A)        INTRODUCTION

[1]                On October 6, 2007, a Jury found Mr Vincenzo Armeni guilty of the offences of trafficking cocaine, possession for the purposes of trafficking cocaine and conspiracy to traffic cocaine.

[2]                It is now my duty to impose sentence on the accused after having taken into consideration the relevant factors and criteria stated by the applicable law.

[3]                The Crown argues that a prison term of 25 years should be imposed consecutively to the sentence Mr Armeni is presently serving, which expires in October 2008. The Crown also suggests that the Court issue an order pursuant to section 743.6 (1) of the Criminal Code, and thereby ensure that Mr Armeni serves at least half or his time or ten years, whichever is less, before being released on parole.

[4]                The defence responds that while a term of imprisonment is called for, it should be for a period of eight to ten years, which should be served concurrently with the sentence Mr Armeni is presently serving. The defence is also seeking a ruling according to the case authority of Kienapple against multiple convictions and argues that the order provided for by section 743.6 (1) of the Criminal Code is an exceptional provision which should not be applied in the present instance.

[5]                Finally, the defence suggests that the sentence should account for the pre-trial custody of Mr Armeni. His parole was revoked in May of 2006. He has been detained since then.

[6]                I will begin by describing the underlying facts of the charges. I will then describe Mr Armeni’s portrait, according to the proof presented during the sentencing hearing. I will provide details of each party’s position and conclude with an analysis, which will result in the imposition of a sentence, which reflects and is proportionate to the gravity of the offences and the criminal responsibility of Mr Armeni.

B)        THE OFFENCES

[7]                Sometime during the fall or winter of 2004-2005, Mr Alfredo Minissini asked his brother-in-law, Sylvain Garand, to rent a house for the purpose of operating a marijuana plantation. As a matter of fact, Garand supervised two such plantations, which were unsuccessful, like many other ventures in his life.

[8]                Mr Sylvain Garand had been on welfare for a number of years, has poor health, was unable to earn his living through a regular job and volunteered to operate the marijuana plantations.

[9]                The evidence also shows that Mr Garand has been involved since a very young age with criminal behaviour and with criminals for many years.

[10]           Sometime in the spring or summer 2005, Alfredo Minissini informed Garand that he should get rid of the marijuana plantation and make room and prepare his basement to receive and store a very large quantity of drugs, namely cocaine.

[11]            Garand was privy to meetings and conversations between his brother-in-law and the accused Mr Vincenzo Armeni who was Minissini’s contact or partner.

[12]            In order to conceal his actions and confuse the authorities, Mr Armeni was using a cellular phone under the name of Mr Leon Altchuler who was his partner in a real estate project in Montreal.

[13]            Telephone records have revealed several hundred conversations between Vincenzo Armeni and Alfredo Minissini between the months of July and December 2005. Surveillance reports confirmed that Armeni and Minissini knew each other and met on several occasions.

[14]            On or about July 28, 2005, Minissini informed Garand that he had just got the signal to go and pick up the drug. Both Minissini and Garand attended a bar called Bar RD in St-Leonard, Quebec and met Vincenzo Armeni who handed over to Garand and Minissini the keys for two trucks loaded with more than 761 kilos of cocaine. This drug was then handled by Minissini and Garand and stored in Garand’s basement in Blainville, Quebec.

[15]            On December 8, 2005, Garand was arrested and a quantity of 241 kilos of cocaine was seized in his basement. His cooperation with the authorities allowed the police to arrest both Armeni and Minissini, which led to Armeni’s conviction on October 6th last.

C)        THE PORTRAIT OF MR VINCENZO ARMENI

[16]            Mr Vincenzo Armeni, who was born and raised in Montreal, is 51 years of age, has two sons 15 and 17 years old and is married to Giuseppina Vaccarello since 1989. His criminal record goes back to 1980 and revealed the following relevant convictions:

a)      April 18, 1980, possession of drugs for purposes of trafficking.

Sentence: 4 years and 2 months;

b)      October 31st, 1986, conspiracy and possession of prohibited weapon.

Sentence: 7 years and 1 week concurrently;

c)      November 24th, 1986, conspiracy for drug trafficking and traffic of drug.

Sentence: 6 years concurrently;

d)      October 5th, 1998, conspiracy for importation of drugs and importation of drugs.

Sentence: 10 years.

[17]            The other conviction of November 10, 1993, for driving his car with more than 80 milligrams of alcohol in his blood is not relevant for the purpose of the present decision.

[18]            After the hearing on sentencing, when asked if he had anything to say, Mr Armeni advised that he apologized to the Court and to his family for his actions and he implored the Court to consider his family situation before imposing the sentence.

[19]            At the sentencing hearing, Mr Fortin, Officer for the RCMP, indicated that he was involved in the prior investigations of Mr Armeni, which led to his sentencing in 1998.

[20]            He stated that Mr Armeni had been seen dealing with the suppliers of the cocaine and has made several trips to South America to supervise the importation of 93 kilos of cocaine in June 1994 and 74 kilos of cocaine in October 1994.

[21]            Mr Armeni then pleaded guilty to charges of importation and of conspiracy and was sentenced to 10 years of imprisonment.

[22]            Mrs Suzanne De Larochelière, officer at La Sûreté du Québec, also testified at the hearing and was declared an expert in the drug investigation domain.

[23]            She acted as an undercover agent in 1989. Since 1999, she is acting as a consultant and she testified as an expert before the Superior Court and the Court of Quebec.

[24]            In her report[1] Mrs De Larochelière explained that the cocaine seized in the present instance had an 85% level of purity, which is considered as one of the highest quality on the market. She added that this level of purity is only found in drugs purchased directly from the supplier at the highest level.

[25]            Mrs De Larochelière also explained that the value of the drug seized on December 8th, 2005, would generate a profit of more than 16 millions dollars and that the quantity of 761 kilos would generate a profit of approximately 50 millions dollars.

[26]            She also mentioned that for the year 2005, there were 2556 kilos of cocaine seized throughout the country, 10% of that amount being seized on December 8, 2005 in the basement of Mr Garand and which had been trafficked by Mr Armeni. It was therefore one of the most important seizure of drugs in Canada for that year.

[27]            For Mrs De Larochelière only a few well-connected persons could take possession of such a large quantity of drugs for the purpose of trafficking.

D)        THE PARTIES’ POSITION

[28]            The Crown seeks the imposition of a period of imprisonment of 25 years consecutive to the term Mr Armeni is presently serving and which will expire on October 4th, 2008.

[29]            The Crown also seeks an order under section 743.6 (1) of the Criminal Code to ensure that Mr Armeni serves at least half of his sentence before becoming eligible for release on parole.

[30]            To support its recommendation, the Crown relies on the following factors:

a)      the heavy criminal record of Mr Armeni who obviously was not deterred from committing criminal offences in spite of heavy sentences imposed in the past;

b)      the offences for which Mr Armeni is presently sentenced were committed while he was on parole for an offence of a similar nature in 1998;

c)      Mr Armeni handed over to both Alfredo Minissini and Sylvain Garand a huge quantity of cocaine of the highest purity level, which is also an aggravating factor in the circumstances;

d)      Mr Armeni is 51 years of age, a mature person and could not plead innocence or that he didn’t know the consequences of his actions.

[31]            To support its argument, the Crown refers to several Court decisions relative to both trafficking and importation of cocaine. According to the Crown, both offences respond to similar sentences and the legislator did not make distinctions between importation and trafficking in terms of gravity and sentencing.

[32]            The Crown admitted that the offence of importation very often will imply the evidence of a sophisticated network, a scheme of travel arrangements by the perpetrators and a huge financial benefit obtained by the latter. There was no such evidence in the present case.

[33]            However, the Crown takes the position that the possession of hundreds of kilos of cocaine by Mr Armeni places him much closer to the supplier i.e. the boat or the plane than to the lone trafficker on the street. According to the testimony of the expert Suzanne De Larochelière, only high-level criminals have access to such a large quantity of cocaine with such a purity level.

[34]            The Crown invites the Court to conclude that Mr Armeni was very close to the supplier and that the sentencing should be inspired by sentences imposed for importation cases.

[35]            The defence replies that while a period of imprisonment should be imposed, it should be less than 10 years and should be served concurrently with the sentence Mr Armeni is now serving which will expire on October 4th, 2008. The defence relies upon the following factors:

a)      the age of Mr Armeni;

b)      his family situation;

c)      the fact that he was found guilty of trafficking and possession for the purpose of trafficking on «a kilo basis» and not as an importer;

d)      there was no evidence of Mr Armeni’s participation in a sophisticated network, nor that he benefited financially from this operation or that he managed himself the drug transportation, which he handed over to Minissini and Garand.

E)        ANALYSIS

[36]            While the parties all agree that Mr Armeni should be sentenced to a period of imprisonment, they disagree on the length of that imprisonment.

[37]            I am of the view that the appropriate length of imprisonment in the present case falls much closer to what the Crown suggests than what the defence is suggesting.

[38]            Although, Mr Armeni was not convicted of the offence of importation of cocaine and although the Court agrees with the defence that there was no evidence of any sophisticated network nor any evidence of any financial gain by Mr Armeni nor any evidence of direct relationship with the suppliers of the drug in the foreign country, the Court is nevertheless of the opinion that the huge quantity of drugs, it’s high purity level and the circumstances of this case bring by inference Mr Armeni much closer to the supplier than that of a simple trafficker on a «kilo basis» on the street.

[39]            The Court agrees with defence counsel who argued that the sentence should not be a mathematical exercise based solely on the number of kilos possessed by Mr Armeni before it was delivered to both Mr Minissini and Garand and that Mr Armeni should not be sentenced again for his previous convictions.

[40]            However, this Court cannot accept defence counsel suggestion that we are faced with a low profile individual involved in trafficking on a «kilo basis» and that the importance of his previous conviction of importation and trafficking should be diminished.

[41]            To quote Mr Justice Seaton, in the case of The Queen v. Saulnier,[2]: « I think that the quantity of cocaine is an important factor in sentencing. A person who brings into Canada a small amount of cocaine primarily for his own purpose cannot be compared to the person who imports a large quantity for distribution. The former primarily hurts himself; the latter hurts many others. For one the profit to be gained from the crime is insignificant; for the other it is astronomical. Sentences will now recognize these distinctions much as sentences for simple possession and for possession for the purpose of trafficking recognize them ».

[42]            Therefore, the Court does not accept the defence proposal that the large quantity of cocaine in possession of Mr Armeni can only add one or two more years to the jail sentence.

[43]            The principles of sentencing are set out in section 718 of the Criminal Code in the following terms:

[44]            In the present case, the Court has noted that Mr Armeni did not take advantage of the opportunity which society gave him in 1998 to mend his ways and to stay away from the criminal milieu and become an honest citizen. The Court can only express its sincere hope that in the future and after the present sentence is served, Mr Armeni will, if only for his two sons and his family, abandon the criminal circles and enjoy life with his family as an honest citizen.

[45]            A sentence, it is trite to say must address the gravity of the offences and the degree of responsibility of the offender. In addition, I am obliged to take into account aggravating and mitigating circumstances relating to the offences and the offender.

[46]            A sentence should also be similar to sentences imposed upon similar offenders for similar offences committed in similar circumstances.

[47]            In the present case, the Court cannot find any mitigating factors to the benefit of the accused. However, there are many relevant aggravating circumstances. They are:

1)      the large quantity of cocaine handled by Mr Armeni;

2)      the nature of the drug which has become a scourge for society;

3)      the age of the accused who is a mature person who knew the consequences of his actions;

4)      his heavy criminal record;

5)      the last offences were committed while he was on parole.

[48]            Hence, our Court’s decisions indicate that both deterrence and denunciation are the two privileged principles, which must be considered to determine the sentence in matters of possession and traffic of cocaine. In the case of R. v. Smith[3], Mr Justice Lamer stated the following:

Those who import and market hard drugs for lucre are responsible for the gradual but inexorable degeneration of many of their fellow human beings as a result of their becoming drug addicts… Such persons, with few exceptions (…), should, upon conviction, in my respectful view, be sentenced to and actually serve long periods of penal servitude.

[49]            In the cases of Mulganiris[4], Farfan[5], Tremblay[6] and Sigman[7], the Court of Appeal of Quebec not only stressed the fact that traffic of cocaine is a very severe offence which brings devastating damages to society but also established that the quantity and the value of the cocaine are aggravating circumstances not to mention the maturity of the individuals who participate in such criminal behaviour.

[50]            Cocaine is a hard drug, highly addictive which has a significant direct and indirect harmful effect on society.

[51]            The evidence has established that for the year 2005, Mr Armeni had in his possession at least 10% of all the drug seized throughout the country for that year and that it’s quality was one of the purest on the market which again will increase it’s harmful potential while increasing the profits to criminals.

[52]            The possession and trafficking of a highly addictive drug like cocaine in such a large quantity has a significantly harmful effect on society and must be discouraged at all levels.

[53]            In the cases of R. v. Camillucie[8], R. v. Mantha[9], R. v. Savard[10], Sigman v. R.[11], R. v. Cardona-Obando[12], Barbeau v. R.[13], Buttino v. R. [14], R. v. Fehr[15], R. v. Ept[16], R.  v. Sandhu[17], 2003 and R. v. Nicolucci[18], the Courts imposed sentences varying from 6 to 19 years, depending upon whether the accused had related criminal convictions.

[54]            Finally in the case of R. v. Letourneau[19], a sentence of 17 years was imposed on an individual who possessed for purpose of trafficking 47 kilos of cocaine and who had a heavy criminal record.

[55]            In light of the precedents in similar cases, and considering the aggravating circumstances of this case as related above, the Court comes to the conclusion that a prison term of 19 years is a just and appropriate sentence in the present matter.

F)         PRE-TRIAL CUSTODY

[56]            Defence counsel suggests that the accused ought to be given a credit for the time he spent in pre-trial custody from the time his parole was revoked on May 31st, 2006 up until this date.

[57]            To support his demand, defence counsel referred to the case of R. v. Ditchuk[20] , in which the Alberta Provincial Court decided that an accused may benefit from a credit on his sentence while in custody in a local facility because he loses the benefit of remission mechanisms provided by the correctional facility and of other programs available to him in the institution.

[58]            This Court does not agree with that proposal.

[59]            In three instances, the Court of Appeal of Quebec decided otherwise.

[60]            In the case of Mantha v. R.[21], the Court of Appeal stated that the time served by the accused between the time his parole is revoked and the time the sentence is rendered, does not constitute pre-trial custody as defined by section 719.3 of the Criminal Code.

[61]            During that period of time, the accused is not detained as a result of the offences for which he will receive his sentence but is detained following the parole revocation.

[62]            The Court of Appeal stated the same principle in the cases of R. v. Robitaille [22] and the case of Lachance v. R.[23].

[63]            Therefore, this Court will not credit the time spent by the accused in jail before he receives his sentence for the present offences.

G)        MOTION UNDER SECTION 743.6 (1) CRIMINAL CODE

[64]            The Crown suggests that this Court should apply section 743.6 (1) and order that the portion of the sentence that must be served before Mr Armeni may be released on full parole be one half of the sentence or ten years, whichever is less.

[65]            This extraordinary measure was commented upon by the Supreme Court of Canada in the case of R. v. Zinck[24].

[66]            The application of such a remedy was also reviewed in the cases of Boulanger v. R.[25], and R. v. Lalonde[26], Dankyi v. R.[27], and Leblanc v. R.[28].

[67]            From all those Court cases, I consider that:

1)      an order under section 743.6 (1) is exceptional and constitutes an extraordinary measure;

2)      such an order must be applied fairly to the accused;

3)      the Crown has the burden of proof. It must justify that the additional sanction is essential in light of all the circumstances;

4)      before issuing such an order, the Court must engage in a double weighing exercise where the facts must first be evaluated in light of the criteria mentioned in section 718 Cr. C. in order to impose the appropriate sentence and as a second step must review the same facts from the perspective of the requirements of deterrence and denunciation.

[68]            In the present case, the Court realizes that the scope of possible sentences for the offences of possession of cocaine for the purpose of trafficking are wide enough to accommodate the best and the worst cases. However, the Court is of the opinion that following this two step approach, the issuing of an order under section 743.6 (1) is warranted in the present circumstances. The Court has noted that severe sentences were imposed upon Mr Armeni in the past for similar offences. Obviously, the sentences did not result in the deterrence and the denunciation expected to bring Mr Armeni to change his behaviour.

[69]            It appears that the lure of gain, which comes from the possession, and trafficking of cocaine is too important and is not deterred by imprisonment.

[70]            The Court also noticed that the quantity handled by Mr Armeni is increasing from one offence to the other and that the traditional system of sentencing did not bring any positive results in as much as his rehabilitation is concerned.

[71]            The Court is of the opinion that in spite of severe and regular heavy sentences imposed upon Mr Ameni for his previous offences, it did not produce the deterrence it was supposed to bring and, therefore, the Court is of the opinion that the present case is a good example for the application of section 743.6 (1) of the Criminal Code.

[72]            Moreover, the Court has noted that the last offences were committed while Mr Armeni was on probation. Therefore, the normal and standard probation procedure has failed.

H)        KIENAPPLE RULING

[73]            Defence counsel is seeking an order to strike two of the charges for which Mr Armeni was found guilty. He submits that the evidence has showed that the conviction only relate to one event which was established with the same evidence and for which Mr Armeni was found guilty on the same facts.

[74]            The Court wishes to reiterate that a Kienapple ruling is justified to avoid multiple convictions.

[75]            In the present case, Mr Armeni was found guilty of trafficking on one part and possession for the purposes of trafficking on the other part. The evidence, which led the jury to find Mr Armeni guilty is the same and relates to one transaction and one set of circumstances.

[76]            However, in so far as count number 3 is concerned, that is conspiracy, the Court is of the opinion it consists of essential ingredients which do not permit to apply the Kienapple ruling.

I)          CONCLUSION

[77]            WHEREFORE, THE COURT:

[78]            SENTENCES Mr Vincenzo Armeni to a period of imprisonment of 19 years on count numbers 1 and 3 which shall be served concurrently;

[79]            DECLINES to enter a conviction in keeping with the rules against multiple convictions and the case authority of Kienapple with respect to count number 2;

[80]            ORDERS that the sentence of 19 years be served consecutively to the sentence Mr Armeni is presently serving and which will expire on October 4th, 2008;

[81]            ORDERS that Mr Vincenzo Armeni serve 9 years and 6 months of imprisonment before being eligible for parole;

[82]            ORDERS that pursuant to section 109 of the Criminal Code Mr Vincenzo Armeni be prohibited for life from possession of any firearm, crossbow, prohibited weapon, prohibited device, ammunition or any explosive substance.

[83]            EXEMPTS Mr Vincenzo Armeni from the victim surcharge in the circumstances.