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COURT FILE NO.: 15-56 DATE: 2017/01/19 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – LUC WHITE and ROBERT MARTINEAU Accused

Counsel: Jessica Legrand, counsel for the Crown Neha Chugh, counsel for the Accused Luc White

HEARD: June 27, 2016

LAFRANCE-CARDINAL, J.

Reasons for Judgment

1On June 27th, 2016 Mr. Luc White plead guilty to counts number 2 and number 3 on the Indictment dated June 17, 2015. He plead guilty to having conspired with others to commit the indictable offence of unlawful possession or sale of tobacco products that were not stamped and of conspiring with others to commit the indictable offence of possession of property knowing that all or part of it was obtained or derived directly or indirectly as a result of the commission of an offence in accordance with the provisions of the Excise Act and contrary to section 465(1) (c) of the Criminal Code of Canada.

2Mr. White plead guilty to having conspired with others to having possessed 220 cases of cigarettes that were not stamped in accordance with the provisions of section 32(1) of the Excise Act. All in all, Mr. White through surveillance would have been involved in nine different occurrences between the 13th day of February, 2013 and the 11th day of June, 2013.

3The Federal Prosecutor is seeking a period of custody of twelve months. The defence counsel is asking that I impose a ninety day intermittent sentence on count number two and a conditional jail sentence of nine months on count number three followed by probation.

Aggravating Factors

4The aggravating factors can be summarized as follows:

a) Mr. White was not just involved in one transaction but a total of nine transactions where he was either driving the boat or acting as a spotter;

b) Smuggling of cigarettes is prevalent in our community. Many of the Ontario Court Judges in this jurisdiction have made strong statements to the effect that general deterrence is such that we need to impose periods of custody in order to eradicate this sort of behaviour; R. vs. Lamoureux, Justice MacPhee, January 9th, 2014; R. vs. Arquette, Justice Adams, May 2012.

c) In his pre-sentence report, the offender minimized his role in the operation. He indicates that he had suspicions about the purpose of the boat repairs however that he was not involved in the smuggling. His counsel describes it as wilful blindness.

d) The crime is motivated by profit.

Mitigating Factors

5The mitigating factors are that:

a) Mr. White has plead guilty, acknowledging guilt, saving the tax payers many weeks of trial;

b) Mr. White has a criminal record but it is dated and, most importantly, he has been subject to serious release conditions since 2013 with absolutely no breaches;

c) The pre-sentence report indicates that Mr. White has community support. He has the support of his aunt, his mother, sister and a male cousin with whom he spends a lot of time. Mr. White is on Ontario Works. It is very difficult for him to find employment as he has a criminal record. However, he assists senior citizens with odd jobs for which he gets thanked by a meal, food, or a little money.

(d) The pre-sentence report describes him as having a grade 10 education, that he had an alcohol problem many years ago but has been able to reduce his alcohol consumption in the last 15 years. He has indicated that he has been 15 years sober but his cousin indicates that he does take one drink once in a while socially but that most of the time he takes a non-alcoholic beverage in social gatherings.

(e) Mr. White did suffer from depression and had thoughts of suicide but was able to seek and obtain assistance for his depression.

(f) At the present time he is not on any medication, nor does he rely on any type of non-prescribed drugs.

(g) The individuals closest to him describe him as being honest and reliable, jovial and always ready to lend the hand. He apparently is a very calm individual who avoids confrontation. They also state that the offender regrets the current offence, that it was brought upon by financial issues, but that the offender recognizes the offence was a mistake and that it was no way to resolve any financial crisis he may have been suffering (as set out in Exhibit 2 & 3).

Sentencing Principles

6The Crown contends that a sentence of 12 months is warranted under s. 718.2 (b) of the Criminal Code which we commonly call “parity of sentences” being persons who have been convicted of similar offences under similar circumstances should get similar sentences. The conspiracy before the Court was labelled “O’Titan Project” by the police investigators. The Crown has filed Exhibit 4 which is an outline of all of the individuals that were charged in “Project O’Titan”, their involvement in the conspiracy and the sentence received. In reviewing that exhibit we see that the sentences imposed for similar involvement, range from 12 months jail, to 5 or 8 months conditional jail, to 90 days intermittent. The sentences suggested by both Crown and defense are within the range of sentences imposed for the said project.

7S. 718.2(d) and (e) also specify:

“(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.”

8The question becomes whether a conditional jail sentence would satisfy the fundamental purposes and principles of sentencing as set out in s. 718 to 718.2. In R. v. Proulx 2000 SCC 5, [2000] 1 S.C.R. 61 para. 100 Lamer C.J. emphasizes the principle:

“Thus, a conditional sentence can achieve both punitive and restorative objectives. To the extent that both punitive and restorative objectives can be achieved in a given case, a conditional sentence is likely a better sanction than incarceration. Where the need for punishment is particularly pressing, and there is little opportunity to achieve any restorative objectives, incarceration will likely be the more attractive sanction. However, even where restorative objectives cannot be readily satisfied, a conditional sentence will be preferable to incarceration in cases where a conditional sentence can achieve the objectives of denunciation and deterrence as effectively as incarceration. This follows from the principle of restraint in ss. 718.2 (d) and (e), which militates in favour of alternatives to incarceration where appropriate in the circumstances.”

9In sentencing Mr. White I note that the statutory pre-conditions for a conditional jail sentence are met, that Mr. White has been subject to serious release conditions since 2013 with no breaches. I also note that other similar offenders have been given a conditional jail sentence. I therefore come to the conclusion that a term of imprisonment served in the community is a fit and proper sentence for count #3. I am cognizant of the fact that the conditions of the conditional jail sentence must be serious and onerous enough to reinforce the objectives of denunciation and deterrence as set out in other such cases in the Ontario Court of Justice in this jurisdiction.

Sentence Imposed

10Mr. White on count #2, you will receive a sentence of 90 days intermittent to be served from Friday at 8 p.m. to Sunday at 2 p.m. You will sign the necessary paperwork permitting you not to be processed today and attend on Friday, January 27th, 2017 to commence your sentence. You will be on probation for the time it takes you to serve this intermittent sentence, you are to report to the Ottawa jail in a sober state, not having consumed any alcohol or non-prescribed drugs and continue reporting every Friday at 8 p.m. until Sunday at 2 p.m. until your sentence is served.

11On count #3, I will impose a conditional jail sentence of nine months concurrent. The first five months you will be subject to the statutory provisions and to strict house arrest except for medical emergencies, attend work or any other duties or events as pre-arranged and approved of by your supervisor. You will also be given four hours to attend to personal matters which will be on Wednesdays from noon to 4 p.m. Following the first five months you will no longer be subject to house arrest but rather a curfew from 9 p.m. to 7 a.m. I will not be imposing probation as I believe the strict conditions followed since 2013 has proven to the Court that this gentleman has changed his ways and no longer needs surveillance after the completion of the conditional jail sentence.

12Mr. Crown, I assume the other charges are marked withdrawn?

R. v White and Martineau, 2017 ONSC 413

Case Summary

Reasons for Judgment

Aggravating Factors