Supreme Court

R. v. McMillan, 2002 NWTSC 89
Date: 20030107
Docket: S-1-CR2002000105

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

IN THE MATTER OF:


HER MAJESTY THE QUEEN


- vs. -


DANIEL EDWARD McMILLAN


Transcript of the Oral Reasons for Sentence by The Honourable Justice J.Z. Vertes, at Yellowknife in the Northwest Territories, on December 19th A.D., 2002.


APPEARANCES:

Ms. S. Bond:   Counsel for the Crown

Ms. M. Engley:   Counsel for the Accused


Charge under s. 5(2) Controlled Drugs and Substances Act


THE COURT:   The accused has pleaded guilty to a charge of possession of cocaine for the purpose of trafficking.

The facts indicate that the accused travelled from Edmonton to Yellowknife and when he was arrested in Yellowknife, he was found to be in possession of approximately ten ounces of cocaine. The cocaine was packaged into one-gram packages, and I am told that the total value of the cocaine, if sold at the gram level, would be approximately $39,000.

Mr. McMillan readily admitted his involvement or his role as a courier. He stated that the cocaine had been turned over to him by some people that he had been put in contact with by some acquaintances for the specific purpose of transporting it to Yellowknife. He also indicated that he expected to receive some sort of payment for delivering the cocaine to Yellowknife.

There are obviously in this case, as in every other case, a mix of mitigating and aggravating factors.

Among the mitigating factors are the accused's guilty plea although, to be frank, some guilty pleas are worth more than others. It seems quite evident to me that the accused was confronted with a pretty cut and dry situation before him and maybe a guilty

[Page 1]

plea is the best way to try and cut his losses. But, in any event, I do give consideration to the guilty plea. I always think it is a mitigating factor. Whether it shows remorse or not in any particular case, I cannot say but it at least shows that the individual offender is willing to stand up and take responsibility for what he did. So I give the accused credit for that.

The other major mitigating factor in this case is the accused's young age. He turned 18 just a few months ago. Ordinarily when the Court is confronted with a relatively young person, the Court places great emphasis on the prospects of reformation and rehabilitation, tries to exercise as much restraint as reasonably possible in the circumstances, in the hope that the young person will realize the error of his ways and take steps to correct them.

That is a very general statement. There are some types of cases however, and drug trafficking cases are one of those, where notwithstanding the young age of the offender, nor indeed whether the offender has a good background, certain guidelines have been set for sentencing.

Among those guidelines is the overwhelming need to deter this offender and others from the pursuit of what is a crass, commercial enterprise, a commercial enterprise that is done for profit and

[Page 2]

that is done at the expense of the health and well-being of the wider population. For those reasons, it is extremely rare for trafficking related offences to be punished by anything other than significant periods of incarceration.

In this particular case in any event, we do not have a young person with a spotless background.

He was convicted in Youth Court in 1999, he was convicted in Youth Court in 2000, and he was convicted in Youth Court in 2001. And now it's 2002, and he has graduated to Adult Court and he is going to face the rigors of an adult sentence. And whether he knows what he is getting into or not, I think it may turn out to be quite a shock to his system and I hope that he will learn from that because he is still at least young enough that he has the better part of his life ahead of him and it is still, in my view, not too late for him to turn himself around once he finishes serving this sentence.

So his record is an aggravating factor and so is the fact that this product that he was transporting from Edmonton to Yellowknife was clearly intended to be part of a larger commercial scheme, intended for street-level sales, and certainly was a relatively significant amount of product.

Having considered all of the circumstances,

[Page 3]

including the accused's unusual request that he in fact be sentenced to a term of imprisonment in the federal penitentiary so he could serve it closer to home, I have concluded that indeed a term in excess of two years is required. I must say that notwithstanding his request, I would have imposed somewhat of a similar sentence in any event.

Is there anything that you wish to say, Mr. McMillan?

THE ACCUSED:  No, thank you.

THE COURT:   Very well. The sentence of this Court is that you serve a term of imprisonment of 30 months. I will make no further disposition. There will be no Victims of Crime fine surcharge.

Is there anything else that you require, Ms. Bond?

MS. BOND:   Your Honour, I believe the firearm prohibition is actually mandatory under Section 109 dealing with drug trafficking offences so I would ask that order be imposed.

THE COURT:   What is the mandatory period, is it ten years as well?

MS. BOND:   It is ten years, sir, yes.

THE COURT:   There will be an order prohibiting this accused from having in his possession any firearm or explosives for a period of ten years from the date of his release.

[Page 4]

MS. BOND:   And I would ask as well, sir, for an order for the destruction of exhibits after the appeal period has expired.

THE COURT:   Very well, you will have that order as well.

MS. BOND:   Thank you, sir.

THE COURT:   Ms. Engley, is there anything else?

MS. ENGLEY:   No, sir.

THE COURT:   Very well. Thank you for your submissions, counsel, we will adjourn.

(AT WHICH TIME THE ORAL REASONS FOR SENTENCE CONCLUDED)


Certified pursuant to Rule 723 of the Supreme Court Rules.

[Page 5]