R v PF, 2011 ABQB 628

Court of Queen ’ s Bench of Alberta Citation: R v PF, 2011 ABQB 628 Date: 20111013 Docket: 080529688Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - PF Accused Editorial Notice: On behalf of the Government of Alberta identifying information has been removed from this unofficial electronic version of the judgment. _______________________________________________________ Oral Reasons for Judgment on Sentencing of the Honourable Mr. Justice Don J. Manderscheid _______________________________________________________ 1.

The Offence and Suggested Sentences............................................................. Page: 2 2. Cases and Authorities Cited................................................................................ Page: 3

3. Introduction.............................................................................................................. Page: 3 4. Evidence and Findings of Fact............................................................................. Page: 4 A. Pre-Sentence Report................................................................................. Page: 4 i. Mr. PF’s Social Background and History.................................... Page: 4 ii. Mr. PF’s Education, Employment History and Financial Status Page: 5 iii. Mr. PF’s Character and Behavioral History................................ Page: 6 iv. Mr.

PF’s Criminal History.............................................................. Page: 7 v. Conclusion...................................................................................... Page: 7 B. Statements by the Offender...................................................................... Page: 8 C. Findings of Fact......................................................................................... Page: 8 5. Analysis................................................................................................................... Page: 9 A.

Criminal Code Provisions......................................................................... Page: 9 B. Principles of Sentencing......................................................................... Page: 10 C. Facts Relevant to Sentencing................................................................. Page: 10 D. Sentences for Comparable Offences.................................................... Page: 13 i. R. v. Liparoti as a close analogue.............................................. Page: 13 ii. R. v. Liparoti & R. v. Fice............................................................ Page: 16 E.

The Appropriate Sentence Duration and Form.................................... Page: 18 i. Step 1 - Probation or a Sentence of Two or More Years........ Page: 20 ii. Step 2 - Preliminary Consideration - Community Safety......... Page: 21 iii. Sentence Duration and Form..................................................... Page: 22 a. Non-Conditional Sentence.............................................. Page: 23 b. Conditional Sentence ( R. v. Proulx Step 2)................. Page: 27 F. Sentence................................................................................................... Page: 29 6.

Conclusion............................................................................................................ Page: 30 1. The Offence and Suggested Sentences [ 1 ] PF was charged that near Edmonton, Alberta on or about April 28, 2008, he: 1. unlawfully possessed a controlled substance, cocaine, for the purpose of trafficking: Controlled Drugs and Substances Act , S.C. 1996, c. 19, s. 5(2);

2. unlawfully possessed a controlled substance, cannabis marijuana in an amount exceeding 3 kg, for the purpose of trafficking:Controlled Drugs and Substances Act, s. 5(2); and 3. without lawful excuse, used in a careless manner (carried, handled, shipped, transported or stored) a rifle: Criminal Code, R.S.C.1985, c. C-46, s. 86(1). [2] Mr. PF pled guilty to the two charges of possession of a controlled substance for the purpose of trafficking. The charge ofusing a rifle in a careless manner was withdrawn by the Crown. [3] It now falls to this Court to determine and impose a fit and proper sentence on Mr. PF.

The Crown and the Defence take avery different view of what is the appropriate sentence in this case. The Crown asks for a three year term in jail for possession ofcocaine, and a concurrent 18 month sentence for marijuana possession. The Defence suggests a conditional sentence. 2. Cases and Authorities Cited By the Crown: R. v. Maskill (1981), 1981 ABCA 50 , 29 A.R. 107, 58 C.C.C. (2d) 408 (Alta. C.A.); Ferley v. Scheur, 2004 ABQB 14 (Alta.Q.B.); R. v. Sawatsky, 2007 ABCA 353, 417 A.R. 362; R. v. Belenky, 2010 ABCA 98, 477 A.R. 354; R. v. Fice, 2005 SCC 32, [2005] 1S.C.R. 742. By the Defence: R. v. Arcand; R. v.

J.L.M.A., 2010 ABCA 363, 499 A.R. 1; R. v. Liparoti, 2011 ABCA 250; R. v. Merlin (1984), (NSCA), 63 N.S.R. (2d) 78, 13 C.C.C. (3d) 549 (N.S.S.C.(A.D.)); R. v. Kwok [2005] M.J. No. 509 (Man. Q.B.); R. v. Conyers, 2010 ABQB 520; R. v. D.J.G., 1999 ABCA 34, 232 A.R. 128; R. v. Rahime, 2001ABCA 203, 286 A.R. 377; R. v. Voth, 1998 ABCA 11; R. v. Marchesi, 2009 ABCA 304, 460 A.R. 294; R. v. Schmidt, 2011 ABCA 211. By the Court: R. v. Penner, 2009 ABQB 535, 465 A.R. 279; R. v. Wilson, 2009 ABCA 257, 457 A.R. 373; R. v. Chung (1993), 1993 ABCA 52, 135 A.R. 351, 18 W.C.B. (2d) 611 (Alta. C.A.); R. v.

Ostertag, 2000 ABCA 232, 266 A.R. 57; R. v. Proulx, 2000 SCC 5,[2000] 1 S.C.R. 61; R. v. K.M.L., 2009 ABCA 71, 448 A.R. 289; R. v. Koma, 2008 ABCA 206; R. v. D.D.T., 2009 ABQB 362, 467 A.R.341, affirmed 2010 ABCA 365, 493 A.R. 167, leave refused [2011] S.C.C.A. No. 50; R. v. C.K., 2006 ONCJ 283, 211 C.C.C. (3d) 426(Ont. Ct. J.); R. v. White, 2008 ABCA 328, 440 A.R. 43; R. v. Downey, 2006 ABCA 108, 384 A.R. 99; R. v. Nicholson, 2008 ABCA256, 432 AR 391; R. v. Brady, 1998 ABCA 7, 209 A.R. 321, R. v. Price, 2007 ABCA 242, 412 A.R. 168; R. v. Chalifoux, 2010 ABCA237, 493 A.R. 397; R. v.

Hennessey, 2009 ABQB 60, 458 A.R. 260, affirmed 2010 ABCA 274, 490 A.R. 35, leave refused [2011]S.C.C.A. No. 167, [2011] S.C.C.A. No. 199; R. v. Conlon, 2011 ABPC 259. 3. Introduction [4] Both the Crown and the Defence each tendered judicial authorities which in some form or fashion lend support to their

respective positions. I must consider those cases, and in particular the Supreme Court of Canada and the Alberta Court of Appeal decisions, to determine a just and proper sentence for Mr. PF. 4. Evidence and Findings of Fact [ 5 ] The Crown and the Defence agree on the facts of this case: On April 28th, 2008, Edmonton Police Service executed a search warrant at a residence in Edmonton, Alberta. There were three persons present in the residence, one of those being Mr. PF. A search of the residence resulted in locating a total of 22 bags of marihuana weighing a total of 4,448.83 grams.

The majority of which was split into 17 bags weighing an average of 235 grams. There were five smaller bags weighing from 72.6 grams to 110.8 grams. The estimated street value of that marihuana would be approximately $66,700. Also located were five baggies of cocaine weighing a total of 122.1 grams. Its estimated street value would be around $9,700. There was also in the basement of the residence a small marihuana-grow operation. There were 90 plants averaging four inches in height under a light with a timer on it.

There was also a digital scale located, a variety of baggies, and as well there were documents located in the house with Mr. PF’s name on it for the address of the residence that they were searching. [ 6 ] At the request of Mr. PF’s counsel, a Pre-Sentence Report (“PSR”) was ordered of Mr. PF. The Court has now received the PSR. The author of the PSR was not cross-examined on the content of the report. A. Pre-Sentence Report [ 7 ] To prepare her report the author of the PSR, Ms. Michelle Reid, interviewed Mr. PF, his common-law wife SB, and Mr. PF’s employer John Landa. Succinctly, Mr.

PF’s PSR is favourable and recommends Mr. PF as a candidate for community supervision. i. Mr. PF ’s Social Background and History [ 8 ] Mr. PF was born in Ingersoll, Ontario to MF and WF. As a young child they moved to Lethbridge, Alberta, where he lived with his parents until age 13, when his parents divorced. Mr. PF related that he was placed in custody as a consequence of being charged with theft of a truck, and thereafter never returned home to live with his parents. He believes after that event that his parents were embarrassed of him. [ 9 ] Mr. PF has three siblings: two older brothers and a younger sister.

He related to Ms. Reid that he does not have a relationship with his parents; he and his parents do not “see eye to eye”. Mr. PF said that his father was physically abusive and his mother was always angry. As a result, Mr. PF expressed that he did not feel loved by his parents while growing up and that he struggles with abandonment issues. Mr. PF stated that his parents currently live in Lethbridge, Alberta but he has not had contact with them in the past 15-20 years. [ 10 ] Mr. PF described his relationship with his older brother P as “close”. He related to Ms.

Reid that they maintain regular phone contact and retain a good relationship. As well, he related that he and his sister R get along, although he notes that she travels often and that makes it hard to maintain a relationship. Mr. PF says he has no relationship with his oldest brother M due to childhood trauma. Much the same as with his parents, he and M have not spoken in 15- 20 years. Mr. PF’s common-law wife of three years, SB, confirmed Mr. PF’s relationship with his family. [ 11 ] Mr. PF reports that he was not exposed to alcohol or drug use during his childhood years. However, Mr. PF related to Ms.

Reid that he had experienced traumatic major events, alleging that, as a child, he was sexually abused. He advised that the first encounter was when he was 7 or 8 years old. The other person was his older estranged brother M. Mr. PF never pressed sexual assault charges. Ms. Reid stated that she was unable to confirm this allegation. [ 12 ] Mr. PF advised he was married in 1999, while in custody at the Bowden Institution, however, he and his wife divorced two months later. There were no children from that relationship. [ 13 ] At present, Mr.

PF enjoys the support of a new found family consisting of SB and her two sons. Mr. PF met SB after he was released on a recognizance order for the subject charges. Mr. PF described this relationship to Ms. Reid as good, and indicated he and SB get along well; she is his best friend. SB’s two sons are L and J, both 20 years of age. Mr. PF related that although these children are not his biological children he cares for them as if they are, and he has taken on the father role in their lives. Mr.

PF advised that SB and her two sons have changed his life, he has never cared for anyone in the past, and feels grateful to have all three of them in his life. Mr. PF concluded that this family is scared of the outcome of these current matters as he is the glue that keeps the family together. [ 14 ] SB advised Ms. Reid that she and Mr. PF maintain a great relationship and that her children love him. She believes the family would be greatly affected if Mr. PF was sentenced to custody. SB further advised that she depends on Mr. PF, as she suffers from eating disorders and Mr. PF does all the cooking. ii. Mr.

PF ’s Education, Employment History and Financial Status [ 15 ] Mr. PF completed grade seven within the regular school system in Lethbridge, Alberta. The remainder of his high school education occurred while he was in custody. While in custody, he completed his first and second years of welding and when released he finished his third year at the Northern Alberta Institute of Technology. However, at present, he has no desire to continue with any further education. SB described Mr. PF as a smart and driven person; she confirmed Mr. PF’s education. [ 16 ] Mr.

PF is currently employed as a personal care attendant for John Landa, a quadriplegic. Mr. PF reports that he has been employed in that role for approximately six months. His income is approximately $2,300.00 a month. Mr. PF related to Ms. Reid that if he receives custody on these charges he will lose his job and Mr. Landa will need to find someone else to attend to his needs. Mr. Landa requires constant care. Prior to his employment with Mr. Landa, Mr.

PF was doing part time construction for himself at the family home in Mannville, he also engaged in construction and maintenance work at other properties owned by his Edmonton landlord. [ 17 ] Ms. Reid interviewed Mr. Landa, who advised that Mr. PF is a great employee and feels that it would be hard to replace him if he is sentenced to custody. Mr. Landa found Mr. PF to be an efficient and hard worker. He confirmed that given Mr. PF’s hours of employment (5:00 a.m. to 12:00 p.m. and 6:00 p.m. to 8:00 p.m.), it would be hard to find a good replacement. Mr. Landa would be sad to lose him. [ 18 ] Mr.

PF says he and SB have savings and assets; he owns a car, a motor bike and furniture. Mr. PF has no major debt, and indicates his only expenses are his rent ($1200.00/month) and food ($250.00- $500.00/month). Ms. McBride confirmed Mr. PF’s financial information, and that he has indicated to her that he is debt-free. iii. Mr. PF ’s Character and Behavioral History [ 19 ] Mr. PF advised and SB confirmed that he spends most of his days working, however, on his days off he spends time with his family. Mr. PF says that he enjoys cooking, building things and watching movies. Mr.

PF believes his positive qualities include a strong work ethic, a focus on quality family time, and being helpful. Ms. McBride indicated to Ms. Reid that Mr. PF is her and her childrens’ “hero”, as he has helped them get through many tough times, and has taught them to be better persons.

[ 20 ] Prior to his charges, Mr. PF stated that he would socially use alcohol on occasion. Mr. PF advised that he first experimented with alcohol as a teenager and that his use escalated between the ages of 16-30. However, he indicates his current alcohol consumption is moderate to minimal, and does not feel that level is problematic. Mr. PF confirmed that he would be willing to abstain from alcohol upon release. [ 21 ] Mr. PF acknowledged that he experimented with marijuana between the ages of 16-18, but indicates he has no further history of drug use.

He says he was not abusing illicit substances at the time of his arrest. He has never required any counselling in this area. Mr. PF denies and Ms. McBride confirmed that Mr. PF does not use illegal drugs. [ 22 ] Mr. PF is not aware of any mental health disorder that he may have, however, he noted that while in custody in 1992 an assessment was conducted by the authorities which indicated he was anti-social. Mr. PF believes that his general mental health is good, with no self-esteem issues. However, he did relate to Ms. Reid that he has felt the stress of the present criminal action and sentencing.

SB related that Mr. PF is very outgoing, she does not feel that he is an anti-social individual. In the PSR, Ms. Reid notes that Mr. PF has been on recognizance during the three years she has been his supervisor. She feels that he has not displayed anti-social behaviours during that time. As for his mental health, Ms. Reid further qualified her observations by stating that Mr. PF might benefit from a further assessment. [ 23 ] Physically, Mr. PF related that he suffers from arthritis in his hands and knees but otherwise he has no other physical disabilities at this time. iv. Mr. PF ’s Criminal History [ 24 ] Mr.

PF has somewhat of an extensive criminal record which involves 38 convictions for previous offences, the first occurred on January, 1987. Significantly, Mr. PF has on four occasions been convicted for failure to comply with court orders. He has three serious charges from 1992: causing injury with explosives ( Criminal Code , s. 81), committing an indignity to a dead body ( Criminal Code , s. 182), and living on the avails of prostitution ( Criminal Code , s. 212). Mr.

PF has four prior convictions for possession of an illegal substance for the purposes of trafficking, one in 1991, the other three arising from a single incident in 1999. [ 25 ] Mr. PF has received both incarceration and community sentences for his previous offences. v. Conclusion [ 26 ] On August 17, 2011, Mr. PF was interviewed by Ms. Reid for the PSR. Ms. Reid advises in the PSR that during the interview Mr. PF was respectful and cooperative, and that he supplied her with adequate information and numerous possible collateral contacts. Mr.

PF explained that he does remember all of the specifics relating to the offences, and admits his actions were wrong. He expressed feelings of remorse and acknowledged the negative impact of his actions upon the people for whom he cares. Ms. Reid relates that Mr. PF acknowledged his misconduct has negatively impacted his life. [ 27 ] When interviewed Ms. McBride said she believes that Mr. PF would successfully adhere to the terms of any community supervision order. Ms. Reid takes the same position. At the conclusion of the PSR, Ms.

Reid explains: Despite the subject’s lengthy and serious nature of the subject’s criminal record, it is the opinion of the writer that the subject is a suitable candidate for community supervision. It had been nearly 12 years since the last offence and he appears to understand the seriousness of his behaviour. He also shows a willingness to accept responsibility for his actions. The subject seems to display an eagerness to maintain employment, and his family and friends remain strong and supportive role models and express a desire to assist the subject in being successful within the community.

B. Statements by the Offender [ 28 ] During sentencing Mr. PF spoke directly to the Court. He expressed deep regret for his misconduct, and explained that in the past he really did not have anything or anybody. That now has changed, and Mr. PF says that development has had a profound impact. In his own words: “Now I finally found somebody that I want to take care of, who loves me for me ...”. I found the offender’s statement utterly credible, heartfelt, and sincere. C. Findings of Fact [ 29 ] I have no reason to question the accuracy of the PSR report; its contents were not challenged by counsel.

From that report I extract certain key facts: 1. Mr. PF has a very limited history of alcohol use; he first experimented with alcohol as a teenager. Any historic abuse of alcohol has ended. Similarly, Mr. PF experimented with marihuana as a teenager but has no subsequent history of illegal drug use. At present Mr. PF does not have substance abuse or dependency issues. 2. Mr. PF has a history of family disruption, disunity, alienation and alleged incestuous sexual abuse. 3. Within the last three years, Mr. PF has developed a meaningful familial relationship with SB and her two children. 4.

Prior to the current charges Mr. PF had a poor history of compliance with Court and authority directions. 5. Mr. PF has a significant history of criminal misconduct, including a somewhat dated cluster of serious criminal offences. 6. Mr. PF has been on recognizance for approximately 3.5 years. No breaches of the terms or conditions of that release have been identified. 7. Mr. PF has steady employment. 5. Analysis A. Criminal Code Provisions [ 30 ] Mr.

PF pled guilty to two breaches of Controlled Drugs and Substances Act , s. 5(2): possession of over 3 kg of marihuana, and possession of cocaine. 5(2) No person shall, for the purpose of trafficking, possess a substance included in

Schedule I, II, III or IV.

[31] The range of sentences that flow from these offences is set by Controlled Drugs and Substances Act, ss. 5(3) and 5(4): 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 indictableoffence and liable to imprisonment for life; 5(4) Every person who contravenes subsection (1) or (2), where the subject-matter of the offence is a substance included in

Schedule IIin an amount that does not exceed the amount set out for that substance in

Schedule VII, is guilty of an indictable offence and liable toimprisonment for a term not exceeding five years less a day. [32] Both the amounts of cocaine and marihuana recovered by police attract the penalty specified by s. 5(3). Mr. PF may thus besentenced to life imprisonment. As no minimum sentence is associated with either offence a conditional sentence served within thecommunity is possible, see R. v. Penner, 2009 ABQB 535 at paras. 47-57, 465 A.R. 279. B. Principles of Sentencing [33] Criminal Code, ss. 718-718.2, as elaborated by the common-law, provide the principles that guide sentencing in Canada.

Theglobal purpose of sentencing is to contribute to respect for the law, maintain a just, peaceful and safe society, and suppress future crimes.In sentencing, the Criminal Code specifies a number of objectives, to: 1. denounce unlawful conduct; 2. deter the offender from committing this or any other crime again; 3. send a message to the public and in particular to the offender’s friends, associates and community that behaviour such as occurredin this case is not to be tolerated; 4. protect the public by separating the offender from the public; 5. assist the offender in his rehabilitation; 6. provide reparation for harm done to the victim or the community; and 7. promote responsibility in the offender and encourage the offender to acknowledge the harm that has flowed from his misconduct. [34] In R. v.

Maskill (1981), 1981 ABCA 50 , 29 A.R. 107, 58 C.C.C. (2d) 408 (Alta. C.A.) our Court of Appeal indicatedthat deterrence is the primary objective of sentencing in this kind of case.

C. Facts Relevant to Sentencing [ 35 ] When sentencing an offender a judge in most instances has considerable discretion as to the kind and nature of the sentence. Not all crimes nor offenders are the same. This discretion is in many senses a balancing exercise, an evaluation of the offence and circumstances and factors that are either mitigating or aggravating. Some of these factors are identified in Criminal Code , s. 718.2. [ 36 ] Prior to review of the mitigating and aggravating factors, there is an important preliminary point on Mr. PF’s history which deserves discussion and commentary.

From the PSR, it is clear that Mr. PF has not enjoyed what could be termed a normal, happy childhood. From an early age, his history discloses a story which portrays an individual who has fallen between the cracks of society, with the result that we now have the end product, an individual with a somewhat lengthy criminal history. [ 37 ] However, from the PSR, we also know that while on recognizance Mr. PF has developed a meaningful relationship with Shelley MacBride and her children.

Furthermore, as previously stated, during his statement to the Court regarding sentencing, he advised the Court that in the past he really didn’t have anything or anybody and in his own words, “Now I finally found somebody that I want to take care of, who loves me for me ...”. Arguably, Mr. PF has shown himself to be a different person than the one who over three years ago committed the offences for which he is now being sentenced. [ 38 ] Mr. PF’s prior offences involve a number of what I conclude are aggravating factors: 1. Mr.

PF has a somewhat extensive criminal record which, including his youth offences, totals 38 previous convictions. Included in these convictions are three convictions for trafficking for the purpose dating back to 1999, and one prior conviction for possession for the purpose. 2. Mr. PF has on four occasions been convicted for his failure to comply with court orders. [ 39 ] The mitigating factors relating to the circumstances of these offences are as follows: 1. Mr. PF has complied with the conditions of his release and he has attended all court appearances; 2. Mr.

PF pled guilty to the subject offences - albeit not at a particularly early date; 3. Mr. PF has a history of family disruption, disunity, alienation and alleged incestuous sexual abuse; 4. Within the last three years Mr. PF has developed a meaningful familial relationship with SB and her two children; he therefore has the support of individuals who have a genuine interest in Mr. PF’s continued rehabilitation and well-being; 5. Mr. PF has steady employment, that employment provides a very necessary service to the community; and 6. Mr.

PF expressed his sincere remorse to the Court. [ 40 ] Pre-trial restrictions on Mr. PF’s freedom also may affect the duration of his sentence, specifically Mr. PF:

1. spent approximately three months in pre-trial custody and if given a custodial sentence, his sentence would be reduced on a ‘two for one’ basis which would amount to approximately six months; and 2. was released on recognizance for 3.5 years; the conditions of his release placed very strict obligations and responsibilities on Mr. PF. In this respect, Mr. PF has effectively been under “house arrest”. Specifically, the conditions of Mr. PF’s recognizance are:

a) that the Applicant keep the peace and be of good behaviour;

b) that the Applicant shall report in person to the bail supervisor within 24 hours of his release and thereafter report in person to the bail supervisor once per week or as directed with the day, hour of reporting and frequency of reporting at the discretion of the bail supervisor;

c) that the Applicant shall reside at [...] and that he not change his address without the prior approval of his bail supervisor;

d) that the Applicant shall not leave his residence at [...], unless he has the prior written approval of his bail supervisor to leave the residence for the purposes of employment, attending Court, attending upon his lawyer and/or for medical emergencies, or any other purpose approved by his bail supervisor and the Applicant shall carry a copy of this Order upon his person at all times and present it to any peace officer upon demand;

e) that the Applicant shall not possess any firearms, ammunition or explosive substances or any weapon or imitation thereof as defined in s. 2 of the Criminal Code of Canada;

f) that the Applicant not possess any cell phone, pager, electronic communication device or computer, whether operational or not;

g) that the Applicant undertake to surrender any passports and not to apply for any travel documents;

h) that the Applicant maintain a land line (land line telephone) at [...], aforesaid and provide the land line number to his bail supervisor and answer all telephone calls and appear in person at the door of the said residence during the horns of curfew;

i) that the Applicant shall keep of copy of this Amended Order of release on his person at all times and show it to any peace officer upon demand; and

j) that the Applicant shall, upon demand by a peace officer at his place of employment or at his residence, present himself to ensure compliance of this Order. D. Sentences for Comparable Offences [ 41 ] A central principle of sentencing is consistency, that similar sentences should be ordered for similar offenders who have committed similar offences: Criminal Code , s. 718.2(b). That principle requires that a court examine and weigh the similarities between previous offence scenarios and the kinds of sanctions ordered. All Canadian trial decisions are relevant, but those from Alberta, its Court of Appeal, and the Supreme Court of Canada carry a special weight.

[42] In certain instances appellate courts have provided an explicit ‘starting point’ for sentences that flow from a particular offence.In R. v. Rahime, 2001 ABCA 203, 95 Alta. L.R. (3d) 237 at para. 26, the Court confirmed that “... the three year starting point fortrafficking in cocaine on more than a minimal scale is reasonable and complies with the reasoning in the Supreme Court of Canada casesdiscussed more fully in R. v. Ostertag”.

Nonetheless, I note that the court in Marchesi, 2009 ABCA 304 at para. 4, 460 A.R. 294concluded that: Rahime recognized that there is no bar to a conditional sentence, and that because of the standard of review in sentencing cases,conditional sentences will in appropriate cases be undisturbed on appeal. See also R. v. Maskill; R. v. Wilson, 2009 ABCA 257, 457 A.R. 373; R. v. Chung (1993), 1993 ABCA 52 , 135 A.R. 351, 18W.C.B. (2d) 611 (Alta. C.A.); R. v. Ostertag, 2000 ABCA 232, 266 A.R. 57. [43] Counsel for Mr.

PF and the Crown have provided a number of cases (listed above) they consider relevant in relation to anappropriate sentence. i. R. v. Liparoti as a close analogue [44] R. v. Liparoti, 2011 ABCA 250, a very recent decision of our Court of Appeal, is potentially very relevant. In that case, theCrown appealed the imposition of a global 18-month conditional sentence for three counts of trafficking in cocaine and one count ofpossession of proceeds of crime.

The facts of the case were that on July 23, 2009, the respondent, Osvaldo Liparoti, and Jason Krugersold small quantities of crack cocaine to three undercover police officers in two separate transactions. On each occasion, Liparotiprovided cocaine to Kruger following a sale discussion, Kruger then handed it to the undercover officer. [45] I note that this arrangement appears to be a “dial a doper” scheme, which Chief Justice Fraser in R. v. Chung characterized asa “commercial trafficking system” intended “to minimize individual responsibility and culpability”.

Fraser C.J.A. concluded participantsin these schemes deserve the ordinary R. v. Maskill cocaine sentence ‘starting point’. [46] This offender had a significant criminal history. At the time of the offences, Liparoti was 35 years of age and had a substantialrecord dating back a little under a decade: 1. six previous offences under the Controlled Drugs and Substances Act, 2. numerous other offences, including:

a) robbery,

b) uttering threats,

c) possession of a concealed weapon,

d) failing to attend court, and

e) failure to comply with release conditions. [47] Liparoti had a pattern of offence, custody, then re-offence. He was sentenced for trafficking offences that occurred just sevendays after being released from custody on his last offence. Prior to that, he was sentenced in December 2004 to two and one half yearsfor robbery, along with concurrent sentences of two years, one year, and six months on three counts of trafficking in controlled

substances. The following month, he was again sentenced on two outstanding counts of trafficking and received six months sentences on each charge, consecutive to the sentence he was serving. Following his release and until his arrest on the offences in question, Liparoti continued his criminal activity and appeared before the courts on a number of occasions, often receiving short sentences or time in custody. [ 48 ] Liparoti was arrested and spent 69 days in custody.

He was later released prior to trial on onerous conditions similar to those generally imposed for conditional sentence orders, what was effectively house arrest. Liparoti had requested those stringent conditions to assist him in his rehabilitation. Subsequent to his release, Liparoti lived at the Dream Centre in Calgary for two months, where he received counselling and assistance for re-integration into the community. He secured employment at a restaurant, and was quickly promoted to kitchen manager. He continued to be employed at the same restaurant and his employer was very satisfied with his performance.

In addition to counselling programs at the Dream Centre, Liparoti attended AA and abstained from the use of drugs and alcohol. [ 49 ] Eight months after his arrest Liparoti entered guilty pleas to all four charges. He unsuccessfully applied for admission to the Provincial Court Drug Treatment Program. [ 50 ] The pre-sentence report, prepared in September 2010, concluded that Liparoti was suitable for a community sentence disposition. [ 51 ] Liparoti had significant similarities to Mr.

PF, as Liparoti had: 1. complied with the strict conditions imposed by his interim release order for a significant period (14 months), 2. successfully obtained and retained employment, 3. developed new community connections, as he re-established his relationships with his girlfriend and his mother, 4. abstained from the use of drugs and alcohol, and 5. rehabilitated, as confirmed by evidence given by his employer, his mother and his girlfriend. [ 52 ] The Crown’s position, based primarily on Liparoti’s record, was that he continued to be a danger to society and should be sentenced to a term of three years imprisonment.

The defence submitted that he was not a danger to society, as demonstrated by his rehabilitation and his compliance with strict release conditions, and asked for a conditional sentence order to permit Liparoti to continue his rehabilitation. The sentencing judge imposed an 18-month conditional sentence with strict conditions, and directed that the record disclose that Liparoti had spent 69 actual days in pre-trial custody.

The Crown appealed on grounds that the sentencing judge: 1. failed to give sufficient weight to principles of deterrence and denunciation, 2. failed to give adequate consideration to guideline cases, 3. overemphasized rehabilitation, 4. failed to give adequate reasons, and

5. that the sentence imposed was not fit. [ 53 ] The Court of Appeal confirmed at para. 11 that the starting point sentence for commercial trafficking in cocaine in small quantities is three years: R. v. Maskill ; R. v. Rahime ; R. v. Marchesi . However, the court in R. v. Liparoti also noted that: [a] guideline sentence is not a judicially imposed minimum, nor does it eliminate the sentencing judge's wide discretion in imposing a sentence: R. v.

Ostertag , 2000 ABCA 232 , 266 A.R. 57 at paras. 12-16 . [ 54 ] In dismissing the appeal, the court concluded at paras. 16 and 17: 16 Absent the mitigating factors, being the guilty plea and the rehabilitation, as well as the pre-trial custody and the lengthy period of compliance with strict bail conditions, we agree that the sentence of three years imprisonment suggested by the Crown would have been a fit sentence in the circumstances of this case, having regard to the low level trafficking and Liparoti's record .

We are not persuaded that the parity principle is applicable because of the co-accused's two additional convictions and the lack of detail regarding those additional incidents. On the whole of the record, we are not persuaded that the sentencing judge made any error in principle. 17 We are left with the question whether the sentence is unfit. We agree with the sentencing judge that this is an exceptional case .

Having regard to the mitigating circumstances, being the guilty plea, the actual pretrial custody of 69 days, and the proof of rehabilitation supported by evidence of compliance with strict bail conditions over a 14-month period , we are not persuaded that the sentence imposed is so unreasonable as to warrant appellate intervention. [Emphasis added.] [ 55 ] The Defence suggests Mr. PF is a similarly exceptional case. ii. R. v. Liparoti & R. v. Fice [ 56 ] R. v. Liparoti is a decision of the appellate court for the Alberta Court of Queen’s Bench and therefore highly relevant to guide Mr. PF’s sentencing.

However, my review of R. v. Liparoti suggests an apparent error of law. [ 57 ] Liparoti spent 69 days in pre-trial custody (para. 4) and 14 months in “virtual house arrest” (paras. 4, 6). The Court of Appeal at para. 13 cites R. v. Lau , 2004 ABCA 408 , 357 A.R. 312 and R. v. Hilderman , 2005 ABCA 249 , 371 A.R. 4 for the proposition that “strict bail conditions” may be treated “as akin to custody” and “credit” may be given on that basis by the sentencing judge. In R. v.

Lau Justice Hunt denied that an offender receive a ‘1 to 1’ sentence reduction of months for 3.5 months recognizance as “credit for time served” (para. 16). R. v. Hilderman has Conrad J.A. at para. 21 confirm a 16 month reduction in sentence as “credit” for a “term of house arrest”. [ 58 ] From my review of R. v. Lau and R. v. Hilderman I conclude that the Court of Appeal in R. v.

Liparoti considered strict pre- trial restrictions to affect sentence duration in the same manner as a period of pre-trial custody; once an appropriate sentence is identified then pre-trial house arrest is a basis for a trial judge to reduce the duration of a sentence, per Criminal Code , s. 719(3). I note the legislative regime in R. v. Lau and R. v. Hilderman , and for Mr. Liparoti and Mr. PF is that which existed prior to the amendments introduced in the 2009 Bill C-25 “Truth in Sentencing Act”. [ 59 ] Para. 16 of R. v.

Liparoti begins with the factors that the Court of Appeal applied to confirm that a sentence of under two years was possible for Mr. Liparoti: Absent the mitigating factors, being the guilty plea and the rehabilitation, as well as the pre-trial custody and the lengthy period of compliance with strict bail conditions , we agree that the sentence of three years imprisonment suggested by the Crown would have been a fit sentence in the circumstances of this case, having regard to the low level trafficking and Liparoti’s record. [Emphasis added.]

[ 60 ] I conclude from this passage that the Court of Appeal applied the s. 719(3) authority to reduce a sentence on the basis of pre- trial detention and restrictive recognizance, here from three years to a duration that could qualify for a conditional sentence. With respect, if that is how the Court of Appeal confirmed the trial judge’s 18 month conditional sentence, then I believe that is an error in law. [ 61 ] In R. v.

Fice , 2005 SCC 32 at para. 33 , [2005] 1 S.C.R. 742 the majority of the court concluded that pre-trial detention was not relevant when a sentencing judge evaluates whether a sentence is of a length that may permit a conditional sentence: ... I conclude that the time spent in pre-sentence custody should not affect a sentencing judge's determination of the range of sentence and therefore the availability of a conditional sentence . Rather, it is a factor that ought to be considered in the course of the judge's determination of the duration of the actual sentence imposed.

To hold otherwise would run contrary to the nature of the conditional sentencing regime, as it was defined in Proulx. [Emphasis added.] [ 62 ] Subsequently decisions of the Alberta Court of Appeal have applied the rule in R. v. Fice to indicate that pre-trial custody cannot be a mechanism to reduce a sentence range so that the sentence falls within the Criminal Code , s. 742.1 conditional sentence criteria, for example: R. v.

K.M.L. , 2009 ABCA 71 at para. 15 , 448 A.R. 289 It appears that the sentencing judge took the pre-sentence custody into account at the first stage of the sentencing analysis and thereby concluded that a conditional sentence could be granted having regard to the time already spent in custody. This was an error in principle, which invites appellate intervention. As noted in Mathieu at para. 9, "the time spent in pre-sentence custody is added to the term imposed at the time of sentence in determining whether an offender may be given a conditional sentence". R. v.

Koma , 2008 ABCA 206 at paras. 3-4 We do find that the trial judge erred in relation to the principle set out in the decisions of the Supreme Court of Canada in the R. v. Fice , [2005] 1 S.C.R. 742, [2005] S.C.J. No. 30 (QL), 2005 SCC 32 and R. v. Mathieu et al. , [2008] S.C.J. No. 21 (QL), 2008 SCC 21 . Although he clearly accepted the case as one requiring a penitentiary sentence, and said so, the trial judge then deducted credit for the pre-trial custody that the respondent had undergone to that point to conclude that a conditional sentence was available.

This error of principle allows us to intervene. [ 63 ] I therefore conclude, with respect, that the analysis of the Court of Appeal in R. v. Liparoti is inconsistent with the law as stated in R. v. Fice . Its error, considering pre-trial custody and house arrest as criteria to reduce Mr. Liparoti’s sentence, implies that a longer sentence, potentially of two or more years, would have been appropriate at the first stage of the R. v. Proulx analysis. That makes the court’s final conclusion of questionable value. [ 64 ] As a consequence R. v.

Liparoti is only relevant in that post-offence and pre-trial rehabilitation, employment, and social contact and support is a basis for a court to reduce the sentence of an offender guilty of drug trafficking of serious narcotics such as cocaine. E. The Appropriate Sentence Duration and Form [ 65 ] This is a drug trafficking case. As stated previously, deterrence is the principle object for this sentence: R. v. Maskill . Mr.

PF’s offences would generally attract a sentence with a starting point of three years: R. v. Maskill ; R. v. Rahime ; R. v. Marchesi . [ 66 ] The Defence has suggested that Mr. PF receive a conditional sentence that would be served in the community.

The circumstances under which a conditional sentence may be ordered are indicated by Criminal Code , s. 742.1: 742.1 If a person is convicted of an offence, other than ... an offence punishable by a minimum term of imprisonment, and the court imposes a sentence of imprisonment of less than two years and is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 , the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the offender’s compliance with the conditions imposed under

section 742.3. [ 67 ] The approach to a conditional sentence analysis was set in R. v. Proulx , 2000 SCC 5 , [2000] 1 S.C.R. 61 by C.J.C. Lamer. The procedure has two steps. At the first step the sentencing judge may proceed to the second step if the judge excludes two possibilities: probation and a penitentiary term of two or more years (para. 58).

The considerations at this stage are restricted: 59 In making this preliminary determination, the judge need only consider the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 to the extent necessary to narrow the range of sentence for the offender . The submissions of the parties, although not binding, may prove helpful in this regard.

For example, both parties may agree that the appropriate range of sentence is a term of imprisonment of less than two years. [ 68 ] If the sentencing judge concludes that neither probation nor a sentence of two or more years is appropriate, then the judge conducts a more exhaustive review of the factors surrounding the offender and offence: 60 Once that preliminary determination is made ... the judge should then proceed to the second stage of the analysis: determining whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 .

Unlike the first stage, the principles of sentencing are now considered comprehensively. Further, it is at the second stage that the duration and venue of the sentence should be determined, and, if a conditional sentence, the conditions to be imposed. [ 69 ] Community safety is a preliminary question in the second step: 63 As a prerequisite to any conditional sentence, the sentencing judge must be satisfied that having the offender serve the sentence in the community would not endanger its safety ...

If the sentencing judge is not satisfied that the safety of the community can be preserved, a conditional sentence must never be imposed . [Citations omitted, emphasis in original.] [ 70 ] If a conditional sentence does not threaten community safety then the sentencing judge proceeds to apply the sentencing criteria of ss. 718 - 718.2 : 77 ... the judge must then consider whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2. 78 A consideration of the principles set out in ss. 718 to 718.2 will determine whether the offender should serve his or her sentence in the community or in jail.

The sentencing principles also inform the determination of the duration of these sentences and, if a conditional sentence, the nature of the conditions to be imposed. See also R. v. Rahime at paras. 30-31 .

i. Step 1 - Probation or a Sentence of Two or More Years [ 71 ] On the first step, there is no possibility, following R. v. Proulx , that probation is a suitable sentence for Mr. PF. He is a repeat offender who has committed a serious drug-related offence. A probationary term would not meet the sentencing principle of deterrence, given the fact that the terms of probation would not be sufficient to deter an offender from further criminal activity.

In my mind, true deterrence can only be achieved in a case such as this by severely restricting the offender’s freedom. [ 72 ] The question, then, is whether a sentence of under two years is possible for this offender. The Criminal Code allows for an offence of that duration. But is a sentence of that duration appropriate? R. v. Liparoti is the obvious analogue for a sentence in that range, but that case has a suspect foundation. [ 73 ] Further, while the offences and offenders are similar, there are two distinct differences: 1. unlike Mr. Liparoti, Mr. PF did not receive any formal rehabilitation; and 2. Mr.

Liparoti engaged in “low-end commercial trafficking committed by an addict or user of drugs to support his addiction”; Mr. PF did not have an analogous substance abuse issue. [ 74 ] While Mr. PF did not receive any formal rehabilitation, I would stress that despite the fact that Mr. PF resided in a small community under virtual “house arrest”, he managed to strike a meaningful relationship with SB and her children and was able to obtain useful employment in the community. [ 75 ] In this sense, Mr. PF has managed to regain his self-worth as an individual during his approximate 3.5 years of interim release.

He has turned his life around. In short, he has self-rehabilitated. I conclude that during sentencing the existence of this positive result, rehabilitation, is more important than its means by which that rehabilitation occurred. [ 76 ] The Crown also argued that the facts in R. v. Liparoti are distinguishable based on the kinds of trafficking activities, and stressed the amount of cocaine recovered. While the amount of cocaine involved in trafficking is certainly relevant, R. v. Liparoti only describes the amount of cocaine recovered at the time of arrest , which was at the point of sale to the undercover police.

The court in R. v. Liparoti does not follow on to consider the possibility (if not probability) that the cocaine recovered by police may have been a small portion of a larger amount. I therefore do not think the different quantities of cocaine involved is all that relevant, and should not materially dictate the sentence imposed upon Mr. PF. [ 77 ] I therefore do not see significant differences between Mr. PF and Mr. Liparoti. The circumstances and conduct of both are very unusual, though their offences are sadly quite mundane. In other words, these are very comparable offences and offenders. [ 78 ] Mr.

PF’s lengthy criminal record is, in certain senses, dated. In particular, his serious offences directed to others occurred at quite a distant date. Further, I have concluded that his employment and pre-trial but post-offence conduct is a positive indication for sentencing and indicates that Mr. PF has functionally taken steps to rehabilitate himself and become a valuable contributing member of society. That post-offence conduct is evidence in itself that he is willing to abandon future criminal activity.

I note here a parallel in how courts had decided between a choice of sentencing regimes under the Youth Criminal Justice Act , S.C. 2002, c. 1; certain young offenders who have committed very serious crimes have received youth sentences based in part on their positive post-offence conduct: R. v. D.D.T. , 2009 ABQB 362 at paras. 135-142 , 467 A.R. 341, affirmed 2010 ABCA 365 , 493 A.R. 167, leave refused [2011] S.C.C.A. No. 50; R. v. C.K. , 2006 ONCJ 283 at para. 48 , 211 C.C.C. (3d) 426 (Ont. Ct. J.). [ 79 ] If I had concluded that R. v.

Laporati is correct in law then I would have no hesitation in saying that in this particular case I would exercise my discretion (in the absence of Criminal Code , s. 742.1) to deviate significantly from the starting point; I could sentence Mr. PF to a period of less than two years.

[ 80 ] However, my conclusion in relation to R. v. Laporati means I cannot accept that a custodial sentence of under two years is appropriate in this instance. While Mr. PF has demonstrated tangible progress in addressing his historic failure to adhere to societal standards by his re-integration with society on a personal and employment basis, that mitigating factor (and other mitigating considerations) is insufficient to reduce his penitentiary sentence to under two years. That completes the first step of the R. v. Proulx process; my conclusion would normally end the R. v. Proulx analysis at this point. ii.

Step 2 - Preliminary Consideration - Community Safety [ 81 ] If I am incorrect and R. v. Laporati is an accurate statement of the law I will proceed to the second step in the R. v. Proulx process and evaluate whether I am satisfied that Mr. PF would not endanger the safety of the community if he served his sentence in a non-custodial setting. Community safety means more than whether Mr. PF may injure others through violence. As was recently reviewed by the Court of Appeal in R. v. Wilson , cocaine trafficking is an activity that is, in itself, dangerous to the community (paras. 30-36).

Not only does cocaine use and addiction directly cause injury but “... [n]o judge who sits on criminal matters can fail to see how much crime is spawned by calculated commerce in hard drugs.” (para. 33). [ 82 ] Mr. PF’s ‘violent’ offences are dated, and I think of little relevance in an evaluation of the danger that he poses to the public. Rather, Mr. PF may pose a significant risk if he resumes his trafficking activities. I conclude that threat is limited. First, Mr. PF has demonstrated a clear shift to lawful conduct by his abiding by a strict recognizance regime for the past 3.5 years.

While his pre-trial conduct is not a consideration in the first step of the R. v. Proulx process, it is relevant to evaluate Mr. PF’s probability of re-offence: R. v. White , 2008 ABCA 328 at para. 41 , 440 A.R. 43. [ 83 ] As I have previously commented, Mr. PF has adopted a lawful lifestyle, and I believe he regrets his former misconduct. [ 84 ] Unlike many trafficking offenders, Mr. PF does not have a history of substance abuse. I conclude that reduces the threat he would be drawn into renewed criminal behaviour.

He has demonstrated that he has alternative legal means to make a living, even while under strict restrictions. I see little economic cause for Mr. PF to resume his trafficking activities. [ 85 ] The most significant factor that convinces me that Mr. PF does not represent a danger to the public is that I believe, for the first time, he has something at risk that he fears to lose. I have no doubt that his relationship with Ms. McBride and her sons is of critical importance to Mr. PF; that was the conclusion of the PSR author and I share her assessment. Mr.

PF understands that his freedom under a conditional sentence is contingent on his good conduct. Prison, for this offender, is now not merely a separation from society, but being severed from his own personal community. I believe that threat weighs very heavily on Mr. PF’s mind. [ 86 ] I therefore conclude that Mr. F would not represent a risk to society if he were to serve his sentence in the community. iii. Sentence Duration and Form [ 87 ] The final step in my sentencing analysis is to evaluate the duration of Mr. PF’s sentence and its form.

Following on my prior analysis I will conduct a parallel application of the R. v. Proulx process, even though I have concluded that a conditional sentence is not available to Mr. PF. a. Non-Conditional Sentence

[ 88 ] Sentencing requires that I consider and apply the Criminal Code , s. 718- 718.2 sentencing factors. The starting point for Mr. PF’s sentence is three years: R. v. Maskill ; R. v. Rahime ; R. v. Marchesi . Starting point sentences are a valid component of Alberta sentencing law and provide for uniform, proportional sentencing: R. v. Arcand , 2010 ABCA 363 , 499 A.R. 1. [ 89 ] Deterrence is the central objective in sentencing these kinds of offences: R. v. Maskill . [ 90 ] Mr. PF’s history and current circumstances are relevant in many ways.

He has a significant though dated history of criminal misconduct; that is an aggravating factor and indicates this individual should be deterred from future, similar action: Criminal Code , s. 718(b). Significant mitigating factors include my conclusion that Mr. PF has already undergone considerable rehabilitation as a consequence of his post-offence conduct and experiences. Nevertheless, I think that rehabilitation ( Criminal Code , s. 718(d))) would be enhanced by significant future constraints on his conduct, and that is one reason why I did not favour a non-custodial sentence. [ 91 ] Mr.

PF appears to have recognized the wrongful nature of his previous criminal conduct and his lifestyle, and that means a longer sentence is less necessary to force Mr. PF to take account and control of his personal choices: Criminal Code , s. 718(f). I see restricted benefit in separating this offender from society ( Criminal Code , s. 718(c)), particularly in light of the fact that his connection with his new family has proven to have a powerful rehabilitative and deterrent effect. I believe a sentence that undermines that connection would be counterproductive in that it would impede Mr.

PF’s rehabilitation, his re-integration into the community as a productive person, and his taking responsibility for his past misconduct and directing himself to a better future. [ 92 ] Mr. PF pled guilty, which is a mitigating factor: R. v. Downey , 2006 ABCA 108 at paras. 4-5 , 384 A.R. 99; R. v. Nicholson , 2008 ABCA 256 at paras. 9-13 , 432 AR 391. His plea is evidence both of his accepting and acknowledging the criminal nature of his misconduct, and minimizes the court and state resources allocated to his misdemeanours.

There is no evidence of any further illegal conduct in the pre-sentencing period. [ 93 ] The PSR prepared by Ms. Reid is, without question, extremely favourable, and her recommendation that Mr. PF receive a non-custodial sentence would have had very significant weight on my decision, had Mr. PF qualified for a conditional sentence. Since I cannot follow Ms. Reid’s suggestion I instead consider the favourable PSR a mitigating factor and one that strongly favours I balance Mr.

PF’s need for ongoing supervision and deterrence with the benefits that have flowed from his ongoing rehabilitation and associated re-integration into public society. [ 94 ] Mr. PF’s case does not appear to involve any of the Criminal Code , s. 718.2(

a) statutory aggravating factors.

Section 718.2 (

d) instructs that a sentence should only deprive a person of their liberty where less restrictive sanctions are inappropriate. I have concluded that custody is necessary for this person but if possible, that custody should be tailored to favour Mr. PF’s ongoing rehabilitation and re- integration. [ 95 ] Mr. PF is not a first-time criminal, nor is this the first time he has been found guilty of trafficking in prohibited substances. His offence required deterrence, and so does his repeated misconduct, and I add six months to the three year ‘starting point’ on that basis.

This increase is similar to the sentence indicated in R. v. Sawatsky , 2007 ABCA 353 , 417 A.R. 362. [ 96 ] His commendable post-offence conduct warrants a one year reduction in the sentence I would have otherwise ordered. [ 97 ] The fitness of a sentence is tested prior to credit for pre-trial custody: R. v. Hennessey , 2010 ABCA 274 at paras. 10-11 , 490 A.R. 35, leave refused [2011] S.C.C.A. No. 167, [2011] S.C.C.A. No. 199. I conclude, taking into account all relevant mitigating and aggravating factors, that a sentence of 30 months is appropriate for this person. [ 98 ] Mr.

PF has experienced significant pre-trial restrictions on his freedom. He was in pre-trial custody between April 28, 2008 and July 29, 2008, a total of 92 days. I credit Mr. PF for 184 days on a ‘two for one’ basis, per Criminal Code , s. 719(3). That leaves him with slightly less than a 24 month sentence.

[99] Mr. PF has also spent the remaining period (three years, one month, 18 days) prior to his sentencing hearing under strictrecognizance, what could be described as “house arrest”. As is discussed above, the Alberta Court of Appeal has acknowledged thatCriminal Code, s. 719(3) authorizes judges to consider strict bail conditions in a manner analogous to custody, and that a reduction insentence duration may occur on that basis: R. v. Lau, R. v. Hilderman. Justice Conrad in R. v. Hilderman at paras. 20-21 provides someinstruction on how a trial judge may apply this reduction: 20 ...

The sentencing judge is not required to give a mathematical deduction. The court will merely have to consider what impact thepre-trial house arrest should have on the sentence he or she eventually imposes. 21 We also appreciate the fact that serving a term of house arrest is not necessarily synonymous with serving an equal term ofimprisonment. Nonetheless, this court has held that there can be a credit. ...

Here the 16 months' house arrest had been incurred by theserespondents and we cannot say that it was an error for the trial judge to credit that time in full, providing it was not done simply as anautomatic mathematical deduction. Even though the sentence here looked like an automatic mathematical deduction, reading the entirejudgment we do not accept that it was so. Rather, the sentencing judge reviewed the case law on point, the circumstances of theoffenders and the restrictions that were placed on these respondents during their release on bail.

He concluded that a sentence of between18 and 24 months was appropriate for these particular offenders. ... The higher period was therefore required if these respondents were toserve a meaningful time in jail. In our view, the sentencing judge did not perform an automatic procedure. He properly reviewed therelevant factors and, at the end of this review, he passed sentence and exercised his discretion to give the respondents full credit for thishouse arrest. That is something he is entitled to do and he committed no palpable error.

We will not interfere with the sentence based onthis ground of appeal. [Emphasis added.] [100] The approach in R. v. Hilderman was subsequently developed by the Ontario Court of Appeal in R. v. Downes (2006), (ON CA), 79 O.R. (3d) 321 at paras. 36-37, 208 O.A.C. 324: 36 Thus, a trial judge faced with an offender who has spent time on bail under house arrest should adopt a flexible approach. In theend, the amount of credit and the manner in which it is taken into account as a mitigating factor is a matter for the trial judge.

That factormust be considered along with the myriad of other mitigating and aggravating circumstances that may impact on the sentence in a givencase. 37 In

summary, credit for pre-trial bail conditions should be approached in the following manner: * Time spent on stringent pre-sentence bail conditions, especially house arrest, is a relevant mitigating factor. * As such, the trial judge must consider the time spent on bail under house arrest in determining the length of sentence. * The failure of the trial judge to explain why time spent on bail under house arrest has not been taken into account is an error inprinciple. * The amount of credit to be given for time spent on bail under house arrest is within the discretion of the trial judge and there is noformula that the judge is required to apply. * The amount of credit will depend upon a number of factors including, the length of time spent on bail under house arrest; thestringency of the conditions; the impact on the offender's liberty; the ability of the offender to carry on normal relationships, employmentand activity. * Where the offender asks the trial judge to take pre-sentence bail conditions into account, the offender should supply the judge withinformation as to the impact of the conditions.

If there is a dispute as to the impact of the conditions, the onus is on the offender toestablish those facts on a balance of probabilities in accordance with s. 724(3) of the Criminal Code. [Emphasis added.]

See also R. v. Coupal , 2010 ABQB 229 , 488 A.R. 139; R. v. Hennessey , 2009 ABQB 60 at paras. 97-104 , 458 A.R. 260, affirmed 2010 ABCA 274 , 490 A.R. 35, leave refused [2011] S.C.C.A. No. 167, [2011] S.C.C.A. No. 199; R. v. Conlon , 2011 ABPC 259 at para. 39 . [ 101 ] I clearly have a broad discretion to reduce Mr. PF’s sentence on the basis of his pre-trial recognizance, which is acknowledged as very strict.

The appellate authorities make clear that this factor is not one that ought to be applied in a strictly mathematical manner, but rather consistent with the general objectives of sentencing. [ 102 ] As a consequence I reduce Mr. PF’s sentence from just under 24 months to a custodial sentence of 90 days. A custodial sentence of 90 days may be served intermittently, with the offender under probation during the period he is not in custody: Criminal Code , s. 732. [ 103 ] I believe a 90 day intermittent sentence is appropriate in this case.

The appellate courts have made clear that trafficking in illegal drugs, particular

Schedule I materials such as cocaine, is conduct that must be deterred. In short, Mr. PF’s offence is a serious one that usually attracts jail time; he is a repeat offender. His detention, both pre-and post-sentencing, will denounce his unlawful conduct and deter other potential offenders. [ 104 ] An intermittent sentence enhances Mr. PF’s ongoing rehabilitation, allows him to further development of his relationship with Ms. McBride and her children, and permits his ongoing employment with Mr. Landa. In that sense Mr. PF is similar to the offender in R. v.

Conlon , who post-offence rehabilitated, obtained employment, and established close family bonds (paras. 52-58). Danial P.C.J. concluded a lengthy sentence of incarceration would be counterproductive and create an unjust result (para. 60). The same would be true here for Mr. PF. [ 105 ] In light of those objectives I invite comment from Mr. PF and his counsel on how his intermittent sentence should be scheduled to best meet those goals. [ 106 ] I have previously concluded that Mr.

PF would benefit from ongoing supervision, and order a period of one year probation from the end of his serving the 90 day intermittent sentence. Mr. PF will be subject to the same probation order when serving the 90 day intermittent sentence but not in custody: Criminal Code , s. 732(1)(b). b. Conditional Sentence ( R. v. Proulx Step 2) [ 107 ] If I am incorrect and the sentence in R. v. Liparoti is not incorrect, I would conclude that Mr. PF should receive a conditional sentence. This conclusion flows from the last step in the R. v.

Proulx process, where I apply the sentencing directions in Criminal Code , ss. 718- 718.2 and determine for Mr. PF: 1. what is the appropriate duration his sentence, 2. whether a conditional sentence is appropriate, and 3. the terms of the conditional sentence, if a conditional sentence is ordered. [ 108 ] My prior comments on sentencing also apply. Deterrence is the principle object for this sentence. Mr. PF’s offences would generally attract a sentence with a starting point of three years. The Defence has suggested that Mr. PF receive a conditional sentence that would be served in the community.

The circumstances under which a conditional sentence may be ordered are indicated by Criminal Code , s. 742.1. One requirement for a conditional sentence is that “... the court imposes a sentence of imprisonment of less than two years ...”.

[ 109 ] In R. v. Liparoti post-offence conduct was clearly one basis for the trial judge and Court of Appeal to conclude a reduced sentence substantially below the three year ‘starting point’ is appropriate. Given the similarities between the offender and offence scenario in R. v. Liparoti and the present case, I would conclude that Mr. PF would receive a sentence of two years less a day. [ 110 ] As previously discussed, that sentence would be then reduced by 184 days per Criminal Code , s. 719(3). I would not order a further reduction in the duration of the sentence on account of Mr.

PF’s pre-trial ‘house arrest’. I clearly have broad discretion on the effect of strict pre-trial recognizance, and conclude that a lengthier term of sentence is appropriate given the manner in which that sentence is served. [ 111 ] In this alternative scenario I would prefer Mr. PF serve his sentence in the community but under strict terms. A lengthy penitentiary sentence would achieve little. Custody would interrupt his present social and employment activities.

He would serve his sentence and upon release, quite probably could conclude that society is against him and that he has nothing to lose by reverting back to his previous criminal activities. Both the PSR author and I agree that the best way to ensure Mr. PF’s future is as a law-abiding citizen is if he lives in a caring, social context. A conditional sentence would meet that objective, [ 112 ] It is necessary to fully review Mr. PF’s characteristics. He has a somewhat lengthy criminal record which includes several failures to comply with court orders. Those failures create a concern that Mr.

PF may not abide by the requirements of a conditional sentence. That is not a complete bar to the granting of a conditional sentence. In R. v. Brady , 1998 ABCA 7 at paras. 124-125 , 209 A.R. 321, Fraser C.J.A. cautioned: 124 A judge cannot apply that in a mindless or mechanical way. Forgetting a court date once ten years ago does not automatically bar an offender from any future conditional sentence. Nor does turning up for his trial guarantee an offender a conditional sentence. The sentencing judge must of course look at all aspects of these previous disobediences of courts.

That includes frequency, age, maturity, recency, seriousness of disobedience and surrounding circumstances. All matter. 125 But failures to obey previous court orders or undertakings to the court (or the like) will ordinarily cast serious doubt on future obedience. After all, a conditional sentence is an ongoing court order. Typically it lasts for many months, and orders or prohibits a whole string of things. For example, it may require reporting weekly to a probation officer, taking treatment almost daily, obeying a daily curfew, and abstaining from alcohol.

There will be hundreds or thousands of occasions for obeying or disobeying. So previous breaches militate against a conditional sentence. [Citations omitted.] This reasoning was subsequently cited with approval by Lamer C.J.C. in R. v. Proulx , 2000 SCC 5 , [2000] 1 S.C.R. 61 at para. 71 , see also R. v. Price , 2007 ABCA 242 at para. 24 , 412 A.R. 168; R. v. Chalifoux , 2010 ABCA 237 at para. 3 , 493 A.R. 397. [ 113 ] Mr. PF’s more recent history indicates a different pattern of conduct. Over the past 3.5 years Mr.

PF has demonstrated that he can and will abide by the most stringent of conditions of interim release. In my mind, such conduct on the part of Mr. PF cancels his previous failures to comply with court orders. [ 114 ] Further, Mr. PF has not only demonstrated a willingness to adhere to the terms of a court ordered conditional sentence, he has a strong reason to do so. Mr. PF has managed to build a life for himself with SB and her children. His employment as a personal care attendant to Mr. Landa evidences a willingness to become a meaningful contributor to society. The PSR and Ms.

McBride’s presence in court during the sentencing proceedings clearly demonstrates that Mr. PF now has a previously absent social and family support infrastructure upon which he can rely. Mr. PF has people in his life that care for him and that favours the probability that his actions will continue to be consistent with what is in his and society’s best interest, including adhering to any terms of a conditional sentence. [ 115 ] This conditional sentence also provides a powerful deterrent in that bad behaviour could result in Mr. PF serving the remainder of his sentence in custody.

I believe that threat of separation from the persons with whom he is close would be a very tangible concern and powerful motivator. [ 116 ] In

summary, if I had concluded that R. v. Liparoti was correct then I would have sentenced Mr. PF to a conditional sentence of

[ 116 ] In

summary, if I had concluded that R. v. Liparoti was correct then I would have sentenced Mr. PF to a conditional sentence of 545 days (1.5 years), followed by one year of probation. The terms of his conditional sentence would have been strict and resembled his current pre-trial recognizance. F. Sentence [ 117 ] In light of Mr. PF’s considerable post-offence progress, his genuine remorse, guilty plea, and the substantial time he has spent in detention or under strict ‘house arrest’ conditions, I conclude he should serve a 90 day term in custody, on an intermittent basis, followed by one year probation.

The time in custody serves to provide specific and general deterrence. [ 118 ] I am satisfied that a conventional three-month sentence would significantly interfere with his current rehabilitation and his positive social role as breadwinner, husband and father-figure. Custody would also significantly and adversely impact those who rely upon him. Fulfilling his roles as a parental mentor, spouse and employee is an important part of Mr. PF’s rehabilitation. [ 119 ] While in these reasons I have rejected R. v. Liparoti as a precedent, I do agree with the Court of Appeal that the dramatic change shown by Mr.

Liparoti is exceptional. In the same way I see Mr. PF as an unusual person. I commend Mr. PF for the dramatic change he has made and encourage him to make this just a first step toward a better life. While state supervision via probation provides a strong assurance that he will continue on his new path, I have no doubt that the persons with whom he shares his life will be his strongest anchor. I trust he will neither disappoint the court nor his newfound family in the years ahead. [ 120 ] Mr.

PF has pled guilty to two breaches of the Controlled Drugs and Substances Act , s. 5(2): 1. possession of a controlled substance, cocaine, for the purpose of trafficking, and 2. possession of cannabis marijuana in an amount exceeding 3 kg, for the purpose of trafficking. For each offence he is sentenced to 90 days of incarceration, served intermittently, followed by a year of probation. These sentences are to be served concurrently. [ 121 ] With respect to ancillary orders, the Crown has asked for: 1. a mandatory lifetime firearm prohibition under Criminal Code , s. 109 in light of Mr.

PF’s prior trafficking convictions; 2. production of DNA, as a breach of Controlled Drugs and Substances Act , s. 5(2) is a secondary designated offence ( Criminal Code , s. 487.04), that order would be appropriate given Mr. PF’s previous criminal history; and 3. forfeiture of items seized by the police on the date of the search. [ 122 ] The Defence took no issue with the DNA order and agreed that a firearm prohibition was appropriate. Defence made no comment in regards to forfeiture of the items seized. 6. Conclusion

[ 123 ] In conclusion, as I have above stated, a fit and just sentence for the charges which Mr. PF is to be sentenced and being the charges of possession of a controlled substance, cocaine, for the purpose of trafficking, and cannabis marijuana in an amount exceeding 3 kg, for the purpose of trafficking: Controlled Drugs and Substances Act , s. 5(2), is a term of 90 days in custody, served intermittently, followed by one year’s probation. Both sentences to be served concurrently. Mr. PF will be subject to the same probation order when serving the 90 day intermittent sentence but not in custody. [ 124 ] Mr.

PF, having considered all of the previous factors, I hereby sentence you to a term of 90 days to be served intermittently, followed by one year’s probation, with both sentences to be served concurrently. Accordingly, you shall serve your 90 day intermittent sentence by reporting to the Edmonton Remand Centre at 9:00 p.m. on October 14, 2011 and to be released on October 16, 2011 at 5:00 p.m., and immediately thereafter on each and every weekend at 9:00 p.m. on Friday to be released on Sunday at 5:00 p.m., until the 90 day intermittent sentence has been served. [ 125 ] The terms of probation are as follows: 1.

Keep the peace and be of good behaviour. 2. Appear before the Court when required to do so by the Court. 3. Report to a probation officer within two days, and thereafter as required by probation and in the manner directed by probation. 4. Remain within Alberta unless written permission to go outside the province has been obtained from obtained from probation. 5. Notify the Court or your probation officer in advance of any change of name or address, and promptly notify the Court or probation of any change of employment or occupation. 6.

He shall not possess, purchase or consume alcohol or other intoxicants or any substance forbidden by the Controlled Drugs and Substances Act , except as may be prescribed by a physician or a dentist. 7. To provide to a Peace Officer a breath or urine sample as requested by such Peace Officer, for the purpose of detecting the presence of alcohol or illicit drugs in his body. [ 126 ] Mr.

PF is ordered to forthwith provide a DNA sample, this order shall apply for each of indictment charges of possession of a controlled substance, cocaine, for the purpose of trafficking, and cannabis marijuana in an amount exceeding 3 kg, for the purpose of trafficking: Controlled Drugs and Substances Act , s. 5(2). [ 127 ] There shall be a mandatory lifetime firearm prohibition under Criminal Code , s. 109. [ 128 ] Under Criminal Code, ss. 164.2 and 490 the property seized by the police from Mr. PF’s residence is forfeited to the Crown. [ 129 ] There will be no Victim Fine Surcharge in this case.

Heard on the 16 th day of September, 2011. Dated at the City of Edmonton, Alberta this 12 th day of October, 2011. Don J. Manderscheid J.C.Q.B.A. Appearances: Donald R. Smith Clements & Smith Barristers & Solicitors for the Crown Ronald A. Morin for the Accused