IN THE SUPREME COURT OF NOVA SCOTIA
Citation: R. v. MacEachern, 2006 NSSC 339
Date: 20061004
Docket: 257351
Registry: Truro
Between:
Her Majesty The Queen
versus
Shawn Bernard MacEachern
Defendant
SENTENCE
Judge: The Honourable Chief Justice Joseph P. Kennedy
Heard: January 10, 2006, February 17, 2006, July 20, 2006
Sentence: October 4, 2006
Charge: Did unlawfully have in his possession, for the purpose of trafficking, not in excess of three kilograms of Cannabis Marihuana, a substance included in Schedule 11 of the Controlled Drugs and Substances Act, S.C. 1996, C.19, and did thereby commit an offence contrary to section 5(2) of the said Act.
Did unlawfully have in his possession, for the purpose of trafficking, cocaine, a substance included in Schedule 1 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, and did thereby commit an offence contrary to section 5(2) of the said Act.
Counsel: Mr. David Mahoney, Solicitor for the Defendant
Ms. Jill Nette, Crown Attorney
By the Court:
[1] Often one of the things that Judges do is try to understand the people, the human beings that come before them. There is a human being at the end of every one of these sentences. There are a lot of other people involved. They try to understand the thinking, the rationale. I would say to you Mr. MacEachern I wonder on that trip to Montreal, all the way to Montreal, all the way back, during the planning of the trip, during the transaction in Montreal, did you ever picture this day Mr. MacEachern. At the back of your mind somewhere was there a little voice saying, “I’m going to see the Judge, throw myself at the mercy of the Court”. Did you ever picture this day or did you think that you were going to be able to accomplish this with impunity, that there would not be consequences? There are consequences. There are consequences for everything that we do in life. Maybe not right away, maybe not immediate, maybe it takes years, sometimes virtually a life time but there are consequences. When we do good things there are good consequences. When we do bad things there are bad, almost always sooner or later, something bad happens in return. So picture the Judge. Do not let that be the reason why you do not do bad things. Do not do bad things because you want to be a positive member of our society. If it takes picturing the Judge to keep you on the straight and narrow then do that please. There is a time to pay the piper.
[2] This is an interesting case. Every situation that we deal with is different. Every case that has been cited to me is a specific situation where a Judge was trying to do the right thing, keeping in mind all of the various factors. Certainly I would expect and do expect that most of the people in this Court room would have me do whatever is absolutely in the best interest of Mr. MacEachern. Would have me feel mercy to Mr. MacEachern and I certainly understand that. I know that if I were in the circumstances of those people I would think exactly the same way.
[3] I have a bigger playing field than that. I have to consider a lot of things here. Primarily what I have to consider, there were two types of contraband brought into this jurisdiction by Mr. MacEachern, one was cocaine, the other was marihuana. Frankly, marihuana is bad but not devastating. Cocaine, on the other hand, has been described as a poison but poison does not sum it up. Poison is not sufficient to describe what cocaine has done to our society, to the people of Nova Scotia over the last twenty-five years. The ruined lives that we have had to witness, that I have had to hear described before me. The three o’clock in the morning service station robbery. The taxi driver shootings. The contract killings. The corner store holdups. Cocaine, the ever present constant cocaine, those 282 grams of cocaine that were coming in with Mr. MacEachern, what would have happened to that substance? What was the potential for that cocaine? What damage to lives and to people in this jurisdiction was that going to do? I have to think about that. I have to think about the people of the Province of Nova Scotia. Mr. MacEachern being one of them. The grandparents who have been before me having lost their homes through mortgages they took out late in life in order to allow their grandchildren to pay off drug debts, to keep people from inflicting harm upon the people they loved. That is the other thing about the cocaine trade. I want you to understand this, the people involved in it, even sometimes when it is at the basic, get killed. It is a bloody business. There is a lot of money in cocaine. There are agreements and there are arrangements and there are plans made. When things do not work out the way that people anticipated they cannot sue because the business is criminal. So they kill one another or they maim one another or they threaten one another’s children or they fire-bomb houses. That is what the cocaine business is all about. That is what I have to think about with this sentence. Mr. MacEachern was introducing that poison into this jurisdiction. He went to Montreal to get it. He testified on the stand that he did something stupid. Stupid is the least offensive word to describe it. It wasn’t as though it was something he did over ten minutes or twenty minutes or half an hour. He did something stupid all the way to Montreal and all the way back. These are the factors that I have to look at.
[4] Mr. MacEachern’s pre-sentence report is pretty good, especially for a cocaine mule and that is what you are Mr. MacEachern, you are a mule. The pre-sentence report is not so bad. Obviously he has people who care about him. He talked about the pressures he was under and tried to explain to this Court the inexplicable. He was trying to come up with money for Christmas. There are hundreds of thousands of people in this Province Mr. MacEachern who have trouble coming up with money for Christmas. There are thousands and thousands of people in this province under substantial financial pressure, month in and month out. People who get up every morning at six o’clock and go to work. People who are out there pounding the pavement looking for jobs. Those are not people who go to Montreal to get cocaine and bring it back here to be distributed to the children of this Province, they do not do that. That is very rare indeed. So money for Christmas does not cut it. Christmas is one day. Mr. MacEachern used that explanation and it may very well have been a rationalization on his part at the time. He has no significant priors. He has some dated theft and a breach. All dated, not narcotic related. There is no reason for me to believe, and there was absolutely no evidence, that he has prior to this circumstance been involved in this miserable business. I have to take that into consideration. There are people who are dependant upon Mr. MacEachern. That is something he should have been thinking about on the way to Montreal. What would happen to those people if he goes off to a Federal Institution. That is something that might have crossed his mind.
[5] He is employed and has no priors of significance and no subsequents. All in all he has about as good a pre-sentence report as one could anticipate given the nature of the offences. Counsel for Mr. MacEachern says that it is not likely that any Judge in this Province is going to see Mr. MacEachern back before the Courts in similar circumstances. The suggestion is that specific deterence is not a big factor in this. I believe that. I do not think that Mr. MacEachern is likely to be back here. I think he is sorry. His history is not such as to cause me to believe that he will be right back at it again. That is a factor.
[6] On the one hand, I have a good pre-sentence report and certainly not the worst offender that I have had before me. On the other hand, I have cocaine being brought into this Province, this Province that I am responsible for, to do damage to the people that I am responsible for.
[7] I have to take a look at deterrent. I have the case law well put before me by both counsel today. Counsel have done a good job in providing me with relevant case law in relation to sentencing in this matter. There are a number of things I can do. I do have an ability to exercise some discretion in relation to the matter. I also have sentenced in relation to matters of trafficking in cocaine many, many times in this Province and I have an interest in being consistent. What happens to Judges when they sentence in these matters is we get quoted. We get cited back to ourselves. We are all trying to accomplish the same thing, put an end to this stuff.
[8] The traditional sentence range with respect to first offenders of trafficking in cocaine in this Province has been between two to five years in the Federal Institutions. Commonly in my experience up in the area of three to four years. I refer to Chief Justice Lamer’s direction in relation to conditional sentencing from R. v. Proulx (2000), 140 C.C.C. (3d) 449. There have been situations where a conditional sentence has been considered sufficient to satisfy the prime objectives of denunciation and deterrence when it comes to trafficking in cocaine.
[9] Counsel on behalf of Mr. MacEachern has asked that this Court give a conditional sentence in relation to this matter and has cited the positives about Mr. MacEachern in the process of doing so. I have considered that. I have considered the possibility of conditional sentence. I am aware of the positives and I agree with counsel that specific deterrent does not seem to be a particular problem in relation to this individual before the Court. I refer to one of my decisions R. v. Boliver [2005] NSSC 221. In some ways a similar situation and in other ways different. Mr. Boliver had a prior record. He was on probation at the time he committed the offence. The offence was not, on the other hand, as significant as the offence that I am dealing with. At para. 6 I state:
... I am aware of R. v. Proulx (2000), 140 C.C.C. (3d) 449 in which the Chief Justice of this Country talked about conditional sentencing, when it was appropriate and when it might not be appropriate, and I quote from page 496, para 114 of that decision:
Where punitive objectives such as denunciation and deterrence are particularly pressing, such as cases in which there are aggravating circumstances, incarceration will generally be the preferable sanction. This may be so notwithstanding the fact that restorative goals might be achieved by a conditional sentence.
I said in Boliver and I will repeat here that I do think that a conditional sentence would address restorative goals in relation to this situation. I am aware of the totality of the case law cited. What I consider to be aggravating in relation to this matter is the nature of the offence itself. The planned and deliberate action of going to a far away city, obtaining that substance, bringing it back into this Province for profit is particularly troubling and is, I consider, to be an aggravating factor. On the totality of the circumstances I do not believe a conditional sentence will satisfy the requisite denunciation and deterrent factor. On the other hand, I take into consideration the positives in the pre-sentence report and otherwise put forward by counsel in this matter and, therefore, when I consider the range of federal sentencing those factors are going to be important. The sentencing will be concurrently here on both counts notwithstanding what I have said about obviously the cocaine count being the more significant. There will be a period of totality of two years federal time. Two years on each count concurrent, for a totality of two years in a Federal Institution. The usual orders will be considered.
J.