Her Majesty the Queen - v. -, 2011 SKPC 73

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 073 Date: May 16, 2011 Information: 32302691 Location: Moose Jaw, Saskatchewan _____________________________________________________________________________ Between: Her Majesty the Queen - and - Ross Allen Roemer Appearing: Mr. Roger Arendt For the Crown Mr. Robert Fielding For the Accused SENTENCING DECISION D.J. KOVATCH , J [ 1 ] Ross Allen Roemer entered a guilty plea to one charge of possession of marihuana, less than three kilograms, for the purpose of trafficking.

The major issue for determination is whether a sentence of actual jail is required, or this matter can be adequately addressed through a conditional sentence to be served in the community. This will also involve consideration of two related issues: 1. What are the most important sentencing factors to be considered and applied in this case? 2. Whether the accused’s criminal record compels the Court to impose a jail sentence?

Facts [ 2 ] Crown counsel, Mr. Roger Arendt, advised that on May 10, 2010, the police executed a search warrant and searched the home occupied by the accused and his common-law spouse, Alena Marie Fayant. At that time, the police located four stashes of marihuana totalling 254 grams, or approximately one-half pound. The police seized two electronic scales and drug paraphernalia. Both accused provided statements to the police. The accused advised that he used marihuana for chronic pain. He and his spouse purchased about half a pound every three to four weeks. They then sold marihuana to family and close friends.

They used the proceeds of sales to pay for their own personal use. [ 3 ] The Crown filed and the accused admitted his criminal record. It is an extensive record. As a youth, the accused faced 13 charges of break and enter and received custodial sentences. As an adult, the accused was convicted of approximately 16 counts for breaking and entering. In addition he was convicted of escape lawful custody, assault, breach of recognizance, and breach of probation. Most importantly, in November of 1990, he was convicted of possession of a narcotic and fined $150.00.

In December of 1996, he was convicted of four counts of trafficking in a narcotic and sentenced to 33 months concurrent on each of these counts. In 1998, he was convicted of possession of a scheduled substance and sentenced to three months. In December of 2001, he was convicted of four charges of trafficking in a

Schedule I substance and four counts of possession of the proceeds of crime. On the trafficking charges he was sentenced to 18 months concurrent on each charge, and on possession of proceeds of crime, he was sentenced to four months concurrent on each charge. In February of 2002, the accused was convicted of two counts of trafficking in a

Schedule II substance and one count of trafficking in a

Schedule I substance. He was also convicted of possession of the proceeds of crime. On each of these charges he was sentenced to two years and six months concurrent, but consecutive to the sentence he was already serving. The record indicates that the accused was paroled in April of 2003, but recommitted as a parole violator in 2004. According to the record, the accused has incurred no violations between 2004 and the date of this charge, being May 10, 2010. [ 4 ] A Pre-Sentence Report was prepared. The report indicates that the accused’s mother suffered a stroke in 2007.

Since that time, the accused has assisted in her care. The report also notes that the accused suffered injuries in motor vehicle accidents and was prescribed painkillers. He admits to regular usage of marihuana to manage the pain. Over the years he has suffered from addiction to other drugs. He is assessed at being a high risk to re-offend. The writer concludes that: A period of incarceration may be warranted due to the subject’s criminal record, prior sentences of incarceration and his risk level.

However, if the Court is considering a community disposition the following conditions are recommended for risk management. [ 5 ] Mr. Arendt, speaking for the Crown, argued that a jail sentence is warranted here. He indicated that the Crown is not seeking a lengthy jail sentence, but rather a shorter jail sentence followed by probation on the conditions set out in the Pre-Sentence Report. Mr.

Arendt argued that when one considers the accused’s record, general and specific deterrence become the most important factors to be addressed in sentencing, and a sentence of actual jail is required to address these factors. [ 6 ] Mr. Fielding made a very effective and passionate plea for the Court to deal with the matter by way of a conditional sentence. He said the accused’s last conviction was in 2002. Further, that the accused is very honest and gave a full and open account to the police, and entered a guilty plea to the charge. Mr.

Fielding advised that the accused has suffered a difficult youth and spent a considerable amount of time in youth custodial facilities. During this time, he was sexually assaulted. He has not discussed or dealt with this problem, to his detriment. [ 7 ] Mr. Fielding advised that in later years, while the accused was in jail, there was a contract on the accused’s life. As a result, Mr. Roemer is very frightened of being returned to jail and fearful for his life. In Mr. Fielding’s view, Mr. Roemer has the ultimate reason for strict compliance with all conditions of a conditional sentence. [ 8 ] Mr.

Fielding advised that Mr. Roemer has two children, both boy, ages 4 and 16 months. Further, that during the last year, Mr. Roemer has obtained very well paying employment with the Mosaic Potash Company at Belle Plaine. If Mr. Roemer is sentenced to jail, it is likely he will lose this employment, and his wife will be the sole income earner for the family. Mr. Fielding agreed that in most circumstances of an individual with this kind of record, a jail sentence would be warranted. He argued forcefully, however, that the

Court should consider the very exceptional and extenuating circumstances of Mr. Roemer, and deal with this matter by way of a conditional sentence. Analysis [ 9 ] I have reviewed a large number of Court of Appeal decisions on sentencing in drug cases. [ 10 ] In the case of R. v. Laliberte , 2000 SKCA 27 , the Court indicated that there was no category of offences where the Court was automatically precluded from use of the conditional sentence.

As a result in sentencing on charges of trafficking or possession for the purposes of trafficking, the Court must consider whether a conditional sentence is an appropriate one. It is clear that this determination will largely turn on whether the conditional sentence is consistent with the principles of sentencing set out in

section 718 to 718.2 of the Criminal Code . At paragraph 104, Mr. Justice Vancise stated: The result of all of this is that the sentencing judge properly concluded that society would not be endangered if the respondent served her sentence in the community and that a conditional sentence of imprisonment was consistent with the principles of sentencing set out in ss. 718 to 781.2 of the Code .

Given her personal circumstances, her lack of a related criminal record and the recovery plan she had put in place prior to the sentencing, I am unable to find that the trial judge erred in principle in ordering a conditional sentence of imprisonment on the terms that he did . (emphasis added) [ 11 ] However, in my view, a careful reading of this decision reveals that Mr. Justice Vancise placed two important qualifications on the use of a conditional sentence in drug trafficking cases.

Firstly, at paragraph 98, he clearly indicates that commercial traffickers should be incarcerated for significant periods of time. Secondly, in discussing the principles of sentencing and the use of conditional sentences, he clearly indicates that in some cases when the courts consider the personal circumstances of the accused and past criminal record and activity, the Court will have to opt for actual incarceration as opposed to a conditional sentence. He stresses that each case must be determined on the basis of a complete consideration of all of their own facts. (See paragraph 112) [ 12 ] In the case of R. v.

Phan and Tran, 2002 SKCA 8 , the two accused were found with 10 pounds of marihuana in the trunk of their car. They were acting as couriers. Neither individual had any previous convictions related to drugs. The Court imposed lengthy conditional sentences upon both individuals. [ 13 ] In R. v. Patryluk, 2002 SKCA 33 , the Court of Appeal set aside a conditional sentence and imposed a sentence of 11 months. (The Court said a sentence of 18 months imprisonment was appropriate, but allowed credit for certain items, thereby reducing the sentence to 11 months.) It is clear that Mr.

Patryluk was involved in a commercial scale of trafficking, and was attempting to make a profit. However, it is also clear that the accused had taken substantial steps to change his ways and had good prospects for reform. The Court clearly indicated that the sentencing judge had placed too much weight upon the accused’s personal circumstances and insufficient weight on the principles of sentencing, and in particular the requirement of deterrence and denunciation of the crime. The Court would later make similar comments in the case of R. v. Waud , 2007 SKCA 126 .

In these cases the Court of Appeal made it clear that while the sentencing judge considers the personal circumstances of the accused, it must also carefully consider and weigh the other sentencing factors and objectives. [ 14 ] In R. v. Simons, 2002 SKCA 90 , the accused was an older individual as is the case here. He had a relatively small distribution and trafficking system. He also had a past record for trafficking, as is the case here. The Court of Appeal upheld the conditional sentence order imposed by the sentencing judge.

However, the Court made it clear that the sentence was upheld only for compassionate reasons. The accused’s spouse was very ill and required 24 hour care, supplied by the accused. [ 15 ] In the case of R. v. Bremner , 2002 SKCA (SentDig) 65, the accused was convicted of possession of 42 grams of cocaine for the purposes of trafficking. By virtue of it being cocaine, the facts in this case are slightly worse than the case at bar. However, the accused was only 23 years of age and had a small unrelated record. The Court of Appeal upheld a sentence of one year in jail. [ 16 ] In R. v.

Switzer, 2002 SKCA (SentDig) 56, the accused was sentenced for possession of an anti-anxiety drug for the purpose of trafficking. She had no record. A one year conditional sentence was upheld.

[ 17 ] The combined cases of R. v. Lupichuk, 2003 SKCA (SentDig) 8, and R. v. Nosworthy, 2003 SKCA (SentDig) 9, are particularly instructive in the case at bar. Lupichuk and Nosworthy were co-accused. Both were apprehended from the same vehicle, and found to be in possession of approximately three-quarters of a pound of marihuana, together with some cash. Lupichuk was the main player of the two, and he had a record for robbery and possession of stolen property. He was sentenced to one year in jail. Nosworthy was a lesser player and had no record. He was given a 3 month conditional sentence plus probation.

The Court of Appeal upheld both sentences. [ 18 ] In the case of R. v. Sewell, 2003 SKCA 52 , the accused was found in possession of three kilograms of marihuana and had $2,280.00 in cash. He had a very dated and unrelated record. The Court of Appeal upheld a sentence of nine months in jail. [ 19 ] In the case of R. v. Grewal, 2003 SKCA 56 , the accused was transporting a very large amount of marihuana. He had no record. A sentence of two years was imposed. [ 20 ] In R. v. Papequash, 2004 SKCA 74 , the accused was convicted of possession of morphine and ritalin for the purposes of trafficking.

The accused also had a bad record. Mr. Justice Cameron stated in part as follows: In all of the circumstances, including the personal circumstances of the appellant, a sentence of two years on each count, to be served concurrently, is not demonstrably unfit on our view of the matter. Nor does the fact the appellant served considerable time on remand, having been charged with these and other offences, serve to alter our view. The appellant has a substantial criminal record, one that suggests specific deterrence was among the primary objectives of the sentence.

So was the denunciation, given the nature of the offences and the conduct of the appellant . (Emphasis added) [ 21 ] The Court further stated: The appellant’s lengthy record and long standing criminal lifestyle are increasingly catching up to him. In part, that is what these sentences reflect, aimed as they primarily are at specific deterrence and denunciation. His present offences are serious ones..... [ 22 ] In my view, the case of R. v. Ahenakew, 2004 SKCA (SentDig) 45, is very similar to the case at bar.

In Ahenakew, the police found the accused in possession of a number of bags containing a total of 190 grams of marihuana. In addition, the police seized almost $1,600.00 in cash, together with other paraphernalia. The accused also had a bad record including two convictions for possession of a scheduled substance for trafficking, and two convictions for trafficking a scheduled substance. The Court of Appeal upheld a sentence of two years less a day. [ 23 ] In R. v. Bolla, 2005 SKCA 111 , the accused was transporting a large amount of marihuana. The sentencing judge imposed a conditional sentence of 23 months.

On appeal, the Court of Appeal set aside the conditional sentence and imposed a sentence of 18 months imprisonment. [ 24 ] In R. v. Bomek, 2006 SKCA (SentDig) 42, the accused was convicted of trafficking small amounts of marihuana. He had been convicted of a number of other unrelated charges. He had no record for drug offences. The Court of Appeal upheld the sentence of one year for the drug offences. [ 25 ] In R. v. Rohovich, 2007 SKCA (SentDig) 17, the accused was found in possession of 32 grams of cocaine and cash for the purpose of trafficking.

The Court of Appeal upheld a sentence of one year in jail. [ 26 ] In R. v. Paziuk, 2007 SKCA 63 , the accused was convicted of possession of 241 ecstacy pills for the purpose of trafficking. He had no record. The Court of Appeal upheld a sentence of nine months in jail.

[ 27 ] In R. v. Dubai, 2008 SKCA 49 , the accused was in possession of various drugs for the purpose of trafficking. The Court of Appeal set aside a conditional sentence order and imposed a sentence of 18 months in jail. [ 28 ] In R. v. Litwin, 2008 SKCA (SentDig) 23, the accused smuggled a small amount of drugs into the jail for her common-law husband. She had a bad record. She was sentenced to 15 months in jail. [ 29 ] Lastly, in the case of R. v. Fiddler, 2010 SKCA (SentDig) 41, the accused was in possession of two kinds of pills for the purpose of trafficking. He had no record.

The Court of Appeal upheld a conditional sentence. [ 30 ] On the basis of this review of the Court of Appeal decisions, I have concluded that when an individual is convicted of trafficking or possession for the purposes of trafficking, and any significant commercial enterprise is involved, a period of actual jail time will almost always follow. Where, as here, it is a very small scale trafficking operation, then each case will have to be decided on its own facts, to determine if a conditional sentence or term of actual jail is warranted.

Where an individual has a very limited record, particularly in the area of drug offences, and that individual has formulated a plan and taken important steps towards his rehabilitation, a conditional sentence will often be appropriate. If however, an individual has a significant record for drug offences, or has not taken sufficient steps towards his rehabilitation, the courts will generally emphasize the factors of denunciation and deterrence, and impose a term of actual jail. In this case, with Mr.

Roemer’s very significant drug record, including the sentencing for three separate incidents of trafficking, and the imposition of two penitentiary terms, I believe the courts must opt for emphasis on denunciation and deterrence, and impose a term of actual jail time. [ 31 ] The effect of granting Mr. Roemer a conditional sentence would be to place him back in the community, under certain restrictions, and with a court order that he not be involved in the illicit drug business or trade. In my view, most reasonable observers would say: If three separate convictions and lengthy jail terms could not persuade Mr.

Roemer that involvement in the drug trade is illegal and will not be tolerated, then it is most unlikely that my placing him in the community with a court order will bring home this message. Stated a little bit differently, and in the jargon utilized in the sentencing decisions, Mr. Roemer’s record requires the Court to place a greater emphasis upon deterrence and denunciation, particularly specific deterrence. His record and repeated involvement in the drug trade requires the Court to make a statement that no level of his involvement in the drug trade will be tolerated.

Further, the Court will punish each and every involvement in that drug trade. [ 32 ] Earlier in this judgment, I referred to the related issues of which sentencing factors should be applied and whether the accused’s criminal record compels the Court to impose a jail sentence. It is not the case that the accused’s record necessarily compels the Court to impose a jail term. However, his record results in the Court placing greater emphasis on denunciation and deterrence and less emphasis on his personal circumstances and rehabilitation.

This in turn results in the adoption of an actual term in custody, as opposed to a conditional sentence. [ 33 ] For these reasons, a sentence of actual jail time must be imposed. Mr. Arendt has asked for a short period of incarceration, followed by probation. He did not further define what he meant by a short period of incarceration. Section 5(4) of The Controlled Drug and Substances Act provides that for this offence, Mr. Roemer is “liable to imprisonment for a term not exceeding five years less a day”. However, in a number of the cases earlier referred to, sentences in the range of one to two years were given.

Many of those cases involve the possession and transportation of considerably more drugs than was involved here. As a result, in my view, a jail sentence of six months for this offence is appropriate. [ 34 ] I now sentence Mr. Roemer to a term of six months to be served in a Provincial Correctional Centre. Following Mr. Roemer’s release, he will be on probation for a further period of one year on the following conditions: 1.

That within two days of his release, he shall report to the Chief Probation Officer or his designate at the Moose Jaw Probation Office, at 110 Ominica Street West, Moose Jaw, Saskatchewan, and thereafter as and when required by the Probation Officer. 2. Live in an approved residence and do not change that address without prior permission of the Probation Officer or her delegate and follow the rules and regulations of said approved residence. 3. You shall follow the lawful instructions of the Probation Officer as they pertain to seeking and maintaining employment and/or attendance at an educational facility. 4.

You shall follow the lawful instructions of the Probation Officer/Supervisor as they pertain to seeking and maintaining

employment. 5. You shall abstain from the purchase, possession, and/or consumption of alcohol and non-prescribed drugs. 6. You shall submit to a breath, blood or urine testing as arranged and directed by the Probation Officer/Supervisor or a Peace Officer. 7. You shall attend for assessment and participate in education/counselling with regards to alcohol and drug abuse as may be arranged and directed by the Probation Officer/Supervisor. 8.

You shall consent to allow any Peace Officer to search upon demand without reasonable grounds and without warrant your person; and/or clothing, any vehicle you own, operate or control, any premise in which you reside or other location you own, operate or control. 9. Maintain a daily curfew by being in your approved residence by 10:00 p.m. and remaining there until 6:00 a.m. except for employment purposes and with prior written permission of the supervisor. [ 35 ] In addition, there will be a

Section 109 Firearms Prohibition Order. That order will be effective for the life of Mr. Roemer. If Mr. Arendt drafts and presents to me a Forfeiture Order with respect to the items seized in the search, I will execute that order. [ 36 ] Lastly, I waive the criminal victim’s surcharge. Dated at Moose Jaw, Saskatchewan, this 16 day of May, 2011. D.J. Kovatch, J