R. v. McKnight, 2018 MBPC 42

Citation: 2018 MBPC 42 R. v. McKnight THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Elizabeth Atkin ) ) for the Crown - and – ) Robert McKnight ) ) Benji Greenberg ) ) for the Accused ) ) ) Judgment delivered: ) November 26, 2018 CARLSON, P.J. Introduction [ 1 ] Mr. Robert McKnight pleaded guilty that on March 22, 2014, he possessed cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act (“ CDSA ”) . He admitted that he sold 3 grams of cocaine to an undercover police officer for $230.

After the transaction, the vehicle he and a co-accused were in was stopped by police, and both Mr. McKnight and a co- accused were arrested. A search of the vehicle revealed the $230 scrip cash paid by the officer to Mr. McKnight, a further $210 in cash, and a total of 12 grams of cocaine, packaged in smaller quantities, along with packaging, a scale contaminated with cocaine, and a cell phone that contained multiple texts containing drug orders. [ 2 ] Mr. McKnight was accepted into the Winnipeg Drug Treatment Court (“DTC”) program on June 7, 2016. Mr. McKnight’s guilty plea was entered on June 6, 2016.

He did not comply with the DTC program requirements, and was permitted to opt out of the program on August 2, 2016. He was re-admitted to the DTC program on October 24, 2017. He was discharged from the DTC program on April 10, 2018. [ 3 ] Mr. McKnight’s sentencing hearing began on September 11, 2018, and continued on October 24, 2018. A decision on sentence was reserved to today. [ 4 ] A Pre-Sentence Report (“PSR”), prepared by probation officer Jamie Mireault, and dated July 19, 2018, was marked as an exhibit. Also entered as exhibits were an Agreed Statement of Facts, an Opt Out

Summary with respect to Mr. McKnight’s first time in DTC, a Discharge

Summary as to Mr. McKnight’s second time in DTC, confirmation from the Winnipeg Adult Education Centre that Mr. McKnight has been enrolled at that institution since September 4, 2018, and a letter from Mr. McKnight’s counsellor at the Addictions Foundation of Manitoba (“AFM”) during the time he was in the DTC program. [ 5 ] The court thanks both counsel for their thorough and helpful submissions and provision of relevant case law. The Issue [ 6 ] The ultimate issue for the court to decide is - what sentence is appropriate for Mr. McKnight’s commission of this offence?

Positions on Sentence [ 7 ] Defence counsel recommends a suspended sentence with supervised probation, on the basis there are exceptional circumstances, and says the relevant sentencing objectives may be met by a non-incarceratory sentence. An alternate position put forward by defence counsel is a jail sentence of not more than 90 days, to be served intermittently.

Defence counsel says that exceptional circumstances are present, but that even if they are not, a jail sentence of not more than 90 days would be a proportionate sentence in this case. [ 8 ] Crown counsel’s position is that an appropriate range of sentence in this case is 12 to 15 months in jail, followed by probation. The Crown says that while there are factors that mitigate sentence, and justify a sentence at the bottom of the accepted sentencing range, of 12 months, there are not exceptional circumstances. The Crown says an offender who has had the opportunity to be

in the DTC program, but has not complied with its requirements, should not be able to obtain the same sentence as someone who has complied with all the requirements of the program and graduated. A successful DTC program graduate typically receives a suspended sentence with probation. Indeed, Mr. McKnight’s co-accused graduated from the DTC program, and received a 15 month suspended sentence with probation.

The Crown further says that a sentence of no more than 90 days in jail is so far below the accepted range for possessing cocaine for the purpose of trafficking, that to impose such a sentence would still require the court to find there are exceptional circumstances. Absent a finding of exceptional circumstances, the Crown says, a sentence of imprisonment in the generally accepted range is required to address the sentencing objectives of deterrence and denunciation. Sentences for s. 5(2) CDSA offences [ 9 ] The offence of possessing cocaine, a

Schedule 1 substance, for the purpose of trafficking, is an indictable offence punishable by a maximum sentence of life in prison. [ 10 ] The primary sentencing principles for such offence are deterrence and denunciation. This was recently confirmed by the Manitoba Court of Appeal in R. v. Sass and R. v. Zammitt 2018 MBCA 46 .

Rehabilitation and treatment of an offender in “appropriate circumstances” must also be considered, in accordance with s. 10(1) of the CDSA. [ 11 ] The sentence must send the message to the community at large that our society does not tolerate trafficking in drugs, and in particular such an addictive and potentially lethal drug as cocaine. The sentence must show others that such offence will be severely punished so that they do not do the same thing. The sentence must send a significant enough message to Mr.

McKnight so that he does not commit an offence like this again. [ 12 ] In order to ensure sentences for possession of drugs for the purpose of trafficking remain proportionate to the seriousness of the offence, and also to ensure parity of sentences for offenders who commit such offences, ranges of sentences have been established, accepted and applied regularly by Manitoba courts. [ 13 ] The case law in Manitoba has established a generally accepted sentencing range for the offence of possession for the purpose of trafficking cocaine at the street level, which is what Mr. McKnight was doing.

The R v Gilchrist decision of the Manitoba Court of Appeal, cited at 2004 MBCA 21 , and subsequent cases, set a range of 12 months to four years, even for first time offenders, and even when the amounts sold are small. That this range is still in place was recently confirmed by the Manitoba Court of Appeal in the Sass and Zammitt cases. Departure from the accepted sentencing range [ 14 ] The sentencing range is a guideline.

It factors in the necessary emphasis on the primary principles of deterrence and denunciation, and then, in order to determine an appropriate individualized sentence, the court must adjust the sentence length upward or downward, based on the aggravating and mitigating circumstances of the offence and the offender. [ 15 ] The case law establishes that there are two situations in which a fit and proportionate sentence for a s. 5(2) CDSA offence may be significantly below the bottom of the accepted sentencing range. [ 16 ] The first situation in which a sentence significantly below the accepted range may be fit and proportionate is one in which “exceptional circumstances” are present.

Mr. Justice Mainella in R v Burnett , 2017 MBCA 122 , explained at paragraph 27 that: “In a situation of exceptional circumstances, the sentencing judge does something far more dramatic than simply showing leniency from a starting point or sentencing range; usually a non incarceratory sentence in the form of a suspended sentence is imposed for an offence that commonly results in a lengthy period of incarceration. Such a sentence largely forgoes the objectives of denunciation and general deterrence; the overarching goal in such cases is rehabilitation.” [ 17 ] Mr.

Justice Mainella, in the Sass and Zammitt cases, said the following at paragraph 2: “Given the deleterious effects of cocaine and other hard drugs to both users and society, in order to ensure respect for the law, protect the public and acknowledge the harm caused by trafficking, the position of this court is, as is the case in other provinces, that drug traffickers should receive a term of imprisonment, absent “exceptional circumstances”. [ 18 ] The second situation in which a sentence for a s. 5(2) CDSA offence may be significantly below the bottom of the accepted sentencing range, is when, although there may not be exceptional circumstances, a sentencing judge exercises his or her general discretion and departs downward from the starting point or sentencing range to impose an individualized sentence based on the circumstances of the particular case.

In such situation, it is likely a jail sentence will still be imposed, but its length may be significantly below the accepted range. In certain cases, such sentences may still be fit and proportionate. The first situation in which there may be a departure from the sentencing range –“exceptional circumstances” – what are they? [ 19 ] The sentencing principle of “exceptional circumstances” has been addressed by the Manitoba Court of Appeal a number of times in recent years, in cases including R. v. Peters , 2015 MBCA 119 ; R. v. Tran (A), 2015 MBCA 120 ; R. v. Racca , 2015 MBCA 121 ; and R. v.

Burnett . [ 20 ] In paragraph 28 of the Burnett decision, Mr. Justice Mainella says that exceptional circumstances can arise from the way in which an offence is committed, or from the circumstances of the offender, or from a combination thereof. Findings of exceptional circumstances occur only in the clearest of cases, when there are multiple mitigating factors of significance, or the offender’s motive for committing the offence is highly unusual.

An assessment of whether there are exceptional circumstances is a holistic exercise based on an evaluation of the totality of the circumstances and all of the relevant sentencing objectives and principles. [ 21 ] At paragraph 30 of the Burnett decision, Mr. Justice Mainella says two themes are common in cases in which exceptional

circumstances are found. First, an accused has demonstrated that he has turned his life around since his arrest. And second, the fundamental purpose of sentencing set out in s. 718 Criminal Code would be better served by a non-custodial sentence than by a custodial sentence. [ 22 ] Madam Justice Suche in R v Dzinic 2018 MBQB 143 set out at paragraph 6, what is required to find exceptional circumstances. “Exceptional circumstances exist where there are multiple mitigating factors of significance.

Those most commonly relied on include strict bail conditions, a guilty plea, cooperation with authorities, health issues, personal circumstances, family concerns, Gladue considerations, as well as demonstrated rehabilitation. Other factors include the age of the offender, a lack of criminal record, the passage of time since the commission of the offence, as well as the nature of the offence and the need for a deterrent sentence. The manner of the circumstances underlying the commission of the offence may be a factor as well, if there was something highly unusual or exceptional about it.” [ 23 ] Mr.

Justice Mainella, at paragraph 41 of the Burnett decision, warns that sentencing judges must not conflate “sympathetic circumstances” with “exceptional circumstances”. The two ideas are quite distinct in terms of their legal effect.

The second situation in which there may be a departure from the sentencing range – the exercise of judicial discretion [ 24 ] An important question relative to this case is whether, to depart significantly from the bottom of the accepted sentencing range for a s. 5(2) CDSA offence, exceptional circumstances must be found. [ 25 ] This court’s view is that the answer to that question is “no”. [ 26 ] Exceptional circumstances require a specific finding, the result of which is that the usual paramount sentencing principles of denunciation and deterrence essentially are given a back seat to the demonstrated and continued rehabilitation of an offender.

To go significantly below the bottom of the sentencing range is really just the exercise of judicial discretion that courts use every day in crafting individualized sentences. Given the accepted sentencing range, established to ensure sentences for certain serious offences are proportionate, it is of course, important that a court which significantly departs from the range explain why. [ 27 ] In the decisions in R. v. Moustafa 2017 MBQB 170 and R. v. Romanishen 2017 MBQB 85 , Mr. Justice Toews specifically says that even to ground a 90 day sentence followed by probation for a trafficking offence involving a

Schedule 1 substance, there would have to be a finding of exceptional circumstances. With respect, that requirement seems to be at odds with the reasoning set out by the Manitoba Court of Appeal in decisions including Burnett . [ 28 ] At paragraph 25 of the Burnett decision, Mr. Justice Mainella specifically says that “The law does not require a sentencing judge to find “exceptional circumstances” to justify imposing a sentence that merely departs downward from a judicially created starting point or sentencing range”. And at paragraph 26, Mr.

Justice Mainella states that to require that “exceptional circumstances” be found in order for a sentence to be one that is below an established starting point or sentencing range, would be an artificial fettering of a sentencing judge’s discretion, and states that only Parliament, subject to the Charter , can do that, through the establishment of mandatory minimum sentences. [ 29 ] At paragraph 34 of R. v.

Castelein 2018 MBQB 37 , Madam Justice Greenberg, relying on the Burnett case, says “While it may be necessary to find exceptional circumstances in this case to justify a non custodial sentence, it is not necessary to find such circumstances to depart from a sentencing range”. This court agrees with that statement. The Particulars of Mr. McKnight’s Case Circumstances of the offence committed by Mr. McKnight [ 30 ] The circumstances are straightforward. Mr. McKnight sold 3 grams of cocaine to an undercover officer.

Then, when the vehicle he was in was searched, cash, 12 grams of cocaine, and materials consistent with trafficking were found. Circumstances of the offender [ 31 ] As to Mr. McKnight’s personal circumstances, these are set out in the PSR. [ 32 ] He is 29 years old. He committed the offence at age 24. [ 33 ] His father passed away in 2011. His mother remains a big support for him. He has siblings but they are not close. He has a fiancé, Ms. Duck, who he lives with, together with their three-month-old son. He and Ms. Duck have been together for approximately four years. [ 34 ] He has a grade 11 education.

He is unemployed, and collects employment income assistance. [ 35 ] Alcohol is not problematic for him. But drugs were. He committed the subject offence in furtherance of his own drug addiction. [ 36 ] In 2010, Mr. McKnight suffered a knee injury. He had surgery and was prescribed Percocets. This began his addiction to drugs. He started using cocaine regularly in 2011, and used it daily until he was arrested in 2014. He sold drugs to support his addiction, selling for a couple of months before he was arrested.

He began using opiates regularly in 2016, using fentanyl and carfentanil, and used opiates regularly for about one year. Despite his non-compliance with the DTC program both times he was in it, and his ultimate discharge from it, he did take steps on his own initiative, to deal with his addiction to opiates. He completed the Methadone Program in October 2017. His fiancé is still in that program. [ 37 ] With respect to marijuana, he started using it daily at 18 years old. He continued to use marijuana while on bail and in the DTC

program. In fact, his usage increased while in the DTC program. He now takes prescribed medical marijuana, and has done so since May 2018. [ 38 ] Mr. McKnight’s therapist at AFM, Ms. Winnicki, confirmed he started the DTC program on October 24, 2017, (which was for the second time), showed commitment to the program, and attended 22 individual therapy sessions with her, and group sessions.

She says that despite being discharged from the DTC program, he made great strides in his using patterns, and reported that his last use of opiates, on admission to the Mens Treatment Program, on March 26, 2018, was over a year before that. It is noted that Ms. Winnicki did not continue to see Mr. McKnight in an official capacity after he was discharged from the DTC program, and does not have knowledge of his actions or testing since discharge from DTC. Mr. McKnight says he has gone to approximately 30 Narcotic Anonymous meetings in the past year. [ 39 ] Mr.

McKnight reports he has given up his prior his negative acquaintances. [ 40 ] Mr. McKnight was assessed by that author of the PSR as a medium risk to reoffend. The only criminogenic risk areas identified were education and employment, and the PSR author was recommended he return to school. Mr. McKnight then applied to, and was accepted, to the Winnipeg Adult Education Centre. He started classes there in September, 2018, and attends there now, working on completing his high school education.

He advised the court that he has had job offers, but they would have required him to not reside in Winnipeg and he was constrained by his bail conditions. [ 41 ] Mr. McKnight has been on bail since 2014, with conditions including a curfew. There have been no breach charges. He has not been charged with any offences since his 2014 arrest. [ 42 ] Mr. McKnight does not have Gladue factors. The circumstances of Mr. McKnight’s time in the Winnipeg Drug Treatment Program [ 43 ] The details of Mr. McKnight’s time in the DTC program are provided in the Opt Out

Summary, and the Discharge

Summary, both filed as exhibits. [ 44 ] Mr. McKnight entered into the DTC program on June 7, 2016. He continued to actively use cocaine, fentanyl and THC marijuana. The treatment team recommended he go to the Main Street Project’s Detox Unit, and then residential treatment. He was admitted to the detox unit on July 7, but left on July 8 due to a medical issue. He was supposed to reapply to the Main Street Project detox unit, but failed to do so.

After being told a warrant would be issued if he did not report to the detox unit, he did attend the Main Street Project detox unit again on July 27, but left the next morning. On August 2, 2016 he opted out of the DTC program, due to lack of compliance with the program requirements. [ 45 ] After opting out of the DTC program, Mr. McKnight did take significant steps while in the community to address his opiate addiction, including successfully completing the methadone program. [ 46 ] Due to that initiative, the DTC team permitted him back into the DTC program on October 24, 2017.

But he lasted in the DTC program only 6 months. He struggled to abstain from THC use, despite staff intervention and referrals. He was tested and high levels of THC were found in his system. A contract was written outlining program expectations of him, the requirement to be honest about all THC use and the expectation that he provide lower THC levels; he signed the contract on February 22, 2018. His son was born on February 24, 2018 so the DTC team tried to give him some flexibility. But his marijuana levels continued to substantially increase and came back two times higher than previously.

Accordingly the DTC required him to go to residential treatment; he refused to go, and he was adamant that he was not using marijuana, though his tests consistently showed that he was and that his levels were increasing. On March 26, he started the Mens Day Program, with an expectation he would still go to residential treatment once a bed was available. Two weeks later, the Mens Day Program discharged him due to his poor attendance. He was tested again, and his THC levels were three times higher than they were the previous month.

Due to his non compliance with treatment options, and his dishonesty about his marijuana use, he was discharged from the DTC program on April 10, 2018. Mitigating and aggravating factors [ 47 ] There are a number of mitigating factors: • Mr. McKnight entered a guilty plea.

That is an expression of remorse and acceptance of responsibility. • The offence consisted of one transaction, of a relatively small amount of cocaine. • He has no criminal record other than this offence. • He has had no criminal re-involvement. • He was relatively young when he committed the offence – 24 years old. • He has been on bail, with strict conditions, for four years and eight months, including a curfew condition. He has not been charged with any breaches of any conditions. • He has been proactive and successful in terms of overcoming his opiate addiction.

He undertook rehabilitative efforts on his own, and by all accounts, he has not been re-involved in use of opiates or cocaine for a significant period of time. This is very significant progress. • He reports he continues to go to Narcotics Anonymous. • His personal circumstances are more stable than when he committed the offence. He is in a long term relationship, has a child, has

stable housing, and is attending school. • He specifically addressed the one factor specified in the PSR cited for his assessment as medium risk to reoffend, namely employment and school. He is now attending school full time. [ 48 ] There are aggravating factors: • The nature of the drug that he was selling. Cocaine is a

Schedule 1 substance. It is highly addictive, frequently is linked to serious crimes, and ruins lives. • He self reported that he was selling drugs for about a month before he was charged. • Though not charged, he admits he used fentanyl and carfentenil starting in 2016 for about a year. He was on bail for this charge at that time, and was in the DTC program. • He exhibited repeated dishonesty with members of the DTC program team, and did not follow the rules of the DTC program. That recurred when he was admitted for a second time, such that he was discharged from the program.

The Caselaw [ 49 ] Counsel provided the court with a number of cases. The court has read them all, but will not refer to them all in this decision. [ 50 ] A decision in Mr. McKnight’s case is dependent on the facts of his case and his particular circumstances. It is helpful to review other cases to see in which sets of facts, exceptional circumstances were or were not found, and to look at cases in which the generally accepted sentencing range was significantly departed from. Cases in which no exceptional circumstances were found and the sentencing range was not departed from [ 51 ] In R. v.

Sass 2018 MBCA 46 , the offender pleaded guilty to possession for the purpose of trafficking. He was 25 years old with a minor related criminal record. He was remorseful, had a challenging upbringing, and was a drug and alcohol addict. He did not take counselling or treatment before sentencing. He had obtained employment and had stopped using cocaine. He was assessed as a high risk to reoffend. The Court of Appeal concluded these circumstances were not exceptional and that a 15 month sentence of imprisonment was appropriate. [ 52 ] In R. v.

Zammit 2018 MBCA 46 , the offender pleaded guilty to trafficking in cocaine. He was 20 years old, had no prior criminal record, and was remorseful. He had some employment. He had no drug or alcohol problems. He sold cocaine to fit in with a certain crowd. He did not take any counselling prior to sentencing. He was assessed as medium risk to reoffend. The Court of Appeal found there were not exceptional circumstances. The accused had not turned his life around or demonstrated rehabilitation since his arrest. The Court of Appeal found a fit sentence was one of 12 months imprisonment. [ 53 ] In R. v.

Burnett , 2017 MBCA 122 , an offender was convicted for break, enter and theft of a firearm. He was 23 years old, and had one conviction for drug possession. He had an alcohol problem at the time of the offence but since his arrest, had been sober. He had employment and was in a stable relationship. The Court of Appeal found his circumstances to be sympathetic, but not exceptional, because he did not turn his life around to a great degree.

The Court of Appeal said that the sentencing judge overemphasized the principle of rehabilitation, and that proportionality requires going beyond just considering an offender’s circumstances and the effect of a sentence on him. The Court of Appeal found a 90 day sentence and probation to be unfit, and said a fit sentence was 18 months imprisonment and a fine of $4000. [ 54 ] In R. v. Castelein 2018 MBQB 37 , an offender was sentenced for possession of methamphetamine for the purpose of trafficking and possession of some other drugs. The offender was found with 384 grams of meth.

An expert opined she was a mid level trafficker. She was 33 years old and a single mother. She had no prior record. She had a difficult upbringing. She had had steady employment. She was not an addict. Her motivation for selling drugs was unclear. She had made significant changes to her lifestyle since arrest. The court found there were not exceptional circumstances that would allow a non custodial sentence, and sentenced her to two years less a day on the trafficking charge. [ 55 ] In R. v. Kurdydyk 2017 MBQB 2 , an offender was convicted after trial of possession for the purpose of trafficking ecstasy and meth.

The offender was 19 on arrest. He had a university education. He had held employment. He had some mental health issues. He had a long and varied history of using drugs. He sold drugs to support his own habit. It seemed he had stopped using substances. He had obtained some professional help. His rehabilitation was not complete. The judge found there were not exceptional circumstances and a non custodial sentence could not be justified. It could not be said he had truly turned his life around. Rehabilitation by an offender is not an exceptional circumstance in itself.

The judge found that the mitigating factors warranted a sentence at the lower end of the range and found a period of 12 months incarceration was a fit and fair sentence, followed by two years of probation. [ 56 ] In the case of R. v. Romanishen 2017 MBQB 85 , an offender was convicted after trial for possession for the purpose of trafficking crack cocaine. She was found with 84 wrapped one quarter grams of crack cocaine. She was 8 months pregnant at the time of sentencing. She had been working steadily. She had been a drug addict and sold drugs to make money.

Since her arrest she had been taking post secondary courses. She had not done any formal drug programing but advised she no longer used street drugs. She had family support. And she had insight into her prior addiction. She had no prior record. Circumstances were found not to be exceptional and the court imposed a sentence of 12 months incarceration followed by probation. [ 57 ] In R. v. Moustafa 2017 MBQB 170 the offender pleaded guilty to trafficking cocaine. He had a prior record for possession for marihuana and an assault. He was an addict. He misled the probation officer writing the PSR.

He sold drugs to support his drug habit.

He was subject to removal from Canada with no right of appeal if incarcerated for 6 months or more. Though he had taken some steps toward rehabilitation, they were recent. He had not been able to maintain full time employment for more than 8 months. The judge found there were not exceptional circumstances. A sentence of 18 months followed by probation was imposed. [ 58 ] In R. v. Hargreaves , unreported, Judge Sandhu, March 21, 2017 (Man. Prov. Ct.), an offender pleaded guilty to charges including trafficking in methamphetamine, and some breaches. He was 42. He had worked for most of his adult life.

He had a family. He became addicted to prescription drugs and then to meth. He had a limited and unrelated record. He was admitted to the Winnipeg Drug Treatment Court program. He did not complete the residential treatment program as required. When directed to do detox, so he could re- enter the treatment program, he delayed in entering detox. He then left detox and never made it back to the treatment program. He was discharged from the DTC program.

The judge said he took into account the fact the offender had had the opportunity of the DTC and had been discharged, and said it would send the wrong message for people who don’t complete the DTC program to essentially get the same penalty as people who do. The jail sentence imposed for the drug offence was equal to 14 months and probation. [ 59 ] In R. v. Wesley, unreported, Judge Rolston, MBPC, May 22, 2018 (Man. Prov. Ct.), the offender was convicted after trial of possession of crack cocaine for the purpose of trafficking and possession of property obtained by crime. Mr. Wesley was not an addict.

He was low risk to re-offend. Judge Rolston found that there were not exceptional circumstances and that the appropriate sentence was 2 years incarceration. Cases in which exceptional circumstances were found [ 60 ] In R. v. Peters , 2015 MBCA 119 , the Court of Appeal upheld a suspended sentence with three years probation for an offender who pleaded guilty to possession of cocaine for the purpose of trafficking and two breaches. Mr.

Peters had significant Gladue and Ipelee factors which figured into the decision, but the sentencing judge relied on the fact the offender had turned his life around since arrest and that the long term protection of the public was better served by the non custodial sentence. [ 61 ] In R. v. Tran (A) , 2015 MBCA 120 , an offender was sentenced to a conditional sentence order (“CSO”) of 2 years less a day followed by probation, for possession for the purpose of trafficking cocaine and for possessing proceeds of crime. A CSO was a legal sentence for those offences at the time.

The offender was young with no prior criminal involvement. He sold drugs to earn money to pay his university tuition. Exceptional circumstances were found. The Court of Appeal upheld the sentence, and made some observations. A factor in deciding if exceptional circumstances are present is where incarceration, due to substantial rehabilitation coupled with the length of time since sentencing, would be counterproductive. Mr. Justice Monnin also said that in the group of factors, the most persuasive may be the aspect of demonstrated rehabilitation over a period of time. Mr.

Justice Monnin said that the time from arrest to sentencing in the Tran case was “inordinate” –that time was four years. During that time, the offender had been on strict bail conditions. [ 62 ] In R. v. Wiebe, 2016 MBPC 43 , an offender pleaded guilty to trafficking in cocaine. There were two transactions. The offender was 26. He was a drug addict. He had regular and long term employment. He had been on bail for two years with a strict curfew. He was in recovery and doing well. Judge Pollack found there were exceptional circumstances and that a suspended sentence with probation was proportionate. [ 63 ] In R. v.

Dzinic 2018 MBQB 143 , an offender pleaded guilty to trafficking cocaine. He was 24. He had a related youth record. He had been on bail for three years on strict release, with some minor violations. He stopped drinking and using drugs and stopped association with gangs. He changed his course of conduct. He worked and was a parent. He demonstrated rehabilitation. The judge found the circumstances under which the offender committed the offence were unusual and mitigating, since his involvement with a gang was understandable and the offence was a direct result of his gang involvement.

The judge was satisfied he had turned his life round. The judge suspended sentence and imposed three years probation. [ 64 ] In R. v. Kasian , 2016 MBPC 24 , an offender pleaded guilty to possession for the purpose of trafficking. She was found with cocaine totalling 36 grams. She was selling drugs because she was in difficult financial circumstances. There was a positive PSR. She was 18 at the time. She had no record.

Judge Harvie was satisfied that the circumstances of the offender were sufficiently exceptional to allow her to impose a sentence outside the range normally considered for the offence, and imposed 90 days intermittent, and probation. Cases in which no exceptional circumstances were found but jail sentences of 90 days were imposed [ 65 ] In R. v. Ost , 2017 MBPC, an offender pleaded guilty to two charges of trafficking cocaine. He was 24. He was an addict. The offender had significant Gladue factors. After his arrest he made a change in his life. He started attending AA and CA.

He completed an 8-week program at Pritchard House. He resumed full time work. He accepted responsibility for his offending behaviour. The judge did not find there were exceptional circumstances, but said his circumstances came very close to being exceptional. He concluded the appropriate sentence was 45 days consecutive on each of the two counts for a total of 90 days to be served intermittently, and probation. [ 66 ] In R. v. Owen , 2016 MBPC 12 , the offender pleaded guilty to possession of cocaine for the purpose of trafficking. He sold four rocks of crack cocaine to an undercover officer for $80.

When the vehicle he was in was stopped he had some cash and two more rocks of crack cocaine in the car. He had a record, including for robbery as an adult. He had no drug record. He was 23 years old. He had significant Gladue factors. He had a long history of drug abuse. He had mental health issues. He was expelled from a program, and during that time, he was selling cocaine since he had no income. He had cognitive deficits and FASD. The judge did not find exceptional circumstances, but found mitigating factors including his deficits.

He had failed to make substantial changes in his life since arrest, including he had not addressee drug use through counselling programs and he failed or refused to participate in therapy as recommended by workers. The sentence was one of 90 days followed by 3 years probation. Conclusion and Decision [ 67 ] There is nothing about the way in which Mr. McKnight committed the offence, nor in his motive for doing so, that is exceptional. He was selling drugs to feed his own addiction.

In some of the cases, it was found that offenders were selling drugs for purposes which, while not legal, provided an explanation that made the offenders’ actions somewhat understandable – for example, being forced to sell drugs by a gang, like the offender in the Dzinic case, or being in a desperate financial situation like the offender in

the Kasian case. [ 68 ] There are no Gladue factors in Mr. McKnight’s case. Gladue factors had a strong presence in the Peters case, in which exceptional circumstances were found. [ 69 ] The real impediment to a finding of exceptional circumstances in the court’s view, is Mr. McKnight’s repeated non-compliance with the DTC program directions of his treatment team, and, worse, his repeated dishonesty with them, insisting he was not using marijuana at all when his TCH levels were doubling and tripling.

This court would not say that an addict who has struggled with the rules of DTC and not been able to comply could never have exceptional circumstances. But in this case, Mr. McKnight’s non- compliance with the DTC directions, and his repeated dishonesty about his drug usage with the DTC team, lead this court to the conclusion that there are not exceptional circumstances in Mr. McKnight’s case. [ 70 ] A sentence that does not include incarceration for Mr.

McKnight cannot, in the court’s view, adequately address the sentencing objectives of deterrence and denunciation, and would not be proportionate to the seriousness of the offence. [ 71 ] The court then looks at the sentencing range set out by Gilchrist and endorsed by subsequent decisions of the Manitoba Court of Appeal. Must a fit sentence be in that range in order to adequately address the sentencing objectives, or is a fit and proportionate sentence one that departs significantly? [ 72 ] In the court’s view, the combination of mitigating factors in Mr.

McKnight’s case, the guilty plea, the demonstrated rehabilitation over time with respect to stopping opiates and cocaine use, his family, his return to school and his compliance with bail conditions for well over four years, a length of time that Justice Monnin in the Tran case called “inordinate”, while not resulting in a finding that a non incarceratory sentence can be fit, does result in the court finding that a sentence of 90 days is a fit and proportionate sentence. It is a sufficient jail sentence to address deterrence and denunciation. Yes, Mr. McKnight struggled to comply with the DTC requirements.

But, unlike the offenders in the cases of, for example, Sass and Zammit , Mr. McKnight has taken counselling and programming for his addiction, and made huge strides in terms of addressing his addiction since the time of his arrest, and also in terms of gaining stability in his life. Mr. McKnight has spent in excess of four years since arrest knowing he could go to jail. Surely he has been deterred. Surely also a member of the public, knowing the work at rehabilitation that Mr.

McKnight has done, that he has been bound by conditions for over four years, and has had the prospect of jail hanging over his head during that entire time, and that he is still receiving a 90 day jail sentence, would be sufficiently deterred, so as to not commit a similar offence. And surely, the process Mr. McKnight has been put through in terms of conditions, length of time for sentencing, requirements of the DTC program, and an ultimate jail sentence, sends loud and clear the message that our society does not tolerate the selling of cocaine. Sentence [ 73 ] Mr. McKnight is sentenced to 90 days in jail.

He has requested to be able to serve this sentence intermittently on weekends because he is attending school from Monday to Friday. In order that his schooling not be interrupted, the court is prepared to have him serve his sentence on weekends. [ 74 ] Mr. McKnight must report on Friday, November 30, 2018, to the Winnipeg Remand Centre no later than 7 p.m. and serve his sentence from then until Sunday, December 2, 2018, and on each consecutive weekend during those same hours, until the sentence is completed. While serving this sentence, and for a period of 12 months after completion of the sentence, Mr.

McKnight will be subject to a supervised probation order, with the following conditions, requiring Mr.

McKnight to: • Keep the peace and be of good behaviour; • Appear before the Court when required to do so; • Report within two working days from today to probation services, and after that, as directed by his probation officer; • Abstain from the possession and consumption of any illegal drugs or any prescription drugs that he does not have his own prescription for; and • Attend, participate and complete any assessments, counselling or programming he is directed to do by his probation officer. [ 75 ] There are some ancillary orders to be made: • There is an order of forfeiture as to the cocaine and other items seized from Mr.

McKnight and the vehicle. • There is a mandatory weapons prohibition ordered in accordance with s. 109 of the Criminal Code , for a period of ten years. • The Crown seeks a DNA order under s. 487.051(3) Criminal Code . Possession for the purpose of trafficking is a secondary designated offence. Due to the nature of the offence, and the circumstances surrounding its commission, and because the court has received no information to suggest such an order would have a disproportionate impact on Mr. McKnight’s privacy and security, the court makes an order requiring Mr.

McKnight to attend to the police station within the next 45 days and provide a sample of bodily substances for submission to the national DNA data bank. • Costs and surcharge of $202 are imposed, with six months to pay. “ORIGINAL SIGNED BY:”

CARLSON, P.J.