Her Majesty the Queen - v. -, 2018 SKPC 48

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2018 SKPC 48 Date: August 27, 2018 Information: 991046160, 991015940, 991011859, 991047707, 991029884 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Christopher John Ashley Gariepy Appearing: Ms. Suzanne Young For the Crown Ms. Suzanne Jeanson For the Accused SENTENCING DECISION D. KOVATCH , J Background [ 1 ] Christopher John Ashley Gariepy has entered guilty pleas to the following charges: 1. Possession of cocaine for the purpose of trafficking on May10, 2017; 2. Possession of cocaine for the purpose of trafficking on June 19, 2017;

3. Possession of crystal meth on June 19, 2017; 4. Breach of undertaking by breach of curfew in October and November 2017; 5. Breach of an undertaking by failing to participate in drug treatment on March 22, 2018; and 6. Failing to appear in court on April 5, 2018. [ 2 ] Mr. Gariepy was on remand from June 19, 2017 to October 5, 2017. By my count this is 109 days. He was then on remand from November 16, 2017 to January 3, 2018, a total of 49 days. In addition, he was on remand from June 5, 2018 to August 27, 2018. This period of remand was a total of 83 days. Total time spent on remand was 241 days.

During the sentencing submissions, an issue was raised with respect to the remand credit. I will come to that remand credit in due course. Facts on the Present Charges [ 3 ] On May 10, 2017, Police received a complaint that a customer had pulled a knife. They arrived to investigate. The accused was ultimately arrested for assault with a weapon, but no assault charge was ever laid. A search incidental to arrest was made. Police located and seized some drug paraphernalia and 4.5 grams of crack cocaine, valued at approximately $450.00. [ 4 ] The accused was released on a Recognizance.

One condition of that Recognizance required him to submit to a search of his person, vehicle or residence. [ 5 ] On June 19, 2017, a vehicle was weaving in and out of the lane. Police stopped that vehicle. The accused was the driver. In searching the vehicle, they located cocaine. They then searched his home. In total, they seized 10 grams of cocaine and 39.5 grams of crystal meth, having a total value of $5,000.00. They also seized an air pistol and $923.00 in cash. [ 6 ] The breaches are quite self-explanatory. The Accused’s Upbringing and Personal Circumstances [ 7 ] A Pre-Sentence Report was prepared.

The writer of that report detailed Mr.Gariepy’s personal circumstances at some length. Defence counsel also spent some considerable time discussing those personal circumstances. [ 8 ] Mr. Gariepy is presently 36 years of age. His date of birth is January 15, 1981. I gather that Mr. Gariepy’s biological father was a member of the Ahtahkakoop Cree Nation, and Mr. Gariepy is a member of that First Nation. Further, that his mother is Caucasian. Mr.

Gariepy told the writer of the report that the rest of his family “looks white” but he looks to be Aboriginal. [ 9 ] The accused’s mother separated from his biological father when she was still pregnant with Christopher. She later had a fairly lengthy relationship with another individual. The family lived in Tumbler Ridge, British Columbia. The accused has three younger siblings from this individual. The Pre-Sentence Report describes extreme physical and emotional abuse of the entire family by this step-father.

Christopher particularly suffered from this abuse as he was the oldest child and “had to stick up for his mom and protect his brothers”. I won’t go into detail describing the abuse suffered by Christopher at the hands of his step-father. It was violent and disgusting. Suffice it to say that it should not be a surprise to anyone that an individual who suffered from such abuse would now be in trouble with the law.

[ 10 ] When Christopher was around 10 years of age, his mother was finally able to get away from her abusive relationship. Later, she became involved with another individual, named Norman. Christopher described how at first he distrusted Norman, but came to appreciate him as a good person. Christopher considered Norman to be his father. [ 11 ] Christopher used drugs and alcohol as a teenager, and incurred a youth record in British Columbia. At 19, he travelled to Saskatchewan and met his future common law, Leanne. The two of them were together for 15 years and have four children.

Leanne also had a somewhat troubled youth, and on occasion the couple struggled. [ 12 ] In 2015, Christopher’s father, Norman committed suicide. Christopher was overwhelmed, began drinking heavily and using crystal meth. There were a number of domestic incidents between he and Leanne. Social Services became involved. In January 2017, following a dispute, Christopher was required to leave the home. While he was gone, Leanne committed suicide.

The four children were placed in foster care with his mother. “Christopher stated he lost everything that night and gave up.” He began using crystal meth daily and started selling drugs to support his habit. Later, he began to sell more drugs, in order to make money, in the hope of reestablishing his residence and having his children returned to live with him. Obviously, these plans were interrupted by his apprehension on these charges. Gladue Factors [ 13 ] A number of Gladue factors are present here. As mentioned, his biological father is a member of Ahtahkakoop Cree Nation, and attended a residential school.

Apparently he was waiting for a settlement at the time of his death. His family suffered from addiction issues. [ 14 ] Christopher stated he never resided on a reserve and was not connected to his Aboriginal heritage. He believed that his culture “was robbed from him”. He said he looks Aboriginal, and throughout his years growing up, generally he was the only boy in class that looked Aboriginal. He suffered from a number of racist taunts and assaults. He and his siblings were also affected by poverty. The Moose Jaw Drug Treatment Court Experience [ 15 ] In 2017, following his arrest on these charges, Mr.

Gariepy made application for admission to the Moose Jaw Drug Treatment Court. On October 5, 2017, he was released on Drug Treatment Court conditions. On November 16, he was re-arrested and remanded to January 3, 2018. On January 3, he was released for detox and treatment. He completed treatment in February. Shortly after completing treatment, he was described as “a new man”. He appeared to be motivated and appeared to be making progress. Unfortunately, this progress was short lived, before he slipped. He failed to appear in court on April 5, and was arrested on June 5.

He has been in custody until today’s date. [ 16 ] Two issues arise with respect to the Drug Treatment Court experience. Firstly, while in Drug Treatment Court he was remanded for a period of 49 days from November 16 to January 3. Ms. Young for the Crown, argues that this remand was a sanction for breach of the Drug Treatment Court conditions. As a result, she says that a remand credit of 1.5 to 1 should not be allowed. I understand and accept the logic of her argument, but for the following reasons choose not to apply it here.

Firstly, as part of entering Drug Treatment Court, the accused undertakes guilty pleas for the pre-existing drug charges. Those guilty pleas having been entered, the Court has the very broad discretion, pending sentencing, to release or detain the accused. While a breach of Drug Court conditions may have been the motivator for the Court in detaining him in custody, I believe he was still remanded on the drug charges. (As mentioned above, he was charged with breaching his curfew in October and November, 2017.

However, this Information was amended and a guilty plea entered on July 19, 2018.) [ 17 ] More importantly however, if I were to not allow the 1.5 to 1 credit, arguably, Mr. Gariepy would spend more time in custody than if he had simply stayed on remand and been sentenced in the normal course. I am most reluctant to send any negative signal that an individual will spend more time in jail if he tries and fails at the Drug Court experience, than

if he were sentenced in the normal course. Drug addiction is a horrible illness that is at the root of so many criminal sentencing decisions. As a matter of public policy, I want every willing individual to receive treatment for their addiction. I do not want them to suffer the negative consequence of additional time for failure at the Drug Court experience. [ 18 ] The second issue related to the Drug Court experience is whether that failed experience is an aggravating or mitigating factor related to the overall sentence, and what impact if any, it should have on the overall sentence. Defence counsel, Ms.

Jeanson argues that the accused made a genuine effort to deal with his addiction. He was in treatment and programming. These are mitigating factors that should reduce the time of actual custody. As I understand the Crown’s argument, she says the accused had a lot of opportunities and has had no success in dealing with his addiction. As a result, a sentence of penitentiary time is appropriate. [ 19 ] On this point, I understand the logic of defence counsel’s argument, but decline to use that logic here. The Court of Appeal has repeatedly stated that the range of sentence for trafficking a

Schedule I substance, such as cocaine, is 18 months to 4 years. Clearly, when an individual uses the Drug Treatment Court and successfully completes that program, the Court is entitled to very substantially depart from this sentencing range. Sometimes, the departure will be to a sentence of no time in actual custody.

However, it seems to me that this extreme departure is justified on the basis of the successful completion of the Drug Treatment Court, and the corresponding rehabilitation of the accused. [ 20 ] In the sentencing decisions, setting out the range of 18 months to 4 years, the Court of Appeal has also stated denunciation and deterrence are the primary sentencing factors. In addition, it is an error to focus too heavily on the personal circumstances of the accused.

As a result, I am of the view that generally speaking, a failed Drug Treatment Court experience should not be regarded as a significant mitigating factor simply resulting in a departure from the sentencing range and a reduction of sentence. [ 21 ] For the above mentioned reasons, while I understand and appreciate the very capable arguments made by both counsel, I chose to largely disregard the Drug Treatment Court experience in sentencing this accused. The Overall Sentencing Position of the Parties [ 22 ] Ms. Young, for the Crown, points out that the range here is 18 months to 4 years.

She asks that the Court consider 30 months less the appropriate remand credit. Essentially she asks for 12 months with respect to the May 10 charge and 18 months consecutive with respect to the June 19 charge. [ 23 ] Ms. Young agrees that the Pre-Sentence Report identifies a number of sympathetic factors. She agrees that Gladue factors are at work here. However, she points to R v McIntyre , 2012 SKCA 111 , 405 Sask R 28 [ McIntyre ] and states that it is in error to overemphasize the personal circumstances of the accused. As a result, she requests the 30 month overall sentence. [ 24 ] Ms.

Jeanson describes her client as a resilient individual. Overall, that is a fair description. He has been through a great deal. She points to the Gladue factors, and the fact that the accused was generally employed and appeared to be doing fairly well until about 2015, when his father committed suicide. Thereafter, he spiraled out of control and the suicide of his spouse led directly to these charges. She asks that I consider the Gladue factors, the personal circumstances of the accused and the possibility of his rehabilitation.

She asks that I consider a total sentence of 12 months followed by a period of probation. Analysis and Sentencing Decision [ 25 ] Absent the extreme personal circumstances of this accused, the consideration of

Gladue factors and the prospect of a rehabilitative sentence, I believe the 30 month sentence requested by Ms. Young would be entirely appropriate. There is significant case authority that the Court should not place undue emphasis on the personal circumstances of the accused, and must place its primary emphasis on denunciation and deterrence. However, there is also significant authority that the sentencing of every accused person is an individualized exercise. Further, and in extreme circumstances there may be a departure from the range.

In my view, there are extreme personal and mitigating factors here justifying some departure from a sentence in the range of 30 months. [ 26 ] During the course of preparation for and writing this decision, I became aware of the very recent and very helpful decision of my brother Judge Rybchuk in R v Burke , 2018 SKPC 43 [ Burke ]. I begin by noting that the facts of the offence in Burke were not as severe as here. Mr. Burke was convicted of one count of trafficking cocaine. He largely acted as chauffeur for his cousin, who was the principal trafficker.

The more severe nature of the facts will be reflected in the term of actual incarceration imposed upon Mr. Gariepy. [ 27 ] His Honour Judge Rybchuk had quite an extensive review of Court of Appeal sentencing decisions, as they related to drug trafficking cases and those with Gladue factors.

He referred, in part to the McIntyre decision where the Court of Appeal reviewed a number of sentencing decisions related to drug trafficking. [ 28 ] In paragraph 21, Judge Rybchuk concluded that there must be a comprehensible link between the Gladue considerations “shedding light on moral blameworthiness.” In the present case, there is clearly that comprehensible link between the accused’s personal circumstances, including the abuse he suffered as a youth, Gladue factors including racism and poverty, the commencement of his drug use, personal hardship and trauma like family suicides, greatly accelerated drug use and becoming involved in the trafficking process. [ 29 ] This accused, like Mr.

Burke, has been gainfully employed throughout most of his adult life. He speaks of getting his family back together and caring for his children. He is significantly motivated in this regard. I believe that if he can get his addiction under control, his prospects for rehabilitation are good. [ 30 ] At paragraphs 26 and 27 of the Burke decision, Judge Rybchuk related the Gladue and personal factors and applied them to his sentencing decision. In this case, I believe I can do no better than to quote Judge Rybchuk and say that his analysis is very appropriately applied here: [26] Mr.

Burke had a challenging upbringing and suffered from racism. He is relatively young, with a good prospect for rehabilitation. Sentencing outcomes other than incarceration can and should be actualized in his individual circumstances. I believe that an appropriate sentence for Mr. Burke should include a restorative justice approach which would allow Mr. Burke to continue with his gainful employment and Aboriginal customs, while also receiving programming and counselling that promotes a sense of responsibility and an acknowledgment of the harm he has done in the community.

A rehabilitative disposition will require him to perform community service work and prevent him from coming into contact with his cousin for a longer period of time. Given his limited criminal record and considerable Gladue factors, a lengthy term of imprisonment would not be appropriate or beneficial to him or the community.

Imprisonment cannot be swept off the sentencing table entirely, but should be limited in order to allow for this restorative justice component while still meeting the other legitimate objectives of sentencing. [27] Parity is a sentencing principle that must be taken into consideration given that the courts have set out a sentencing range of 18 months to 4 years. However, the Court of Appeal explained in Whitehead that parity is of lesser relevance than

section 718.2(

e) to sentence proportionality because the wording of

section 718.2(

e) speaks more fundamentally than parity to the individualized nature of sentencing. Thus, while parity is still a factor to consider, I place more emphasis on

section 718.2(e). [ 31 ] As mentioned above the facts here are worse than in the Burke decision. Clearly a sentence of actual jail must be imposed, and the time imposed must be more than was imposed in the Burke case. However, the total sentence imposed need not be as severe as requested by the Crown, and in fact, in my view, a provincial sentence is appropriate. I believe it is appropriate that I attempt to balance the sentencing goals of denunciation and deterrence against his personal circumstances and the Gladue factors.

I will attempt to do this by a lesser term of incarceration than would otherwise be the case, followed by a probation order that will be in existence following the accused’s release from custody.

[ 32 ] On Information ending 1859, the May 10 charge of possession of cocaine for the purpose of trafficking, I sentence the accused to 12 months to be served concurrently with the other sentences imposed today. Because of the remand credit discussed below, this has already been served. On Information 5940, the June 19 allegation of possession of cocaine for the purposes of trafficking, a sentence of 21 months to be served at a Provincial Correctional Centre would be appropriate.

He has had three separate periods on remand, totaling 241 days. 241 x by 1.5 would approximately be 361.5 days, which I round to 1 year. As a result, with respect to the June 19 charge for possession of cocaine for the purposes of trafficking, I sentence the accused to 9 months going forward from today’s date. With respect to count 1 on the same information, the charge of possession of meth, I sentence him to 3 months to be served concurrently. With respect to each of the other charges where guilty pleas were entered, the sentence is 1 month concurrent.

In addition, with respect to all matters, I place the accused on probation for a period of 2 years following his release from the correctional center. The conditions of that probation order will be as follows: 1. He shall within five business days of his release, report in person to the Moose Jaw probation office, and thereafter as and when directed by the probation officer; 2. He shall live in a residence approved by the probation officer and not change that residence without the prior written permission of the officer; 3.

He will be required to participate in any program related to the assessment, treatment or counselling for addictions as directed by and to the satisfaction of the probation officer. This may include inpatient or outpatient treatment; 4. He shall not possess alcohol or drugs that are not prescribed for him by a medical doctor; 5. He shall participate in grief counselling or other personal counselling as directed by and to the satisfaction of the probation officer; 6.

He shall attempt to seek and maintain employment to the satisfaction of the probation officer. [ 33 ] With respect to each of the charges that a guilty plea was entered to, the applicable victim surcharge will apply. In each case, it is payable forthwith and in lieu of which the accused will serve the default time concurrently with the sentence imposed today. [ 34 ] The charges of possession for the purposes of trafficking are secondary designated offences within the meaning of

section 487.04 of the Criminal Code . As a result, there will be an order in form 5.03 authorizing the taking of samples of bodily substances required for the purpose of forensic DNA analysis. [ 35 ] These are also charges requiring a firearm prohibition order under

section 109 of the Criminal Code . There will be a firearm prohibition order issued. It will prohibit the accused from being in possession of the prohibited items for life. [ 36 ] Forfeiture orders have been filed with respect to all of the items seized upon arrest. I have executed those orders and they will issue. I express my thanks to both counsel for very fine presentations in a difficult but interesting case. Dated at the City of Moose Jaw, in the Province of Saskatchewan this ___ day of August 2018.

_________________________ Kovatch J