PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - TRIAL DIVISION Citation: R v. Burke 2008 PESCTD 11 Date:20080131 Docket: S1-GC-605, 607 & 608 Registry: Charlottetown HER MAJESTY THE QUEEN AGAINST VALERIE ANN BURKE Before: The Honourable Justice Benjamin B. Taylor Appearances: Thomas P. Laughlin Peter C. Ghiz Solicitor for the Crown Solicitor for the Accused Place and Dates of Hearing Charlottetown, Prince Edward Island January 14 and 21, 2008 Place and Date of Oral Decision Place and Date of Written Decision Charlottetown, Prince Edward Island January 24, 2008 Charlottetown, Prince Edward Island January 31, 2008
Citation: R v. Burke 2008 PESCTD 11 S1-GC-605, 607 & 608 HER MAJESTY THE QUEEN AGAINST VALERIE ANN BURKE Prince Edward Island Supreme Court - Trial Division Before: Taylor J. Dates of Sentencing Hearing: January 14 and 21, 2008 Date of Oral Decision: January 24, 2008 Date of Written Decision: January 31, 2008 [10 Pages] CRIMINAL LAW Sentencing Controlled Drugs and Substances Act Trafficking in cocaine and ecstasy Possession of property obtained by crime purposes and principles of sentencing aggravating circumstances. Cases referred to: R v. Cummings June 16, 2003 (unreported) PESCTD); R v. Cody, 2007 PESCAD 07; R v. Perry, 2007 PESCAD 15 and the Ontario Court of Appeal in R. v. C.N.H., [2002] O.J. No. 4918 (Ont. C.A.); R v. Dale, 2004 CarswellOnt 107; R v. Grant (1993), 84 C.C.C. (3d) 173 (SCC); R v. Hollett, January 20, 2006 (unreported) PESCTD; R v. Jason Gauthier, January 8, 2007 (unreported) PESCTD; R v. Todd Douglas Devoe, May 10, 2007 (unreported) Prov. Ct (PEI).; R v. James Robert Long, December 15, 2006 (unreported) Prov. Ct. (PEI); R v. Elizabeth Anne Tierney December 15, 2006 (unreported) Prov. Ct. (PEI); R v. Meaghen Lynn Grant, February 27, 2007 (unreported) Prov. Ct. (PEI). Statutes referred to: Controlled Drugs and Substances Act, S.C. 1996 c-19, s. 10, 10(2)(a)(i); Criminal Code of Canada, R.S.C. 1985, Chap. C-46, s. 718.1, 718.2(a), 718.2(b) to (e). Thomas P. Laughlin Peter C. Ghiz Solicitor for the Crown Solicitor for the Accused
Taylor J. (Orally): [1] Ms. Burke has pled guilty to five offences and is before me for sentencing. The offences, which were committed between June 5, 2007 and July 5, 2007 are: 1) Trafficking in ecstasy, contrary to s. 5(1) and 5(3)(b)(i) of the Controlled Drugs and Substances Act, S.C 1996, c. 19. She sold 500 ecstasy pills to a police agent for $3,500. The maximum sentence for this offence is ten years; 2) Trafficking in cocaine contrary to s. 5(1) and s. 5(3)(a) of the Controlled Drugs and Substances Act. She sold 116 grams of cocaine to the same police agent on a different occasion for $5,400. The maximum sentence for this offence is life imprisonment; 3) Indictable possession of cocaine, contrary to s. 4(1) and 4(3) (a) of the Controlled Drugs and Substances Act. When police raided Ms. Burke s home they found a gram of cocaine. The maximum sentence for this offense is seven years; 4) Indictable possession of ecstasy, contrary to s. 4(1) and 4(6)(a) of the Controlled Drugs and Substances Act. During the same raid, police found four ecstasy pills. The maximum sentence for this offence is three years; 5) Indictable possession of property obtained by crime contrary to s. 354(1)(a) and 355(a) of the Criminal Code. The property was cash discovered in the raid. The maximum sentence for this offence is seven years. $19,981.48 was found. [2] When the police raided Ms. Burke s residence they found the cash in various locations, and also found drugs, weapons, and drug and trafficking paraphernalia. Details of the finds, as set out in the Agreed Statement of Facts, are as follows: 1. 1 ounce of hashish (25 grams) 2. 0.5 grams of hash oil 3. 1 gram of cocaine 4. 4 ecstasy pills 5. Four hundred (400) empty dime bags, or small plastic bags commonly used in the sale of cocaine 6. Twelve (12) empty gram bags
Page: 2 7. Two (2) roach clips 8. Two (2) bongs 9. One (1) pipe Currency and Counting Equipment 10. One Sentry safe located in the master bedroom containing: (a) One Ziploc bag containing Four Thousand Eight Hundred Dollars ($4,800.00) in Canadian currency; (b) One bundle containing One Thousand Dollars ($1,000.00) in Canadian currency; (c) One bundle containing One Thousand Dollars($1,000.00) in Canadian curre ncy; (d) One bundle containing One Thousand Dollars ($1,000.00) in Canadian currency; (e) One bundle containing One Thousand Dollars ($1,000.00) in Canadian currency; (f) One bundle containing One Thousand Seven Hundred Dollars ($1,700.00) in Canadian currency; (g) Forty Dollars ($40.00) in loose currency. Total amount of currency seized from the safe was Ten Thousand Five Hundred and Forty Dollars ($10,540.00). Upon analysis it was determined that Four Thousand Eight Hundred Dollars ($4,800.00) of this money was the money paid by the agent to Ms. Burke for the purchase of cocaine. 11. A drawer in the night stand in the master bedroom containing: (a) One bundle containing Nine Hundred Dollars ($900.00) in Canadian Currency; (b) One bundle containing One Thousand and Twenty Dollars ($1,020.00) in Canadian currency; (c) One bundle containing One Thousand Dollars
Page: 3 ($1,000.00) in Canadian currency; and (d) One bundle containing One Thousand Dollars ($1,000.00) in Canadian currency. 12. A wallet containing Canadian currency in the amount of Two Hundred and Fifty Seven Dollars and Seventy Eight Cents ($257.78) 13. A plastic Ziploc bag containing Two Hundred and Thirteen Dollars ($213.00) in United States currency and Four Hundred and Eighty Six Dollars and Seventy Nine Cents ($486.79) in change. 14. A water bottle full of change, totalling Four Thousand Three Hundred and Ninety Five Dollars and Forty Seven Cents ($4,395.47) 15. Forty Two Dollars and Thirty Four Cents ($42.44) [sic] located in a jacket in the closet 16. From the 2006 Jeep Grand Cherokee in the yard of the residence, Canadian currency in the amount of One Hundred and Twenty Six Dollars ($126.00) in loose change 17. One Royal Sovereign RBS-1003-CA electronic counting machine (able to count up to 1,200 bills per minute, with LED and touchpad controls, remote display and counterfeit detection capabilities) Weapons and Associated Items 18. One operational StreetWise SW900 900k taser/stun gun, found in the kitchen utensil drawer 19. One black handled machete in a green sheath, located under the mattress in the master bedroom 20. Two throwing knives in sheaths 21. Two collapsible police batons (one PJ baton and one Asp baton) 22. One baton with side grip 23. One steel baton box with sheath 24. Nunchuk sticks
Page: 4 25. Two cans of mace. 26. One can of Bear Deterrent bear spray (225 gm), located in Ms. Burke s purse 27. One can of dog repellant spray (50 gm) 28. One bullet proof vest, serial number 112 [3] As well, there were two pit bull dogs (per page four of the pre-sentence report), commonly considered the breed of choice for drug dealers. [4] Ms. Burke is 23 years old. She has two children, ages three and one. Since 2005 she has lived with John MacArthur in Covehead, PEI. He is the father of her one-year old daughter. Ms. Burke is pregnant and due to give birth in May, 2008. [5] Ms. Burke is the oldest of five daughters of Ms. Tina Burke. As reported in the pre-sentence report, Ms. Burke claims one of the fathers of her sisters was abusive towards her mother and all of the children. Ms. Tina Burke still has three of her daughters living with her and stated under oath Ms. Burke s assertions about abuse were not true. [6] Ms. Burke has a grade nine education. She has been out of the work force since 2004. In 2006, Ms. Burke had reported income of $300 and Mr. MacArthur had reported income of $21,411.14. Ms. Burke also says she receives a child tax credit in the amount of $720 per month. I suspect this is additional to her reported income. [7] Notwithstanding the couple s limited income, the couple own many things which might be called luxury items (especially when all the items are considered together), for a family of four with an annual income of $30,000 at most. The police found the following at Ms. Burke s home:...two large screen televisions, one Limited Edition Pirates of the Caribbean Apple ipod, one Compaq Presario computer, ten (10) cell phones (seven Samsung phones, two LG phones and one Nokia phone), one Palm VX handheld PDA, one RCA digital voice recorder, one DC-DXG digital camera, one Fuji digital camera, one HP R717 digital camera and one Sony digital camera. Outside there was a 2006 Jeep Grand Cherokee, a 1998 Dodge ½ ton truck and a 2006 Kawaski ATV 4 x 4 (records in the home indicated the ATV was purchased for $13,000). [8] Ms. Burke has an unrelated youth record: On November 1, 2003 she was convicted on one count of obstructing a peace officer, two counts of assaulting a
Page: 5 peace officer. On June 27, 2002 she was convicted of fraud. On January 21, 2003 she was again convicted of fraud. According to the Agreed Statement of Facts she was sentenced to probation on each occasion. The Drugs Involved [9] Ecstasy - is a manufactured illegal drug its full name is methylenedioxyamphetamine. I understand it is a hallucinogenic which can be manufactured in this country. I gather it is attractive to young people. Five hundred pills ($3,500 worth at a wholesale level) is a very large amount. [10] Cocaine - is a highly addictive illegal drug derived from the coca plant grown mostly in Central and South America. It is not grown in Canada and its presence here necessarily involves an illegal chain of cultivation, production, transportation and levels of wholesale distribution leading to retail sales to users including many unfortunate addicts. One hundred and sixteen grams of cocaine, tested to be 83% pure, for $5,400 is a large sale. Because of the quantity and purity, it is clearly not a street level sale (street level cocaine is usually 20 to 40% pure). Based on the evidence before me as to purity and a street level price per gram of $100 (see R v. Cummings, unreported, (PESCTD) June 16, 2003, Cheverie J.), the 116 grams of 83% pure cocaine could have been priced at four to eight times the wholesale price of $5,400 when diluted and packaged to sell in small quantities to addicts on the street. Ms. Burke s sale may be two levels up the trafficking chain: a sale to someone who will corrupt or dilute the cocaine, sell it to a street level pusher who will dilute it to the usual 20 to 40% and sell it to a user. Remorse [11] Ms. Burke did not express remorse to the person who prepared the presentence report; the words remorse and sorry do not appear in the report. [12] Ms. Burke has done nothing to show remorse. Aside from her plea of guilty, she has not stood to declare what she did was wrong. Ms. Burke s counsel says his client is remorseful, but she has not expressed remorse to this Court in any convincing fashion. She has not apologized to society and to her victims. I have not heard her voice. [13] Ms. Burke s actions post-arrest do not show an attempt to turn her life around. She persists in her unbelievable assertion the drug sales were a one time thing to help a friend. As shown by the Child and Family Service Voluntary Plan of Care, with reference to page 4 paragraph 2 to page 5 paragraph 1 of the Pre-Sentence Report, she has been only minimally cooperative in working on counselling and parenting as
Page: 6 recommended, refusing to participate in anything which was not a mandatory requirement. [14] I conclude Ms. Burke has failed to show remorse, and is not notably remorseful. PURPOSES OF SENTENCING [15] I must consider the purposes of sentencing as set out in s. 718 of the Criminal Code of Canada, R.S.C. 1985, Chap. C-46: 1) To denounce unlawful conduct Trafficking especially should be denounced as a horrible crime against people and society. 2) Traffickers of illegal drugs, especially highly addictive drugs like cocaine, should be severely punished so as to deter them and other persons from taking part in this horrible destructive enterprise. An emphasis on general and specific deterrence in sentencing drug offenders is acceptable and I refer to R v. Cody, 2007 PESCAD 07, and R v. Perry, 2007 PESCAD 15. 3) To separate offenders from society, where necessary I believe this objective is intended to apply to violent people, or sexual predators. It has not figured in my sentence. 4) Rehabilitation is one of the objectives of sentencing. In this case, Ms. Burke is not a drug addict nor is she addicted to alcohol. She shows no remorse for her crimes. She says she has had no prior involvement in drug related activities and as to selling $8,900 worth of illegal drugs, she says she only became involved to help a friend, and make some money. I believe her when she says she was in it for the money, but given all the evidence of a drug dealing business I do not believe this was her first time or something done to help a friend. I note our Court of Appeal in R. v. Perry, and the Ontario Court of Appeal in R. v. C.N.H., [2002] O.J. No. 4918 (Ont. C.A.), held rehabilitation has little application where the defendant is not addicted and the trafficking was done for personal gain. While I believe Ms. Burke needs to change her mind set and turn her life around, I am not able to craft a sentence which contains a significant element of rehabilitation for her. 5) To promote a sense of responsibility in the offender Although Ms. Burke pled guilty, she maintains the two sales were her first two sales. She states this in the face of her own recorded words leading up to and during the sales, the large quantity
Page: 7 of drugs, the weapons, the cash and other paraphernalia. Her assertion is not credible. She has not taken responsibility for what she has done, and for what she is a drug dealer. 6) There are no victims of the two trafficking offences with which Ms. Burke is charged, although the charge for property obtained by crime necessarily means victims somewhere. I do not know the identities of these people. Ms. Burke has no cash left, and the Crown has not sought reparations. Reparations will not figure in my sentence. [16] In reaching the sentence, I have borne in mind s. 718.1 of the which states a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. In this case, on the evidence before me Ms. Burke was the only person trafficking in drugs. She is the only person responsible for the crimes of trafficking. While other judges may differ somewhat, in my view trafficking in large quantities of highly addictive illegal drugs such as cocaine is one of the most heinous of all crimes. [17] I have also considered the other sentencing principles at s. 718.2: 1) The aggravating circumstances in s. 718.2(a) do not apply in this case. 2) As to s. 718.2(b) to (e), I have considered all the sentencing precedents referred to me and have attempted to impose a sentence similar to these cases where in my opinion similar offenders committed similar offences in similar circumstances. I have considered the alternatives to imprisonment and have concluded they are not reasonable or appropriate in this case. I note in R v. Dale, 2004 CarswellOnt 107, the Appeal Court upheld the trial judges s finding that a conditional sentence was not compatible with principles of sentencing for a drug trafficking case because it was necessary to denounce trafficking in drugs. Section 10 Controlled Drugs and Substances Act [18] The Controlled Drugs and Substances Act, S.C. 1996, c. 19, has its own Purpose of Sentencing section s. 10. The factors do not apply to this case. I note s. 10(2)(a)(i) says it would be an aggravating factor if the person in relation to the commission of the offence carried, used or threatened to use a weapon. In this case, Ms. Burke had many weapons and told Mr. Yorston she would use them, but it has not been shown she carried, used or threatened to use a weapon in the commission of the two trafficking offenses. Although s. 10 of the Controlled Drugs and Substances Act does not require me to consider all the weapons, drug and trafficking paraphernalia as an aggravating factor, in my view Ms. Burke s possession
Page: 8 of all those things does constitute an aggravating factor in this case. [19] In this case, Ms. Burke entered pleas of guilty in the face of overwhelming evidence of her guilt. She has no previous drug related record. She does not show any notable signs of remorse. Her claim in the pre-sentence report that she came from an abusive home is contradicted by her mother. She does not seek to shift any of the blame to her partner. She is 23 years old, has two small children and is pregnant. She does not use drugs, she was in this for the money, and there is a lot of money in the drug trade. She asked for mercy. Drug Trafficking [20] Because of the quantity and price of the cocaine and the ecstasy, because of the purity of the cocaine, because of what was found in her home and because Ms. Burke was able in short order to fill her customer s requests, I find she is a major drug trafficker. [21] In R v. Grant (1993), 84 C.C.C. (3d) 173 (SCC), the Supreme Court of Canada described drug trafficking as a pernicious scourge in our society. [22] Traffickers of illegal addictive drugs are in my view among the very worst offenders in our society. They steal the lives of drug users, strip them of their humanity and turn their victims into mere shells of people with one great allconsuming need to somehow buy and use more drugs. Addicts will do anything, commit any crime, to get their next fix, and so the harm is visited upon citizens in general, who are victims of embezzlement, theft, robbery, vandalism, break and enter, and assault or worse by drug users. [23] As well, and this is particularly important in this case, drug dealers lead violent lives. People are killed in the illegal drug trade, dealers stealing from each other, fighting for territory, dealers assaulting and killing users, users assaulting dealers, and sometimes innocent people are caught in the crossfire. The weapons and dogs possessed by Ms. Burke are a stark reminder she was carrying on a dangerous activity in rural Covehead, PEI, an activity which endangered her neighbors, passers by, and especially her one year old and three year old children. Review of previous decisions on sentencing [24] I have reviewed and considered all of the cases referred to me by counsel. I rely on the following recent PEI cases, which in my view reflect the concern of our Provincial and Supreme Court over drugs which were rare in Prince Edward Island not so long ago. R v. Hollett (January 20, 2006, unreported, Jenkins J.) a 42 year
Page: 9 old courier of marijuana with one instance of cocaine, no previous record, received 42 months on two conspiracy to traffic charges (cocaine and marijuana). [25] R v. Jason Gauthier (January 8, 2007, unreported) a street level dealer in cannabis and cocaine with one prior controlled drug possession conviction for which he was fined $500 was sentenced to 36 months and 30 months concurrent for charges of conspiring to traffic in cocaine and marijuana. [26] R v. Todd Douglas Devoe (May 10, 2007) conspiracy to traffic cocaine five years other drugs including ecstasy, a concurrent term. His prior record was a simple possession charge punished by a fine and he had two unrelated convictions. [27] R v. James Robert Long (December 15, 2006) conspiracy to traffic cocaine five years conspiracy re hydromorphone a concurrent term of five years. His prior record was a simple possession conviction and two unrelated charges. [28] R v. Melody Cummings (June 16, 2003 Cheverie J.,unreported) possession for the purpose of trafficking 21 months conditional sentence 196 grams of cocaine. She was a user with a prior related record. She violated the terms of her conditional sentence and ended up serving the time. [29] R v. Elizabeth Anne Tierney (December 15, 2006) conspiracy to traffic cocaine 42 months. Conspiracy re hydromorphone a concurrent term of 42 months. She was a street level dealer with no prior drug related record. [30] R v. Meaghen Lynn Grant (February 27, 2007) conspiracy to traffic cocaine three years no record. [31] There is obviously no logical reason why conspiracy charges should be treated more harshly than trafficking charges if the drugs trafficked are the same and the quantities trafficked are large. Indeed, the reverse should be true: conspirators plan to traffic drugs; traffickers actually traffic drugs. If there are few PEI sentence precedents for major drug trafficking charges, I suspect it is only because it is very hard for police to make a big drug buy. In this case, Ms. Burke was the trafficker of two large quantities of drugs. Conclusion [32] Ms. Burke s counsel has asked his client be given a conditional sentence, or alternatively two years in a federal institution. [33] The Crown has asserted the range of sentencing should be three to four years
Page: 10 for the greatest offence that being trafficking in cocaine, with lesser concurrent sentences for the other charges as set out in the Crown s factum. I conclude the top of that range, namely 42 months to four years is the proper range in this case. Neither counsel has made any submissions about credit for time served and I assume there was no time served. [34] My final consideration is mercy. It is difficult to consider mercy for a drug trafficker who makes a lot of money victimizing and destroying others and harming society. On the other hand Ms. Burke has no prior related record, two small children and an unborn child. Ms. Burke I say this: You are the one who harms your children. It was your decision to be a big time criminal drug pusher, put your children in physical danger in a drug trafficker home, and put them at risk of separation from their mother for the time you could be in prison. Now because of your criminal behaviour that risk has become real. I suspect your trafficking drugs, as suggested by the evidence of a drug enterprise, has already harmed many people, indeed ruined peoples lives. Now you are responsible for three more victims, your own children. [35] I have decided that factoring in mercy should only result in the sentence being at the bottom of the range I consider proper in this case. [36] Ms. Burke on the charge of trafficking in cocaine, I sentence you to 42 months in a federal penitentiary, two years in relation to the offence of trafficking in ecstasy (concurrent), one year in relation to the offence of possession of proceeds of crime (concurrent), 90 days in relation to the offence of possession of cocaine (concurrent) and 30 days in relation to the offence of possession of ecstasy (concurrent). Weapons Prohibition Order [37] I have signed the weapons prohibition order as consented to by both counsel. January 31,2008 J.