R v McMaster, 2015 BCPC 91 (CanLII)
Citation: R v McMaster Date: 20150421
Registry: Prince George
IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
REGINA
v.
RANJIT SINGH SIDHU, LURDES DE MEDEIROS CABRAL and
MARC AARON JAMES McMASTER
REASONS FOR SENTENCE
OF THE HONOURABLE
REGIONAL ADMINISTRATIVE JUDGE M. J. BRECKNELL
RE: SENTENCING MARC AARON JAMES McMASTER
Agent of the Director of Public Prosecutions: J. Sutton
Counsel for the Defendant: C. Carlton
Place of Hearing: Prince George, B.C.
Date of Hearing: March 25, 2015
Date of Judgment: April 21, 2015
INTRODUCTION
[1] Marc Aaron James McMaster is to be sentenced, having pleaded guilty on October 24, 2014, on Information No. 36787 to two charges which arose on April 24, 2013 at Prince George, British Columbia namely:
a) Count 2 - possession of cocaine for the purpose of trafficking contrary to s. 5 (2) of the Controlled Drugs and Substances Act (CDSA); and
b) Count 3 - possession of a prohibited weapon, to wit: brass knuckles, contrary to s. 91 (2) of the Criminal Code.
[2] When Mr. McMaster was arrested on these charges he was driving his 2007 Jeep Commander (the Jeep) where the cocaine and brass knuckles were found.
[3] The Agent for the Director of Public Prosecutions (the Crown) seeks a sentence of between two to three years in a federal penitentiary for the possession for the purpose of trafficking count and a concurrent lesser sentence for possession of the brass knuckles.
[4] The Crown also seeks a firearms prohibition pursuant to s. 109 the Criminal Code, a secondary DNA order pursuant to s. 487.051 of the Criminal Code, forfeiture orders with regard to items seized at the time of Mr. McMaster’s arrest including the brass knuckles pursuant to s. 16 of the CDSA and s. 490.1 of the Criminal Code. The Crown also seeks forfeiture of the Jeep pursuant to s. 16 of the CDSA.
[5] Defence counsel seeks a suspended sentence with a lengthy period of probation or in the alternative a jail sentence of between three to nine months followed by probation.
[6] Defence counsel did not address the issue of the firearms prohibition, the DNA order or seizure of the brass knuckles and other items taken at the time Mr. McMaster’s arrest, except Defence counsel seeks the return of the Jeep to Mr. McMaster.
OFFENCE CIRCUMSTANCES
[7] As early as 2011 Mr. McMaster had come to the attention of the Royal Canadian Mounted Police (RCMP). He was identified as a person involved in the distribution of cocaine.
[8] By March 2013 the RCMP received further information that Mr. McMaster was involved with his co-accused, Mr. Sidhu, and that information was further confirmed just before April 24, 2013. Based on that information Mr. McMaster was placed under surveillance by the RCMP.
[9] On April 24, 2013 Mr. McMaster was seen driving the Jeep from his house to Mr. Sidhu’s residence and leaving a short time later. The RCMP determined that he may be in possession of cocaine so they stopped the Jeep and Mr. McMaster was arrested.
[10] At the time of his arrest the RCMP found the following in the Jeep:
a) two cell phones in the centre console;
b) the brass knuckles in the lid of the centre console;
c) a plastic bag on the floor behind the front passenger seat containing two smaller Ziploc plastic bags each of which held approximately 139 grams, or 5 ounces, of cocaine.
[11] The Crown contends that the cocaine had a wholesale value of $7,500.00 and a street-level value of $25,000.00. Those values were not contested by Defence counsel.
MR. MCMASTER’S CIRCUMSTANCES
[12] A great deal of the information concerning Mr. McMaster’s personal history is set out in the Pre-Sentence Report. He is 31 years old and one of two siblings raised in a loving home in Prince George.
[13] He experienced bullying at various times while growing up and by high school fell in with the wrong crowd, started getting bad grades and was smoking marijuana. He left his parents’ home at 17 because he did not wish to adhere to their rules.
[14] Since leaving home Mr. McMaster has often worked as a carpentry framer although he has also held other employment. Since moving to Alberta in November 2013 he has worked for a variety of employers and most recently has worked as a pipe fitter. When he does work he earns up to $12,000.00 per month but the work is seasonal and subject to layoffs.
[15] Mr. McMaster started consuming alcohol at age 13 but does not drink very often. He was a regular user of marijuana from the age of 13 until the age of 29. He also acknowledged sporadic use of ecstasy. He started using cocaine at the age of 18 and reports that he stopped using it at the age of 29. He told the Pre-Sentence Report author that when he was using cocaine it was approximately once a week. Other people consulted by the author indicated that Mr. McMaster’s use of cocaine was either cyclical or that he had an addiction. Mr. McMaster did not admit to being addicted to cocaine.
MR. MCMASTER’S CRIMINAL RECORD
[16] Mr. McMaster’s criminal record dates back to 2002. That record includes the following convictions:
a) three property or fraud;
b) three failures to attend court;
c) two breaches of bail;
d) one driving while prohibited;
e) one assault;
f) one criminal harassment.
[17] In addition, Mr. McMaster was placed on a one year common law peace bond. He was also sentenced to jail for 21 days for a breach of a Conditional Sentence Order. That was his longest stint in jail.
[18] When Mr. McMaster was in jail after his arrest on these matters and before his release on bail, he was badly beaten, suffering broken bones and head trauma, and spending two weeks in the prison infirmary.
[19] Mr. McMaster was on probation for his criminal harassment conviction when he committed the present offences. He has not faced any further allegations while on bail for these offences.
THE LAW
Statutes
[20] The following sections of the Criminal Code must be considered in this matter:
a) 718 The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
b) 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
c) 718.2 A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender,…
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(c) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(d) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
d) 731 (1) Where a person is convicted of an offence, a court may, having regard to the age and character of the offender, the nature of the offence and the circumstances surrounding its commission,
(a) if no minimum punishment is prescribed by law, suspend the passing of sentence and direct that the offender be released on the conditions prescribed in a probation order; or
(b) in addition to fining or sentencing the offender to imprisonment for a term not exceeding two years, direct that the offender comply with the conditions prescribed in a probation order.
e) 732.2(5) Where an offender who is bound by a probation order is convicted of an offence, including an offence under section 733.1, and
…….
in addition to any punishment that may be imposed for that offence, the court that made the probation order may, on application by the prosecutor, require the offender to appear before it and, after hearing the prosecutor and the offender,
(d) where the probation order was made under paragraph 731(1)(a), revoke the order and impose any sentence that could have been imposed if the passing of sentence had not been suspended, or
(e) make such changes to the optional conditions as the court deems desirable, or extend the period for which the order is to remain in force for such period, not exceeding one year, as the court deems desirable,
and the court shall thereupon endorse the probation order accordingly and, if it changes the optional conditions or extends the period for which the order is to remain in force, inform the offender of its action and give the offender a copy of the order so endorsed.
f) 91 (2) Subject to subsection (4), every person commits an offence who possesses a prohibited weapon, a restricted weapon, a prohibited device, other than a replica firearm, or any prohibited ammunition, without being the holder of a licence under which the person may possess it.
(3) Every person who commits an offence under subsection (1) or (2)
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or
(b) is guilty of an offence punishable on summary conviction.
[21] The following sections of the CDSA as they were on April 23, 2013 must be considered in this matter:
a) 2 (1) In this Act,
“offence-related property” means, with the exception of a controlled substance, any property, within or outside Canada,
(a) by means of or in respect of which a designated substance offence is committed,
(b) that is used in any manner in connection with the commission of a designated substance offence, or
(c) that is intended for use for the purpose of committing a designated substance offence;
“traffic” means, in respect of a substance included in any of Schedules I to IV,
(a) to sell, administer, give, transfer, transport, send or deliver the substance,
(b) to sell an authorization to obtain the substance, or
(c) to offer to do anything mentioned in paragraph (a) or (b),
otherwise than under the authority of the regulations.
b) 5(2) No person shall, for the purpose of trafficking, possess a substance included in Schedule I, II, III or IV.
c) 5(3) Every person who contravenes subsection (1) or (2)
(a) subject to subsection (4), where the subject matter of the offence is a substance included in Schedule I or II, is guilty of an indictable offence and liable to imprisonment for life,
d) 10(1) Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community.
(2) If a person is convicted of a designated substance offence for which the court is not required to impose a minimum punishment, the court imposing sentence on the person shall consider any relevant aggravating factors including that the person
(a) in relation to the commission of the offence,
(i) carried, used or threatened to use a weapon,
(3) If, under subsection (1), the court is satisfied of the existence of one or more of the aggravating factors enumerated in paragraphs (2)(a) to (c), but decides not to sentence the person to imprisonment, the court shall give reasons for that decision.
d) 16(1) Subject to sections 18 to 19.1, where a person is convicted of a designated substance offence and, on application of the Attorney General, the court is satisfied, on a balance of probabilities, that any property is offence-related property and that the offence was committed in relation to that property, the court shall
(a) in the case of a substance included in Schedule VI, order that the substance be forfeited to Her Majesty in right of Canada and disposed of by the Minister as the Minister thinks fit; and
(b) in the case of any other offence-related property,
(j) (ii) in any other case, order that the property be forfeited to Her Majesty in right of Canada and disposed of by such member of the Queen’s Privy Council for Canada as may be designated for the purposes of this subparagraph in accordance with the law.
CASE LAW
[22] The Crown relied on the following cases with regard to sentencing:
a) R. v. Nagy 2013 BCCA 419
b) R. v. Cheung 1994 Can LII 2775 BCCA
and the following case regarding forfeiture:
c) R. v. Paziuk 2007 SKCA 63
[23] Defence counsel relied on the following cases with regard to sentencing:
a) R. v. Cisneros 2014 BCCA 154
b) R. v. Charlton 2014 BCPC 292
c) R. v. Rhyason 2014 BCPC 291
d) R. v. Galang 2014 BCPC 240
e) R. v. Voong 2014 BCPC 211
f) R. v. Manhas 2014 BCPC 192
g) R. v. Voss 2014 BCPC 43
and the following case regarding forfeiture:
h) R. v. Durrette 2014 ONCA 747
SUBMISSIONS ON FORFEITURE
Crown
[24] The Crown’s submissions on forfeiture can be summarized as follows:
a) the Jeep was Mr. McMaster’s property;
b) the cocaine was not on Mr. McMaster’s person but rather was in an easily found location in the Jeep;
c) the Jeep was used to transport the cocaine;
d) trafficking includes transport;
e) pursuant to s. 2 of the CDSA the Jeep is offence related property;
f) the facts here are virtually identical to those in Paziuk.
Defence
[25] Defence counsel submissions on forfeiture can be summarized as follows:
a) Mr. McMaster is not asserting any innocent third-party interest in the Jeep;
b) the cocaine was not hidden and could have been carried on Mr. McMaster’s body;
c) the Jeep is not offence related property as described in s. 2 of the CDSA;
d) the facts here can be distinguished from those in Paziuk and are more similar to the decision in Durette.
SUBMISSIONS ON SENTENCE
Crown
[26] The Crown submissions on sentence can be summarized as follows:
a) Mr. McMaster was not a minor player. He had been a person of interest to the RCMP as a person involved in illegal drugs for over two years;
b) when he was arrested he was in possession of a large amount of cocaine (10 ounces) not packaged for individual sale. That is far more than one would find in a dial-a-dope operation;
c) Mr. McMaster was on probation when these offences occurred and he was convicted of a breach of community supervision as a result;
d) Mr. McMaster was involved in the illegal drug industry for financial gain alone. He told the RCMP that he was doing it for profit and he denied being addicted to cocaine in his dealings with the Pre-Sentence Report author;
e) case law provided by the Crown makes it clear that the appropriate range of sentence in cases like this is in the range of 2 to 3 years incarceration in a penitentiary.
Defence
[27] Defence counsel submissions on sentence can be summarized as follows:
a) the Court should not rely on any old information the RCMP allege concerning Mr. McMaster but rather should concentrate on what he did on the day in question;
b) Mr. McMaster was a user of cocaine from the age of 18 up until the time of his arrest on these matters. He is now clean of cocaine after 11 years of drug issues;
c) Mr. McMaster is still relatively young, has support from his pro-social family, has moved away from Prince George with his girlfriend, has obtained employment and has stayed out of trouble since the events before the Court;
d) although Mr. McMaster has a criminal record it is not related to the present offences and not significant when determining a fit and appropriate sentence in this case;
e) although Mr. McMaster was carrying a substantial amount of cocaine at the time of his arrest he was not engaged in sales transactions and likely got paid for his efforts in drugs;
f) Mr. McMaster is capable of rehabilitation and is moving ahead in a positive fashion. The Pre-Sentence Report indicates that Mr. McMaster had made significant changes in his life and that he may be a good candidate for community supervision;
g) because of his past criminal involvement Mr. McMaster has come to the negative attention of other criminals incarcerated at the Prince George Regional Correctional Centre (PGRCC) as can be seen from the serious injuries he suffered while in custody prior to obtaining bail;
h) in general, the appropriate range of sentence for an offence similar to what Mr. McMaster committed is between six and nine months of incarceration but recently some judges of the Provincial Court have imposed suspended sentences with a lengthy period of probation on strict terms in drug cases particularly those involving a dial-a- dope operation;
i) the Court should impose a suspended sentence with a long term of strict probation, in the alternative an intermittent sentence of up to 90 days with a lengthy term of strict probation to follow, or in the further alternative a sentence near the lower range of sentences available.
DISCUSSION
Forfeiture
[28] Both Paziuk and Durette are decisions of appellate courts and although they are not from the British Columbia Court of Appeal and hence not binding upon me, they are each worthy of careful consideration.
[29] To obtain a forfeiture order, the Crown must satisfy the Court, on a balance of probabilities, that the Jeep is “offence-related property”. If that is proven, the Jeep must be forfeited because there is no proportionality analysis to be done and there is no claim being advanced by an innocent third-party.
[30] Having reviewed the facts in both Paziuk and Durette, I find the circumstances in this case to be more closely aligned with Paziuk. Although Defence counsel advanced that Mr. McMaster could have carried the cocaine on his person, no evidence was presented to establish that contention.
[31] In this case Mr. McMaster was not somebody who was carrying drugs who chose to get into the Jeep, but rather a person who chose the Jeep to carry the cocaine. In those circumstances the Jeep is clearly offence related property as described in section 2 of the CDSA and is subject to forfeiture for the same reasons the vehicle in Paziuk was forfeited.
Sentence
[32] Depending on the type of case, sentencing courts often refer to a sentence as falling within a “range” which is based on previous case law and directions from the appellate courts. However, the appellate courts also make it clear that the concept of a “range” does not preclude a different type of sentencing.
[33] In any case the facts surrounding circumstances of the offence, circumstances of the offender and the offender’s criminal history, if any, are critical to the sentencing process.
[34] Given that every case must be decided upon its own merits and own set of circumstances, all the purposes and principles of sentencing set out in s. 718 through 718.2 of the Criminal Code and s. 10 of the CDSA must be given due consideration and the weight to be attributed to each purpose or principle to be determined based on the case before the Court and not some predetermined direction.
[35] In R. v. Bernier 2003 BCCA 134 the Court of Appeal said at paragraph 42:
42. A “range” does not preclude on grounds of deterrence or denunciation or the gravity of the particular offence a sentence different from that “range”. Nor does a “range” preclude a lesser sentence if some special circumstances warrant such a course. When considering any particular case similar to R. v. D.H.W. or to R. v. N.P.D. or to this case, trial judges and this court will have in mind those sentences as part of the “range”. The “range” is not conclusive.
[36] In M.(C.A.) 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500 Lamer C.J.C. said at paragraph 92:
92. It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime; see Mellstrom, Morrissette and Baldhead. Sentencing is an inherently individualized process and the search for single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction. As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the “just and appropriate” mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred.
[37] In R. v. Whicher, (2002) 2002 BCCA 336 (CanLII), 165 C.C.C. (3d) 535 (BCCA) Hall, J.A. reminded sentencing judges not to ignore rehabilitation, particularly of younger offenders when he said at paragraph 24:
24. Regard must be had to the nature of the offence and the history and prospects of the offender. Where younger people are involved; the courts will endeavor, if at all possible, to foster the possibility of rehabilitation. In the long run, if the young person can be turned away from the course of repeated offences, then the interests of society will be served. Courts must also impose sentences that adequately mark society’s disapproval of the offender’s breach of societal norms and that will deter both the individual offender and others minded to offend, from conduct harmful to the fabric of an orderly society.
[38] Based on those broad pronouncements, as well as the principles and purposes of sentencing as described in the Criminal Code, the CDSA and the case law, I must determine the aggravating, mitigating and other factors present in this case in order to determine a just and appropriate sentence for Mr. McMaster.
[39] The following are aggravating factors:
a) Mr. McMaster was carrying cocaine in a wholesale amount and not packaged for resale as one would find in a dial-a-dope operation;
b) He was transporting the cocaine for profit and not because he was a person trying to maintain his addiction;
c) He was in possession of a weapon, the brass knuckles;
d) Although he has a moderate criminal record he was on probation at the time these offences occurred.
[40] The following are mitigating factors:
a) Mr. McMaster has taken a number of positive and pro-social steps since his arrest on these matters;
b) Although he has a criminal record he has no previous offences related to drugs;
c) the Pre-Sentence Report has several positive comments concerning Mr. McMaster’s behaviour while on bail;
d) Although he was a regular drug user for over a decade he has abstained from drug use since his arrest on these matters.
[41] The following are other factors to be considered in this case:
a) Mr. McMaster suffered a serious assault while incarcerated at PGRCC awaiting bail.
[42] I have considered the aggravating, mitigating and other factors. I have also considered Mr. McMaster’s personal circumstances including his family history, his criminal record and the circumstances of this offence. I have reviewed both the statute and the case law as they apply to the sentencing of people in circumstances similar to, but never identical to, those of Mr. McMaster.
[43] The cases submitted by the Crown indicate very severe penalties but they were in circumstances much more serious than those in this case. By the same token, Defence counsel’s cases where a suspended sentence with probation was imposed are very different from the facts in this case. In particular, those cases had a combination of street level sales, lesser amounts of drugs, lesser criminal histories or long drug addictions.
[44] Defence counsel’s submission for an intermittent sentence cannot be practically considered because the Court was not given any information as to whether or not such a sentence could be served in the community in Alberta where Mr. McMaster now resides.
[45] In general, an appropriate sentence in this case would be in the range suggested in Cisneros and Manhas, but I am mindful of the difficulties Mr. McMaster had in his most recent incarceration at PGRCC and I consider that to be a legitimate reason for a reduction from what would otherwise be the appropriate sentence in this matter.
DECISION
Ancillary Orders
[46] As part of the sentence, the Crown has sought various ancillary orders.
[47] Count 2 is a secondary designated DNA offence. I conclude that in light of Mr. McMaster’s previous convictions and the circumstances of these offences the taking of a DNA sample is appropriate. Pursuant to s. 487.051(1) of the Criminal Code, I make an order in Form 5.03 authorizing the taking of a number of samples of bodily substances by any Peace Officer for the Province of British Columbia that is reasonably required for the purpose of forensic DNA analysis and registration in the National DNA Databank from Marc Aaron James McMaster by May 20, 2015.
[48] Count 2 attracts a mandatory ten year firearms prohibition pursuant to s. 109 of the Criminal Code. Marc Aaron James McMaster is prohibited from possessing:
a) any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance for a period of 10 years; and
b) any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.
[49] The Jeep is forfeited to Her Majesty the Queen pursuant to s. 16 of the CDSA. The other items seized at the time of Mr. McMaster’s arrest including the brass knuckles are forfeited to Her Majesty the Queen pursuant to s. 16 of the CDSA and s. 490.1 of the Criminal Code as set out in the terms of an order to be drafted by the Crown, agreed to by Defence counsel, and to be approved by the Court.
SENTENCE
[50] Mr. McMaster shall serve a sentence of six months in a provincial prison on Count 2 of the Information and three months concurrent on Count 3 of the Information. I would recommend to the Corrections Branch that the sentence be served in protective custody if Mr. McMaster requests or it is considered necessary for his safety or the proper administration of the institution given the past injury he suffered while in custody.
[51] There will be no period of probation to follow the sentence.
[52] The victim fine surcharge will apply.
__________________________
M. J. Brecknell
Regional Administrative Judge
Northern Region
Provincial Court of British Columbia