R. v. Johnstone (J.B.), (2014) 598 A.R. 232 (QB)

• Judge: Ouellette, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: October 22, 2014
• Citations: (2014), 598 A.R. 232 (QB);2014 ABQB 647

R. v. Johnstone (J.B.) (2014), 598 A.R. 232 (QB)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. OC.117

Her Majesty the Queen v. James Brian Johnstone (110398195Q2; 2014 ABQB 647)

Indexed As: R. v. Johnstone (J.B.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Ouellette, J.

October 22, 2014.

Summary:

The accused, a guard at the Edmonton Remand Centre, pleaded guilty to trafficking in a controlled substance, possession of marijuana (less than 3 kilograms) for the purpose of trafficking, and possession of cocaine for the purpose of trafficking. The accused admitted smuggling drugs into the Remand Centre, but only because an inmate threatened him and his mother. The accused argued that he committed the offences under duress, which should mitigate his sentence.

The Alberta Court of Queen's Bench held that an appropriate sentence, but for the mitigating factor of duress, would be four years' imprisonment. After factoring in duress, the court sentenced the accused to a conditional sentence of two years less a day.

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - [See Criminal Law - Topic 5849.17 ].

Criminal Law - Topic 5849.17

Sentencing - Considerations on imposing sentence - Duress - In 2010-2011, the then 21 year old accused guard smuggled drugs into the Edmonton Remand Centre where he worked - He pleaded guilty to trafficking in a controlled substance, possession of marijuana (less than 3 kilograms) for the purpose of trafficking, and possession of cocaine for the purpose of trafficking - The accused argued that he only did so under duress, as a violent inmate with connections to the Hell's Angels threatened him and his mother if the accused did not bring in packages delivered to him - Packages were delivered to the accused and a person identifying himself as affiliated with the Hell's Angels moved in across the street from the accused and made himself, and his history of violence, known to him - The Alberta Court of Queen's Bench held that duress did not provide a defence to the offences, because one of the four pre-conditions (temporal connection) was missing - However, the court was satisfied that the accused acted under duress where the threats were made, the accused reasonably believed that they would be carried out and the accused's subjective belief that he had no reasonable avenue of escape was objectively reasonable - The court held that duress short of providing a full defence to the charges was a mitigating factor in sentence - It was important that the accused received no compensation for his smuggling activities - Given the breach of trust, the appropriate sentence for a correctional officer would be 4-6 years' imprisonment for smuggling drugs into an institution - Absent duress as a mitigating factor, the court would have sentenced the accused to four years' imprisonment - Given the accused's low level of blameworthiness due to the duress, the court sentenced the accused to a conditional sentence of imprisonment for two years less a day.

Criminal Law - Topic 5850

Sentence - Trafficking in a narcotic or a controlled drug or substance (incl. possession for the purpose of trafficking) - [See Criminal Law - Topic 5849.17 ].

Criminal Law - Topic 5853

Sentence - Trafficking in hashish or marijuana (incl. possession for the purpose of trafficking) - [See Criminal Law - Topic 5849.17 ].

Cases Noticed:

R. v. Ryan (N.P.), [2013] 1 S.C.R. 14; 438 N.R. 80; 324 N.S.R.(2d) 205; 1029 A.P.R. 205; 2013 SCC 3, refd to. [para. 13].

R. v. Hibbert (L.), [1995] 2 S.C.R. 973; 184 N.R. 165; 84 O.A.C. 161; 99 C.C.C.(3d) 193, refd to. [para. 13].

R. v. Basit (M.R.), [2014] B.C.T.C. Uned. 868; 113 W.C.B.(2d) 473; 2014 BCSC 868, refd to. [para. 16].

R. v. Hennessey (S.W.) et al. (2010), 490 A.R. 35; 497 W.A.C. 35; 2010 ABCA 274, refd to. [para. 41].

R. v. J.L.M.A. (2010), 499 A.R. 1; 514 W.A.C. 1; 2010 ABCA 363, refd to. [para. 42].

R. v. Arcand - see R. v. J.L.M.A.

R. v. Ipeelee (M.), [2012] 1 S.C.R. 433; 428 N.R. 1; 288 O.A.C. 224; 318 B.C.A.C. 1; 541 W.A.C. 1; 2012 SCC 13, refd to. [para. 43].

R. v. Oake, [1984] A.J. No. 402 (C.A.), refd to. [para. 49].

R. v. Domke (M.) (2006), 400 A.R. 112; 2006 ABPC 252, refd to. [para. 55].

Counsel:

Adam C. Halliday (Public Prosecution Service of Canada), for the Crown;

Rod J.A. Gregory (Davidson Gregory Danyluik), for the accused.

This matter was heard on October 6-7, 2014, before Ouellette, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on October 22, 2014.