COURT FILE NO.: CR-15-035 DATE: 20161012 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – RAYMOND GODREAU, Defendant
COUNSEL: K. Jokinen, for the Crown A. Craig, for the Defendant
HEARD: September 12, 2016
REASONS FOR SENTENCE
J.R. McCARTHY J.:
The Conviction
[1] Raymond Godreau (the Defendant) is before me today for sentencing. On April 20, 2016, the Defendant was convicted on all 15 counts on the indictment before the court:
i. five counts of trafficking in the controlled substance Fentanyl; ii. five counts of knowingly making a false document; and iii. five counts of knowingly using or uttering a forged document.
[2] These are offences found under Section 5(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 [CDSA] and Sections 366(1)(a) and 368(1)(b) of the Criminal Code, R.S.C., 1985, c. C-46 [Criminal Code] respectively. The charges and subsequent convictions arose out of a scheme wherein a series of forged prescriptions for Fentanyl patches were issued for false patients of a medical doctor between April 19 and August 30, 2013. The Defendant, acting in concert with Grenville Sinclair and Julie Baks used health cards, identities and personal information to open patient profiles and issue prescriptions for Fentanyl. The prescriptions consisted of boxes containing fifteen 100 microgram Fentanyl patches at a cost of between $210 and $250 per prescription. Once obtained, these patches were then sold illicitly and individually at great profit to the Defendant’s network of drug users.
The Crown’s Position
[3] The Crown seeks a term of incarceration between 13 and 15 years. The Crown points to the recent and related cases of R. v. Sinclair, 2016 ONCA 683 and R. v. Baks, 2015 ONCA 560 where the starting point for consideration by the Court of Appeal was the nine years of incarceration handed down by the respective sentencing courts of first instance following joint submissions on sentencing. In R. v. Sinclair, the sentence was reduced from nine to eight years. In R. v. Baks the sentence was reduced from nine years to six years; however, this was entirely due to the presence of significant mitigating factors.
[4] In R. v. Baks, the Court of Appeal identified the following mitigating factors:
i. the offender was a young person with no previous criminal involvement; ii. the offender had excellent rehabilitative prospects; iii. the offender had acted at the instigation of one of the “higher ups” in the scheme with whom she had a romantic relationship; and iv. the offender’s guilty plea, cooperation with police and testimony against the “higher ups”.
[5] In R. v. Sinclair, the mitigating factors were limited to:
i. an ultimate plea of guilty coupled with testifying against the “kingpin” of the scheme; and ii. the offender’s efforts at rehabilitation.
[6] The Crown argues that given the complete absence of mitigating factors in the present case and the plethora of aggravating factors, the court should not hesitate to hand down a more severe sentence than in the related cases.
[7] The Crown asserts that the Defendant was the kingpin of the operation and, despite his clean record post-2008, the Defendant’s frank admission that he was a drug dealer should be held against him. As well, this court found that the Defendant misled the court on his bail review hearing. The Defendant was equally guilty of breach of trust as Ms. Baks since he used the personal information of his contacts and even his vulnerable mother to help generate the prescriptions. This was a commercial enterprise, carried out with large profits as the goal. The Defendant had scant regard for the health and safety of his victims to whom he dealt the most potent level of Fentanyl patches available. The evidence of Karen Woodall, a toxicologist with the Ontario Ministry of Community Safety and Correctional Services’ Centre for Forensic Sciences, confirms that Fentanyl is highly addictive and dangerous for users. Its illicit distribution and use has had and will continue to have devastating effects on the public.
The Defendant’s Position
[8] The Defendant suggests that the sentence should be consistent with those handed down in Baks and Sinclair: not only are the facts of the three cases essentially the same but the Defendant’s share of culpability should not be viewed as any greater from that of his partners. As well, the sentences in the related cases were adjusted downward by the Court of Appeal after allowing for a number of mitigating factors including prospects for or efforts at, rehabilitation. In the present case, it would be unfair to deem the Defendant an unsuitable candidate for rehabilitation given that he has not been afforded a chance to avail himself of that prospect.
[9] The Defendant’s criminal record contains only one prior drug offence which is now relatively dated. With the exception of a mischief offence in 2000, there was a sixteen year gap between offences committed while he was a troubled youth and the 2008 conviction for possession for the purpose of trafficking.
[10] Although the Court of Appeal referred to the Defendant as the “kingpin” of the operation in the related cases, there was no finding of fact by the court in that regard and certainly not in the case before this court. Mr. Sinclair and Ms. Baks played equal roles in the operation.
[11] Lastly, the Defendant is now facing his first penitentiary sentence and, as a result, a measure of restraint is in order. The Defendant suggests that a sentence of between six and eight years aligns with the recent Court of Appeal pronouncements and the circumstances of this case.
Principles of Sentencing
[12] The principles of sentencing are set out in ss. 718, 718.1 and 718.2 of the Criminal Code. As this is a controlled drug trafficking offence, sentencing principles and factors found at s. 10 of the CDSA must also form part of the analysis. I am mindful that the principles of deterrence and denunciation must guide the court in crafting a just sentence for drug trafficking offences.
Analysis
[13] In my view, there is no need to look any further than the sentencing range established by the Court of Appeal in R. v. Sinclair and R. v. Baks since both of the accused persons in those cases were part of the triumvirate responsible for the Fentanyl operation in this case. As stated by the Court of Appeal in para. 3 of its brief endorsement in R. v. Baks: “This was a serious offence involving a large amount of a very dangerous drug. The appellant played a key role in the somewhat sophisticated scheme that led to the acquisition of the drugs”. The panel went on to conclude at para. 4 that, on the facts described, “a nine-year sentence would be entirely appropriate.”
[14] While Mr. Sinclair, Ms. Baks and the Defendant were each responsible for various aspects of the operation, it was abundantly clear that the tasks overlapped and that each was interdependent on the others’ role for the operation to succeed. Succeed it did, in that over 900 patches of Fentanyl were fraudulently secured via forged prescriptions after which they were and trafficked for profit to various individuals on the lower rungs of the scheme. The evidence at trial established that the Defendant, if not the kingpin of the scheme, was every bit an equal participant in every aspect of the scheme: the fraudulent securing and conveying of health card information, the distribution of false prescriptions and the trafficking in Fentanyl for profit.
[15] I have arrived at the conclusion that a sentence of nine years of incarceration should serve as the starting point for offences of this nature. The Court of Appeal did not question the prima facie reasonableness of the respective nine year sentences in either R. v. Sinclair or R. v. Baks. Rather, the court adjusted those respective sentences downwards in light of what it found to be mitigating factors in favour of those respective offenders: a reduction to eight years in R. v. Sinclair and a reduction to six years in R. v. Baks. By implication, the highest court in the province has accepted the nine year term as a fit sentence, absent mitigating factors, for the offences in question in this case. It therefore follows that the nine year term can be adjusted upwards in the event that aggravating circumstances are present.
[16] There is a notable absence of mitigating factors in the case before me. The Defendant did not offer any cooperation to police. He is not a young or first time offender. He did not plead guilty to any of the charges on the indictment. And while it is true that he has not had available to him the types of rehabilitation programs that he might benefit from in a penitentiary setting, it is equally true that a fit and proper sentence must be based on the reality on the ground, not upon speculation or fanciful prospects. The fact that Mr. Sinclair and Ms. Baks have availed themselves of rehabilitation opportunities can only be viewed as individually mitigating to them. Moreover, the Defendant has a criminal record of some significance. I was furnished with no evidence of any past successful rehabilitation efforts. This, coupled with what I found at trial to be a propensity towards dishonesty when dealing with the criminal justice system and an admission on his part that drug dealing was a way of life for him for many years before dealing in Fentanyl, leaves me with no confidence that he would be a genuine candidate for rehabilitation once in the penitentiary system. Though the letters and notes of support filed on the Defendant’s behalf as an exhibit at the sentencing hearing were undoubtedly genuine and heart felt, I find that they are sadly naïve and entirely discordant with reality.
[17] On the other hand, the following aggravating factors demand consideration by this court:
i. the Defendant’s exploitation of a circle of known drug users, including a senior citizen and his very own mother who he knew to be a person with medical and psychological frailties; ii. his trafficking in maximum strength Fentanyl patches without regard to the potentially catastrophic consequences for his contacts and unknown users further down the line; iii. his previous criminal record for drug trafficking; and iv. the commercially lucrative nature of the scheme itself.
[18] With the greatest respect to the Crown, the suggestion that a fit sentence in this case would be 13 to 15 years is simply not tenable. In my view, such a sentence would amount to unwarranted punishment of this individual Defendant. Raymond Godreau cannot be made to pay for the sins of others, the rapid rise in the illicit use of Fentanyl in recent years or the fact that innocent persons have fallen victim to Fentanyl overdose and paid with their lives in unrelated cases. I am not prepared to accept that the defendant was anymore the kingpin of the operation than either Mr. Sinclair or Ms. Baks. They were all equally invested in the Fentanyl scheme. Nor can I accept, in the absence of proof, that the Defendant was the source of the threats or intimidation experienced by Mary Joncas and Julie Baks. In terms of misleading the process, it was clear that Mr. Sinclair was less than honest when he was first questioned by police. Even at trial, I found portions of his evidence to be self-serving and unreliable.
[19] Nevertheless, the overall picture here demands that the sentence be adjusted slightly upward, beyond the Sinclair / Baks range, to ten years of incarceration. This is an individually crafted sentence, which, while acknowledging the benchmark set by the Court of Appeal in its implicit affirmation of nine years as a fit an proper sentence in like circumstances, also takes into account the existence of aggravating factors and the absence of any mitigating factors.
[20] Mr. Godreau, please rise.
[21] Raymond Godreau, I sentence you to ten years in a federal penitentiary less time served for which you are to be credited based upon the agreed upon formula of 1 ½ days credit on sentence for every one day served. Today is October 12, 2016. You have been in custody since February 10, 2014: including today that is a total of 973 days. You are entitled therefore to a credit of 1459 ½ days which I round up to 1460 days. That is exactly four years for which you are entitled to a credit. Your remnant sentence left to serve shall therefore be six years.
[22] In addition, there shall be a weapons prohibition for life pursuant to s. 109(2) of the Criminal Code. Finally, the defendant shall provide a DNA sample under s. 487.051(3) of the Criminal Code. Order to go accordingly.
J.R. McCARTHY J.
Released: October 12, 2016