Her Majesty the Queen - v. -, 2016 SKPC 4

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 004 Date: January 18, 2016 Information: 31082583 and others Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Blake George Forbes Appearing: Suzanne Young For the Crown Linh Pham For the Accused S ENTENCING DECISION Kovatch , J EVIDENCE [ 1 ] On February 26, 2014, police had surveillance on an apartment in Moose Jaw. They watched as a vehicle pulled up, and an individual entered for only a brief amount of time, came out and drove away.

Police obtained a search warrant and searched the apartment. They seized $485.00 cash and a cell phone. In a bedroom, they seized a score sheet and drug paraphernalia including mixing bowls, baggies and a scale. They also seized a bottle of capsules and 15.5 grams of cocaine, valued at approximately $1,600.00. The accused provided a warned statement admitting to ownership of the drugs. He indicated that he wasn’t working. His said his rent was $600.00. The indication was that the sale of drugs subsidized his rent and use of the drug itself.

[ 2 ] As a result of this incident, the accused ultimately entered guilty pleas to a possession of cocaine for the purposes of trafficking and possession of money knowing that it was obtained by the commission of an indictable offence. It appears that Mr. Forbes was in custody from February 27, 2014 until March 4, 2014, at which time he was released upon a Recognizance.

The Recognizance required that he not be in possession of any alcohol or drugs and that he submit to a search. [ 3 ] On August 2, 2014, he was required to submit to a search of his person by police, at which time 3.2 ounces of marihuana was seized. He was ultimately charged and entered a guilty plea to possession of marihuana contrary s. 4(1) of The Controlled Drugs and Substance Act . [ 4 ] Approximately three weeks later, on August 25, 2014, police received a 911 call advising of a break and enter. They attended. The accused answered the door. He had a pit bull present, and attempted to deny the police entry.

They did make their entry, and the accused was arrested. He admitted to drinking. From his pocket they seized $470.00 in cash. Under a mattress in the home they located 1.7 grams of cocaine. They located other packages of cocaine containing 25.9 grams valued at approximately $2,600.00. As a result of this incident, the accused entered a guilty plea to simple possession of cocaine, which was accepted by the Crown.

He also entered a guilty plea to possession of money obtained by the commission of an indictable offence and to breach of recognizance by consumption of alcohol or illegal non-prescription drugs. [ 5 ] On November 21, 2014, the accused was located behind the Park Hotel. The terms of his Recognizance required that he submit a breath sample to the police. They supplied a sample in the Approved Screening Device, which registered a “fail”.

He was charged and entered a guilty plea to a breach of recognizance by consumption of alcohol. [ 6 ] On June 30, 2015, the accused, with the assistance of counsel, entered guilty pleas to the above mentioned charges. A pre- sentence report was requested and ordered. In addition, defense counsel prepared and obtained a number of affidavits and letters of support from various relatives. These materials show that the accused was unhappy in high school and became involved in illicit drugs. This resulted in him being in conflict with the law and with his parents.

He moved in and out of the family home on various occasions. His mother says that she sought assistance from various authorities. She feels that the system has let her son down in that no assistance was provided to him. These materials indicate that since the last incident in November of 2014, Mr. Forbes went to live with his grandmother and uncles that farm and ranch in the Maple Creek area. The materials indicate that he is now off of drugs for more than a year, and did very well while working on the ranch. The family’s view is that Mr.

Forbes has turned a corner in his life, and that nothing is to be gained by putting him in jail for these offences. [ 7 ] Counsel advised that Mr. Forbes has a record. In 2012, he was convicted of possession of marihuana for the purposes of trafficking. He was placed on probation. [ 8 ] As mentioned above, a pre-sentence report was prepared. In it, Ms. Ansell assesses the accused as a medium risk to re- offend. She notes and agrees that during the last year Mr. Forbes has made significant positive changes in his life.

She also notes, however, that given his record and the nature of these offences, “a period of incarceration is appropriate”. THE ARGUMENTS OF COUNSEL [ 9 ] Sometime back, Mr. Pham filed a Charter application challenging the mandatory minimum penalties set out in The Controlled Drugs and Substance Act for possession of cocaine for the purposes of trafficking. As a result, counsel then agreed and the court was advised that the Crown would not rely upon the mandatory minimum sentencing provision. It is important to note that Crown counsel did not agree that no term of incarceration would be appropriate or asked for.

Rather, the Crown’s position was that any discussion of the mandatory minimum penalty in this matter would be entirely academic. The Crown’s position was that I should have the full sentencing discretion available to me, but that if I apply the sentencing principles set out by The Court of Appeal to this matter, a sentence of actual time in jail would be appropriate. The Crown asked that I impose a total sentence for all of the charges approaching two years less a day. [ 10 ] Mr.

Pham conceded that on various occasions, The Saskatchewan Court of Appeal has indicated that the range of appropriate sentences for possession of cocaine for the purposes of trafficking is 18 months up to approximately 4 years. He also conceded that by reason of the present wording of sections 742.1 of the Criminal Code , and s. 5(3) of The Controlled Drugs and Substances Act , that a conditional sentence order is not a sentencing option available in this case. Mr. Pham pointed to R v Voong , 2015 BCCA 285 and argued that I should deal with this matter by way of suspended sentence and probation.

ANALYSIS AND DECISION [ 11 ] There are a number of decisions from The Saskatchewan Court of Appeal that indicate the sentencing range for possession of cocaine for the purposes of trafficking is a jail sentence in the range of 18 months to 4 years. See for example R v McIntyre , 2012 SKCA 111 ; R v Aube , 2009 SKCA 53 ; R v Dubai , 2008 SKCA 49 ; R v Kraft , 2008 SKCA (sentencing digest) 36; R v McCallum , 2007 SKCA 139 and R v Patryluk , 2002 SKCA 33 . Defense counsel has argued that I should rely more heavily upon the British Columbia Authorities than the Saskatchewan Authorities. I disagree.

Crown counsel has pointed out that there are often some variations in sentencing from area to area within the country. The provincial and local jurisprudence and sentencing principles should most often be applied. [ 12 ] Defense counsel argues further that even if I apply all of the Saskatchewan Authorities, I should still determine that there are such exceptional circumstances in this case, that this matter should be dealt with by way of suspended sentence and probation. He says that Mr. Forbes was not a large or commercial trafficker. Rather, he was a small time player looking to support his habit.

He rightly points out that there are a number of decisions where the small time trafficker, supporting his own personal addiction, was dealt with less severely by the courts. He also points to the accused’s actions since the last incident and the steps the accused has taken to improve himself. Because of these steps, Mr.

Pham says that I should focus upon rehabilitation of the accused and deal with this matter by way of suspended sentence. [ 13 ] I am of the view however, that applying all of the sentencing principles to the facts of this case, and looking at the accused’s steps at personal improvement, leads to some reduction of the length of the jail sentence, but must, nevertheless, lead to some actual jail time. [ 14 ] All of the sentencing authorities set out above make it clear that denunciation and deterrence are the primary sentencing factors to be considered by the Court.

Sentencing parity is also an important principle that in these cases it leads to a sentence of actual jail. While in all cases, the rehabilitation of the accused remains a factor to be considered, in these cases it is considered secondary to the factors of denunciation and deterrence. [ 15 ] There are of course some exceptional cases where the courts have opted to deal with these matters by way of a conditional sentence order. However, Parliament has since amended s. 742.1 of the Criminal Code so that a conditional sentence order is no longer available for this offence.

I cannot believe that it was the intent of Parliament, by making this amendment, to indicate that suspended sentence and probation should be routinely ordered for these kinds of cases. Clearly by removal of the conditional sentence order option, Parliament was indicating that jail should be the norm in these kinds of cases. [ 16 ] Mr. Pham rightly points out that there are cases where The Saskatchewan Court of Appeal has sentenced outside of the 18 month to 4 year range. See for example R v Vonhagen , 2008 SKCA 123 and R v Sinnott , 2001 SKCA 13 .

However, in my view, the facts are not so exceptional here as to take us to a community based sentence. In the Vonhagen case, the accused had no record and there was one trafficking incident. In this case, Mr. Forbes has a prior conviction for possession for the purposes of trafficking. His guilty plea to possession of cocaine for the purposes of trafficking is for the incident that occurred in February 2014. Thereafter, while on a recognizance and release conditions, he committed a number of other very significant criminal offences.

In particular, he sustained new drug charges and continued to be involved in the drug trade. In my view, these are very much aggravating factors that speak to the imposition of an actual jail term, in or close, to the sentencing range. In addition, it must be noted that in the Sinnott case, the accused also made very substantial personal improvements following the incident. The Court took those into account and reduced the sentence to 15 months.

The Court stated in part; When the accused appeared in front of us he demonstrated not only a marked changed in attitude and an appreciation of the problems he faced, but also extraordinary efforts to rehabilitate himself. He appears to have a stable family environment which will promote this. In the circumstances, and only because of the post sentence conduct, change of attitude and opportunities available, we are prepared to reduce to some extent the sentence.

However, there are limits to a reduction which can be made, given the concurrent need we have to indicate denunciation of this offence and to maintain the communities respect for justice. [emphasis added] [ 17 ] As a result, while I accept that Mr. Forbes has made a substantial change in attitude and taken significant steps to improve his personal situation, I still must impose a sentence of actual jail. The changes in his life result in some reduction in length of that jail sentence. However, actual jail is still required to give effect to the principles of denunciation, deterrence and parity.

On the basis of the sentencing authorities referred to the above, I am of the view that an overall sentence of the 15 months followed by probation would be

appropriate. On Information 31082583, the charge of possession of cocaine for the purposes of trafficking, I sentence Mr. Forbes to 15 months to be served at a Provincial Correctional Centre followed by two years of probation on the following terms: 1. Keep the peace and be of good behavior; 2. Appear before the court as when required to do so; 3. Advise the probation officer and the court of any change of his name or address or place of occupation; 4. Within three business days of his release, report to the probation officer in Moose Jaw and thereafter as and when required to do so; 5.

Abide by all lawful directions of the probation officer and in particular participate in any program related to assessment, treatment or counseling for addictions; 6. Seek and maintain employment to the satisfaction of the probation officer. [ 18 ] This is a secondary designated offence within the meaning of s. 487.04 of the Criminal Code . There will be an order directing that authorities take from the accused bodily substances suitable for forensic DNA analysis. [ 19 ] There will also be an order under s. 109 of the Criminal Code prohibiting Mr.

Forbes from being in possession of any firearm, prohibited firearm, restricted firearm, cross bow, restricted weapon, ammunition or explosive substance for life. [ 20 ] Draft Forfeiture Orders were filed with me. I will execute and issue those orders. [ 21 ] On Information 31082581, possession of money obtained by the commission of an indictable offence, the sentence will be 9 months concurrent.

On Information 32303688, the charge of possession of marihuana, the sentence will be one month concurrent. [ 22 ] On Information 31082634, the charge of possession of cocaine, the sentence will be 6 months concurrent. [ 23 ] On Information 31082635, the charge of breach of recognizance by consumption of alcohol or drugs, the sentence will be one month concurrent.

On Information 31082636, the charge of possession of money knowing that is was obtained by the commission of an indictable offence, the sentence will be three months concurrent. [ 24 ] On Information 2503731, breach of recognizance by consumption of alcohol or drugs, the sentence will be 1 month concurrent. [ 25 ] With respect to all of the charges that guilty pleas were entered to, the applicable criminal victim’s surcharges will apply.

All of the criminal victim surcharges are payable forthwith, in lieu of which the accused will serve the default time concurrently with the sentence imposed today. [ 26 ] Dated at the City of Moose Jaw, the Province of Saskatchewan this 18 th day of January 2016. ___________________ D. Kovatch, J