Supreme Court

             R. v. Whalen, 2006 NWTSC 25              S-1-CR-2005000112



                 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES



                 IN THE MATTER OF:





                                HER MAJESTY THE QUEEN



                                        - v -



                                    JOHN-JOE WHALEN





             __________________________________________________________

             Transcript of the Reasons for Sentence delivered by The

             Honourable Justice J.Z. Vertes, sitting in Yellowknife, in

             the Northwest Territories, on the 16th day of May, A.D. 2006.

             __________________________________________________________



             APPEARANCES:

             Ms. S. Tkatch:                 Counsel for the Crown

             Mr. J. Brydon:                 Counsel for the Accused



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











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                THE COURT:              The accused was convicted of

                    simple possession of crack-cocaine.  Mr. Brydon

                    is correct that since the offence is simple

                    possession, sentencing has to be done within the

                    parameters of that offence.  But it is also true

                    that the particular circumstances have to be

                    taken into account.  One of those circumstances

                    is the fact that it was, for simple possession, a

                    fairly sizeable amount of crack-cocaine in

                    Mr. Whalen's possession.  The other circumstance

                    that has to be taken into account is his personal

                    history.

                         I may accept what he told me, that he had a

                    very bad crack-cocaine habit.  Mr. Brydon

                    characterizes him as an addict.  I am prepared to

                    accept that too.  But I note that Mr. Whalen is

                    not without a certain degree of self-reflection

                    and self-management.  He told me he went through


                    a treatment program before coming to Yellowknife

                    three years ago.  He said how he was aware of the

                    problems crack causing him.  I find it

                    interesting that he was able to hold down what he

                    said was a pretty lucrative job notwithstanding

                    his bad habit.  He is certainly aware enough of

                    his responsibilities because he told me about how

                    he is the father of two children and he sends

                    support payments to them.  So he is not some






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                    helpless individual out on the streets, unaware

                    of what he is doing, in the throes of some

                    uncontrollable urge.  And I hasten to add, there

                    was no evidence other than what he told me out of

                    his own mouth as to his bad crack habit.  Sounded

                    to me like he just liked getting high and getting

                    a rush from it.

                         What is the appropriate sentence in this

                    case for a 27-year-old man who obviously should

                    know better, who has had numerous previous

                    encounters with the criminal courts, has been

                    convicted numerous times, including for

                    possession of a controlled substance previously?

                    Is Mr. Whalen's personal deterrence to be given

                    emphasis?  Is it general deterrence that should

                    be given emphasis?  Or am I to be simply

                    concerned about his rehabilitation?  I suspect he

                    is astute enough to recognize that as he is

                    getting older, he is the only one that can

                    control what happens in his life.  But if someone

                    who has encountered the criminal courts before

                    and has been punished for it and then goes out

                    and engages in criminal activity again, then the

                    level of sympathy for that individual starts

                    decreasing.

                         Mr. Brydon is quite correct when he says

                    that oftentimes simply throwing someone in jail






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                    serves no good purpose.

                         We have in the spectrum of criminality, we

                    have individuals who end up in the criminal

                    courts because of social problems, personal

                    problems, mental health issues, and, yes,

                    addiction problems, who are more of a medical and

                    mental health issue than a criminal one.

                    Obviously concerns about rehabilitation should be

                    emphasized at that level.  Then we have at the

                    other extreme people who decide to make crime

                    their life and are quite prepared to take the

                    risks for it.  There, personal deterrence and

                    control become the most important factors.  And

                    then for a vast bulk of people, and I think

                    Mr. Whalen is part of that, they are capable of

                    carrying on a normal, productive life, but at

                    times, for one reason or another, whether it is

                    greed, whether it is emotional distraction,

                    whether it is a momentarily impulse, whether it

                    is just a lack of self-discipline, they encounter

                    problems with the criminal law.  But these people

                    ordinarily know better, and, in my opinion,

                    Mr. Whalen knew better.  And while certainly

                    simple possession of a drug is not anywhere as

                    serious as trafficking, the point is it is still

                    against the law.  And crack-cocaine, as

                    Mr. Whalen himself said, and I am sure as he will






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                    agree with me, is highly addictive, highly

                    corrosive to one's mental health and well being,

                    and hence it is treated more seriously.  And I

                    think, for both, aspects of personal deterrence,


                    and in these types of situations where personal

                    deterrence may in fact be effective, and, for

                    aspects of general deterrence for people like

                    Mr. Whalen, not the helpless, mentally ill,

                    street-level, homeless drug addict, but for

                    people like Mr. Whalen who are intelligent enough

                    to order their lives in a way that is productive

                    and healthy, for people like him, I think

                    deterrence has an effect.

                         Stand up, Mr. Whalen.  I sentence you to

                    serve a term of imprisonment of three months.  I

                    place you on probation for a period of one year

                    after your release.  And if I need to be

                    specific, I will be specific.  The probation can

                    be transferred to Ontario or wherever Mr. Whalen

                    is living at the time.  The terms of that

                    probation order are simply that you are to keep

                    the peace and be of good behaviour; you are to

                    maintain gainful employment; you are to report to

                    a probation officer as and when required; and you

                    are to undertake any drug rehabilitation program

                    that may be directed by your probation officer.

                    Do you understand?






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                THE ACCUSED:           Yes, sir.

                THE COURT:             You may have a seat.

                         The normal victim of crime surcharge will be

                    applied.

                         Is there anything else I neglected?

                    Ms. Tkatch?

                MS. TKATCH:            No, Your Honour.  Thank you.

                THE COURT:             Mr. Brydon?

                MR. BRYDON:            No thank you.

                THE COURT:             Thank you for your

                    submissions.

                         .................................





                                  Certified Pursuant to Rule 723
                                  of the Rules of Court





                                  Jane Romanowich, CSR(A), RPR
                                  Court Reporter






















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