences somewhere in the range of 13 to 14 years. In all likelihood, Mr. Beechener argues, the fact that the two prosecutions emerged from the same police project, taken together with the application of the totality principle, would have resulted in the offender receiving concurrent sentences. Now that he has served his sentence of roughly four and a half years in connection with the trafficking charge, the sentence for this offence should be reduced to reflect that earlier term of imprisonment. I disagree.

Generally speaking, “at the end of the day when it comes time to sentence an offender, the court can only take into account factors that relate to the particular offence under consideration": R. v. Wilson, 2008 ONCA 510, 236 C.C.C. (3d) 285, at para. 48.

In this case, I see these two offences as entirely separate. Temporally, there is almost a nine month gap between them. In terms of the their nature, in the first offence the offender was selling drugs, whereas in the second he was buying them. As for the comparative magnitude, this offence involved a significantly greater amount of contraband. The only commonality between them, then, is the fact that the offender was dealing with, unbeknownst to him, the same police officers who were conducting the same ongoing investigation.

I see no reason, in principle, why the offender should be entitled to a diminution in what would otherwise be an appropriate sentence for this offence simply because, as it happens, the same police officers who investigated the one offence investigated in connection with the earlier matter.

At the risk of stating the obvious, the rationale for the totality principle is to achieve, in cases where an offender faces multiple charges, a result that is neither overly punitive, nor so long as to crush the offender, where that would not be possible were a fit sentence imposed on each count. Where, in relation to a single count, that risk does not exist because the sentence imposed for another crime has already been served, there is no reason, in principle, to reduce what would otherwise be a fit sentence.

To adopt Mr. Beechener’s position would send the message that crimes come cheaper by the dozen, as it were.

STEP-UP PRINCIPLE

Although this was not argued in either counsel's submissions, because the sentence I am about to impose is longer than any previously imposed on this offender, including his sentence for manslaughter, I pause to note that I have considered what is referred to variously as the "jump principle” or “step-up principle.” I am of the view that this principle is of no application in the present case. See Bacon at para. 51, citing R. v. Kory, [2009] BCCA 146, at para. 6; R. v. Vickers, [2007] BCCA 554, at para. 16.

PRE-TRIAL CUSTODY

As noted earlier, the entirety of the accused’s pre-trial custody between the date of arrest and his guilty pleas on November 6, 2000, was expended in fashioning the sentences on the counts to which he pleaded guilty. Therefore, the only pre-trial custody to be taken into account in fashioning this sentence is that period between the accused’s release from custody in the United States on December 26, 2012, and today. The offender has been in custody on this charge during that period, which I calculate to be 511 days inclusive of today, or roughly 17 months.

Traditionally, pre-trial custody was held to warrant enhanced credit on sentence for three reasons: (i) the lack of parole eligibility and statutory remission; (ii) the lack of educational and/or rehabilitative programming; and (iii) more onerous custodial conditions. The accused argues that, because the offence predates the changes in the law of sentencing brought about by the Truth in Sentencing Act, he should be entitled to the benefit of the regime that was then in place, whereby, absent some unusual circumstance, an accused was generally given credit for two days for every day served in pre-trial custody. For the following reasons, I disagree.

Had the accused remained in Canada, as he was obliged to do by the terms of his recognizance on the fraud charge, doubtless this case would have been dealt with under the old sentencing regime long before the amendments passed into law. That would not have availed the offender, however, because all his pre-trial custody up to the point of his acquittal on this charge in 2000 had been utilized in fashioning the sentences he received for trafficking a kilogram of cocaine and possession of the pistol. As it happened, however, the accused breached his bail order on the then extant fraud charge and went to live in the United States under an assumed name.

While I agree that the old 2:1 regime is not unavailable to him in law, the fact remains that the calculus of pre-trial custody is a matter, in the final analysis, of the sentencing court’s discretion. In this case, because the accused fled the jurisdiction and, further, because the entirety of his “dead time” between the end of 2012 and today was served long after the changes to the sentencing regime, I do not see this as a case in which I should exercise my discretion to give the offender the benefit of the old regime. To do so would be, in effect, to reward the accused for having absconded.

Second, in R. v. Summers, 2014 SCC 26, speaking for the court, Karakatsanis J. held, at paragraph 75:

For many offenders, the loss of eligibility for early release and parole will justify credit at a rate of 1.5 to 1.0. However, as Beverage J.A. concluded, it is not an "automatic or foregone conclusion that a judge must grant credit at more than one-to-one, based on loss of remission or parole". If it appears to a sentencing judge that an offender will be denied early release, there is no reason to assign enhanced credit for the meaningless lost opportunity. As Beverage J.A., wrote "...it would not be onerous for most offenders to establish that they would have earned remission or been granted parole, and hence, it is not likely to be a rare occurrence for an offender to be worthy of credit of more than one-to-one [paragraph 66]".

At paragraph 79 of Summers, Karakatsanis J. went on state that:

The onus is on the offender to demonstrate that he should be awarded enhanced credit as a result of his pre-sentence detention.

Notwithstanding that,

Generally speaking, the fact that pre-sentence detention has occurred will usually be sufficient to give rise to an inference that the offender has lost eligibility for parole or early release with his dismal criminal record. Similarly, if the accused’s conduct in jail suggests that he is unlikely to be granted early release or parole, the judge may be justified in withholding enhanced credit.

I very much doubt that Mr. Jageshur would be a candidate for early parole. That said, one of the principle considerations for awarding enhanced credit for pre-trial custody is absent in this case.

Third, there is no evidence before me that the conditions under which the accused has been incarcerated have been unusually onerous. That removes from consideration another of the main considerations for giving enhanced time for pre-trial custody.

Being mindful that, given the date of the offence, the offender would be eligible to be sentenced on the basis of the regime existing before the enactment of the amendments, but being of the view that the offender is an unlikely candidate for early parole, I will strike the balance between those two regimes by crediting him with the maximum available under the current regime, namely, 1.5 to 1.0.

The 17 months multiplied by 1.5 is approximately 25 1/2 months, which I will round up to 26 months.

Mr. Jageshur, would you please stand up.

Mr. Jageshur, I have decided that an appropriate sentence in this case is one of 13 years' imprisonment. However, in light of the time you have spent in pre-trial custody, I will reduce that sentence by 26 months. Accordingly, I hereby sentence you to a period of incarceration in the federal penitentiary of ten years and ten months. You may be seated again.

ANCILLARY ORDERS: SECTION 109

The Crown seeks and, as noted earlier, the accused does not oppose the imposition of an order to s. 109 of the Criminal Code. I hereby order that Mr. Jageshur be prohibited from possessing all of the items mentioned in s. 109 for the remainder of his life.

DNA ORDER

The Crown seeks and, again, the accused does not oppose an order pursuant to s. 487.051, requiring the authorities to take from the accused such samples of his blood or other bodily substance as are reasonably required for purposes of inclusion of his DNA profile in the National DNA Databank.

Since possession of a controlled substance for the purpose of trafficking is a secondary designated offence, the making of the order is discretionary: s. 487.051(1)(b).

In exercising that discretion, having considered the fact that these orders are generally accomplished by the taking of one sample of blood by means of a small prick to the finger with a sterile lancet or, in the alternative, by taking a buccal swab, I conclude that the order sought will involve only a negligible interference with the offender’s privacy and personal security. On the other hand, having considered the absence of any substantial indication of remorse, and the fact of his having described himself in his evidence as “a criminal”, I conclude that Mr. Jageshur is the sort of person who might well re-offend should the opportunity present itself. That said, I am of the view that the public is entitled to the assurance that, should Mr. Jageshur re-offend, the authorities will have at their disposal the tools necessary to enable them to detect that, indeed, he is the culprit. Order to go, accordingly.

In terms of a forfeiture order, the Crown seeks an order under s. 16 of the CDSA forfeiting what remains of the $504,000 the offender paid for the cocaine. Pursuant to the discussion earlier in this matter, I will not make that order at this time, but, with the consent of Mr. Beechener on behalf of the accused, I will make that order at such time as the final residual amount remaining in government hands after paying for Mr. Jageshur’s legal expenses is determined. I will remain seized of this matter such that I will retain the authority to make the order sought in the amount then remaining.

DELAYED PAROLE: SECTION 743.6(1)

The Crown seeks an order requiring the accused to serve one half of his sentence before being eligible for parole. Mr. Beechener vigorously resists this position.

To begin this discussion, I note that I am satisfied that the offender has had sufficient notice of the Crown’s application and there is no question but that procedural fairness has been observed in that regard.

Turning to the merits of the application, the approach to be taken when considering such an application was articulated in R. v. Zinck, 2003 SCC 6, [2003] 1 S.C.R. 41, at para. 33:

As mentioned above, courts must perform a double-weighing exercise. First, they must evaluate the facts of the case in light of the factors set out in s. 718 of the Code in order to impose an appropriate sentence. Then they must review the same facts primarily in the perspective of the requirements of deterrence and denunciation, which are given priority at this stage under s. 743.6(2).

The decision to delay parole remains out of the ordinary, but may and should be taken if, after the proper weighing of all factors, it appears to be required in order to impose a form of punishment which is completely appropriate in the circumstances of the case. This decision may be made, for example, if, after due consideration of all the relevant facts, principles and factors at the first stage, it appears at the second stage that the length of the jail term would not satisfy the imperatives of denunciation and deterrence. This two-stage process, however, does not require a special and distinct hearing. It should be viewed as one sentencing process, where issues of procedural fairness will have to be carefully considered.

1. Circumstances of the commission of the offence

In deciding whether the make the order sought, the court is obliged to consider the circumstances of the offence.

In that behalf, I have considered the nature of the controlled substance. As I have earlier indicated, cocaine is a pernicious drug and it is widely recognized that it causes incalculable harm to individuals, families and, indeed, society at large. I have also considered the amount of the drug the offender purchased, to wit: 18 kilograms, as well as the fact that the offender fully intended to purchase a further 12 kilograms.

2. Character and circumstances of the offender

In deciding whether to make the order sought, the court is also obliged to consider the character and circumstances of the offender.

At this stage of the sentencing process, rehabilitation is subordinate to deterrence and denunciation: s. 743.6(2). In that behalf, in R. v. Goulet, (1995) 1995 1198 (ON CA), 97 C.C.C. (3d) 61 (Ont.C.A.), the court held at paragraph 19:

Where the Crown has adduced clear evidence that the offender will not be deterred or rehabilitated within the normal period of parole ineligibility, an order under s. 741.2 will be appropriate. A history of prior parole violations or violations of other forms of conditional release or evidence that significant prior custodial sentences have had little impact would be appropriate factors to consider in applying s. 741.2.

Bearing those remarks in mind in this case, I have considered the following aspects of the accused’s character and criminal antecedents.

The offender had, as earlier noted, a criminal record before he trafficked the kilogram of cocaine to a police agent in November 1996 and before he committed this offence. That record is replete with convictions for offences of dishonesty.

The offender’s motivation in becoming involved with the undercover operators in 1996 was, as I noted in my reasons for decision on the applicant’s s. 7 application, that he, by his own admission, wanted the undercover officers to help him steal $38 million that he knew to be on deposit in a local bank.

The offender also indicated, unabashedly, that he was prepared to utilize the assistant manager of that bank to assist him in that endeavor. While it would appear, at least on the offender’s account, that it was the assistant manager who first approached the offender with a scheme to steal these millions of dollars, the fact remains that the offender was prepared to exploit the assistant manager’s profound breach of his employer’s trust.

The accused said that his “whole focus was to get his hands on this money.” He went on to say that “I’m interested in moving this money...can we get this money...38 million, can we steal it? That’s all I’m interested in.”

Although the plan never came to fruition, the offender’s aspirations in this regard convince me that he is driven by avarice and is totally without scruple or compunction when it comes to satisfying his lust for money. I am reinforced in that view by the various things the offender said in his evidence on the s. 7 application. At one point, as earlier noted in these reasons, he admitted that he is a criminal, and, as the following excerpt from his evidence demonstrates, he has acknowledged that he will do virtually anything, provided only that he stands to profit from the endeavor:

“So if you offer me a way to make money, I’m there. Anything that I can see that can make a dollar, I’m involved in it. I dibbled and dabbled in almost anything I could see a profit out of.”

On the other hand, the offender now claims to have seen the error of his ways and professes to want to live a law-abiding life.

At the same time as he pleaded guilty to trafficking in a controlled substance in 2000, the offender also pleaded guilty to possessing a weapon for a purpose dangerous to the public peace. That conviction was predicated, as I have said, on the offender having possessed a loaded handgun when he was arrested on August 21, 1997. I have considered that fact in two lights in terms of assessing this offender’s character.

First, as mentioned in the discussion of aggravating factors, this offender was prepared to “blast” a police officer if he should happen to be stopped while in possession of the cocaine he was about to buy, and he came prepared to do so. He was armed with an illegal handgun and, therefore, had the wherewithal to carry out that threat. I find, as well, that he had the disposition and inclination to do so if he thought it necessary. His Miami manslaughter conviction, based as it is on his having shot a man to death in 2004 with a handgun, satisfies me that his remark to the undercover officers is ample proof of that. At the risk of stating the obvious, anyone who would be prepared to shoot a police officer rather than lose his illicit drugs is a person of profoundly flawed character.

Second, the offender’s Miami 2004 conviction for possession of a firearm makes it obvious that his 2000 conviction for possessing a weapon did nothing to rehabilitate him respecting his proclivity for possessing illegal firearms. Rather, despite having received that sentence, the offender was not dissuaded, evidently, from acquiring, possessing, and ultimately using another illegal firearm to kill a man.

The offender was obviously not deterred by the sentences he received in 2000. I am satisfied that if he were not required to serve at least half of his sentence, he would not be specifically deterred from further such activities.

Further, having weighed all of the circumstances, including, most particularly, the fact that the offender was motivated entirely by unbridled greed, was prepared to shoot a police officer in order to accomplish his illegal goal and demonstrates no hint of remorse, it is reasonable to conclude that a sentence that did not require him to serve half of it before being eligible for parole would not adequately serve the principles of general deterrence and denunciation.

I am mindful, as pointed out in Zinck, at paragraph 29, that the decision to delay parole “remains out of the ordinary”. I have carefully considered the dismissal by the British Columbia Court of Appeal of the Crown’s appeal from Cullen A.C.J.B.C.’s refusal to make such an order in the case of Mr. Bacon. Mr. Bacon is, after all, an offender whom I consider to be very similarly situated to Mr. Jageshur. However, as I have endeavored to indicate in these reasons, Mr. Jageshur, by reason of his willingness to shoot a police officer, is significantly more blameworthy, in my view, than Mr. Bacon was, notwithstanding the difference in the quantity of drugs involved.

Accordingly, after careful consideration, I have decided to impose the order sought by the Crown under s. 743.6. Accordingly, Mr. Jageshur will not be eligible for parole until he has served one half of his sentence.

Those are my reasons for sentence.

CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))

I, Natasha Malozewski, certify that this document is a

true and accurate transcript of the recordings of N. Malozewski

in the Superior Court of Justice held at 361 University Avenue, Toronto, Ontario taken from recordings #CD#4899_4-9_20140521_140926__10_CLARKROB which was certified in Form 1.

Date Signature of Authorized Person