SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
MARCUS BERGER
REASONS FOR SENTENCE
DELIVERED BY THE HONOURABLE REGIONAL SENIOR JUSTICE M. FUERST
on November 29, 2017, at NEWMARKET, Ontario
APPEARANCES:
A. Ghosh Counsel for the Crown
N. Rozier Counsel for Marcus Berger
WEDNESDAY, NOVEMBER 29th, 2017
REASONS FOR SENTENCE
FUERST R.S.J. (Orally):
[1] Marcus Berger pleaded guilty to one count of conspiracy to traffic in cocaine. Crown and defence counsel agree that a penitentiary sentence must be imposed, but differ as to its length.
The Circumstances of the Offence
[2] In the course of a York Regional Police Service Guns and Gangs Enforcement Unit investigation, authorization to intercept private communications was granted. Private communications were intercepted as a result. They disclosed Mr. Berger's suspected involvement in the sale and distribution of cocaine.
[3] On May 15th, 2015, Mr. Berger and Karl Armitage had conversations about the sale of a kilogram of cocaine. The price was approximately $57,000. The police observed Mr. Berger attend at Mr. Armitage's residence that day.
[4] On May 23rd, 2015, Mr. Berger and Mr. Armitage again discussed the sale of cocaine. The sale was to take place on May 25th, 2015.
[5] On May 24th, 2015, Mr. Berger confirmed the meeting for the following day.
[6] On May 25th, 2015, the police watched Mr. Berger arrive at Mr. Armitage's address. They saw him come out of Mr. Armitage's residence an hour and a half later, carrying a weighted plastic shopping bag.
[7] Half an hour later, the police stopped Mr. Berger's vehicle. They searched it. They found a plastic shopping bag containing $56,240 in Canadian currency.
[8] The police found 511 grams of cocaine in the possession of persons who were stopped leaving Mr. Armitage's address. They found another 525 grams of cocaine inside the residence.
[9] Mr. Berger specifically acknowledges being a member of a conspiracy to traffic cocaine.
The Circumstances of Mr. Berger
[10] Mr. Berger is 36 years old. He is a first offender. He is engaged to be married. He has one son from a previous relationship.
[11] At the time of the offence, Mr. Berger suffered from a serious drug addiction. His behaviour had become of such concern to his fiancée, who was then his girlfriend, that she left the relationship.
[12] Following his arrest, Mr. Berger was released on bail to live with his sister and her spouse. He realized that he needed to address his addiction. He attended Narcotics Anonymous, Alcoholics Anonymous, and his own doctor for counselling. He subjected himself to regular urinalysis. A psychologist determined that he suffers from ADHD for which he takes medication. He participated in the Let's Talk Program. He was able to achieve sobriety, and to extricate himself from people in the drug trade.
[13] Mr. Berger's ex-girlfriend returned to him after his release from custody. With the support of both her parents, her mother became Mr. Berger's surety, and he moved into the family's home in York Region.
[14] Mr. Berger is a talented construction worker. He assisted his fiancée's parents with renovations to their home. He and a friend of his fiancée started a contracting business together.
[15] The business employs a group of young men, who work under Mr. Berger's supervision on renovation projects, lawn maintenance, and snow removal. Mr. Berger is described as a hard worker, who has put his heart and soul into the business. It is said to be thriving.
[16] After his release on bail, Mr. Berger re-connected with his son. He sees his child regularly, and participates in activities with him, including as a volunteer trainer with the boy's hockey team. He is described as a loving and involved father.
[17] Mr. Berger has been on bail for some two and a half years. Initially he was bound by a house arrest condition. That was eventually loosened so that he could work. He has been bound by a curfew condition for over a year. He has abided by all conditions of his bail.
[18] He has the support of his fiancée and her parents, who describe him as having taken positive steps to turn his life around.
The Positions of the Parties
[19] On behalf of the federal Crown, Ms. Healey submits that Mr. Berger should be sentenced to a penitentiary term of four to five years. She seeks a DNA order, a s. 109 order, a forfeiture order, and the victim surcharge. She emphasizes the large quantity of cocaine involved in the conspiracy. She fairly acknowledges that had the case gone to trial, it would have been apparent that the police breached Mr. Berger's s. 10(b) Charter rights, that he pleaded guilty nonetheless, and that he has made rehabilitative efforts.
[20] On behalf of Mr. Berger, Ms. Rozier seeks a sentence of three years in the penitentiary, with no reduction for his time on release on strict bail conditions or his four days in custody before his release. She takes no position on the ancillary orders requested. She acknowledges the seriousness of Mr. Berger's offence. She emphasizes, however, the impact of the breach of his Charter rights on the strength of the Crown's case as a whole, and that Mr. Berger pleaded guilty nonetheless. While on bail, he worked hard to effect the sea-change in his life, and to win the support of established members of the community, including his fiancée's family. He has built a life to go to on his release from penitentiary.
The Principles of Sentencing
[21] The objectives of sentencing long recognized at common law have been codified in s. 718 of the Criminal Code. They are the denunciation of unlawful conduct, deterrence, both general and specific, the separation of the offender from society where necessary, rehabilitation, reparation for harm done to the victims or the community, and promotion of a sense of responsibility in offenders and acknowledgment of the harm done.
[22] Additionally, s. 10(1) of the Controlled Drugs and Substances Act states that the fundamental purpose of any sentence for a designated substance offence is to contribute to respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, treatment, and acknowledgment of the harm done to victims and the community.
[23] Section 718.1 of the Code provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances. It also requires that a sentence be similar to those imposed on similar offenders in similar circumstances, that the combined duration of consecutive sentences not be unduly long, that an offender not be deprived of liberty if less restrictive sanctions may be appropriate, and that all available sanctions other than imprisonment that are reasonable in the circumstances be considered.
[24] In the case of conspiracy to traffic in cocaine, the primary objectives of sentencing are denunciation, and general and specific deterrence. But, rehabilitation cannot be overlooked where the individual is a first offender. Indeed, the Controlled Drugs and Substances Act recognizes that it is to be encouraged.
Analysis
[25] There can be no doubt that cocaine is a dangerous and insidious drug. The large quantity involved in this case is an aggravating factor. So too is the obvious commercial nature of the illegal activity.
[26] I agree with counsel that a penitentiary sentence is warranted.
[27] There are, however, important mitigating factors. Mr. Berger pleaded guilty, which is a sign of his remorse and willingness to accept responsibility for his wrongdoing. He is a first offender. At the time of his offence, he was in the throes of drug addiction. Following his release on bail, he acknowledged that addiction, and took impressive steps to address it. He demonstrated insight into his offending behaviour.
[28] Mr. Berger made a concerted effort to turn his life around in other respects as well. He re‑connected with his son. He re-established a healthy relationship with the woman who is now his fiancée. He built a successful business, of which he is an integral part. He won the support and respect of his fiancée's parents. He put himself in a position where he has a positive future ahead of him on his release from jail.
[29] I also take into account that Mr. Berger pleaded guilty, even though a breach of his Charter rights would have been made out at trial, with potential consequences to the strength of the Crown's case. This is an important consideration which, combined with Mr. Berger's impressive rehabilitative steps, makes this case somewhat unique.
[30] Sentencing is not an exact science. The determination of the sentence that is just and appropriate in a given case is, in the words of the Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64 at paragraph 58, "a highly individualized exercise that goes beyond a purely mathematical calculation." The gravity of the offence, the offender's degree of responsibility, the specific circumstances of the case, and the circumstances of the offender all must be taken into account by the sentencing judge. The Supreme Court of Canada also indicated that where sentencing ranges are identified, they are primarily guidelines, and not hard and fast rules. They are not straitjackets to the exercise of the sentencing judge's discretion.
[31] In the circumstances of this case, I am prepared to exercise my discretion to impose a sentence that falls below the range identified by Crown counsel. I do so not to diminish the gravity of the offence, but because of the unique combination of Mr. Berger's guilty plea notwithstanding violation of an important Charter right, and his impressive rehabilitative efforts since his arrest, which efforts should be encouraged in the interest of maintaining a just, peaceful and safe society. I emphasize that the sentence I impose is particular to the facts of this case.
Conclusion
[32] Mr. Berger, please stand. I sentence you to three years in the penitentiary. I make a s. 109(2)(a) weapons prohibition order for 10 years, a s. 109(2)(b) order for life, a DNA order and a forfeiture order as requested by Crown counsel. The victim surcharge of $200.00 is imposed, with four years to pay. You may be seated.
THE COURT: Is there anything that needs to be clarified, Mr. Ghosh, Ms. Rozier?
MR. GHOSH: Nothing further from the Crown. I do have the forfeiture order. I'm handing up to Your Honour two copies.
THE COURT: Yes. I have endorsed:
Mr. Berger is sentenced to three years in the penitentiary. There is a s. 109(2)(a) and a s. 109(2)(b) order for 10 years and life, a DNA order, a forfeiture order, and victim surcharge of $200.00 that is payable within four years.
A copy of my reasons from today I suspect will be ordered by Corrections and they will be available to the penitentiary authorities to assist them.
MS. ROZIER: Yes, and perhaps, Your Honour, if we could have the Agreed Statement of Facts also go to Corrections for that same purpose.
THE COURT: That and I think there were two letters on file.
MS. ROZIER: Yes.
THE COURT: Actually that reminds me, I kept the exhibits in my chambers. So that will all go today to Corrections.
MS. ROZIER: Yes, thank you, Your Honour.
MR. GHOSH: And the remaining counts please if they could be withdrawn.
THE COURT: Yes. All remaining counts withdrawn at the request of the Crown.
Mr. GHOSH: Thank you.
THE COURT: Certainly, if it's of any help, I'm prepared to add that I recommend consideration for early release.
MS. ROZIER: Yes.
THE COURT: I don't know to what extent that will help, but I will endorse that on the Indictment if Mr. Ghosh has no objection.
MR. GHOSH: No objection.
THE COURT: And also on the Warrant of Remand, we can put that. I will add, "I recommend Mr. Berger be considered for early release."
CERTIFICATE OF TRANSCRIPT
EVIDENCE ACT, subsection 5(2)
I, Lynn Carrière, Authorized Court Transcriptionist, ACT ID 2366775200, certify that this document is a true and accurate transcription of the recording of R. v. Marcus Berger in the Superior Court of Justice held at Newmarket, Ontario, taken from Recording No. 402_20171129_085647_10_FUERSTM, which has been certified in Form 1.
November 19, 2018 Date Lynn Carrière
* This certification does not apply to the Reasons for Sentence which were judicially edited.
Transcript Ordered: November 7, 2018
Transcript Completed: November 19, 2018
Approved by Fuerst R.S.J.: November 29, 2018