Court File and Parties

Court File No.: 18-G5479 Date: 25/01/2023

Ontario Superior Court of Justice

Between: His Majesty The King And: Jacques Trudel

Counsel: Genevieve McInnes, for the Crown Natasha Calvinho, for Jacques Trudel

Heard: November 30, 2022

Reasons for Sentence

Justice Sally Gomery

[1] On March 30, 2022, I found Jacques Trudel guilty of possession of over two kilograms of methamphetamine for the purpose of drug trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19; possession of a controlled substance, hydromorphone, contrary to s. 4(1) of the CDSA; and possession of the proceeds of crime, contrary to s. 354(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46.

[2] Sentencing submissions were heard on November 30, 2022. The time has now come to sentence Mr. Trudel.

General Sentencing Principles

[3] A sentence “must be proportionate to the gravity of the offence and the degree or responsibility of the offender”; s. 718.1. It must reflect respect for the law and maintenance of a just, peaceful, and safe society. The goals of sentencing include general and specific deterrence, denunciation of the criminal activity and the rehabilitation of the offender.

[4] In imposing a sentence, I must consider any aggravating or mitigating factors. A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances, unless there are compelling reasons to depart from the parity principle. I must exercise restraint in imposing imprisonment, insofar as it is possible considering the nature of the offence and the circumstances of the offender.

Circumstances of the Offences

[5] The circumstances of the offences are set out at length in the March 30, 2022, verdict, reported at R. v. Trudel, 2022 ONSC 1969. Mr. Trudel and two associates, Christopher Francoeur and Guy Trudel, were arrested on October 9, 2018, after a car and foot chase by police. Two plastic tubs containing over two kilograms of crystal methamphetamine had been thrown from the car’s rear window during the chase. The three men were jointly charged with possession of methamphetamine for the purpose of trafficking. All three pleaded not guilty at the beginning of the trial. Midway through the trial, Mr. Francoeur changed his plea to guilty and was sentenced by another judge. Guy Trudel’s charges were resolved in conjunction with another, unrelated charge. This left Mr. Trudel as the only remaining defendant in this prosecution.

[6] After hearing the evidence, I concluded that Mr. Trudel had been in possession of the two tubs of methamphetamine before they were tossed from the car. Based on expert evidence about the implication of the quantity of drugs, I found him guilty of possession for the purpose of trafficking.

[7] On arrest, Mr. Trudel had $5,660 in cash as well as a small quantity of Dilaudid (hydromorphone) pills on his person. This was the basis for conviction on the other two charges.

Mr. Trudel’s Circumstances

[8] I received a pre-sentence report prepared by Julie Flaro, a probation officer, which attached a copy of Mr. Trudel’s criminal record. Ms. Flaro indicated that Mr. Trudel co-operated by attending an interview and providing her with information. She also spoke to his treating physician, who wrote two brief letters filed by the defence.

[9] Mr. Trudel is 66 years old. He currently lives with his sister. He has Human Immunodeficiency Virus (HIV) and Hepatitis C, for which he receives ongoing treatment. As well, his physician has diagnosed him with osteoporosis, alcohol and drug addiction, and acid reflux. Mr. Trudel told Ms. Flaro that he also suffers from anxiety and depression.

[10] Mr. Trudel grew up in Ottawa. He is the oldest of seven siblings. He is unmarried. Mr. Trudel has a daughter, now 35 years old. He has no contact with his daughter, or any of his siblings except for the sister with whom he now lives.

[11] Mr. Trudel had a difficult childhood. His family was poor. His mother was an alcoholic and his father introduced him to marijuana and encouraged him to commit crimes so that he could buy drugs. Mr. Trudel left home when he was 14 years old after finishing grade seven. He has not pursued any other education or training. He has received a disability pension for over 25 years and, since turning 65, has also begun receiving an Old Age Security pension and benefits under the Canada Pension Plan.

[12] Mr. Trudel has a 50-year-long criminal record stretching back to 1973. He has 32 prior convictions for a range of offences including drug possession, drug trafficking, and conspiracy to traffic. He has also been convicted of violent offences such as assault, aggravated assault, assault with a weapon, and robbery. He has been sentenced to time in a federal penitentiary on five occasions. Prior to this conviction, Mr. Trudel was last convicted of drug offences in 2009, for which he was sentenced to four years and eight months in jail, taking into account 273 days spent in pre-sentence custody.

[13] Mr. Trudel told Ms. Flaro that he started drinking and using marijuana as an adolescent. By the age of 17, he was using harder drugs. Since then, he has been sober and drug free only when he has been in jail.

[14] While most recently in custody, Mr. Trudel completed the national Substance Abuse program in January 2011, and in 2013 he completed a methadone program. Mr. Trudel has, unfortunately, relapsed since his release. He told Ms. Flaro that he currently drinks 26 ounces of hard liquor a day and is addicted to Dilaudid.

[15] Mr. Trudel has not sought any addiction treatment since his October 2018 arrest. He has been living with his sister in a rural area since his release after his arrest. Given the conditions of his release, she has had to accompany him whenever he leaves the house. At the sentencing hearing, he told the court that he did not attend Alcoholics Anonymous or any other addiction treatment because he did not want to impose on her.

[16] Even accepting this as a partial explanation for Mr. Trudel’s failure to pursue treatment over the past four years, he has not presented any concrete plans for any treatment options going forward. He told Ms. Flaro that he would not undergo methadone treatment again given the side effects.

[17] In the past, Mr. Trudel has repeatedly violated supervision orders and failed to comply with terms of conditional release. His bail has been revoked seven times, although not in the context of the current charges. Mr. Trudel admitted to Ms. Flaro that many family members, and all his friends and acquaintances, have criminal records. Many of them also have substance abuse problems.

[18] In a letter dated April 2022, Dr. Maheen Saeed reported that Mr. Trudel has complied with medical advice since becoming his patient in 2017. He said that Mr. Trudel had clostridium difficile the last time he was in jail and expressed the view that Mr. Trudel would be at risk of falling very sick if he were to get Covid-19 while incarcerated.

[19] According to Mr. Trudel, he has trafficked drugs both to support his addiction and as a source of income. Although he has not expressed any remorse for the current offences, he told Ms. Flaro that he regretted getting involved in crime and drugs at a young age. He said that he was “done” with crime because he is too old and sick to return to jail.

The Nature of the Offences

[20] At trial, the Crown presented expert evidence about the devastating effect of methamphetamine on those who are addicted to it. The 2024.7 grams of methamphetamine seized by police in this case would supply a heavy user for almost three years. A kilogram would sell for between $12,000 and $18,000.

[21] Wholesale traffickers sell drugs to mid-level traffickers, who in turn supply street dealers. The packaging of the drugs seized in this case, in two separate tubs each weighing about one kilo, is standard packaging for wholesale methamphetamine. The purchase of a kilogram of methamphetamine is typically associated with wholesale trafficking. For the purpose of sentencing, however, the Crown conceded that it was impossible to determine how Mr. Trudel intended to sell the two kilograms of methamphetamine.

The Parties’ Positions on Sentencing

[22] The Crown took the position that I should sentence Mr. Trudel to a penitentiary sentence within the upper end of the range of appropriate sentences for a mid-level trafficker. In its submission, this range is seven to nine years.

[23] The Crown proposed a seven year sentence for trafficking, six months concurrent for possession of proceeds of crime, and 30 days concurrent for simple possession, resulting in a global sentence of seven years minus a pre-trial custody credit of 45 days. The Crown also sought various ancillary orders.

[24] The defence proposed a conditional sentence of two years less a day plus three years probation. Alternatively, if I conclude that a penitentiary sentence is warranted, defence counsel says that an appropriate sentence would be two to three years, taking into account the more than four years that Mr. Trudel has lived under strict terms of house arrest since his pre-trial release on November 6, 2018.

The Range of Sentences for the Offences

[25] Methamphetamine is a controlled substance listed on Schedule I to the Controlled Drugs and Substances Act. A person convicted of possession of methamphetamine for the purpose of trafficking is guilty of an indictable offence and liable to imprisonment for life under s. 5(3) of the CDSA.

[26] In R. v. Lynch, 2022 ONCA 109, the Ontario Court of Appeal reaffirmed that the range of sentences for a mid-level cocaine trafficker is five to eight years; see also R. v. Bryan, 2011 ONCA 273, which involved slightly more than a pound of cocaine. A sentence of five to eight years has likewise been found appropriate in trafficking cases involving methamphetamine, given its highly addictive and dangerous nature. As Spies J. observed, methamphetamine is “at least as harmful to the user as cocaine”, and trafficking in this drug should attract the same range of penalty: see R. v. Copeland, at paras. 21 and 38. In R. v. Mac, 2016 ONCA 379, 355 C.R.R. (2d) 123, the Court of Appeal upheld a seven-year sentence in a case involving two kilograms of methamphetamine.

[27] Under s. 4(1) of the CDSA, a person found guilty of possession of a Schedule II substance such as hydromorphone is guilty of an indictable offence and liable to imprisonment for a term of up to five years less a day. Under s. 355(b)(i) of the Criminal Code, a person in possession of the proceeds of crime with a value of less than $5,000 is guilty of an indictable offence and may be sentenced to a term of not more than two years in jail. I have not been directed to any authority suggesting that it would be appropriate, in the circumstances of this case, to impose sentences for these offences consecutive to the sentence imposed for trafficking.

Aggravating and Mitigating Factors

[28] I find the following aggravating factors in this case:

• The quantity of methamphetamine involved;
• Mr. Trudel’s principal role in the drug trafficking venture, based on the evidence at trial;
• Mr. Trudel’s lengthy criminal record. Defence counsel notes that he was not convicted of any offences between 2009 and 2018, a nine-year gap. [^1] He was, however, in jail for several years during this period.

[29] Mitigating factors are as follows:

• Mr. Trudel was arrested on October 8, 2018, and released on bail 30 days later, on November 6, 2018. His interim release was subject to strict conditions, with no exception for employment. He has been allowed to leave the house only with his surety (his sister), or to attend court and for medical emergencies. Mr. Trudel has not been found to have breached the release conditions, although he acknowledged that he has been consuming hydromorphone, which is contrary to the conditions because he does not have a prescription it.
• Mr. Trudel is 65 years old, and has HIV and Hepatitis C, two serious, chronic conditions for which he requires ongoing treatment.

Other Relevant Factors

[30] Mr. Trudel pleaded not guilty and has expressed no remorse for the offences. These are not aggravating factors but could be relevant to his prospects for rehabilitation.

[31] There is no evidence, nor is it alleged, that Mr. Trudel was armed on October 8, 2018. This is not a mitigating factor, but it does decrease the gravity of the offences.

[32] Mr. Trudel is not addicted to methamphetamine. He admitted to Ms. Flaro that trafficking was a means of supporting his addiction and a source of income, and that he is addicted to the rush that comes from committing a crime. Given the quantity of methamphetamine in this case and its value, this was a commercial enterprise. In these circumstances I do not find that Mr. Trudel’s addiction to alcohol and hydromorphone reduces his moral blameworthiness for the offences, even though these addictions may be relevant to sentencing.

Should a Custodial Sentence Be Imposed?

[33] After he pleaded guilty midway through the trial to the trafficking charge, Mr. Trudel’s associate, Christopher Francoeur, was given a two-year conditional sentence. Defence counsel in this case relies on the parity principle to argue that Mr. Trudel, too, should get a conditional sentence.

[34] The parity principle does not dictate that offenders who participate in the same criminal scheme should automatically receive the same punishment. R. v. Downes, 2015 ONCA 674, involved an enterprise to smuggle two kilograms of cocaine into Canada. Four men were charged. They each pleaded guilty and were sentenced based on joint recommendations by the Crown and defence. The ringleader in the scheme was sentenced to ten years, Downes was sentenced to six years, and the other two offenders, who played subordinate roles, received conditional sentences. On appeal, Downes argued that his longer sentence offended the parity principle. The Court of Appeal disagreed, citing from its earlier decision in R. v. Courtney, 2012 ONCA 478, 294 O.A.C. 346, at para. 4:

The parity principle does not require that all co-accused be subject to the same sentence, or even that they be treated similarly for sentencing purposes. On the contrary, disparate sentences for different offenders, for the same offence, do not violate the parity principle so long as they are warranted by all the circumstances.

[35] The Court of Appeal likewise held, in R. v. Maone, 2020 ONCA 461, that it may be appropriate to impose different sentences on co-accuseds convicted of the same offences if they have different degrees of moral culpability.

[36] In her reasons for sentencing Mr. Francoeur, London-Weinstein J. recognized that this sentence fell outside of the sentencing range for drug trafficking, given the quantity of drugs involved, the deadliness of methamphetamines, and the destruction they wreak on people’s lives. She found, however, that there was a valid rationale for departing from the usual range, based on two factors: (1) Mr. Francoeur’s lesser role in the drug trafficking scheme; and (2) his remarkable strides, while on bail, in remaining sober and seeking treatment for his drug addiction, the impetus for his involvement in the drug trafficking.

[37] Defence counsel argues that these factors do not meaningfully distinguish Mr. Francoeur’s situation from that of Mr. Trudel. She points out that there is no evidence that Mr. Trudel instructed Mr. Francoeur to throw the drugs out of the car and argues that Mr. Francoeur did not necessarily have a much more junior role than Mr. Trudel. She contends that both men are victims of their drug addictions, and that Mr. Trudel presented a valid reason for not obtaining treatment while on bail.

[38] While ably presented, I do not accept these arguments.

[39] Mr. Trudel was generally observed to be in charge as he and the two other men went about their business on October 9, 2018. He controlled the contents of the car, moving items from one part of it to another and digging around in the car’s trunk. It was Mr. Trudel who checked into the motel in Toronto and who directed Guy Trudel to evade the police when they tried to apprehend them. Mr. Trudel was observed driving the same car to Kingston and back to Ottawa on a previous occasion, with Mr. Francoeur in the passenger seat. Whether or not Mr. Francoeur took an independent decision to throw the tubs of drugs from the car, the evidence does not indicate that he had any leadership role in the enterprise as a whole.

[40] With respect to the addiction issue, unlike Mr. Francoeur, Mr. Trudel failed to obtain any treatment while on bail and did not present any concrete proposal for doing so going forward. His counsel referred to a program in Vancouver but did not produce any record of any inquiries about it by Mr. Trudel or on his behalf. London-Weinstein J. found, when sentencing Mr. Francoeur, that his addiction played a significant role in his decision to traffic drugs. I have found otherwise in Mr. Trudel’s case.

[41] There are other factors that distinguish Mr. Francoeur’s situation from that of Mr. Trudel. While on bail, Mr. Francoeur was employed for three years at a local community center and has managed a peer support program for persons with drug addictions on a volunteer basis. While he, like Mr. Trudel, has a criminal record, it is not as long. Finally, Mr. Francoeur pleaded guilty, albeit only after the Crown had presented part of its case.

[42] Taking all these distinguishing factors into account, I conclude that the parity principle does not require that Mr. Trudel receive the same sentence as Mr. Francoeur. I find that a conditional sentence for Mr Trudel would be a radical departure from the Court of Appeal’s consistent sentencing guidelines in drug trafficking cases like this one and that there is no valid rationale for such a departure.

[43] Mr. Trudel’s repeated violations of terms of his release furthermore make him a poor candidate for conditional release. I recognize that he did not get into any trouble for some years prior to his 2018 arrest. He has, however, acknowledged that he has not complied with the terms of his current release, in that he continues to acquire and take hydromorphone.

[44] The defence also argues for a conditional sentence based on Dr. Saeed’s opinion that “prison is an unsafe environment for [Mr.] Trudel considering we are still in the middle of a pandemic”. In R. v. Morgan, 2020 ONCA 279, at paras. 9-11, the Court of Appeal considered the impact of the COVID-19 pandemic in determining a fit sentence. Citing R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, at para. 48 and 56, the Court held that the collateral consequences of incarceration on an offender are relevant. They cannot, however, be used to reduce a sentence to a point that it no longer reflects the offender’s moral blameworthiness. See also R. v. Premji, 2021 ONCA 721, at paras. 9-10.

[45] I would add that there is no evidence before me that Mr. Trudel will be unable to obtain treatment for his chronic health conditions in jail, or that the jail system will not be able to safeguard Mr. Trudel humanely from the risk of contracting COVID-19.

[46] I conclude that a custodial sentence is required in this case, given the nature of the offence and the applicable aggravating factors. The sentence proposed by the defence would be unfit.

What is an Appropriate Sentence?

[47] As already mentioned, the quantity of drugs being trafficked, and the role played by the offender in a trafficking scheme, are important factors in determining where a sentence should fall within the range. In R. v. Morgan, 2021 ONCA 812, the Court upheld a five-year sentence in a case involving half a kilogram of cocaine. In R. v. Nero, 2008 ONCA 622, the Court held that a sentencing judge erred in imposing a global five-year sentence in a case involving trafficking of two kilograms of cocaine and theft. It substituted a nine-year sentence. In Mac, the Ontario Court of Appeal upheld a seven-year sentence for a conviction of conspiracy to traffic two kilograms of methamphetamine. The facts of that case parallel the facts in this case.

[48] Based on the guidelines in these cases, I agree with the Crown that Mr. Trudel should receive a sentence at the upper end of five to eight years. The question is whether there are other circumstances that render such a sentence inappropriate or excessive.

[49] The defence argues that Mr. Trudel’s age and health, as well as his stated regret about his past life choices, show that he can be rehabilitated. I agree that the sentence should not be so severe as to exclude the possibility that Mr. Trudel will abandon his past lifestyle. I see no compelling evidence, however, that Mr. Trudel is a better candidate for rehabilitation now than the other times he has been sentenced for drug trafficking offences. He has not done anything to seek out prosocial activities or acquaintances while on release. He has not sought treatment for his addiction. He has mentioned the Vancouver program but has not presented any concrete plan to attend it.

[50] In Premji, at paras. 1-4, the Court of Appeal affirmed that an offender’s advanced age was a mitigating factor, citing the Supreme Court of Canada’s reasons in R. v. C.A.M., [1996] 1 S.C.R. 500, at para. 74:

[I]n the process of determining a just and appropriate fixed-term sentence of imprisonment, the sentencing judge should be mindful of the age of the offender in applying the relevant principles of sentencing. After a certain point, the utilitarian and normative goals of sentencing will eventually begin to exhaust themselves once a contemplated sentence starts to surpass any reasonable estimation of the offender's remaining natural life span. Accordingly, in exercising his or her specialized discretion under the Code, a sentencing judge should generally refrain from imposing a fixed-term sentence which so greatly exceeds an offender's expected remaining life span that the traditional goals of sentencing, even general deterrence and denunciation, have all but depleted their functional value.

[51] I do not have any evidence about Mr. Trudel’s estimated life span, so I must rely on caselaw for guidance on this issue. In Premji, an offender convicted of heroin trafficking was 75 years old. The Court of Appeal reduced his sentence from 13.5 years to 9 years in consideration of medical evidence showing a serious deterioration in his health after sentencing. The Court characterized the case as highly unusual and exceptional, and cautioned that the reduction in sentence in that case should not be taken as signaling a change in the Court’s approach to sentencing in similar drug cases.

[52] Mr. Trudel is nine years younger than the offender in Premji. Even taking into consideration his serious chronic health conditions, I do not have any basis to conclude that the range of sentences proposed by the Crown would likely result in him spending the rest of his life in prison, particularly in light of the parole system. I conclude that the circumstances in this case are not so exceptional as to merit a substantial reduction in the sentence that would otherwise be appropriate based on Mr. Trudel’s age.

[53] Finally, the defence argues that any custodial sentence must be substantially reduced to reflect that Mr. Trudel has been on strict house arrest for almost four years. It contends that his sentence should be reduced by up to 26 months to reflect this.

[54] In R. v. Downes (2006), 79 O.R. (3d) 321 (C.A.), at para. 33, the Court of Appeal held that time spent on stringent pre-sentence bail conditions, especially house arrest, is a relevant mitigating factor. The weight to be given to pre-sentence conditions depends on the length of time spent on bail under house arrest; the stringency of the conditions; their impact on the offender’s liberty; and the offender’s ability to carry on normal relationships, employment, and other activities: see Downes, at para. 37, and R. v. Place, 2020 ONCA 546, at para. 20. The impact of pre-sentence conditions is within the discretion of the trial judge and there is no formula that applies: Downes, at para. 37.

[55] In R. v. Joseph, 2020 ONCA 733, 153 O.R. (3d) 145, at para. 108, the Court of Appeal cautioned sentencing judges against treating house arrest as a credit for time served:

The propriety of treating "stringent bail conditions, especially house arrest", as a sentencing consideration was affirmed in R. v. Downes (2006), …, at para. 33. Although it is not uncommon to speak of providing "credit" for stringent bail conditions, "pre-trial bail is conceptually a mitigating factor" in assessing a fit sentence: R. v. Panday (2007), 2007 ONCA 598, … [at para. 28]. Mitigation is given because stringent bail conditions can be punitive and therefore "akin" to custody: Downes, at para. 29.

[56] In Joseph, the Court affirmed the criteria to be considered in assessing the weight of the mitigation set out in Downes and Place.

[57] Mr. Trudel has spent a significant amount of time under strict house arrest. This inevitably had an impact on his freedom and his ability to carry on relationships and normal activities. I conclude, however, that reducing Mr. Trudel’s sentence as proposed by the defence would result in a period of incarceration well below an acceptable range given the nature of the offences and Mr. Trudel’s moral culpability. I will therefore take the time he has spent under house arrest as a factor in sentencing him, having regard to its impact on him, without reference to a mathematical formula.

Disposition

[58] Mr. Trudel, could you please stand.

[59] Given your lengthy record and the circumstances of this case, I could sentence you to up to eight years in jail. I am, however, giving you a somewhat shorter sentence, to take fully into account your health, your age, and the more than four years you have spent under house arrest.

[60] On the drug trafficking conviction, I sentence you to a term of incarceration for six and a half years. Your sentence for this offence is reduced by 45 days, based on the 30 days you spent in custody after you were arrested. This leaves a sentence of six years, four months, and 14 days.

[61] I find the Crown’s proposed sentences on the other two counts to be appropriate, in the circumstances. I accordingly sentence you to six months in custody for possessing proceeds of crime, to be served concurrently with the trafficking sentence, and one month for simple possession of hydromorphone, also to be served concurrently.

[62] I prohibit you from ever possessing any weapons, under s. 109 of the Criminal Code; and I order you to provide a new DNA sample. I will also be making an order regarding the disposition of the money and other items seized from you when you were arrested, based on terms to be jointly proposed by the Crown and the defence after the expiry of the appeal period.

Justice Sally Gomery

Released: January 25, 2023

[^1]: Mr. Trudel was convicted of another offence in 2010, but this related to an earlier charge.