PROVINCIAL COURT OF NOVA SCOTIA
Citation: R. v. Donaldson, 2013 NSPC 41
Date: 20130604
Docket: 2540269
Registry: Pictou
Between:
Her Majesty the Queen
v.
Scott Wallace Donaldson
Judge: The Honourable Judge Del Atwood
Heard: 4 June 2013, in Pictou, Nova Scotia
Decision: 4 June 2013
Charge: On or about the 16th day of December, 2012, at or near New Glasgow, Nova Scotia did possess a substance included in Schedule 1 to wit: cocaine, for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act.
Counsel: Bronwyn Duffy, for the Federal Prosecution Service
Stephen Robertson, for the Scott Wallace Donaldson
By the Court:
[1] The Court has for sentencing Scott Wallace Donaldson. Mr. Donaldson is before the Court in relation to a single charge of possession of cocaine for the purpose of trafficking, contrary to sub-section 5(2) of the Controlled Drugs and Substances Act. It is an indictable offence under the Act. Paragraph 5(3)(a) prescribes a maximum potential penalty of life imprisonment; however, given the circumstances of the offence, there is no mandatory minimum penalty, as none of the minimum-penalty provisions that came into effect 6 November 2012 in virtue of SI/2012-48 applies here.
[2] The mitigating factors are Mr. Donaldson’s early guilty plea, the high level of remorse that he demonstrated to the author of the presentence report and, indeed, has demonstrated here in Court today. Further, it is clear to the Court from the presentence report that Mr. Donaldson worked steadily as a fisher, right from his youth until 1995, when he suffered a disabling injury.
[3] Mr. Donaldson does have a prior record that is referred to in the appendix to the presentence report; however, it is very remote and unrelated and obviously the Court applies the gap principle in assessing the weight to be assigned to that record. In my view, the prior record does not operate as an aggravating factor, because it is unrelated and remote in time.
[4] The aggravating factors, that is to say, the factors that make the charge more serious, would include the fact that this was a Schedule I substance. The substance involved was cocaine. It is well known to the Court, from numerous sentencing hearings involving other accused individuals, that cocaine is a highly addictive controlled substance. It is implicated directly in property and violent crime in the community, as drug dealers stake out territory and users of the drug steal and rob in order to support their addictions.
[5] Additionally, the Court is aware that, whereas a self-sufficient cannabis dealer who operates a local grow-op might find himself situated at the top of a very small pyramid, a dealer in cocaine feeds into a very expansive web. Cocaine is typically imported into the country. It is synthesized through a very extensive process. It is distributed through multiple layers of traffickers, and its presence in the community has a significant impact on community safety and the Court is certainly well aware of that.
[6] I apply the principles that were set out by the British Columbia Court of Appeal in R. v. Prasad 2006 BCCA 470 at para. 12 and R. v. Gibbon 2006 BCCA 219 at paras. 21 and 26: I am able to take into account the prevalence of crime in the community and I am well aware from sentencing hearings that are conducted in this Court every day that hard drugs of this nature are implicated directly in property and violent crime in Pictou County.
[7] I apply the principles of sentencing that have been expressed consistently by our Court of Appeal in decisions such as R. v. Byers [1989] N.S.J., 168, R. v. Butt 2010 NSCA 56, R. v. Jamieson 2011 NSCA 122, and R. v. Knickle 2009 NSCA 59. In those cases, the Court of Appeal stated that significant periods of federal incarceration ought to be imposed in cases involving trafficking or possession for the purpose of trafficking in cocaine. The flexible benchmark starts out at two years in a penitentiary.
[8] Having said that, the Court certainly recognizes that there is a joint submission before the Court. Joint submissions negotiated by counsel who are aware of the strengths and weaknesses of the case ought to be accorded considerable deference. That was underscored by the Court of Appeal in R. v. MacIvor 2003 NSCA 60 at paras. 31-33.
[9] As well, the Court certainly recognizes that, in extenuating circumstances, although the principles of general denunciation and deterrence are never trumped by principles of rehabilitation, even the important prominence of denunciation and deterrence might be counterbalanced by an appropriate recognition of the need for rehabilitation. Furthermore, recognizing the primary principle of proportionality, sentences of less than two years have been upheld by our Court of Appeal as in the recent decision out of the Court of Appeal in R. v. Howell 2013 NSCA 67.
[10] The offence committed by Mr. Donaldson occurred after the 6 November 2012 in-force date of the conditional-sentence amendments to the Criminal Code contained in the Safe Streets and Communities Act . Therefore, this offence is conditional-sentence ineligible in virtue of paras. 742.1(d) and (e) of the Criminal Code.
[11] Having said all that, I am of the view that the joint submission before the Court does take into account the appropriate principles of sentencing, and recognizes that Mr. Donaldson was more of an accommodator, one who did not possess a sophisticated level of wile in the drug trade. The recommendation is within the range and the Court intends to give effect to the joint recommendation.
[12] Therefore, Mr. Donaldson, in relation to case #2540269, the Court sentences you to a period of federal incarceration of two (2) years. As indicated, that will be served in a federal penitentiary. There will be no victim surcharge amount, given the duration of the sentence and your limited means. The Court will order a secondary-designated-offence DNA collection order and, Mrs. Fraser, I would ask that the DNA order include specific reference to cocaine.
[13] In addition, this is an offence that attracts a mandatory prohibition order under section 109 of the Criminal Code and the Court will order and direct, Mr. Donaldson, that you be prohibited from possessing any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance beginning today and ending 10 years plus 2 years, so a total of twelve years from today’s date. As well, the Court will order and direct that you be prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.
[14] The Court declines to impose a victim surcharge amount as the Court agrees with the submission of the federal prosecutor that a victim surcharge amount in these circumstances would work an undue hardship.
[15] The Court will sign a section 16 forfeiture once it has been drawn up and presented to the Court.
[16] I will order and direct that a copy of the presentence report be attached to the warrant of committal so as to ensure that Mr. Donaldson will receive appropriate medical attention in the course of classification and thereafter.
[17] Mr. Donaldson, I’ll ask you to accompany the sheriffs please, sir.
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J.P.C.