Supreme Court

R. v. Fraser, 2006 NWTSC 55 S-1-CR-2006-000003
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN
- v -
MICHAEL ROBERT FRASER and
JULIE MACKEINZO
Transcript of the Reasons for Sentence (re: Michael Robert
Fraser) delivered by The Honourable Justice W. Darichuk, in
Yellowknife, in the Northwest Territories, on the 24th day
of October, A.D. 2006.
APPEARANCES:
Mr. J. MacFarlane: Counsel on behalf of the Crown
Mr. S. Shabala: Counsel on behalf of the Accused
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Charge under s.5(2) CDSA - Michael Fraser
Charge under s.4(1) x 2 CDSA - Julie Mackeinzo
1 THE COURT: Just prior to jury selection
2 for his trial, the accused, with the consent of
3 the Crown, entered a plea of guilty to a charge
4 of unlawfully possessing cocaine for the purpose
5 of trafficking, contrary to s.5(2) of the
6 Controlled Drugs and Substances Act.
7 A further count of possession of monies
8 obtained by crime was, with leave of the Court,
9 withdrawn.
10 Following re-election of the mode of trial,
11 the jury panel was discharged. Despite its
12 lateness his plea of guilty is nonetheless a
13 mitigating factor that must be duly considered
14 and assessed prior to imposition of sentence.
15 In his submission, the learned Crown
16 Attorney indicated that members of the R.C.M.P.
17 stopped a motor vehicle after it failed to signal
18 a left turn in this City. The accused, who was a
19 passenger in the front seat, was observed to be
20 holding a device between his legs known as a
21 "Bong". This device is used to smoke illicit
22 drugs.
23 Following a CPIC query, the accused was
24 arrested on an outstanding warrant for an unpaid
25 fine. The smoking device, as well as bundled and
26 unbundled cash totalling in excess of $3400
27 located during a cursory search of the person of
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1 the accused, was seized. As the accused
2 consented to an order of forfeiture, the subject
3 monies as well as all other drug paraphernalia is
4 forfeited.
5 Following the arrest of the accused, the
6 officer opened the passenger door and immediately
7 observed a clear plastic bag between the seat and
8 well of the door. This bag contained a chunk of
9 cocaine weighing 16.9 grams. Its value for
10 trafficking purposes was estimated to be at least
11 $1700, with one gram quantities selling for $100
12 constituting the usual sale.
13 Subsequent search warrants resulted in the
14 seizure of drug paraphernalia from the car and
15 residence of the accused and co-accused.
16 The accused, a resident of these
17 territories, is 53 years of age. He is an
18 aboriginal offender with a Grade 8 education.
19 There was a child born from his two year
20 relationship with the co-accused. This
21 relationship ended in December of last year. In
22 the past, he has been employed as a heavy
23 equipment operator.
24 The determination of a fit and proper
25 sentence for a specific offender and for a
26 specific offence is the most difficult of all
27 judicial tasks.
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1 The fundamental principle of sentencing is
2 set forth in s.718.1 of the Criminal Code of
3 Canada. It reads:
4 A sentence must be proportionate to
5 the gravity of the offence and the
6 degree of responsibility of the
7 offender.
8 In Regina v. Priest (1996), 110 C.C.C. (3d)
9 (Ont. C.A.) at 297-98, Rosenburg J.A. described
10 the proportionality requirement in this way:
11 The principle of proportionality is
12 rooted in notions of fairness and
13 justice. For the sentencing court
14 to do justice to the particular
15 offence, the sentence imposed must
16 reflect the seriousness of the
17 offence, the degree of culpability
18 of the offender, and the harm
19 occasioned by the offence. The
20 court must have regard to the
21 aggravating and mitigating factors
22 in the particular case. Careful
23 adherence to the proportionality
24 principle ensures that this offender
25 is not unjustly dealt with for the
26 sake of the common good.
27 As will be noted from s.718 of the Criminal
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1 Code of Canada, the purpose and objectives of
2 sentencing include,
3 - the denunciation of unlawful conduct,
4 - specific deterrence to deter the accused,
5 - general deterrence to deter others,
6 - and the rehabilitation of offenders.
7 For whatever purpose a particular sentence
8 is imposed, the sentence must be fit for the
9 specific offender and specific offence.
10 Bearing in mind the principle of
11 proportionality, the first subject is a
12 consideration of the seriousness of the offence.
13 The gravity of the offence of possession for the
14 purpose of trafficking is reflected in s.5(3) of
15 the Controlled Drugs and Substances Act. It
16 provides that every person who commits the
17 offence is liable to imprisonment for life.
18 Under s.10 of the Act, the specific purpose
19 of sentencing under this legislation, as well as
20 the circumstances to be taken into account, are
21 set forth. A previous conviction for a
22 designated substance offence is to be considered
23 as a relevant aggravating factor.
24 The accused is not a stranger to the courts.
25 His extensive record of convictions is simply
26 atrocious. His record of previous offences,
27 which takes two-and-a-half pages of Exhibit S1 to
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1 list, includes not one, but two designated
2 substance offences. Of particular concern is the
3 repetitiveness of criminal behaviour over the
4 last three decades and record for convictions of
5 violence. Aside from convictions for assault and
6 assault with a weapon, on three separate
7 occasions he has been sentenced to three years'
8 imprisonment for robbery.
9 The drug in this case is crack cocaine.
10 Particularly significant is the observation of
11 the learned Crown Attorney that there is in this
12 community a very serious cocaine problem. Given
13 the harmful effect of this drug, he submits that
14 the Court, through its sentence, should send a
15 message to the accused and to others in this
16 community that "involvement in the drug trade,
17 particularly on the commercial scale where
18 persons possessing drugs for sale, that that's
19 not going to be tolerated and that's going to be
20 dealt with in the harshest way."
21 Cocaine is a terribly addictive drug which
22 spawns derivative crime. Trafficking in crack
23 cocaine is a particularly serious crime, not only
24 because it preys on the addiction of others for
25 profit, but because of the incalculable damage
26 and devastating consequences on our society in
27 general, and addicted persons in particular.
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1 For obvious reasons, deterrence and
2 denunciation are the main principles that apply
3 in cases of trafficking in such a drug.
4 Learned counsel in this case have submitted
5 a joint recommendation that, given the length of
6 pre-trial custody, a sentence of one day would be
7 appropriate. The pre-trial custody of
8 ten-and-a-half months equates with a sentence of
9 imprisonment of 21 months.
10 It is only in rare and/or exceptional cases
11 that a Court will not favourably endorse a joint
12 recommendation.
13 This is such a case.
14 The cumulative effect of the totality of the
15 circumstances militates against such a sentence.
16 Given the need for a denunciatory and
17 deterrent sentence, the repetitiveness of
18 criminal behaviour on the part of the accused,
19 the number of crimes committed involving
20 violence, his prior convictions of a related
21 nature, the gravity of the offence, the quantity
22 and nature of the seized drug in the light of the
23 existing problem in the community, the minimum
24 term of imprisonment would attract a penitentiary
25 term of two years.
26 Given the pre-trial custody served, the
27 accused is sentenced to an additional term of
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1 three months. Pursuant to s.109 of the Criminal
2 Code, he is prohibited for life from possessing
3 any firearm, cross-bow, restricted weapon,
4 ammunition, and explosives.
5 The surtax is waived, and the requested
6 order concerning bodily substance samples for DNA
7 analysis is granted.
8 Anything further, gentlemen? Mr. Shabala?
9 MR. SHABALA: Nothing further, Your Honour.
10 Thank you very much.
11 THE COURT: Mr. MacFarlane.
12 MR. MacFARLANE: No, thank you, Your Honour.
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15 Certified to be a true and
accurate transcript pursuant
16 to Rule 723 and 724 of the
Supreme Court Rules of Court.
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19 Annette Wright, RPR, CSR(A)
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