CITATION: R. v. Voisin, 2017 ONSC 871
COURT FILE NO.: 16-484
DATE: 2017-02-03
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Peter Barnes, for the Crown
- and -
ERRIC VOISIN
Jason Gilbert, for the Defendant
Defendant
HEARD: November 17, 2016 and February 3, 2017 at Pembroke
REASONS FOR SENTENCE
T.D. RAY J.
1. Overview:
[1] The defendant pleaded guilty to three counts: possession for the purpose of trafficking Cocaine, possession for the purpose of trafficking Amphetamines, and breach of condition of recognizance. He is a first offender and regular member of the Canadian Forces.
2. The Facts:
(a) Circumstances of the offence
[2] On April 21, 2016, a warrant was executed by the Ontario Provincial Police for the defendant’s residence. A female was present and was seen receiving text messages that said “clean everything and now wipe the board”. The police found 15 grams of cocaine plus 1,003 methamphetamine pills and 19 grams of methamphetamine powder. They also found a large white board, a working digital scale with cocaine residue, and a debt list. Upstairs they found one morphine pill and electric brass knuckles.
[3] On May 12, 2016, following a blood test by his employer, CF, he was found to have cocaine in his system. At the time he had been arrested and released on his own recognizance with a condition that he not consume drugs.
(b) Circumstances of the offender
[4] A presentence report has been received. In the lengthy and detailed report he is described as a 26 year old Corporal in the Canadian Forces at Garrison Petawawa. His trade is motor mechanic. He earns $65,000 per annum, but is in poor financial shape with a high debt level. He has suffered from drug and alcohol addictions virtually all of his life, and is currently supported weekly by an addictions counsellor through Warrior Support Services at the base. He is also currently under the care of Dr. Bakish, psychiatrist at the base in dealing with the stress and anxiety from this matter before the courts. He has managed to control his cocaine addiction for the past several months but still abuses alcohol. His consumption is high. It has been recommended that he be enrolled in a residential program to deal with his addictions. As a result of these offences, he was placed on a military sanction ‘Counselling and Probation’ until the fall of this year. One he is sentenced, the CF will review the defendant’s file. According to the PSR that process might result in him being released from the military.
[5] He is the father of a 7 year old little girl, and in an on again/off again relationship with the mother who is supportive of the defendant.
[6] His early formative years was marked by enormous turmoil prompted by an angry violent father; and left home at an early age. He started with alcohol when he was 12-13 years old and by 17 was into binge drinking. His drug use started at age 13-14 with ecstasy and graduated to cocaine. He was a heavy user. He did not finish high school, and enrolled in the CF where he appears to have flourished.
[7] He acknowledges and takes responsibility for these offences.
[8] The probation supervisor recommends community supervision in addition to any other penalty, has listed what he considers to be appropriate recommendations. He referenced the possibility of a conditional sentence.
(c) Impact on the Victim and/or Community
[9] Drugs are a curse on any community, and victimize those least able to cope.
3. Legal Parameters:
[10] A conviction under s. 4(1) CDSA- possession carries a maximum penalty of 3 years. A conviction under s. 5(2) CDSA – trafficking carries a maximum penalty of life in prison subject to s. 10 CDSA considerations, while breach of recognizance s. 145 (3) C.C.C. provides for a maximum penalty of 2 years
4. Positions of Crown and Defence:
[11] The Crown’s position is that 6 to 9 months jail followed by a conditional sentence of one year, plus corollary orders is appropriate.
[12] The defendant seeks an order for pre-trial credit for time in custody at 1.5 in the amount of 27 days, plus two periods time under strict bail conditions of approximately three weeks and 6 months for which he seeks credit of 2 months. In addition he proposes 60 days jail to be served intermittently followed by a conditional sentence of 4 months.
5. Case Law:
[13] I was referred to R. v. Christiansen, 2016 ONSC 3820; R. v. Dias, 2016 OMCJ 500; R v. McGill, 2016 ONCJ 138; and R. v. Gauvin, 2014 ONSC 5704.
6. Mitigating and Aggravating Factors:
[14] Mitigating factors are to be found on a balance of probabilities whereas aggravating factors are to be considered on the reasonable doubt standard.
[15] The CDSA stipulates aggravating factors exist where there are weapons, use of threat or violence, and/or proximity to school grounds or public places. None of those factors are present
[16] Acceptance of responsibility as is the case here is a mitigating factor.
7. Principles of Sentencing:
[17] The law establishes a number of principles for the imposition of sentences. ( S. 718, C.C.C.) The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[18] Sentences should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. However, there must be not be a slavish adherence to avoiding disparity. Where there is a departure from the similarity, then the differences must be explained. (R v. Ipeelee, 2012 SCC 13, 2012 CarswellOnt 4375 para 79 (SCC))
[19] The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect the law and the maintenance of a just, peaceful and safe society by imposing justice sanctions that have one or more of the following objectives:
i. to denounce unlawful conduct;
ii. to deter the offender and other persons from committing offences:
iii. to separate offenders from society, where necessary;
iv. to assist in rehabilitating offenders;
v. to provide reparations for harm done to victims or community; and
vi. to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and the community.
[20] Denunciation and deterrence are the primary considerations because of the nature of the offence, to reflect society’s disapproval of drugs, and to deter others from engaging in this kind of criminal enterprise - drugs for profit. On the other hand where the motivation is to support an addiction rather than for profit, it is to be viewed through a different lens.
[21] The process of analysis requires that the offence first be placed in a category. Secondly, the range of sentences is identified for that category to referenced texts and judicial decisions. Lastly, the sentence is placed at the appropriate point according to all of the circumstances of the offence and the offender, having regard to the particular circumstances of the offender.
8. Reasons:
[22] The defendant is at a crossroads in his life. He has a young child and treasures being a father. He has a good job with the Canadian Forces where he is valued. He is only 26 years old and with no criminal record, but he has enormous addiction issues which, he is for the first time in his life trying to deal with. He has the support of his family and the CF, all of whom were in court today. Letters from family and friends are supportive. He has is being treated through therapy and a psychiatrist. They recommend a residential program.
[23] If I were to accept the Crowns submission of a lengthy jail term, he would likely lose his job. He would not receive treatment and when released would continue to have addictions; and would be unemployed. One could readily understand where he would turn in order to earn an income. He also would likely have lost his ability to spend time with his young daughter, and any meaningful relationships. The criminal justice system would likely become re-engaged again with consequences that would likely include time in a penitentiary with his new best friends.
[24] The defendant has had a very difficult life with addictions to drugs and alcohol from his early teens. This is his first offence. He accepts responsibility. These addictions will be his cross to bear for the rest of his life. He can choose to give up; or he can choose to take advantage of the opportunity to find a new path with the sentence that I am going to impose.
[25] I accept that the usual range of sentence for these offences, which are serious, is a penitentiary term in order to recognize the need for denunciation and deterrence. I also accept that I must craft a sentence that meets the needs of society that the defendant continue to contribute to this country as a valued member of the CF, that he be given an opportunity to find a different path forward than the law would otherwise mandate. A sentencing judge has the responsibility to ensure that a fit and proper sentence does not appear to slavishly follow ranges of sentences that focus only on the nature of the offence, but rather in a case like this give prominence to the individual needs of the defendant consistent with the expectations of society. I believe the following sentence appropriately balances these interests.
[26] The defendant is sentenced on Count 1 to 90 days which with credit for time served at one month, leaves a balance of 60 days to be served intermittently. I do not consider his time on bail after the breach charge to be available for credit.
[27] On Counts 2 and 3, I impose a conditional sentence of 12 months, following the sentence on Count 1, with the following conditions:
that he abstain from the use or possession of non-prescribed drugs;
that he reside at an address approved by the probation officer and not change the address without prior approval;
that he take whatever treatment for his addictions is recommended by the probation officer, including a residential treatment program if supported by his employer; and
that he maintain his employment.
9. Ancillary Orders:
[28] Firearms prohibition under s. 109 for ten years subject to the requirements of his duties with the CF.
[29] Forfeiture order of the seized drugs and cash of $1100.
[30] 6 months to pay the victim impact surcharge.
10. Final Decision
[31] Count #1- 60 days to be served intermittently.
[32] Counts #2 and #3- 12 month conditional sentence consecutive to count #1 with conditions noted.
Honourable Justice Timothy Ray
Released: February 3, 2017
CITATION: R. v. Voisin , 2017 ONSC 871
COURT FILE NO.: 16-484
DATE: 2017-02-03
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
ERRIC VOISIN
Defendant
REASONS FOR SENTENCE
Ray, J.
Released: February 3, 2017