R v Do, 2011 ABQB 749

Court of Queen ’ s Bench of Alberta Citation: R v Do, 2011 ABQB 749 Date: 20111202 Docket: 081441008Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Khanh Duy Do Accused Corrected judgment: A corrigendum was issued on January 5, 2012; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr.

Justice Donald Lee _______________________________________________________ Background [ 1 ] The Accused was convicted of trafficking in cocaine contrary to Section 5(1) of the Controlled Drugs and Substances Act , S.C. 1996, c.19, and possession of proceeds of crime contrary to

Section 355 (

b) Criminal Code on June 3, 2011, following a three day trial from March 1 to March 3, 2011. When arrested, the Accused was in possession of $60 that he had received from an undercover police officer as consideration for .7 grams of cocaine that had been sold to the undercover officer in one transaction. The Accused never was in possession of cocaine itself, however I decided that the evidence established that the Accused and another individual Nguyen who subsequently fled, were actively involved in a “dial a doper” operation. Written Reason for Judgment were issued and now reported at R v Do , 2011 ABQB 135 .

[ 2 ] A detailed Sentence Report was prepared in this matter, and the probation officer reaches the following conclusion and makes the following recommendation:– Mr. Khanh Do is a 23 year old first offender appearing before the Court for sentencing for one charge of Trafficking a Controlled Substance, contrary to Section 5 (2) of the Controlled Drugs and Substances Act , and one charge of Possession of Property Obtained by Crime, contrary to

Section 355 (

B) of the Criminal Code of Canada . Throughout the interview process the subject answered all questions asked by the writer, and was polite for the duration of the interview. The subject minimized his actions, rationalized his role in the offence, and was only willing to take responsibility for what he perceives as his involvement in the offence. The subject advised he is willing to comply with all the conditions the Court deems appropriate, if sentenced to a period of community supervision. The subject appears to have the support of his sister and cousin residing in Edmonton, Alberta.

His sister, Lan, stated that she has delayed her application to sponsor their parents and sister from Vietnam, until the subject has disposed of his criminal court matters. Lan advised the subject’s conviction could affect the sponsorship, especially if the subject is deported. The subject is no longer eligible to remain in Canada with his student visa, and has applied, but not received, his employment visa. The subject has adequate education and certification to procure gainful employment, should he receive a visa.

The subject’s parents provide financial support, as does his cousin, Hang, until he is legally able to work. In the writer ’s opinion, the subject presents as a suitable candidate for a sentence of community supervision. [Underlining Added] [ 3 ] In describing the Subject As An Offender, the Probation Officer states the following:– The subject attended the Edmonton South Probation Office on September 28, 2011 for the purpose of being interviewed for this report. The writer explained the purpose of a Pre-Sentence Report and the subject agreed to proceed with the interview.

The subject was polite and upbeat during the interview. With respect to matters before the court, the subject acknowledged the present charges, minimized his actions, did not accept responsibility for his role in the offence, and placed blame on his co-accused. The subject stated police circumstances were correct, however, felt his role could be rationalized. The subject did not express any negative sentiments towards the criminal justice system. The subject does not appear to have a previous criminal history.

Possible sentencing outcomes, and general requirements of community dispositions were discussed with the subject, and he indicated that he would be willing to comply with a community disposition, should the court decide to impose one. Constable B. Countryman, of the Edmonton City Police, Reg# 2392, who was one of the investigating officers of the offence, stated the subject was co-operative on the night of the offence, at the time of his arrest, and stated the subject dAd not indicate any feelings of responsibility or remorse to police when he was arrested. Constable T.

Shelrud, of the Edmonton City Police, Reg# 2542, who arrested the subject on the night of the offence, confirmed the above information. Constable J. Smith, of the Edmonton City Police, Reg# 2592, who was one of the investigating officers on the night of the offence, stated that the subject appeared well versed in his actions on the night of the offence, and did not demonstrate any feelings of responsibility or remorse on the night of the offence.

Probation Officer Barry Teichroeb, and Probation Officer Connie Winter, both supervised the subject, during this Recognizance; theyboth indicate that the subject was co-operative with supervision during that time, and there were no indications of non compliance withrelease conditions.

Sentencing Submissions [4] The Crown submits that this Accused should be sentenced in the range of 30 - 36 months incarceration, notwithstanding thathe is a youthful first offender. [5] Defence counsel submits that there is no minimum term required in this matter, and that individual deterrence andrehabilitation should be the primary sentencing objective.

The starting point sentencing decisions must be discounted in this matter giventhe unsophisticated nature of the dial a doper operation, the minuscule amount of cocaine involved in one cash transaction of only $60, inwhich the Accused never even touched the .7 grams of cocaine involved. The Accused was 20 years old at the time of the offence andhad just moved to Edmonton to live on his own with non-family members for the first time shortly before the offence date in November2008. [6] Defence counsel points to the following general

summary of sentencing cases for cocaine trafficking which reads asfollows:– CASE SENTENCE SENTENCE ONAPPEAL OFFENCE QUANTITY AGGRAVATING CIRCUMSTANCES MITIGATING CIRCUMSTANCES R v Rahime,2001 ABCA203 ,[2001] A.J.No. 988; 2001ABCA 203 18 monthsconditional upheld s. 4(1) x2 NCA, 4(2) NCA 3 grams sold 10 grams possess multiple transactiondial a doper no record, youthful, support, remorseful,was addict R v Keller,[2001] A.J. No. 988;2001 ABCA 203 22 monthsconditional upheld s. 5(1) x 2 CDSA 10.5 grams dial a doper age 19, rehabilitationfamily support,unrelated youthrecord R v Charles A.J.

No. 988;2001 ABCA203 20 monthsconditional upheld s. 5(1) x 2 CDSA 2 grams dial a doper, workedwith young offender age 20, unrelatedrecord, strong familyrelationship,favorable PSR,started own businessafter arrest

R v Sayadi,2001 ABCA203 ,[2001] A.J.No. 988; 2001ABCA 203 22 monthsconditional up held s 4(1) NCA 2 ounces age 25, unrelatedrecord, strong familyrelationship,favorable PSR,started own businessafter arrest R v Ismael,2001 ABCA203 ,[2001] A.J.No. 988; 2001ABCA 203 2 years less 1dayconditional upheld s. 5(1)CDSA 3 grams dial a doper age 19, familysupport only workingmember of family,does not consumealcohol or drugs R v AlanChwyl January31, 2001 - JudgeChisholm (AB Prov Ct) 2 yrs less 1dayconditional n/a s. 5(1)CDSA small R v Toan VoMarch 28,2001 JusticeClarke (ABQB) 20 monthsconditional n/a s. 5(1)CDSA 8 ball psych report diabused R v Ka ManFrancis Choi -April 6, 2001(AB Prov Ct) 18 monthsconditional n/a s. 5(1)CDSA R v VincentLiang - April 9, 2001 -Judge Burch(AB Prov Ct) 18 monthsconditional n/a s. 5(1)CDSA 3.5 grams serious need fordeterrence.

Profitmotive no record, guilty plea,remorse R v Fong -May 25, 2001-Judge Caffaro (AB prov. Ct) 16 monthsconditional n/a s. 5(1)CDSA dial a doper R v StevenMontour - July3, 2001 -Judge Ketchum (ABProv Ct) 2 years lessconditional n/a s. 5(2)CDSA + weaponsoffences $9000.00worth on the lam for 9months age 19, guilty plea,changing his life anddisassociating withthe gang CASE SENTENCE SENTENCE ONAPPEAL OFFENCE QUANTITY AGGRAVATING CIRCUMSTANCES MITIGATING CIRCUMSTANCES

R v Jaon Hoff October 12, 2001 - Judge Spence (AB Prov Ct) 2 years less conditional n/a s. 5(2) CDSA 11 grams in possession of a weapon R v Matthew Hays - November 26, 2011 - Judge Chrumka (AB Prov Ct) 2 years less conditional n/a s. 5(1) CDSA 145(3) cc 2 prior possess of narcotics R v Van Mann Nguyen - December 7, 2001 - Judge Abbott (AB Prov Ct) 2 years less conditional n/a s. 5(1) CDSA 3.5 grams 1 prior possess of proceeds dial a doper - had young child in vehicle very remorseful R v Wong [2001] B.C.J.

No. 893 (QB) 2 years less conditional n/a n/a s. 591) x 2, 8(1) CDSA previously breached conditional sentence age 42, employed until car accident left him addicted to heroin R v Chaves [2002] S.J. No. 63 (S.C.) 2 years less conditional n/a s. 5(1) CDSA 1 pound & 10 ounces large commercial element age 22, middleman, no record, remorse R v Sudsbury , [2002] N.S.J.

No. 137 2 years conditional n/a s. 5(1) CDSA record, for monetary gain chronic depression, positive PSR R v Henderson, 2002 ABQB 442 3.5 years prison n/a 5(1) CDSA 1 kg -40 oz amount, presence of gun age 28-22 at time of offence, family support, courier, on bail 5 years with no further offences R v Hoffart , January 18, 2002, J. Kenny, Calgary QB 2 years less prison n/a s. 5(2) CDSA 40 oz - 1 kg courier R v Petrovich { 2002] A.J.

No. 728 (PC) 2 years less conditional n/a s. 5(1) x 3, 5(2) CDSA 4.5 grams sold at his place of employment, 4 offences not addicted youthful, timely g. plea, no related record, “ gopher: family support, positive PSR CASE SENTENCE SENTENCE ON APPEAL OFFENCE QUANTITY AGGRAVATING CIRCUMSTANCES MITIGATING CIRCUMSTANCES

R v ThachSon, June 19,2002 J Spence,Edmonton PC 2 years lessconditional n/a s. 5(1)CDSA 1 gram rockcocaine several adjournmentsdue to failure toappear no record,rehabilitated, familysupport R v Evans(2002) ABPC74 2 years lessconditional n/a s. 5(1) x3CDSA ~ 1.5 grams 19 years, g. plea,remorse, familysupport, no record,stopped selling &told is parents beforehe was arrested R v Gronau2002 ABQB511 ,[2002] A.J.No. 928 2 years lessconditional n/a s. 5(2)CDSA 60 gmscocaine residence aswarehouse no record, employed,good PSR R v Fung[2002] M.J.No. 322 2 years lessconditional n/a s. 5(2)CDSA 226 gmsCrackCocaine done for money topay gambling debts courier, no record,married with youngchildren R v Salih 2002ABPC 106,[2002 A.J.

No.1043; 2002ABPC 106 2 years lessconditional n/a s. 5(2)CDSA 4.5 gmscrack dangerous drug, notaddicted, presence ofa knife, commercial youthful 1st offender,timely guilty plea,family support,employed, positivePSR R v taleb[2002] A.J.No. 1053;2002 ABPC130 2 years lessconditional n/a s. 5(1) &5(2) CDSA 3 gms crack 5 transactions,commercial, forprofit, unrelatedrecord employed, caring forill mother, positivePSR R v Deochoa,ABPCNovember 15,2001, A.C.J.Caffaro 2 years lessconditional n/a s. 5(1)CDSA 13 gms substantial record,dial a doper rehabilitationprogress, youngfamily, familysupport R v Petrovich,AB PC J.Semenuk 2 years lessconditional n/a s. 5(1) x 4,5(2) CDSA 4 grams total unrelated record, 4offences, dial a doper,offences over 5months, profit, doneduring his work at anightclub 23 years old, familysupport R v Sousa,Dec. 2/02, J.Chisholm 15 monthsconditional n/a s. 5(2)CDSA 1 oz no record CASE SENTENCE SENTENCE ONAPPEAL OFFENCE QUANTITY AGGRAVATING CIRCUMSTANCES MITIGATING CIRCUMSTANCES

R v La , 2003 ABQB 391 2 years less conditional +$25,000.00 fine n/a s. 5(2) x 2, 8(1) CDSA 10 oz & ½ kg. related records, large amt, ongoing offence, minimized her involvement & took limited responsibility, late g. plea addict, rehabilitation, 1 yr pre-trial custody, no breaches, bail akin to house arrest for 2 years, mother of young children R v Ladouceur , Nov 4, 2003 ABPC - A.C.J.

Caffaro 2 years less conditional n/a s. 5(2) x 6 CDSA 6 oz unrelated record, ongoing offence, large amount aboriginal, rehabilitation, good family support, 21 yrs R v Snipes , Dec 8, 2003 ABQB - Hillier J 2 years less conditional n/a s. 5(1), 8(1) CDSA 3.5 grams unrelated record, arrested for 5(1) again before sentence youth, employment, will live with sister who is a positive influence R v Panousis , 2004 ABCA 211 2.5 years jail 2 years less conditional and $25,000.00 fine s. 5(1) x 2 CDSA 6 grams unrelated records, talk of a deal for 1 ounce cocaine, deals out of restaurant managed by accused, ongoing transactions sentencing 4 years after offence, employment, family, no offences while on bail for 4 years R v Barata October 12, 2006 20 month CSO n/a s. 5(1) CDSA R v Alberto Falcon January 4, 2007 Judge Caffaro 20 months CSO n/a s. 5(1) CDSA 3.5 grams solely for profit no record, 23 y/o, University Student, remorse, family support R v Bowen 2007 ABCA 40 18 months jail 14 months CSO s. 5(1) CDSA 1 gram low end commercial g. plea, ltd. mental ability, positive PSR, community support, no record R v Wong February 23, 2007 21 month CSO n/a s. 5(2), 4(1) CDSA, 355(

b) CC R v Phan April 17,2 007 20 month CSO n/a s. 5(1) CDSA R v Martens September 13, 2007 20 month CSO n/a s. 5(2) CDSA; 355(

b) CC CASE SENTENCE SENTENCE ON APPEAL OFFENCE QUANTITY AGGRAVATING CIRCUMSTANCES MITIGATING CIRCUMSTANCES

R v Francese November 23, 2007 2 years less one day s. 5(1), 5(2) CDSA 1 gram cocaine 4 individual soft spit balls 16 yellow tablets, ecstacy 2 blue tablets esctacy profit?? R v Anny Mai HO December 10, 2007 20 month CSO s. 5(2) CDSA 18 spitballs of cocaine weight 19 years old, no criminal record in the past R v Hai De Huang December 17, 2007 20 month CSO s. 5(2), 7(1) CDSA 326(1)(

a) R v Lee , 2007 ABCA 288 15 months jail 2 years less CSO s. 5(2) CDSA 4 grams cocaine cell phone ringing with orders no record, school and job, family support, good PSR R v Jaber 2007 ABCA 383 18 months jail 2 years less CSO s. 5(1) CDSA and s. 355(

b) CC 1 gram crack minor criminal record for profit g. plea, good PSR, job family support, no breach R v Johnathan IP February 21, 2008 18 month CSO s. 5(1), 5(2) CDSA 355(

b) CC and 145(3) x 2 CC 15 grams of cocaine 2 separate breaches. One moth after original release and also 5 months after his release 22 years old no previous criminal record R v Morris, Brandon , February 21, 2008 18 month CSO s. 5(1) CDSA and s. 355(b), 91(2), 88(1) CC 2 separate breaches only 11 days after the offence date 19 years old R v Corey McClean Febraury 28, 2008 20 month CSO s. 5(2) CDSA and s. 355(

b) CC CASE SENTENCE SENTENCE ON APPEAL OFFENCE QUANTITY AGGRAVATING CIRCUMSTANCES MITIGATING CIRCUMSTANCES

R v Lam, Bill March 3, 2008 23 monthCSO s. 5(2)CDSA 355(

b) CC 129(a), 592,4(1) 145(3) x 2 355(

b) CASE SENTENCE SENTENCE ONAPPEAL OFFENCE QUANTITY AGGRAVATING CIRCUMSTANCES MITIGATING CIRCUMSTANCES [7] Specifically Defence counsel in support of its application for a Conditional Sentence Order of two years less a day to beserved in the community points to our Court of Appeal’s decision in R v. Jaber, 2007 ABCA 383 wherein the accused Jaber appealedfrom the sentence of 18 months imprisonment imposed following his guilty pleas to trafficking in .8 grams of cocaine sold to anundercover police officer for $80. Unlike the Accused Mr.

Do, Jaber had a minor criminal record, and that offence was committed forprofit. His record also consisted of a conviction in 2000 for possession of a weapon. [8] The Court of Appeal in Jaber allowed his appeal concluding that the sentencing judge’s conclusions reflected errors in law.The trial judge was not entitled to make a presumption that Jaber was involved in other trafficking, and was inherently wrong in hispresumptions about the inappropriateness of conditional sentences for drug offences.

Given Jaber’s positive Pre-Sentence Report,employment, strong family support, and previous compliance with Court Orders, the minimal level of his involvement in trafficking, hislimited criminal record, the Court of Appeal imposed a conditional sentence of two years less a day imprisonment. [9] Defence counsel refers to R v Parker, 2011 ABPC 265 , [2011] A.J. No. 983 which also involved a young personwho received a conditional sentence of two years less a day to four counts of trafficking in cocaine totalling 2.8 grams sold to undercoverpolice officers as part of a dial a doper operation.

The small quantities of cocaine sold and the minimal involvement in the operation weremitigating factors, as well as the fact that the accused had pled guilty, showed genuine remorse, and had made positive efforts towardsrehabilitation. [10] R v. Conyers, [2010] A.J. No. 940 in this Court similarly involved a small amount of trafficking in cocaine on five separateoccasions sold to undercover officers for a total of approximately $950 in cash.

The accused pled guilty in a timely basis to one count ofpossession cocaine for the purpose of trafficking and received a two year less one day conditional sentence order, notwithstanding theCrown’s submission that the accused should be sentenced to three years imprisonment. [11] R v. Bricker, 2006 ABPC 130 , [2006] A.J. No. 533 was similarly a youthful offender with no criminal record at thetime he pled guilty to this offence. Mr. Bricker was found to be in possession for the purpose of trafficking of 15.2 grams of cocaineworth $1,320 on the street.

He received a 22 month conditional sentence order. [12] Also discussed by counsel has been the Accused’s possible jeopardy with Immigration authorities. I conclude that this is onlya neutral factor. While there are some authorities that have granted relief to Accused persons in the position of Mr.

Do, who could besubject to deportation if a sentence of imprisonment of at least two years was imposed [See for example R v Hamilton (2004) (ON CA), 72 O.R. (3d) 1(C.A.)], our Alberta Court of Appeal very recently in R v Duhra, 2011 ABCA 165 stated thefollowing at paragraph 9:– We recognize the illogic of reducing a sentence for an offender either to a disproportionately low sentence or to a lower sentence than acitizen might receive reasonably for the same crime in order to assist an offender guilty of serious criminality towards a lighter burdenunder

section 64 of IRPA: see R v Belenky, 2010 ABCA 98, 477 AR 354, (2010) 253 CCC (3rd) 344; R v Morgan, 2008 NWTCA 12,(2008) 239 CCC (3rd) 187. With all due respect to a few appeal panels in Canada which may have reached somewhat different results ina few cases, we are not persuaded that citizenship should be a disadvantage for sentencing purposes.

[13]

Section 64 of the Immigration and Refugee Protection Act, S.C., 2001, c. 27 provides that there is no right of appeal from adeportation order where a term of imprisonment of at least two years has been imposed.

Our Court of Appeal in R v Belenky, 2010ABCA 98 considered the consequence of deportation as being a collateral matter to be given at most very limited weight in a drugtrafficking case where the accused sold 3.5 grams of cocaine to an undercover officer on two occasions. [14] Defence counsel has also raised the issue of this Accused’s commendable post offence conduct which in his submissionswarrants a significant reduction in the sentence that I would otherwise order.

The Accused completed courses, upgraded himself, andassisted various family members during this time, amongst other things. [15] Counsel cites my colleague Manderscheid J’s decision in R v Fick, 2011 ABQB 628 in which Mr.

Fick was granted a one yearreduction in his trafficking sentence at paragraph 96 as follows for commendable post-offence conduct:– 96 His commendable post-offence conduct warrants a one year reduction in the sentence I would have otherwise ordered. [16] Manderscheid J goes on to state that Fick was a eligible for a further sentence reduction pursuant to s. 719(3) of the CriminalCode because he had spent three years, one month and 18 days prior to his sentence under strict recognizance essentially amounting to“house arrest” at paragraph 99 as follows:– 99 Mr.

Fick 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.] [17] The Sentencing Judge in Fick also adopted the reasoning in R v Downes (2006) (ON CA), 79 O.R. (3d)321 at paragraphs 36 to 37, 208 O.R. A.C. 324 to determine a Section 719(3) reduction at paragraph 100 as follows:– 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 factor

must 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.] [18] In reducing Mr. Fick’s sentence from just under 24 months to a custodial sentence of 90 days to be served intermittently, thesentencing Judge noted that Fick had an extensive criminal record including youth offences totalling 38 previous convictions, included inthose convictions were three trafficking convictions dating back to 1999, and one prior conviction for possession with a purpose.

Fickhowever had a history of family disruption and disunity, alienation and alleged incestuous sexual abuse. Fick also pled guilty to thesubject offences, and expressed his sincere remorse to the Court. [19] While I accept that the pretrial restrictions on an accused’s freedom may affect the duration of his sentence pursuant toSection 719(3), there is no authority I know of for the proposition that commendable post-offence conduct warrants a further reductionbeyond Section 719(3).

If this were the case, an Accused on release for a number of years could end up with no sentence to serve justbecause he obeyed the terms of his release, which it is presumed he must do in any event. [20] In R v. Lau, 2004 ABCA 408 our Court of Appeal describes the broad discretionary nature of Section 719(3) as follows atparagraphs 13 to 17:– 13 I do not agree that the judge erred in refusing to give credit for the 3 1/2 months of bail under conditions akin to house arrest or forthe time served on the conspiracy charge. 14 Section 719(3) of the Criminal Code, R.S.C. 1985, c.

C-46 provides that "a court may take into account any time spent in custodyby the person as a result of the offence." (Emphasis added) This

section has been interpreted to mean that a sentencing judge shouldordinarily give credit for pre-trial custody, although it is not mandatory. The judge should not deny credit without giving good reasons:R. v. Wust, 2000 SCC 18 , [2000] 1 S.C.R. 455 at para. 44, referring with approval to R. v. Rezaie (1996), (ON CA), 31 O.R. (3d) 713 (C.A.). Also see R. v. Tallman (1989), 1989 ABCA 47 , 94 A.R. 251 (C.A.) and R. v. Lapointe(1999), 1999 ABCA 321 , 244 A.R. 358 (C.A.). 15 Similarly, a trial judge may take account of very strict bail conditions and treat that as akin to custody in calculating a sentence: R.v.

Spencer (2004), (ON CA), 186 C.C.C. (3d) 181 (Ont. C.A.); R. v. Gray (2003), 2003 ABQB 473 , 338

A.R. 270 (Q.B.); R. v. Hames, 2000 ABQB 958; R. v. Ticknovich, 2004 ABQB 421. 16 But whether or not to give such credit, and how much, is a matter within the judge's discretion, having regard to such factors as theintrusiveness of the terms of the judicial interim release: R. v. Nguyen, 2004 ABQB 618. This Court has considered giving credit for timeserved on judicial interim release with strict conditions: R. v. Ewanchuk (2002), 2002 ABCA 95 , 299 A.R. 267. Ewanchuk isdifferent than the current case as it involved interim release after conviction.

This Court stated at para. 87: "... time spent in house arrestmust be taken into account." I interpret that to mean that a sentencing judge must consider whether it is appropriate to give credit for timeserved under strict bail conditions, not that the judge is obliged to give credit. In the current case, the judge did not err in exercising hisdiscretion to deny credit for time served on interim release. 17 With regard to the time served for the conspiracy charge, the wording of s. 719(3) suggests that it is not appropriate to give creditfor time served on a completely separate charge that was later stayed.

Credit for Strict Conditions [21] Section 719(3) is therefore discretionary at best. In Mr. Do’s present case at bar the effect of the Accused’s release on bail inthis matter since November 14, 2008 has been relatively minimum in that the conditions imposed on his release recognizance onlycontain the following standard provisions not at all approaching “house arrest”:–

a) Keep the Peace and be of Good Behaviour;

b) Not to possess or consume any non-prescribed drugs;

c) Not to attend any premises whose primary function is the sale of alcohol;

d) Not to possess any cell phones, pagers, or other portable telecommunication devices or be in any motor vehicle with anyonepossessing same;

e) Abide by a curfew of 10:00 p.m. to 6:00 a.m. daily during which time he must be in his residence;

f) Deposit his passport or any other travel documents to the officer in charge at Edmonton Police Service within 48 hours ofrelease;

g) Not to possess any weapons;

h) Report to the bail supervisor (adult probation officer) within two business days and to report thereafter as directed;

i) Reside where approved by supervisor (adult probation officers). [22] The cell phone condition was relaxed in June 2010. In all of the circumstances, I decline to exercise my discretion to changethe duration of Mr. Do’s sentence based on these relatively minimal and standard pretrial release conditions. [23] Recent changes to

Section 719 may render that sentence reduction aspect academic as well given that the relevant Sectionsnow read as follows:– Time at large excluded from term of imprisonment 719(2) Any time during which a convicted person is unlawfully at large or is lawfully at large on interim release granted pursuant to anyprovision of this Act does not count as part of any term of imprisonment imposed on the person. Determination of sentence

719(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent incustody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each dayspent in custody. [Underlining Added] Conclusion [24] The starting point sentence of 36 months incarceration was determined in R v. Maskill, 1981 ABCA 50 , 1981 A.J.No. 907. Maskill was a youthful offender with no criminal record who had been sentenced to three years in a federal penitentiary, andappealed that sentence.

Our Court of Appeal held at paragraph 16 that trafficking in cocaine must be generally deterred, and that generaldeterrence is and remains the most important element in the sentencing process. Notwithstanding that the accused had no criminalrecord, had strong family support, and produced many favourable letter, these factors were not considered to be special circumstances atparagraph 17.

Our Court of Appeal in Maskill dismissed the appeal from his 3 year federal penitentiary term. [25] Maskill was involved in a commercial operation on something more than a minimal scale as he was found in possession ofmore than one prohibited drug, in possession of $1,790 in cash, and 17 grams of cocaine worth approximately $2,500 to $3,000 if sold onthe street. Maskill was found guilty after trial which is similar to the present case, but Maskill involved a more sophisticated drugtrafficking operation involving larger quantities of drugs and cash. [26] A case that is very similar to the present case is R v.

Chung, 1993 ABCA 52 in which a Maskill category sentence of 30months imprisonment was imposed by the trial judge. In brief Reasons Fraser C.J.A. for the Court stated the following in upholding thesentence:– [1] Counsel, we have reached a decision and it is unanimous. We see no reversible error in a Maskell category sentence of 30 monthsas imposed here by the trial judge for those who lend themselves to the operation of a distribution scheme by, not only supplying, butknowingly delivering hard drugs. The evidence here established that a dial-a-doper system is now prevalent in Edmonton.

Small amountsof cocaine are delivered for cash after a cellular telephone call to the supplier. The scheme is sophisticated in its simplicity. Small salesfor small cash. The real suppliers are insulated from risk of exposure and arrest because possession of the drug rests with the courier. Thecourier, like Mr. Chung, is not ignored. This systems minimizes his risk by permitting him to plead that he should be sentenced on thesmall quantity of drugs with which he is found. We disagree.

We reject the concept that those involved in commercial operations of thiskind should be rewarded for having devised a commercial trafficking system, the whole purpose of which is to minimize individualresponsibility and culpability in what can only be regarded as a scheme of collective illegality. [Underlining Added] [27] More recently our Court of Appeal confirmed the Maskill starting point in R v. Rahime, 2001 ABCA 203.

Although Rahimerecognized that there is no bar to a conditional sentence, the starting point sentence for an offender with no significant record, in the caseof commercial trafficking in cocaine on more than a minimum scale, is three years. [28] In R v. Marchesi, 2009 ABCA 304 a conditional sentence was overturned on appeal Mr. Marchesi had sold relatively smallamounts of cocaine totalling approximately 19.5 grams on three separate occasions. Notwithstanding that Mr.

Marchesi had pled guilty,had no criminal record and had strong support within his family and community, the sentencing judge was overturned for not mentioningthe starting point in imposing her conditional sentence order. The failure to impose a sentence consistent with a guideline set by theCourt of Appeal is not in itself an error of principle, but it does not follow that a sentencing judge can disregard starting points sentencesthat have been set by the Court of Appeal. Marchesi ended up with a Court of Appeal imposed 30 month term of imprisonment. [29] Another Court of Appeal decision R v.

Lau similarly confirmed the three year starting point for cocaine trafficking found inMaskill, again with respect to a useful youthful offender who was only 19 years of age at the time of the offence. Lau at paragraph 27stated that commercial cases that attract a three year starting point typically involve a few grams of cocaine with 2 ounces (about 57grams) at the high end of the scale.

[ 30 ] I must consider that the relevant starting point sentence is 36 months incarceration given that Mr. Do was involved in a commercial operation on something more than a minimum scale as defined by our Court of Appeal. The primary mitigating factors in this case are that the Accused is a youthful first offender, with very strong family ties and support, and good prospects for the future. It is not likely that the Accused requires specific deterrence, but this type of offence still requires general deterrence.

The mitigating factors present here identified above reduce the period of incarceration I impose on Mr. Do to 30 months, concurrent on both counts. [ 31 ] Additionally with respect to Count 1 Mr. Do is subject to a

Section 109 Prohibition under the Criminal Code , the relevant portions of which are underlined below:– Mandatory prohibition order 109.

(1) Where a person is convicted, or discharged under

section 730, of (

a) an indictable offence in the commission of which violence against a person was used, threatened or attempted and for which the person may be sentenced to imprisonment for ten years or more, (

b) an offence under subsection 85(1) (using firearm in commission of offence), subsection 85(2) (using imitation firearm in commission of offence), 95(1) (possession of prohibited or restricted firearm with ammunition), 99(1) (weapons trafficking), 100(1) (possession for purpose of weapons trafficking), 102(1) (making automatic firearm), 103(1) (importing or exporting knowing it is unauthorized) or

section 264 (criminal harassment), (

c) an offence relating to the contravention of subsection 5(1) or (2) , 6(1) or (2) or 7(1) of the Controlled Drugs and Substances Act , or (

d) an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance and, at the time of the offence, the person was prohibited by any order made under this Act or any other Act of Parliament from possessing any such thing, the court that sentences the person or directs that the person be discharged, as the case may be, shall, in addition to any other punishment that may be imposed for that offence or any other condition prescribed in the order of discharge, make an order prohibiting the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance during the period specified in the order as determined in accordance with subsection (2) or (3), as the case may be.

Duration of prohibition order — first offence

(2) An order made under subsection (1) shall, in the case of a first conviction for or discharge from the offence to which the order relates, prohibit the person from possessing (

a) any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance during the period that (

i) begins on the day on which the order is made, and

(ii) ends not earlier than ten years after the person ’s release from imprisonment after conviction for the offence or, if the person is not then imprisoned or subject to imprisonment, after the person ’s conviction for or discharge from the offence; and (

b) any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. Duration of prohibition order — subsequent offences

(3) An order made under subsection (1) shall, in any case other than a case described in subsection (2), prohibit the person from possessing any firearm, cross-bow, restricted weapon, ammunition and explosive substance for life. Definition of “release from imprisonment”

(4) In subparagraph (2)(a)(ii), “release from imprisonment” means release from confinement by reason of expiration of sentence, commencement of statutory release or grant of parole. Application of ss. 113 to 117

(5) Sections 113 to 117 apply in respect of every order made under subsection (1). [Underlining Added] [ 32 ] There will be no Victim Fine Surcharge imposed given the period of incarceration ordered. Mr. Do has waived his rights to any of the Exhibits seized in these proceedings, however those Exhibits must be retained for purposes of the co-accused Nguyen, for whom a warrant has been issued. Heard on the 25 th and 30 th days of November, 2011. Dated at the City of Edmonton, Alberta this 2 nd day of December, 2011. Donald Lee J.C.Q.B.A.

Appearances: Patricia Giroux Public Prosecution Service of Canada for the Federal Crown Ali Moughel Tarrabain & Company For the Accused _______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Mr. Justice Donald Lee _______________________________________________________ Paragraph 6 has been corrected to remove the case R v Song, May 27, 2002, J. Watson, Edmonton QB.