Supreme Court
Decision Information
Abstract: Transcript of the reasons for sentence
Decision Content
R. v. Desjarlais, 2007 NWTSC 23 S-1-CR-2006-000044
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN
- v -
TOM DESJARLAIS
__________________________________________________________
Transcript of the Reasons for Sentence delivered by The
Honourable Justice J.E. Richard, sitting in Yellowknife,
in the Northwest Territories, on the 12th day of March,
A.D. 2007.
__________________________________________________________
APPEARANCES:
Mr. S. Hinkley,
(for Ms. S. Tkatch): Counsel for the Crown
Ms. K. Payne
(for Mr. G. Boyd): Counsel for the Accused
(Charge under s. 5(2) of the Controlled Drugs and
Substances Act)
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1 THE COURT: The offender before the Court
2 to be sentenced today is Tom Desjarlais, and he
3 has pleaded guilty to possession of cocaine for
4 the purposes of trafficking, contrary to Section
5 5(2) of the Controlled Drugs and Substances Act.
6 This offence carries a maximum sentence of life
7 imprisonment, and so it is considered by those
8 who make the laws in this country to be a serious
9 offence.
10 In the Province of Alberta, for many years a
11 sentence of three years' imprisonment has been
12 considered the starting point for judges when
13 determining the appropriate sentence for
14 offenders involved in cocaine trafficking on more
15 than a minimal scale. Both counsel in this case
16 have referred to the Rahime group of cases in
17 that regard.
18 The illegal trafficking in cocaine has
19 caused huge social problems in our community in
20 the past several years. In 2005 the RCMP
21 conducted a major investigation into the
22 commercial trafficking of cocaine in Yellowknife,
23 culminating in the arrest of several people in
24 October 2005 and many charges under the
25 Controlled Drugs and Substances Act, and many of
26 those matters are still before the courts. This
27 major RCMP investigation has been referred to as
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1 Project Gunship in the cases that have come
2 before the courts, including the present case.
3 Counsel on this sentencing hearing have
4 described Tom Desjarlais, or his role in the
5 commercial trafficking enterprise that was
6 uncovered by Project Gunship as that of a minor
7 player, and I suppose, in any commercial
8 enterprise, there are major players and minor
9 players. However, the fact remains that Tom
10 Desjarlais was a player, that he had his part in
11 the enterprise and others had their part, and in
12 this way, the commercial enterprise flourished,
13 with those involved in cocaine trafficking for
14 profit preying upon vulnerable people addicted to
15 cocaine and crack cocaine with the resulting
16 devastation on the social life of our community.
17 We know this because of the details and the
18 circumstances of cases that have come before the
19 Court in the past few years.
20 Mr. Desjarlais pleads guilty to being in
21 possession of crack cocaine for the purpose of
22 trafficking on October 13th, 2005, here in
23 Yellowknife. At that time, an RCMP team was in
24 the course of executing a search warrant at the
25 apartment of one of their primary targets in
26 Project Gunship. While the police were there,
27 Mr. Desjarlais appeared and knocked at the door.
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1 The police invited him in and detained him in
2 connection with their continuing cocaine
3 trafficking investigation. He was given his
4 Charter warnings and then, at the police request,
5 he emptied his pockets. He had on his person 21
6 separate one-gram pieces of crack cocaine. He
7 also had on his person approximately $2,000 in
8 cash that was wrapped by elastics in two distinct
9 bundles. On this sentencing hearing,
10 Mr. Desjarlais concedes that this cash was
11 offence-related.
12 It is the Crown's allegation, admitted by
13 the offender, that he was holding this crack
14 cocaine and this money for another person who was
15 involved in the trafficking enterprise.
16 The court file indicates that after several
17 appearances in Territorial Court, Mr. Desjarlais
18 elected trial by judge and jury and requested a
19 preliminary hearing in Territorial Court. That
20 preliminary hearing was set for a date in July
21 2006. On the scheduled date, Mr. Desjarlais
22 waived his right to a preliminary hearing and he
23 was committed for trial in this court. In August
24 and September 2006, Mr. Desjarlais attended by
25 counsel in this court and indicated that he
26 wished to have a trial in this court, a trial by
27 judge alone. The trial was set for a date in
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1 January 2007, and on that date, Mr. Desjarlais
2 attended and advised that he wished to plead
3 guilty to the charge of possession of cocaine for
4 the purpose of trafficking.
5 I recite this brief history of this court
6 file as it simply cannot be said that
7 Mr. Desjarlais' guilty plea is an early guilty
8 plea or a plea of guilty at the earliest
9 reasonable opportunity.
10 I note in one of the character references
11 that has been submitted to the Court that there
12 is an indication that Mr. Desjarlais sought a
13 delay in these court proceedings for important
14 family reasons, and that is fine; however, one
15 cannot have it both ways - one is certainly
16 entitled to rely on the presumption of innocence
17 and request a full preliminary hearing and a
18 trial in the Supreme Court and contest the
19 legality of the arrest and the seizure or the
20 search of one's person, but one cannot at the
21 same time be heard to say I have pleaded guilty
22 to the charge against me and acknowledged
23 responsibility for my wrongdoing at the earliest
24 reasonable opportunity and I would like that
25 taken into consideration in the determination of
26 sentence.
27 In any event, Mr. Desjarlais has pleaded
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1 guilty to the charge and now accepts
2 responsibility for his conduct and states through
3 his counsel that he is glad that this court
4 proceeding is coming to a conclusion and that he
5 is now ready to face the consequences of his
6 actions.
7 As a judge, I have often said that
8 sentencing is the most difficult of a judge's
9 responsibilities, and this case certainly
10 confirms that view once again.
11 One of the main factors in this case, this
12 sentencing decision, is Tom Desjarlais' previous
13 good character. He has no criminal record. He
14 is 63 years old. He has been a well-respected
15 member of this community for more than 30 years.
16 He has a loving and supportive family. He has
17 worked diligently and successfully in his chosen
18 fields of carpentry and construction and has held
19 supervisory positions. At the time of his
20 arrest, he had been employed for a number of
21 years as the building superintendent or the
22 property maintenance manager in the apartment
23 complex where he was arrested on October 13th,
24 2005. All of those people who wrote letters of
25 reference on his behalf are of the view that his
26 involvement in cocaine trafficking is completely
27 out of character.
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1 It is to Tom Desjarlais' credit that people
2 such as Mr. and Mr. Friesen and Bishop Sperry and
3 Don Briggs and Frank Becker and others speak so
4 highly of him.
5 However, this sentencing decision is not
6 just about Tom Desjarlais; it is also about the
7 community. This is not a victimless crime.
8 Cocaine trafficking has had a devastating
9 effect on the citizens of this community in
10 recent years, whether they are addicts, family
11 members or dependents of addicts, recreational
12 users, victims of violence, or just innocent
13 property owners. I am going to repeat again what
14 has been said in other recent cases in this
15 courtroom:
16 The illegal trade in cocaine and
17 crack cocaine in Yellowknife has
18 had a devastating effect on the
19 people and on the social life of
20 our community. We know this
21 because of the many cases that
22 come before the courts where we
23 see the snowball effect of the
24 commission of crimes in this
25 community. We see thefts,
26 B and E's, assaults, domestic
27 violence, and we have seen
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1 homocides, all related to cocaine
2 addiction. We have seen broken
3 families. We have seen destroyed
4 lives.
5 It has been said many times in
6 this courtroom that the illegal
7 cocaine trade is like a plague
8 which has infested the social
9 fabric of our community. Those
10 who are involved in the supply
11 and sale and trafficking of
12 cocaine are like vultures or
13 predators who are preying upon
14 those weak members of the
15 community who are addicted to
16 this drug. The traffickers are
17 doing this presumably for profit,
18 for money. They apparently have
19 no scruples about preying upon
20 vulnerable people. For this
21 reason alone, they ought to be
22 punished. They are doing so even
23 though there is a risk that they
24 will end up in jail for a
25 substantial period of time.
26 The courts of this jurisdiction have long
27 taken the position that those who are convicted
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1 for their involvement in cocaine trafficking can
2 expect to receive a meaningful jail term. This
3 has been felt to be necessary with a view to
4 deterrence and, also, to denounce the continuing
5 harm that is done to victims and to this
6 community.
7 About one year ago in this courtroom, the
8 Court was required to impose sentence in a murder
9 case, a horrific crime that shocked the entire
10 community. One of the circumstances of that case
11 was that on the day that he committed the murder,
12 the offender had been using crack cocaine.
13 There was another case in recent years where
14 four young men committed a so-called home
15 invasion here in Yellowknife in which they
16 unlawfully entered residential premises and
17 terrorized the occupants and stole from them.
18 The four young men were using crack cocaine both
19 before and after the robbery and committed the
20 robbery to finance their cocaine use.
21 Yet another case comes to mind, that of an
22 offender who was, like Tom Desjarlais, a mature
23 family-man who had a busy career in the
24 construction field and who succumbed to an
25 addiction for crack cocaine, and who, as a
26 result, turned to a life of theft and fraud to
27 finance his addiction and lost his wife, his
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1 family, his house, his job, and who ended up
2 going to jail.
3 I mention these cases merely to illustrate
4 the point that cocaine trafficking is not a
5 victimless crime. Quite the contrary.
6 In making a decision on an appropriate
7 sentence in each individual case, the Court is
8 bound by the law. Parliament has stated in the
9 Criminal Code that the fundamental purpose of
10 sentence is to contribute to respect for the law
11 and the maintenance of a peaceful and safe
12 community. The courts are instructed to impose
13 sentences that have certain objectives such as
14 deterrence, denunciation, and an acknowledgment
15 of the harm done to victims and to the community.
16 Any sentence that is imposed must be
17 proportionate to the gravity or the seriousness
18 of the crime and the degree of responsibility of
19 the offender. And another important sentencing
20 principle that is relevant here is parity. That
21 is, a sentence ought to be similar to sentences
22 that have been imposed on similar offenders who
23 have committed similar crimes. I say that parity
24 is relevant here because, sadly, the courts of
25 this jurisdiction have had to sentence other
26 offenders for their involvement in the
27 trafficking of cocaine and crack cocaine.
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1 When I consider all of the circumstances of
2 this case, including the previous good character
3 of this offender and his guilty plea, and the
4 seriousness of the offence, the prevalence of the
5 illegal cocaine trade in the community and the
6 related criminal activity, the important
7 objectives of denunciation and deterrence, and
8 the sentencing principles of proportionality and
9 parity in particular, I am of the view that an
10 appropriate sentence for Mr. Desjarlais is 12
11 months' imprisonment.
12 In this case I am asked to consider the
13 imposition of a conditional sentence pursuant to
14 the provisions of Section 742.1 of the Criminal
15 Code. Indeed, it is a joint submission from
16 Crown counsel and defence counsel.
17 The Criminal Code does give the Court a
18 discretion to allow an offender to serve his
19 sentence in the community under supervision, but
20 the Court can only do so if the Court is
21 satisfied that to do so (a) would not endanger
22 the safety of the community, and (b) would be
23 consistent with the fundamental purpose and
24 principles of sentencing set out in the Criminal
25 Code.
26 Counsel have referred me to the seminal
27 decision of the Supreme Court of Canada on
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1 conditional sentences, R. v. Proulx. In that
2 decision, it was confirmed that conditional
3 sentences are available for all offences, except
4 those that carry a minimum term of imprisonment.
5 The Court, in Proulx, also gave some guidance to
6 sentencing judges in the analysis to be
7 undertaken in the determination of whether a
8 conditional sentence is appropriate or
9 inappropriate in a given case. The Court stated
10 that a conditional sentence is particularly
11 suited to express the restorative objectives of
12 rehabilitation and reparation, but also confirmed
13 that a conditional sentence can, in some cases,
14 meet the objectives of denunciation and
15 deterrence.
16 This court has acknowledged in several
17 decisions that a conditional sentence, under
18 Section 742.1 of the Criminal Code, is an
19 available sentencing option for offenders
20 convicted of trafficking in cocaine or of
21 possession of cocaine for the purposes of
22 trafficking. I refer in particular to R. v.
23 Basson, R. v. Chamberlin, R. v. P.J.G., R. v.
24 Woledge, and R. v. Turner. Yet in each of those
25 cases, a conditional sentence was rejected by the
26 Court as inappropriate for specific reasons
27 stated in each individual case.
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1 Counsel on this sentencing hearing referred
2 the Court to a decision in R. v. Fraser where a
3 conditional sentence was imposed in a cocaine
4 case. Actually, on closer examination, the copy
5 of the case provided to the Court is incorrectly
6 titled R. v. Fraser. It was, in fact,
7 Mr. Fraser's co-accused, Ms. Mackeinzo, who was
8 given a conditional sentence, and her crime did
9 not involve trafficking in cocaine. Her crime
10 was simple possession of cocaine.
11 Although a joint submission from counsel in
12 a case is not binding on the sentencing judge, I
13 am required by law to give it serious
14 consideration. Previous decisions of this court
15 and of the Court of Appeal indicate that a
16 sentencing judge should depart from the joint
17 submission only if there are cogent reasons for
18 doing so; for example, if the sentence being
19 recommended is unfit or unreasonable or contrary
20 to public interest. I have therefore considered
21 carefully the notion of a conditional sentence in
22 this case and I have re-looked at the analysis
23 and the discussion in the Proulx decision by the
24 Supreme Court of Canada. In all of the
25 circumstances, I cannot say that a conditional
26 sentence served in the community, even with house
27 arrest for 12 or 18 or 24 months, can adequately
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1 express our community's condemnation of this
2 offender's conduct or the objectives of
3 denunciation and general deterrence.
4 The Proulx decision also speaks of a
5 situation where the punitive objectives and the
6 restorative objects are equally applicable to the
7 circumstances of a particular case. Upon careful
8 consideration, I cannot say that about the
9 circumstances of this case. In other words, in
10 my view, the more punitive objectives of
11 denunciation and deterrence weigh more heavily in
12 the circumstances of this case. I am also
13 concerned that a conditional sentence would not
14 be consistent with the sentencing principles of
15 proportionality and parity.
16 Mr. Desjarlais' role in the cocaine
17 trafficking enterprise is described as that of a
18 minor player. With respect, however, that is
19 merely a relative term. The existence of a
20 cocaine trafficking enterprise in this community
21 is a serious matter, and Mr. Desjarlais was part
22 of it.
23 Of the 21 pieces of crack cocaine that
24 Mr. Desjarlais had in his possession, one can ask
25 where was it destined? It is too simplistic to
26 say that he was simply going to give it back to
27 the other unnamed person who he was holding it
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1 for. Was it not eventually destined to come into
2 the hands, for example, of a young 22-year-old
3 man like the man, initials P.T., who was
4 sentenced last fall for selling one gram of crack
5 cocaine to an undercover police officer and who
6 was sentenced to 11 months in jail? Or was it
7 destined to come into the hands of a 20-year-old
8 like the 20-year-old, initials M.P., who, with
9 his three friends, used crack cocaine both before
10 and after the home invasion robbery in 2004 and
11 who, as a 20-year-old, was sentenced to three
12 years in penitentiary for the home invasion
13 robbery? Or was it destined to come into the
14 hands of someone else like the 28-year-old,
15 initials S.E., a man with a young family, who, in
16 2004, committed eight offences of theft, forgery,
17 and break and enter in order to finance his
18 addiction to crack cocaine and who was sentenced
19 to three years in penitentiary?
20 The gravity of the criminal activity that
21 Mr. Desjarlais participated in cannot be
22 minimized. It is naive to consider that his
23 limited role did not harm the community. It is
24 because of the participation of people like Tom
25 Desjarlais that the major players avoid detection
26 and continue their criminal activity and that the
27 cocaine trade is able to flourish in our
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1 community. Many lives have been ruined because
2 of the prevalence of cocaine in Yellowknife.
3 For these reasons, I conclude that to impose
4 a conditional sentence in the circumstances of
5 this case would not be consistent with the
6 fundamental purpose and principles of sentencing
7 as set out in the Criminal Code of Canada. I
8 find, accordingly, that a conditional sentence is
9 not available to this offender under Section
10 742.1 of the Criminal Code. I find that the
11 sentence proposed by counsel in their joint
12 submission to the Court is unreasonable and, with
13 respect, I decline to accept that recommendation.
14 I must take into account sentences imposed
15 in this jurisdiction upon other offenders for
16 trafficking in cocaine or for possession of
17 cocaine for the purposes of trafficking. Each
18 case is different. However, in the last few
19 years, most of those sentences have fallen in a
20 range between nine months and three and a half
21 years.
22 If not for Tom Desjarlais' previous good
23 character and his guilty plea, I would have been
24 inclined to impose a sentence in the range of the
25 starting-point sentence of three years referred
26 to by counsel in the Rahime group of cases in
27 Alberta. However, in this case, Tom Desjarlais'
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1 previous good character and his guilty plea serve
2 to mitigate the sentence that would otherwise be
3 imposed.
4 Please stand now, Mr. Desjarlais. Tom
5 Desjarlais, for the crime that you have
6 committed, possession of cocaine for the purpose
7 of tracking, contrary to Section 5(2) of the
8 Controlled Drugs and Substances Act, it is the
9 sentence of this court that you be imprisoned for
10 a period of 12 months. In addition, there will
11 be the mandatory firearms prohibition order,
12 pursuant to Section 109 of the Criminal Code, for
13 a period of ten years, and in the circumstances,
14 there will be no victim fine surcharge. You may
15 be seated.
16 Counsel, is there anything else with respect
17 to this case?
18 MR. HINKLEY: Sir, according to the notes
19 from prior counsel, I believe there was going to
20 be a request for forfeiture of the money seized
21 given the facts that are before the Court.
22 THE COURT: Any submission?
23 MS. PAYNE: No, sir.
24 THE COURT: Fine. The order for
25 forfeiture will go, upon the expiration of the
26 appeal period.
27 MR. HINKLEY: Thank you, Your Honour.
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1 THE COURT: We will close court.
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5 Certified Pursuant to Rule 723
of the Rules of Court
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Jane Romanowich, CSR(A), RPR
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