R v De Jong, 2016 ABQB 517

Court of Queen ’ s Bench of Alberta Citation: R v De Jong, 2016 ABQB 517 Date: 20161114 Docket: 130993850Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Simon Robert De Jong Accused _______________________________________________________ Reasons for Sentencing of the Honourable Mr. Justice Don J. Manderscheid _______________________________________________________ 1. Introduction [ 1 ] On November 10, 2016, I rendered an oral synopsis of my sentencing decision with respect to the case at bar.

At that time, upon receiving the agreement of the Crown and Defence, I advised that formal sentencing reasons in regards to this matter would be filed no later than November 16, 2016. What follows are the formal sentencing reasons.

[ 2 ] On August 20, 2013, the police arrested Mr. Simon Robert De Jong [Accused or Mr. De Jong] in Fort Saskatchewan, in the Province of Alberta. Following the arrest, an Indictment dated May 28, 2015 was filed. On February 26, 2016 the Accused entered a guilty plea on Count #1 of the Indictment, unlawful possession of cocaine for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act ( CDSA) , as well as the second Information, failing to report as required by his release documents. 2.

Positions of the Parties [ 3 ] The Crown and the Defence take different views of the appropriate sentence in this case. The Crown asks for a 12 to 15 month jail term with respect to Count #1 of the Indictment. The Crown also seeks the following ancillary orders: 1. A forfeiture order of all seized items; 2. A DNA order; 3. A ten year weapons prohibition, pursuant to s 109 of the Criminal Code ; and 4.

A victim fine surcharge with consecutive time to pay. [ 4 ] With respect to the second Information, failing to report as required by his release documents, the Crown suggests a sentence of 14 to 30 days’ imprisonment to be served concurrently with the sentence in regards to Count #1 of the Indictment. [ 5 ] The Defence proposes a sentence of 90 days to be served intermittently, followed by two years of probation under conditions as significant as the Court deems appropriate.

As well, the Defence consents to the ancillary orders proposed by the Crown. [ 6 ] In determining a just and proper sentence for the Accused, I must consider the case law, and in particular, the Supreme Court of Canada and the Alberta Court of Appeal authorities, as well as ss 718, 718.1 and 718.2 of the Criminal Code . The circumstances of the offence, the circumstances of the Accused, and the impact of the offence itself upon the community are paramount considerations in applying the principles of sentencing. 3.

Circumstances of the Offence [ 7 ] Immediately prior to the arrest of the Accused on August 20th, 2013, the RCMP had received information from a confidential source which indicated that the Accused, a male individual, was using a telephone number, xxx-903-xxxx, to traffic cocaine in Fort Saskatchewan, Alberta, and that the Accused was driving a black, two-door car, and an older red SUV. [ 8 ] Members of the RCMP then took investigative steps to corroborate the information and created an investigational plan, which confirmed the Accused’s address, the vehicle he was driving and would ultimately lead to his arrest.

On the day of the arrest, members of the RCMP had kept covert surveillance on the Accused from the time he left his residence, throughout the City of Edmonton, and eventually to Fort Saskatchewan, where members of the RCMP observed what appeared to be a drug transaction between the Accused and an unknown customer. [ 9 ] After observing the suspected drug transaction, Cst. Simmonds and his team of RCMP officers believed that they had grounds to arrest the Accused, and accordingly, followed the Accused to a cul-de-sac in Fort Saskatchewan.

At this point, the Accused drove his vehicle into a driveway between a travel trailer and another vehicle. Following which, Cst. Simmonds and his team exited their vehicles and approached the Accused. [ 10 ] During the course of arresting the Accused, a physical altercation occurred between the Accused, Cst. Simmonds, Cst. Fraser and Cst. Carlson. During this altercation, Cst. Simmonds struck the Accused in the face several times with a closed fist. The Accused also received multiple scrapes to his back and other parts of his upper body. 4. Circumstances of the Accused A.

Accused’s Social Background and History [ 11 ] The Accused was 18 years old at the time he was arrested for these offences. He is now 21 years of age. Defence counsel advised the Court that shortly after the Accused’s arrest, he was committed to Alberta Hospital (a psychiatric facility) to receive treatment for psychosis. He continues to suffer from mental health issues. [ 12 ] Defence counsel further advised that the Accused has had a very unique upbringing.

The Accused’s mother “was fairly unstable mentally,” to the effect that “his mother would do things like fail to feed him or [do], really odd things like...running down the street naked after a bus or something like that.

And so she was...extremely unstable” ( R v De Jong (10 June 2016), Edmonton 140167669Q1 at 7 [Sentencing transcript]). [ 13 ] With respect to the Accused’s father, Defence counsel indicated to the Court that, given his mother’s mental state, the father was required to virtually “take over in terms of raising him and his brother and he’s been doing so essentially alone for the...bulk of his life”(Sentencing transcript at 7). As well, when the Accused was three years of age, his father was the victim of a homemade explosive which resulted in the loss of the father’s hand.

As a consequence, the father was unable to continue employment for some period of time and is presently on disability. This was further compounded by the fact that the father then went through a period of time involving mental issues which, in turn, impacted the upbringing of the Accused and his brother.

[ 14 ] At 18 years of age, during the Accused’s transition from school to the labour force, he became involved with a group of unsavory individuals. This ultimately resulted in him using non-prescription drugs. The Accused started dealing in illegal drugs to feed his drug addiction. [ 15 ] At the close of the sentencing hearing, the Court invited the Accused to provide a statement. In the course of the delivery of the Accused’s statement, he advised the Court, in part, that: Yeah. I used to I guess do like a lot of drugs as well before the charges arise.

Like started off with weed and like ecstasy and then two other drugs that are like less common and whatnot but that was kind of what the charge -- or which kind of brought me into that kind of situation. But after that I -- like recently and essentially in like the last year I’ve been clean for drugs and after the charges I still struggled with some like issues with mental health and some drug stuff but I went to AADAC for two and a half months. I have an attendance sheet for there.

It was just a lot -- they only told me to go in once a week so it was just one to two hours a week, which I did for two months or two and a half months. And I guess the biggest thing about that was not necessarily going in, it was just kind of once you realize like you go into AADAC, it’s kind of like you realize you’ve hit that point in your life where it’s like I guess I -- it’s hard to stop by yourself so I haven’t been around the drugs since then and so yeah. (Sentencing transcript at 15). B.

Present Situation of the Accused [ 16 ] From approximately 2 months after the charges were laid until shortly before the sentencing hearing, the Accused was employed with a heating company, working mainly in Fort McMurray. Unfortunately, the Accused was laid off due to the forest fires in Fort McMurray, as this is the location where the greater part of his employer’s work takes place. [ 17 ] In the course of his statement to the Court, the Accused also advised that: I figured out what I wanted to do in life. Like I would like to go to post-secondary school since then.

I’ve in the three years time I have had since 2013 the charges arise I think as soon as I could right after the summer because it was in August 23rd is when I got charged, I went to school -- or went to upgrade school so I did -- I got all my courses for prerequisites to become trades to go into NAIT to become any tradesman. I believe electrician or sheet metal were the -- electrician was what I was looking at at the time so I have the prerequisite courses to do that. I took a few courses. To do that.

And then since then I’ve just been working steady so I have a plan now in life when it comes to like what I want to do. I hope to get into engineering. I have a few friends in engineering that go to school in BC and I would like to go to the U of A and yeah, just basically have had a lot of time to think things out and just have a steady job and that was -- yeah. Just seeing what the career -- career sort of career life is like and I just had a lot of time to think about things. (Sentencing transcript at 15 [emphasis added]). 5.

Criminal Code Sentencing Principles [ 18 ] The Criminal Code , ss 718-718.2, as elaborated by the common law, provides the principles that guide sentencing in Canada. The global 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: 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 that we have witnessed in this case is not to be tolerated; 4) to 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. [ 19 ] Recently, in the case of R v Kramer , 2015 ABQB 440 at paras 45-46 , 83 MVR (6th) 32 Romaine J discussed the sentencing provisions contained in the Criminal Code : I am required to have regard to s.718 , 718.1 and 718.2 of the Criminal Code , R.S.C., 1985, c.

C-46 in making any sentencing decision. As noted by Chief Justice Wittmann in R. v Nottebrock , 2014 ABQB 662 at paras 15 and 16 , s. 718 delineates a number of sentencing objectives as components of just sanctions that achieve the fundamental purpose of sentencing, which is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society.

The objectives are denunciation, general and specific deterrence, the separation of offenders from society where necessary, the rehabilitation of offenders, reparations for harm done to victims or to the community; also the promotion of a sense of responsibility in offenders and the acknowledgment of the harm done to victims and the community. A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender, as stated in s. 718.1.

Other sentencing principles are stated in s.718.2 , indicating when a Court should increase or reduce a sentence for any relevant aggravating or mitigating circumstances. This

section embodies what is described as the parity principle, that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances...

6. Cases and Authorities Relied Upon [20] A central principle of sentencing is parity: similar sentences should be ordered for offenders who have committed similaroffences (Criminal Code, s 718.2(b)). That principle requires a court to examine and weigh the similarities between previous offendersand the kinds of sanctions ordered.

All Canadian trial decisions are relevant, but those from Alberta, its Court of Appeal, and theSupreme Court of Canada are especially relevant. [21] Both the Crown and the Defence each tendered judicial authorities which, in some form or fashion, lend support to theirrespective positions. [22] The Crown referred to the following cases for consideration by the Court: R v Nasogaluak, 2010 SCC 6, [2010] 1 SCR 206;R v Melnyk, 2014 ABCA 313, 580 AR 389; R v Maskill (1981) 1981 ABCA 50 , 29 AR 107 (CA) , 58 CCC (2d) 408, sub nomR v Maskell; R v Steele, 2010 ABQB 119, 485 AR 321; R v Pigeon (1992), (BC CA), 73 CCC (3d) 337, 26 WAC 139(BC CA). [23] The Defence cites the following cases for consideration by the Court: R v Nasogaluak, 2010 SCC 6, [2010] 1 SCR 206; R vDe Jong, 2016 ABQB 116, 2016 CarswellAlta 256; R v Desrosiers, 2013 ABQB 119, 549 AR 386; R v Steele, 2010 ABQB 119, 485 AR321; R v Janvier (7 March 2016), St.

Paul 131090714Q1(AB QB), R v MAB, 2014 ABPC 293, 2014 CarswellAlta 2642. [24] In addition, the Court has cited: R v Scott, 2015 ABCA 99, 599 AR 182; R v Legerton, 2015 ABCA 79, 599 AR 170; R vTrinh, 2012 ABCA 383, 539 AR 297; R v Arcand, 2010 ABCA 363, 499 AR 1; R v Trinh, 2000 ABCA 231, 266 AR 180; R v Lau,2004 ABCA 408 at paras 29-31, 257 AR 312; R v Rahime, 2001 ABCA 203, 286 AR 377; R v Walters, 2012 ABQB 83, 529 AR 126; Rv Conlon, 2011 ABPC 259, 517 AR 365, aff’d 2011 ABCA 379; R v Yanke, 2014 ABPC 88, 308 CRR (2d) 1; R v Pepper, 2015 BCCA476, 379 BCAC 291; R v Gill, 2015 BCSC 1556, 2015 CarswellBC 2504; R v Tait, 2005 BCPC 273, 2005 CarswellBC 1681; R vFadiga, 2015 CarswellOnt 13425, [2015] OJ No 4609 (Ont CJ); R v Vincent, 2011 ONSC 139, 2011 CarswellOnt 150; R v Tabbara,[2009] OJ No 4397, 2009 CarswellOnt 6445 (Ont Sup Ct); R v Kasian, 2016 MBPC 24, [2016] MJ No 126; R v Owen, 2016 MBPC 12,2016 CarswellMan 190; R v Hickey, 2011 NSSC 186, 303 NSR (2d) 173. 7.

Sentencing Framework - Possession of Cocaine for thePurposes of Trafficking [25] The fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and degree ofresponsibility of the offender (Criminal Code, s 718). In respect to sentencing for drug trafficking, Parliament has enumerated a specificfundamental purpose for offences under the CDSA: 10(1) Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence under this

Part is to contribute tothe respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment inappropriate circumstances, of offenders and acknowledging the harm done to victims and the community. [26] The Alberta Court of Appeal has indicated that the primary sentencing objective in these cases is deterrence (R v Maskill(1981), 1981 ABCA 50 , 29 AR 107 at para 16, 58 CCC (2d) 408 (Alta CA), sub nom R v Maskell). [27] Section 5(3) of the CDSA provides that the maximum penalty for possession of a

Schedule I substance is life imprisonment. A minimum penalty of one year imprisonment applies in certain circumstances: if the offence was committed in conjunction with acriminal organization; if the offence involved violence or a weapon, or if the person was convicted of a “designated substance offence”within the last 10 years (CDSA s 3(a)(i)).

There is a mandatory 2 year minimum sentence if the offence was committed in a public placenormally frequented by minors, in a prison, or involved a person under the age of 18 in the commission of the offence (CDSA s 3(a)(ii)). [28] Given the maximum term of imprisonment, a conditional sentence order is not an available option, nor is a discharge(Criminal Code ss 742.1(c), 730(1)). 8.

Sentencing Offenders Convicted Under Section 5(2) CDSA [29] The Alberta Court of Appeal has established and affirmed a starting point sentence of three years’ incarceration forcommercial trafficking in cocaine (Maskill, supra; R v Rahime, 2001 ABCA 203, 286 AR 377; R v Melnyk, 2014 ABCA 313, 580 AR389). Alberta is one of the few provinces that have established a starting point sentence for this type of offence.

Most other jurisdictions,such as British Columbia and Manitoba, use sentencing ranges. [30] The methodology for starting point sentencing involves classifying the category of the offence, identifying the starting pointsentence, and then refining the sentence based on the circumstances of the offence and the offender, having regard to the aggravating andmitigating factors (R v Arcand, 2010 ABCA 363, 499 AR 1). As Berger JA noted, a starting point is not a mandatory minimum, and thesentence must be individualized: With great respect, starting point sentencing does have a meaningful function in Alberta.

It too frequently operates as a judiciallyimposed minimum sentence with little latitude left for departure from the mandated three-year term of imprisonment. In doing so, it runsafoul of the will of Parliament to date and sacrifices at the altar of deterrence and denunciation the principle of individualized sentencingrepeatedly emphasized by the Supreme Court of Canada (R v Legerton, 2015 ABCA 79 at para 12, 599 AR 170).

[31] Despite the “starting point” rule in Arcand, it must be remembered that each case turns on its own facts and a sentence mustbe demonstrably fit with respect to the associated offence, taking into consideration all material factors, both mitigating and aggravating. A. Intermittent 90-day Sentence with Probation [32] Defence counsel has proposed a sentence of 90 days of imprisonment with probation. This sentence is a very significantdeparture from the three-year starting point.

However, there have been cases in unusual circumstances where courts have found that a90-day intermittent sentence was appropriate for this offence. Some examples of such cases are as follows: a. R v Pepper, 2015 BCCA 476, 379 BCAC 291 - The Court of Appeal granted Mr. Pepper's appeal and reduced his sentence from 6months of incarceration to 90 days, served intermittently. Mr. Pepper pled guilty to possession of cocaine for the purposes of traffickingand trafficking in cocaine.

The circumstances of the offence suggested a dial-a-dope operation, and the police observed the accused takepart in a number of transactions over the course of an evening. Upon arresting Mr. Pepper, police found approximately 12 g of cocaineand a large amount of cash in the accused's possession. Mr. Pepper was 40 years old at the time and was the father of 3 children. Inreducing Mr. Pepper's sentence, the Court of Appeal considered his lack of criminal record, remorse, rehabilitation, employment, andcommitment to his family as exceptional circumstances that justified a sentence outside the normal range. b.

R v Gill, 2015 BCSC 1556, 2015 CarswellBC 2504 - The accused was found guilty of possession of cocaine, marijuana and heroinfor the purposes of trafficking after a Charter voir dire. The court imposed a sentence of 90 days imprisonment. A plainclothes policeofficer observed the accused conduct a drug transaction as part of a dial-a-dealer operation. The police found 6.2 grams of cocaine,2.3grams of heroin, and a container of marijuana upon searching the accused and his vehicle. The Court held that the sophisticated anddial-a-dope nature of the transaction was aggravating, as was the motive of profit.

However, there were also a number of mitigatingfactors. At the time of the offence, Mr. Gill was 19 years old and had no prior criminal record. He was genuinely remorseful, had stableemployment, and strong family support, and had been of good conduct for the two years following his arrest. The Court concluded thatthere were exceptional circumstances that justified the imposition of a 90-day sentence served intermittently, plus probation and ancillaryorders. c.

R v Fadiga, 2015 CarswellOnt 13425, [2015] OJ No 4609 (Ont CJ) - The Court imposed the joint submission proposed by counselof 90 days imprisonment to be served intermittently, after the accused pled guilty to trafficking in cocaine. Mr. Fadiga sold 3.4 grams ofcocaine to an undercover officer. He was 21 years old at the time of sentencing, had a university degree, and was gainfully employed. At the time of the offence, he was under financial pressure to pay back his student loans and was having difficulty finding work due, inpart, to a medical condition. d. R v Kasian, 2016 MBPC 24, [2016] MJ No 126 - Ms.

Kasian pled guilty to one count of possession of cocaine for the purposes oftrafficking and one count of Breach of an Undertaking to an Officer in Charge. The Court sentenced her to 90 days incarceration(intermittent), along with 2 years of probation with conditions for counselling and 75 hours of community service. The charges arosefrom an isolated incident of a traffic stop where police eventually discovered a bag containing 36 grams of cocaine. The accused was 18years old at the time and had no prior criminal record.

She was described as being in a situation “way over her head” and wasexperiencing financial difficulty at the time which led her to make a very poor decision. Ms. Kasian was remorseful and otherwise ofgood character, with a positive pre-sentence report and letters of support from family, friends and her employer. The Court commentedthat this sentence was “outside the norm” but justified in the exceptional circumstances of the offence and the offender; however, “otheroffenders should not automatically expect the same result” (para 26). e.

R v Owen, 2016 MBPC 12, 2016 Carswell Man 190 - The accused was sentenced to 90 days of incarceration plus three years ofprobation after pleading guilty to a charge of possession of cocaine for the purposes of trafficking. The probation conditions includedcounselling and treatment (including residential treatment if recommended by probation), a curfew, as well as 150 hours of communityservice and a requirement not to be under the influence of an intoxicant unless inside his home. An undercover police officer arranged tobuy drugs from Mr. Owen through a dial-a-dealer line.

The accused sold $80 worth of crack cocaine to the officer, and upon his arrest,officers found an additional 2 rocks of crack cocaine in his vehicle. Mr. Owen had been diagnosed with Fetal Alcohol SpectrumDisorder and had a long history of drug abuse, though he had not sought addictions treatment. He grew up largely in the foster caresystem and had case managers through the provincial Special Needs Program. He had an extensive criminal record but no prior drug-related offences.

At the time of the incident, he had recently been asked to leave an employment program due to his association withgang members who were coming by his workplace. The Court found that while Mr. Owen's circumstances were not exceptional, theymitigated the sentence to be imposed. Given Mr. Owen's First Nations status the Court also considered the analyses set out in R vGladue, (SCC), [1999] 1 SCR 688, 171 DLR (4th) 385 and R v Ipelee, 2012 SCC 13, [2012] 1 SCR 433 in coming toits decision. The Court attempted to balance the objectives of deterring Mr. Owen from selling drugs in the future with rehabilitation. f.

R v Yanke, 2014 ABPC 88, 308 CRR (2d) 1 - Ms. Yanke was sentenced to 90 days' incarceration plus one year of probation afterpleading guilty to possession of oxycodone for the purposes of trafficking. She sold the substance to an undercover police officer andwas found to have 5 pills in her possession upon arrest. The court noted the serious nature of the substance (more serious than cocainebut less serious than heroin) and some minimal indicia of commercial transactions as aggravating factors.

In terms of mitigation, theaccused pled guilty despite triable Charter issues, had no prior criminal record, was the single mother of 2 children, and had attempted tomove on with her life in a positive direction. The Court held that a 90-day sentence was the least restrictive penalty available and thatsome degree of leniency was appropriate in the circumstances. g. R v MAB, 2014 ABPC 293, 2014 CarswellAlta 2642 - Ayotte PCJ imposed a 90-day intermittent sentence after Ms. MAB pledguilty to one count of possession of cocaine for the purposes of trafficking.

In addition, the court imposed 2 years of probation withrequirements to abstain from intoxicating substances, attend Alcoholics or Gamblers Anonymous, and complete addictions counselling asdirected by her probation officer, including residential treatment if recommended. The accused was charged after selling one gram ofcocaine to an undercover police officer. The circumstances of the offence suggested that the accused was a “facilitator” more than aperson directly engaged in selling drugs, and she did not make a profit in the transaction (para 2). She was severely addicted to cocaineat the time of the offence.

The court found that the three year starting point in Maskill did not apply in the circumstances as this was not

a commercial operation. The accused was of Aboriginal heritage and presented both a Gladue report and a pre-sentence report for thecourt's consideration. While many common Gladue factors were not present in Ms. MAB's case, the Court found that she wasnonetheless affected indirectly during her upbringing. At the time of sentencing, Ms. MAB was 49 years old and had only one priorconviction for possession of marijuana. She was employed and was caring for her two sons. She took steps to address her addictionsafter being charged. The offence was serious, but on the low end of the scale, and Ms.

MAB had a low level of moral culpability. TheCourt found that a 90-day intermittent sentence would address deterrence without setting her back in her rehabilitative progress. h. R v Janvier (7 March 2016), St. Paul 131090714Q1(Alta QB) - Macklin J imposed a sentence of 30 days' imprisonment to beserved intermittently, followed by 24 months of probation. Ms. Janvier pled guilty to one count of trafficking in cocaine, stemming froma transaction with an undercover police officer selling 0.75g of cocaine for a total value of $100.

The defence argued that the startingpoint in Maskill should not apply given the circumstances. The Court described the transaction itself as “very low level”, andrecognized that Ms. Janvier acted in the role of facilitator. Ms. Janvier was 33 years old, had no prior criminal record, and was themother and caregiver of 4 children. A Gladue report was submitted on the basis of her Aboriginal heritage, as well as a presentencereport. In coming to its conclusion, the Court emphasized the “unusual circumstances”, the importance of individualized sentencing, theproportionality principle, and Ms.

Janvier's very low level of moral culpability. [33] I must emphasize that these cases are the exception, rather than the rule. [34] I am also mindful of the Alberta Court of Appeal’s decision in R v Trinh, 2012 ABCA 383, 539 AR 297. In that case, theCourt overturned a sentence of 90 days' intermittent jail time, a $7500 fine, and 18 months’ probation. The accused was found in thepossession of 36 grams of cocaine, and took

part in three separate drug transactions with an undercover officer. This was a dial-a-dopeoperation and was “motivated by greed”, although the accused had “exemplary” behaviour on probation and had made efforts to changehis lifestyle and attend school (paras 10, 12). The Court of Appeal held that the 90-day sentence was demonstrably unfit, as it wasdisproportionate to the seriousness of the offence, and substituted a sentence of 2 years of incarceration. [35] Were it not for the violation of Mr.

De Jong’s Charter rights, his circumstances might fall closer to those in Trinh than thelikes of cases such as Gill, Pepper, and MAB. However, I will also take into account the Charter violations committed by the policeagainst Mr. De Jong in determining a fit and proper sentence. B. Reduction in Sentence for Charter Violations by Police [36] In terms of jurisprudence, the seminal decision of the Supreme Court in R v Nasogaluak, 2010 SCC 6, [2010] 1 SCR 206, isrelevant where the Court is called upon to address the issue of police misconduct in the context of sentencing.

In Nasogaluak, the courtconfirmed that excessive force by the police may be addressed by a reduction in sentence, either through the remedial provision of theCharter under s 24(1) or through the sentencing provisions of the Criminal Code. There are no set guidelines for the degree of variationin sentence; however, it can be a substantial reduction in the amount of custodial time. [37] In Nasogaluak, the trial Court held that the

section 7 Charter violations were “so egregious as to justify taking Mr.Nasogaluak from the realm of cases that require incarceration” (para 17). Mr. Nasogaluak suffered broken ribs and a punctured lungafter police forcibly removed him from his car, pinned him to the ground, and punched him in the back during an arrest for suspectedimpaired driving. The officers did not report their use of force and did not seek medical attention for Mr. Nasogaulak. [38] In R v Walters, 2012 ABQB 83, 529 AR 126, Graesser J considered the appropriate remedy where police unnecessarilykicked the accused in the course of arrest, thus violating the accused’s

section 7 Charter rights. The Court held that in the circumstancesit was appropriate to address the reduction under section 24(1) of the Charter. Graesser J found that a 4 month reduction in sentence wasappropriate, given that the force was “excessive but not life-threatening” and “the injuries were minor and fully healed in short order”(para 74). [39] In R v Pigeon (1992), (BC CA), 73 CCC (3d) 337, 26 WAC 139, the British Columbia Court of Appealreduced the accused’s sentence on account of police misconduct after a formal report was filed by the trial judge. The officer draggedMr.

Pigeon by the hair, kicked him in the ribs, and put his foot on Mr. Pigeon’s neck in the course of arrest. The Court of Appealreduced the length of the accused's imprisonment by three months (from 9 months to 6 months). 9. Application to Mr. De Jong's Case [40] Counsel for both the Defence and the Crown agree that the Maskill starting point of three years imprisonment applies in theAccused’s case. The circumstances of the offence, being consistent with a dial-a-dope operation, and the amount of cocaine seized(25.7grams), place this offence in the category of trafficking in cocaine at a more than a minimal level.

However, it is noted that on theevidence before the Court, the RCMP officers only observed one transaction before effecting the arrest: see Pepper; Gill; and Kasian. [41] The three year starting point sentence takes into account the general quantity of the drug and presumes an offender with noprior criminal record: R v Lau, 2004 ABCA 408 at paras 26-27, 29-31, 37, 257 AR 312.

The sentence must also be refined based on thecircumstances of the offence and the offender, and take into account the appropriate reduction for the excessive force found in the trialjudgment. [42] Crown counsel has argued that in weighing these factors, an appropriate sentence would be 12 to 15 months in custody, whileDefence counsel has suggested that 90 days in custody to be served intermittently plus two years of probation would be appropriate. [43] Some of the aggravating and mitigating factors, many of which were commented on by counsel, may be identified as follows: Aggravating Factors:

1. The Accused resisted arrest and attempted to destroy evidence by trying to swallow the packages of cocaine; 2. While the Maskill starting point is specific to cocaine, crack cocaine in particular is highly addictive and dangerous (R v Trinh,2000 ABCA 231 at para 5, 266 AR 180); and 3. The dial-a-dope nature of the transaction is aggravating, as this is generally considered to be a more serious and sophisticated formof trafficking. Mitigating Factors: 1. The Accused was only 18 years old at the time of the offence.

In R v Scott, 2015 ABCA 99, 599 AR 182 the Alberta Court ofAppeal suggested that youth is less mitigating if the accused has a prior criminal history; however, that is not the case here. Mr. De Jonghas no prior convictions and his youth is therefore a significant mitigating factor.

In this respect, the Court of Appeal had this to say onthe subject of the “youthfulness” of the offender: “Youthfulness” is often recognized as a mitigating factor, because young offenders may have a lower moral culpability due toimmaturity in their reasoning, irresponsibility in their decision making, and greater prospects for rehabilitation: R. v Demeter andWhitmore (1976), (ON CA), 32 CCC (2d) 379 at pp. 381-2 (Ont CA); R. v Jackson (2002), (ONCA), 163 CCC (3d) 451 (Ont CA).

This factor is, however, of primary importance for first time offenders: Demeter and Whitmore; R. vIjam, 2007 ONCA 597 at paras. 55-6, 87 OR (3d) 81; R. v Hussey (1990), (NL CA), 83 Nfld & PEIR 161 (Nfld CA).This factor becomes less important when a young adult has already had a considerable amount of experience in the criminal justicesystem, has been subject to various forms of probationary and correctional supervision, and has not only breached those conditions buthas also re-offended: R. v Quesnel (1984), (ON CA), 14 CCC (3d) 254 at p. 255, 4 OAC 393 (CA).

The respondenthas had ample contact with the criminal justice system, and ample time to learn from his past mistakes. The gap between his previousoffences and the one presently before the Court must be recognized, but youthfulness was not a significant mitigating factor in this case.Even the gap does not merit great weight since a large portion of it represents time that the appellant was either in custody or subject tocourt supervision. (Scott at para 13 [emphasis added]). 2.

The Accused focused the issues at trial to his Charter breaches, and entered a guilty plea after the Charter voir dire decision wasrendered; 3. Letters of support from family and friends suggest that Mr. DeJong is well-respected as an intelligent, kind, hard-workingindividual. These letters provide cogent evidence that the Accused has strong support from both family members and friends; 4. Mr. De Jong has taken steps towards rehabilitation. Up until a short time before the sentencing hearing, he was gainfully employedat Amalgamated Heating.

He indicated he has been attending AADAC and has shown insight into his addiction; 5. Apart from one minor breach of his recognizance, his behavior on bail has been exemplary; 6. As witnessed by his statement to the Court, Mr. DeJong is remorseful and wishes to turn his life around; 7. The Accused had a difficult upbringing, as his mother suffered from mental health issues and he saw his father lose his hand whena bomb exploded. Mr. De Jong himself suffers from mental health concerns and was committed to Alberta Hospital for a period of timeshortly after this incident; and 8.

Above all mitigating factors, it is the use of excessive force by the RCMP in arresting Mr. De Jong that will dictate a reduction insentencing from the three-year starting point. In this respect, Constable Simmonds testified under oath that he punched Mr. De Jongmultiple times in the head while two other officers were restraining the Accused. Mr.

De Jong suffered scrapes and bleeding as well asan injury under his eye that required stitches. [44] In this context, the Supreme Court in R v Nasogaluak at paras 49-50, expressly observed that: [49] ...Indeed, s. 718 of the Criminal Code describes the fundamental purpose of sentencing as that of contributing to respect for the lawand the maintenance of a just, peaceful and safe society. This function must be understood as providing scope for sentencing judges toconsider not only the actions of the offender, but also those of state actors.

Provided that the impugned conduct relates to the individualoffender and the circumstances of his or her offence, the sentencing process includes consideration of society’s collective interest inensuring that law enforcement agents respect the rule of law and the shared values of our society. [50] The conclusion that the circumstances of alleged Charter breaches can be considered during sentencing, when they are relevant tothe offender and to the offence, is consistent with much of the sentencing jurisprudence.

In several cases, courts have reduced a sentenceto reflect the prejudice caused to the accused by the incident giving rise to a Charter violation, without invoking s. 24(1). These statements by the Supreme Court, inter alia, supply the basis for this Court’s reduction of Mr. De Jong’s sentence from the three-year starting point. 10. Conclusion [45] When sentencing an offender, a judge in most instances has discretion as to the kind and nature of the sentence. Not all crimesnor offenders are the same.

This discretion is in many senses a weighing exercise, an evaluation of the offence and circumstances andfactors that are either mitigating or aggravating, as identified in the Criminal Code and in the relevant case authorities. While the factsand circumstances of the above mentioned decided cases are indeed relevant and useful as a guide, the task falls on me, as the sentencing

judge, to craft a sentence specific to this Accused and these offences. [ 46 ] I find that the appropriate sentence for this particular case is 90 days imprisonment to be served intermittently, two years’ probation with the conditions that I will outline, including 200 hours of community service and a requirement for treatment and counselling, together with the ancillary orders as requested by the Crown. This is an exceptional sentence for an offence as serious as Mr. De Jong’s.

However, in the unique circumstances of this case, I find that this sentence is fit and proper. [ 47 ] In coming to my decision, I believe that a reasonable individual with full knowledge of all of the facts and the law would agree that the sentence as above stated is reasonable, just and fair.

In this respect, I believe that this sentence conforms with s 10(1) of the CDSA , in that it contributes “to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and the community.” [ 48 ] This sentence also takes into consideration the fact that the Accused will serve a custodial sentence on an intermittent basis for a total of 90 days.

In addition, the community will remain safe with the knowledge that the Accused will be in the community under strict conditions of accountability during his two years of probation. As well, the Accused will be required to give back to the community by way of 200 hours of community service. This in itself equates to five 40-hour work weeks, which by an objective calculation is a sizable amount of working time without compensation.

Lastly, the ancillary orders will further assist in ensuring that the Accused remains compliant with the law. [ 49 ] Although not on all fours with the case at bar the decision in R v Conlon , 2011 ABPC 259 , 517 AR 365, aff’d 2011 ABCA 379 , is highly relevant as guidance concerning the mitigating factors to be considered; and in particular, the offender’s ability to turn his life around. In this respect, Daniel PCJ in Conlon , had this to say at paras 59-62: Sentencing an offender involves weighing and balancing a number of competing factors, including starting point sentences.

Sentencing is a complex and serious endeavour. After 20 years on the Bench, I am fully cognizant of all of the sentencing factors, the need to carefully weigh and balance those factors, mindful of all of the considerations in play. Judges seek to effect ‘justice’. A sentence of 18 to 24 months of incarceration at this time and for this offender, would, in my view and in these unique circumstances, effect an ‘injustice’. Serving a weekend sentence, two days at a time, over a significant number of weekends is no small penalty.

The offender is continually reminded of his offence week after week as he is separated from his family and society. A 90 day sentence, at two days credit per week, can prolong completion of such a sentence over 45 weekends, or almost a year before remission is factored in. When a two year Probation Order is factored in, this Court will have effectively supervised this offender's life over a period of five years. Two hundred (200) hours of community service is effectively five 40 hour weeks of time that this offender must devote to giving back to society in a meaningful and helpful way.

A full order for restitution and a formal letter of explanation and apology as part of the same Probation Order makes this penalty meaningful for the victim, and hopefully allows for some closure. I am convinced that given all the circumstances, at this point the aspect of general denunciation can be more intelligently and effectively addressed via a properly crafted intermittent sentence of incarceration. In this way, the offender may retain his job so that he can pay restitution.

His family will continue to be supported, and he will be able to maintain the stable and nurturing environment he currently provides for his them [sic]. The community will benefit from his community service and the victim will benefit from full restitution and the formal letter of apology. He will be separated from society for 45-two-day weekends. In all the circumstances, it is a balanced approach that meets the ends of justice. [ 50 ] There is no doubt that when considering the gravity of the offence committed by Mr. De Jong, it is a serious one.

In considering the degree of responsibility of the offender, the Accused did not have what a reasonable person would consider as a “normal, healthy” childhood. From day one, the Accused was faced with a mother who was mentally ill. The Accused was affected by this mental illness during his upbringing. As well, the Accused’s father became disabled as a result of a homemade bomb explosion; this compromised his employability and his ability to be a good and supportive parent to the Accused.

To complicate matters, on the cusp of manhood, the Accused became involved with individuals who can only be described as nothing short of “miscreants of society”, whose singular goal is to prey upon and attract young individuals like the Accused to the reprehensible business of dealing in illegal drugs. These individuals are a pariah within society and in particular to our young people.

If this Court, with full knowledge of all the steps that the Accused has taken to rehabilitate himself in order to become a good and law-abiding citizen and productive member of society, would impose the length of incarceration requested by the Crown, then, as was the case in Conlon , an “injustice” would be the end result, and the criminal world would, once more, have gained another member to further their nefarious dealings. [ 51 ] Previously, I mentioned the fact that the Accused gave a statement to the Court.

In particular I would again reference from the Accused’s following statement: And then since then I’ve just been working steady so I have a plan now in life when it comes to like what I want to do. I hope to get into engineering. (Sentencing transcript at 15 [emphasis added]). [ 52 ] In this respect, the Accused has a plan for how he wants his life to be. It is a good plan. While denunciation and deterrence are paramount objectives in sentencing for this offence, rehabilitation is still an important consideration.

The Accused deserves the opportunity to see his plan to fruition and to rehabilitate himself so as to become a useful and productive member of society. Arguably, the Accused 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. [ 53 ] It is rare to find a case that is on all fours with the case at bar. Nonetheless, reasonable comparatives have been recited by this Court (see e.g. Pepper ; Gill ; Fadiga; Kasian; Owen; Yanke; MAB; Janvier ).

To a certain degree, these cases share some of the mitigating factors that this Court must consider in Mr. De Jong’s case when crafting a just and equitable sentence. Generally speaking, those cases concern somewhat less egregious offences or somewhat more compelling personal circumstances than Mr. De Jong’s. However, there were no Charter violations in the cases that I have cited. The excessive force employed by the RCMP and the resulting

reduction in sentence that may be afforded to Mr. De Jong make a 90-day intermittent sentence appropriate. [ 54 ] During the trial, I referenced the fact that “although some level of lawful force was required to prevent Mr. De Jong from destroying evidence and from resisting arrest, the police officers involved in his arrest went beyond what was proportional, necessary and reasonable”( R v De Jong , 2016 ABQB 116 at para 91 , 2016 CarswellAlta 256). Consequently, I concluded that “in the course of effecting Mr. De Jong’s arrest, the police officers used excessive force, which resulted in serious injuries to Mr.

De Jong’s face, the swollen eye, and the cut under his eye, which required surgical stitches” (para 91). To this I would add the fact that, during the course of the trial, I made the following comment at paragraph 38 of the trial decision regarding the reliability and credibility of the Crown’s police witnesses: It is important for me to observe that it is very concerning that, in the context of the severity of the injuries to the Accused’s face and eye, all the police officers involved in the investigation and arrest of the Accused did not see Cst. Simmonds hit him [Mr. De Jong], and that even Cst.

Simmonds could not recall how many times he struck the Accused. [ 55 ] Police officers have sworn an oath to serve and protect the public they serve. When the police in the course of effecting an arrest take matters into their own hands and deploy an unreasonable amount of force as against the person that is the subject of the arrest, condemnation of such action by the police authorities is warranted by the Court.

In the case at bar, this matter is further compounded by the unreliability and lack of credibility that each of the members of the RCMP involved in this incident exhibited during their respective testimony. In particular, and by way of example, I made the following comment in the trial decision regarding the testimony of Constable Trevor Fraser: I find that Cst. Fraser is not a credible witness and his testimony is not reliable, particularly, in relation to his testimony about his role in taking down and arresting the Accused, and as to whether or not he witnessed Cst. Simmonds striking the Accused.

In this respect, Cst. Fraser testified that from the time that he removed the Accused from the vehicle, he had at all times care and control of the upper body of the Accused and that the entire incident spanned around 10 seconds. During this time, in answer to questions by the Court, he confirmed that he had at all times had care and control of the Accused’s torso, yet at no time did he see Cst. Simmonds strike the Accused. I find this totally unbelievable , given that Cst. Fraser seemed to have a clear recollection that he had observed Cst.

Simmonds trying to scoop pieces of what he believed to be cocaine out of the mouth of the Accused ( De Jong at para 31 [emphasis added]). [ 56 ] In closing sentencing submissions, Crown counsel made the following comments regarding the injuries to the Accused at the time of the arrest: Specifically the Crown would suggest that in this case, unlike others, there was no likelihood of grievous harm, as in R v. Steele provided by my friend. Similarly referred to in that case, the accused was not under control and compliant at the time as in R v. Pigeon .

There was also no lasting injuries to the accused as there surely were in Nasogaluak . The officers did not attempt to hide the injury by non-reporting or refusing medical care. Certainly the officer did testify that when the injuries were observed that he did concede that he did hit the accused, although not recalling the number of times.

There was no attempt to conceal that he was responsible for that . (Sentencing transcript at 2-3 [emphasis added]). [ 57 ] In addressing the above statements by Crown counsel, I would first point out that, in my mind, there was a strong “likelihood of grievous harm” to the Accused as a result of the punches inflicted to the face of the Accused by Constable Simmonds. In R v Steele , 2010 ABQB 191 at para 75 , 485 AR 321, Macklin J summarized the

interpretation of “grievous bodily harm”, which has been taken to mean “serious hurt or pain” or serious physical or mental injury inflicted on someone intentionally. [ 58 ] In this respect, the potential effects of a punch or punches to the face or neck area of an individual can be seen, for example, in R v Tabbara , [2009] OJ No 4397 (QL), 2009 CarswellOnt 6445 (Ont Sup Ct) , where the offender, aged 21, and a friend confronted three men. During the confrontation, the accused punched the victim in the neck area after which the victim collapsed and after 18 seconds died.

The Crown established that the offender’s punch caused torsion of the victim’s head, arterial rupture, and ultimately death. Similarly, in R v Hickey , 2011 NSSC 186 , 303 NSR (2d) 173, the accused was convicted of manslaughter after inflicting a single punch on the victim. The blow fractured bones in the victim’s face and caused his brain to rotate inside his skull, shearing the axons and ultimately resulting in the victim’s death. [ 59 ] Though these cases fall to the extreme end of the spectrum, they nevertheless demonstrate the significant dangers that even a single blow to the face or neck area may pose.

Non-fatal, but nonetheless serious, injury is an even more probable result. For instance, in R v Tait , 2005 BCPC 273 , 2005 CarswellBC 1681 an RCMP member struck an individual three times in the face with a closed fist, causing a broken jaw. In R v Vincent , 2011 ONSC 139 , 2011 CarswellOnt 150, the accused delivered a blow to the complainant’s head in the course of a fight.

The complainant suffered bleeding in the brain and eventually became completely paralyzed as a result. [ 60 ] Furthermore, I reject the submissions of Crown counsel, who, despite hearing my decision and my comments regarding the reliability and credibility of the police, argued that “[c]ertainly the officer did testify that when the injuries were observed that he did concede that he did hit the accused, although not recalling the number of times. There was no attempt to conceal that he was responsible for that” (Sentencing transcript at 3).

That statement fails to consider that this Court found the testimony of all of the police witnesses to be lacking in reliability and credibility in relation to the fact that all three police officers could not recall witnessing Constable Simmonds strike the Accused. This is extremely important in regards to the two members of the RCMP who were virtually in face-to-face contact with Constable Simmonds during the altercation with the Accused, yet who both denied seeing Constable Simmonds strike the Accused. In my mind, such actions on their

part can only be stated as being nothing less than “a convenient lapse of memory”. [ 61 ] The sentence which I have imposed will serve to denounce the criminal activity for which the Accused has pled guilty, but will also take into account the Charter breaches by the RCMP. The sentence will act as a deterrent to those who would take up such criminal activity, and exemplify how justice and society might equally be served through the rehabilitation of an offender for these types of offences.

11. Disposition [ 62 ] Having considered all of the evidence, as well as the statutory and judicial factors, I hereby sentence Mr. De Jong to a term of 90 days in jail, as well as probation for a period of two years from this date, with respect to Count #1 of the Indictment. The 90 days will be served intermittently and the probation order shall remain in effect during all periods in which Mr. De Jong is not in custody and shall remain in force at all times for the probationary period that follows the completion of the custodial sentence.

With respect to the second Information, failing to report as required by release documents, I impose a sentence of 30 days incarceration to be served concurrently with the sentence in regards to Count #1 of the Indictment. [ 63 ] The terms and conditions of the probation order are as follows:

a) Keep the peace and be of good behaviour;

b) Appear before any court when required to do so by the court;

c) Report to the Edmonton Court Centre Probation Office within two business days from today, and thereafter as and when directed by the Probation Officer. Appearances may be in person or by telephone as the Probation Officer directs from time to time. If he seeks employment out of the City of Edmonton, the Accused’s probation may be transferred to the location closest to his new place of residence;

d) Reside where approved by the Probation Officer in writing and provide proof of such address as directed, with any change of address being pre-approved in writing by the Probation Officer;

e) Complete such counselling as is recommended by the Probation Officer, but in particular for substance abuse.

f) Sign the appropriate waivers of information so that the Probation Officer can monitor rehabilitative progress, and provide proof of attendance at required counselling sessions to the Probation Officer when requested to do so;

g) Abstain absolutely from the purchase, possession, use or consumption of any alcohol and non-prescribed drugs;

h) Not attend at any liquor store, bar, lounge, tavern or establishment where the main business is the sale of alcohol; except in a licensed dining room for the sole purpose of having a meal;

i) Complete 200 hours of community service in the manner prescribed by, and to the satisfaction of, the Probation Officer within the first 18 months, and provide proof of completion of same to the Probation Officer;

j) Either maintain employment, attend educational classes or vocational training, or take

part in a combination of these occupations, all as approved by the Probation Officer. [ 64 ] In addition, I hereby grant the following ancillary orders: 1. A forfeiture order of all seized items; 2. A DNA order pursuant to s 487.051(3) of the Criminal Code , as this is a secondary designated offence; 3. A ten-year weapons prohibition pursuant to s 109 of the Criminal Code ; and 4. A victim fine surcharge in the sum of $200 will apply to each charge, to be paid within 60 days from the date of these Reasons. Heard on the 10 th day of June, 2016. Dated at the City of Edmonton, Alberta this 9 th day of November, 2016. Don J. Manderscheid J.C.Q.B.A. Appearances:

Melina Rawluk Department of Public Prosecutions for the Crown Hasaan J Jomha Jomha Karout Law for the Accused