R. v. Clarke, 2022 NLSC 74

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Clarke, 2022 NLSC 74 Date : April 21, 2022 Docket : 202101G3254 Her Majesty The Queen v. SHane Clarke Before: Justice Frances J. Knickle Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: April 8, 2022; April 20, 2022, April 21, 2022

Summary: The Offender was convicted, after a trial by judge alone, of conspiracy to traffic in cocaine and trafficking in cocaine. He was a member of an ongoing and sophisticated enterprise. While not at the top of the hierarchy of the organization, he participated as a trusted mid-level member. He was sentenced to 3½ years for both the conspiracy offence and the trafficking offence. A firearms prohibition, forfeiture order and DNA order and victim fine surcharge were also imposed. Appearances: Elaine M. Reid Appearing on behalf of the Crown

Jonathan E. Noonan Appearing on behalf of the Offender Authorities Cited: CASES CONSIDERED: R. v. Clarke, 2021 NLSC 182; R. v. Lacasse, 2015 SCC 64; R. v. Noseworthy, NLCA 2; R. v. Parsons, 2017NLCA 64; R. v. Hillier, 2016 NLCA 21; R. v. Kane, 2012 NLCA 53; R. v. Byrne, 2009 NLCA 3; R. v. Melvin, 2000 NFCA 17; R. v.Careen (1993), (NL SC), 105 Nfld. & P.E.I.R. 263, 19 W.C.B. (2d) 238 (Nfld. C.A.); R. v. Parsons (1993), (NL CA), 108 Nfld. & P.E.I.R. 359, 20 W.C.B. (2d) 182 (Nfld. C.A.); R. v. Oates (1992), (NL CA), 100Nfld. & P.E.I.R. 289, 16 W.C.B. (2d) 485 (Nfld. C.A.); R. v. Knickle, 2009 NSCA 59; R. v.

Noftall, 2022 NLCA 23; R. v. Provost, 2006NLCA 30; R. v. Provost, 2006 NLCA 30; R. v. Glasco, 2020 NLSC 142 STATUTES CONSIDERED: Criminal Code of Canada, R.S.C. 1985, c. C-46; Controlled Drugs and Substances Act, S.C. 1996, c.19 REASONS FOR JUDGMENT Knickle, J.: INTRODUCTION [1] Shane Clarke was convicted after a trial by judge alone of conspiracy to traffic in cocaine as well as trafficking in cocainecontrary to

section 465 of the Criminal Code, R.S.C. 1985, c. C-46 (the “Criminal Code”) and section 5(2) of the Controlled Drugs andSubstances Act, S.C. 1996, c.19 (the “CDSA”). This is the decision on sentence. THE CIRCUMSTANCES OF THE OFFENCES [2] The facts are described in detail in the previous written decision R. v. Clarke, 2021 NLSC 182. The circumstances of theoffences are serious. [3] The evidence established an ongoing conspiracy to traffic in cocaine involving hundreds of thousands of dollars. DustinEtheridge was the leader of the conspiracy and Bradley Squires was also clearly a member.

The evidence established that Shane Clarkewas a trusted participant in the conspiracy. While there was no explicit statement uttered by Shane Clarke that “I agree to trafficcocaine”, his participation in Dustin Etheridge’s trafficking business compelled no other conclusion than he was a trusted mid levelmember. He participated in the conspiracy by not only counting thousands of dollars on behalf of Dustin Etheridge, but acted as acourier to deliver a substantial quantity of money, and also tracked the shipment of 4 kilograms of cocaine on May 3, 2018.

The value ofthe cocaine was estimated to be between $120,000 and $150,000. It was also clear from the evidence, in particular the search of DustinEtheridge’s premises, as well as the various statements made by the participants, including Shane Clarke, that hundreds of thousands ofdollars were involved in what was an ongoing enterprise to bring cocaine into the province of Newfoundland and Labrador andredistribute it for sale. [4] I was satisfied that the above evidence established both offences.

However, as far as the offence of trafficking in cocaine, theevidence further established that Shane Clarke was trafficking cocaine directly to his own buyers, albeit on a smaller scale in what iscommonly referred to as a “dial-a-dope” type of arrangement. During the period of the indictment there was evidence of cutting agentsand scales at his residence, and communications of potential purchasers who telephoned or texted Shane Clarke. He then agreed to makearrangements to sell small amounts, such as a “half” ball.

Corporal Lane testified that the quantity of cutting agent found at ShaneClarke’s residence was consistent with someone trafficking in “kilo” amounts of cocaine. I accept this to be the case with respect toShane Clarke. THE CIRCUMSTANCES OF THE OFFENDER [5] At the time of the sentencing hearing, Mr. Clarke is 27 years old. Shane Clarke was arrested mid May of 2018, and so was 24years of age at that time. He has been bound by the conditions of an Undertaking since his release without issue. The global pandemichas affect the ability of the court to have the proceedings, including sentencing of Mr.

Clarke, to have occurred sooner. [6] According to the pre-sentence report (the “PSR”), he is the youngest of four children. He described his childhood as positive.His parents have been happily married for 40 years; although his mother suffered injury in a car accident and suffers from chronic pain asa result of those injuries. [7] As a teenager, Shane Clark began experimenting with drugs, and developed an addiction. This was exacerbated by beinginvolved in a motor vehicle accident. His addictions to opiates “spiraled” until his arrest for the offences before the Court.

Since then,he has been successfully seeking treatment, and has remained drug free. [8] Apart from his opiate addiction, Shane Clarke was candid that he also used cocaine on a “recreational” basis. [9] Shane Clarke has been in one intimate relationship, but is currently single. He completed Grade 11, and has held several formsof employment. While there is little continuity in his employment, the fact that he has been regularly employed supports that he is

capable of being a productive member of society. He hopes to take further programming that will improve his prospects for employment. [ 10 ] He advised he has no significant debts, nor has he dependents. [ 11 ] Shane Clarke suffers from a medical (cardiac) issue. He has, at his young age, already experienced two heart attacks. However, he is not presently taking medication and does not follow a specialist. He possesses one prior criminal conviction in 2015, for impaired driving, for which he received a fine and 12 month driving prohibition.

While an unrelated offence, the conviction for impaired driving supports that opiates may not be the sole substance with which he has issues. [ 12 ] While I accept that Mr. Clarke suffers from an addiction to opiates, there was no evidence that this addiction had any relationship to his participation in trafficking in cocaine.

The evidence (for example the existence of cutting agent at his residence) supported that the participation was for the purposes of profit. [ 13 ] Shane Clarke maintains his innocence with respect to the conspiracy offence and intends to appeal the conviction. [ 14 ] His parents are supportive and have tried to assist Shane Clarke in becoming drug free. They also explained that Shane has been diagnosed with Attention Deficit Disorder, and is someone who is “easily led”.

They expressed that Shane Clarke is very “embarrassed” by his actions and has matured. [ 15 ] The author of the report assessed Shane Clarke as being suitable for programming to assist with his “coping skills”; additional programming to address the relationship between trauma and substance abuse; as well as programing to increase his awareness about the influences that may propel him towards criminal behavior. Shane Clarke was also deemed suitable for community supervision. [ 16 ] On the whole, the presentence report is positive and bodes well for Shane Clarke’s rehabilitation.

While it is positive that Shane Clarke has the support of his parents; I observe this strong family support did not deter Shane Clarke from becoming engaged in trafficking. I have taken this into account, but it is closer to being a neutral factor than clearly mitigating feature. PRINCIPLES OF SENTENCING [ 17 ] The principles of sentencing are codified under the Criminal Code , at sections 718 to 718.2 . [ 18 ] Under

section 718.1, a sentence must be commensurate with the gravity of the offence and the degree of responsibility of the offender. This is sometimes referred to as the level of “moral blameworthiness” of the offender and the “proportionality principle”. Wagner, C.J. in R. v. Lacasse , 2015 SCC 64 , described the proportionality principle, at paragraph 12: The more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier the sentence will be.

In other words, the severity of a sentence depends not only on the seriousness of the crime’s consequences, but also on the moral blameworthiness of the offender. [ 19 ] The fit or proportionate sentence must reflect the principles under

section 718: 718. Purpose The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [ 20 ]

Section 718.2 provides further guidance in determining whether particular circumstances may be aggravating or mitigating on sentence. For example,

section 718.2(

b) advises that a sentence “should be similar to sentences imposed on similar offenders for similar circumstances”. This is known as the principle of parity in sentencing. [ 21 ] In relation to the sentence for drug related offences,

section 10 of the CDSA also provides guidance describing factors that may

be considered as aggravating when sentencing an offender. THE POSITION OF THE PARTIES [22] The Crown submits that the appropriate sentence in these circumstances is between a total of 3 ½ to 4 years imprisonment forboth offences. The crown submits that Shane Clarke can be described as a “mid level” participant in the conspiracy. While his prospectsfor rehabilitation may be good, the emphasis for this kind of criminal conduct is deterrence and denunciation. The crown submits asentence of 3 ½ to 4 years imprisonment is keeping with the range of sentences established in Newfoundland and Labrador.

There isnothing in the circumstances of Shane Clarke that warrants less emphasis on the principles of deterrence or denunciation or the range ofsentence as established by the jurisprudence for “mid-level” participants in cocaine trafficking. [23] Counsel for Mr. Clarke submits that a more appropriate sentence in these circumstances is a sentence of less than 3 yearsimprisonment. Counsel takes no issue with the range of sentences as established by the jurisprudence but submits that the evidence doesnot support that Shane Clarke’s role in the conspiracy or trafficking a mid-level player.

To the contrary, counsel submits that ShaneClarke is more accurately described as being very low in the hierarchy, and as such should receive a sentence below what might beexpected for a mid-level participant. Counsel further submits that the positive antecedents support a lesser sentence. While recognizingthat the principles of deterrence and denunciation are paramount for this kind of criminal conduct, he reminds the court that as perLacasse, ranges of sentences are just that, ranges, they are not straightjackets.

The sentence the court must impose must be proportionalto Shane Clarke’s level of moral blameworthiness. THE RANGE OF SENTENCE [24] For both of the offences in question here, the maximum available punishment is life imprisonment. A conditional sentence isnot available. [25] The law is well established as to the sentences that may be imposed for these types of offences. For over 30 years, theNewfoundland and Labrador Court of Appeal has repeatedly stated that the offences of both conspiracy or trafficking in large quantitiesof cocaine will attract significant periods of incarceration.

The emphasis in sentencing an offender, even with positive antecedents, is ongeneral deterrence and denunciation of the conduct (See R. v. Noseworthy, 2021 NLCA 2, R. v. Parsons, 2017 NLCA 64, R. v. Hillier,2016 NLCA 21, R. v. Kane, 2012 NLCA 53, R. v. Byrne, 2009 NLCA 3, R. v. Melvin, 2000 NFCA 17, R. v. Careen (1993), (NL SC), 105 Nfld. & P.E.I.R. 263, 19 W.C.B. (2d) 238 (Nfld. C.A.), R. v. Parsons (1993), (NL CA), 108 Nfld.& P.E.I.R. 359, 20 W.C.B. (2d) 182 (Nfld. C.A.), R. v. Oates (1992), (NL CA), 100 Nfld. & P.E.I.R. 289, 16 W.C.B.(2d) 485 (Nfld. C.A.). See also R. v.

Knickle, 2009 NSCA 59 at paragraph 18.) [26] Most recently, in R. v. Noftall, 2022 NLCA 23, the Court of Appeal reaffirmed this approach. At paragraphs 34-35, O’Brien,J.A, speaking for a unanimous court, stated: [34] An appropriate sentence for a mid-level trafficker of cocaine in a commercial operation has been considered by this Court invarious cases, including R. v. Oates (1992), (NL CA), 100 Nfld. & P.E.I.R. 289 (Nfld. C.A.), and R. v. Kane, 2012NLCA 53, 325 Nfld. & P.E.I.R. 78.

In 1992, this Court in Oates held that 3.5 to 4 years imprisonment was the normal sentencing range,stressing that deterrence and public protection were paramount factors to be considered. [35] Two decades after Oates, in 2012, this Court in Kane adopted the rationale in Oates, and confirmed that deterrence continued to bethe primary factor in sentencing in this context.

The Court in Kane concluded that an appropriate sentence for participation in aconspiracy, where an offender “for the purpose of monetary gain, has played a trusted and necessary role in a sophisticated, commerciallevel conspiracy to traffic in significant amounts of cocaine”, would be in the range of four years imprisonment (Kane, at para. 24). [27] Mr. Noftall was convicted after a trial. Mr. Noftall ran a garage where automobiles from outside the province were broughtcontaining large shipments of cocaine. The cocaine was unloaded at the garage and re-packaged for sale. Mr.

Noftall had dealings withparticipants outside the province and also counted cash for leaders in the conspiracy, and interacted with lesser players in the conspiracy. The trial judge imposed a sentence of 3 years imprisonment. He described Mr. Noftall’s role as a mid level player, but not integral to theoperation of the conspiracy. [28] The Court of Appeal increased the sentence from 3 years to 54 months (4 ½) imprisonment; describing Mr.

Noftall’s role in theconspiracy as integral in what was a sophisticated operation. [29] The above mentioned authorities, and others provided to me from other jurisdictions, illustrate that where an offender isengaged in either of these offences in substantial quantities as a “mid-level” participant, in particular, as stated by Welsh, J.

A. in Kane, and re-affirmed by O’Brien, J in Noftall, such an offender can expect 4 years. [30] To determine where the present circumstances fall within the range, a number of factors are relevant: the type and quantity ofdrug involved, the sophistication of the organization or conspiracy, the potential for profit, the period of time involved, and the role ofthe particular offender in the organization (see Oates and also R. v. Provost, 2006 NLCA 30 at paragraphs 21 to 28).

A review of thecircumstances supports that the fit sentence in these circumstances falls squarely within the range as established by the Newfoundlandand Labrador Court of Appeal. The type and quantities of drugs [31] The type of drug here is cocaine. This is what is often referred to as a “hard” drug. The havoc wreaked by its dissemination inthe community is sinister, and goes beyond the impact on those who use or even sell it. This potential harm to the community has beenamplified by the dilution, “cutting” of the drug with other, sometimes harmful substances.

This is well established in the jurisprudenceand confirmed in the testimony of Corporal Dave Lane. There was no evidence of such harmful cutting agents in these circumstances,but there was evidence that Shane Clarke was in possession of Phenacetin, a known cutting agent. As explained by Corporal Dave Lane,there would be no reason to be in possession of a cutting agent, except to increase the profit margin of sales. I have taken this into

account in fashioning the fit sentence. [ 32 ] The quantity of cocaine involved in the May 3 rd -4 th shipment was substantial. The package Shane Clarke tracked contained no less than 4 kilograms of high quality cocaine with a street value of between $120,000 to $150,000. The other occasions of Shane Clarke’s participation in the conspiracy, such as counting money and delivering money, support that the trafficking business was for substantial volumes of product.

This was also supported by the intercepted communications. [ 33 ] In contrast, the amounts of cocaine of which Shane Clarke trafficked in the “dial-a-dope” operation involved smaller quantities. However, I am satisfied this enterprise was an ongoing one. The level of sophistication of the conspiracy and trafficking [ 34 ] The organization conducting the business of cocaine trafficking was by no means the most sophisticated operation, but it was well organized.

The enterprise consisted of Dustin Etheridge managing an ongoing trafficking network in which he organized the importation of substantial quantities of cocaine to the island of Newfoundland. He had persons under his direction establish safe locations to house the product. All the members of the conspiracy, including Shane Clarke, took steps to avoid detection. They spoke in vague terms when overheard in the intercepted communications. Dustin Etheridge changed his phone at one point. [ 35 ] There was also a clear hierarchy to the organization with Dustin Etheridge at the top.

The level of knowledge of any given member was carefully controlled by Dustin Etheridge. He threatened violence to maintain control. Shane Clarke’s role in the conspiracy [ 36 ] I am satisfied that Shane Clarke’s role in the conspiracy was not at the lowest levels of the hierarchy. Shane Clarke was a mid- level associate. He was more than just a “courier”.

While the evidence showed that Shane Clarke delivered and counted money for Dustin Etheridge, the fact that Shane Clarke knew the tracking number of the package containing 4 kilograms of cocaine shows that he may not have been at the top of the organization, but he was clearly trusted by Dustin Etheridge. [ 37 ] I also find that the fact he offered to hide Bradley Squires when it appeared that the police may have been alerted to the shipment shows a level of participation in the conspiracy beyond that of a simple courier. [ 38 ] At trial, Corporal Dave Lane explained that there could be many levels within mid-level of the hierarchy.

I am satisfied that Shane Clarke was established as a “mid-level” player, and was in fact, working his way up the hierarchy. This anticipated or desired ascension in the hierarchy was evidenced by the positive remarks from Dustin Etheridge about Shane Clarke; for example, telling Bradley Squires that he should have had Shane Clarke do a task that had been entrusted to Bradley Squires.

It was also evidenced by Shane Clarke’s phone call to Dustin Etheridge to offer him information about what was happening at the penitentiary, as well as Shane Clarke checking with Bradley Squires as to when to get in contact with Dustin Etheridge. [ 39 ] I agree with the Crown attorney’s characterization of Shane Clarke’s placement in the hierarchy as being below Bradley Squires, but closer to other conspirators such as Corey Stevens or Brandon Glasco.

Shane Clarke’s role in the conspiracy and placement in the hierarchy supports that the fit sentence in these circumstances falls within the range as established by the Newfoundland and Labrador Court of Appeal such as Oates , Kane , Noseworthy , and Noftall . The sentences imposed upon the co-accused [ 40 ] The principle of parity plays an important role in sentencing. In the context of drug trafficking, the difference between the roles or involvement of various co-offenders and the consequent sentences imposed often reflects the application of the parity principle.

Those with a similar level of involvement, all other considerations being equal, attract similar sentences. But the application of the parity principle cannot displace the fit and proportionate sentence. As O’Brien, J.A. stated in Noseworthy , at paragraph 101 : [101] While those with more significant involvement in a conspiracy would have greater culpability and, all other things being equal, may receive higher sentences , this is not the sole consideration in sentencing .

Parity in sentences between conspirators should always be a consideration, but there is no strict or absolute rule that mandates sentencing based primarily on a conspirator’s comparative rank in the hierarchy. Courts must always have regard to the principle of proportionality in recognizing that sentencing is an inherently individualized process. [ 41 ] It is helpful and necessary to consider the sentences imposed upon the co-accused to give effect to the principle of parity, but its application cannot be at the expense of imposing the proportionate sentence, the fit sentence, for Shane Clarke.

It is with this in mind that I have considered the sentences imposed upon the co-accused. Dustin Etheridge [ 42 ] Dustin Etheridge received a 6 year period of imprisonment for his

part in the conspiracy to traffic in cocaine. There are significant distinguishing features to the circumstances of Dustin Etheridge, both aggravating and mitigating, from the circumstances of Shane Clarke. In aggravation, Dustin Etheridge’s role in the commission of the offence was integral. He was the head of the conspiracy and directed those below him, including Shane Clarke. He was prepared to use violence, as the intercepted communications revealed, and was trafficking larges amount of product. In mitigation, Dustin Etheridge pleaded guilty to the offence.

The 6 year sentence was also the result of a joint submission, which tempers the extent to which it may be of assistance in assessing the principle of parity. Dustin Etheridge was also involved in the separate offence of conspiracy to commit murder, and was sentenced for that offence. His total sentence was 10 years imprisonment. [ 43 ] While the joint submission and guilty plea are distinguishing factors, the sentence of 6 years imprisonment illustrates the upper

end of the sentences imposed for the offenders in these circumstances. I have taken this into account. Bradley Squires [ 44 ] For his

part in trafficking cocaine, Bradley Squires received a 3 year sentence of imprisonment. Counsel for Shane Clarke argued that the principle of parity supports that Shane Clarke should receive a less severe sentence. Bradley Squires possesses a previous criminal history and was higher in the organization than Shane Clarke.

I agree that Shane Clarke did not play as significant a role in the conspiracy, but as discussed above, this fact standing alone does not mean that Shane Clarke should not be liable to a period of three years imprisonment. [ 45 ] In light of Noftall , and given Bradley Squires’ role in the hierarchy, the 3 year sentence might be seen as low. However, this sentence may be explained by factors specific to the circumstances of Bradley Squires and also distinguished from the circumstances of Shane Clarke.

For example, like Dustin Etheridge, a mitigating factor present in Bradley Squires’ circumstances is the presence of a guilty plea. The sentencing judge needed to also consider the principle of totality, Bradley Squires was sentenced for a number of offences involving different circumstances. Overall, he received a 5 ½ year sentence of imprisonment.

The period of 3 years imprisonment must be seen in light of these distinguishing factors. [ 46 ] In contrast, while Shane Clarke is being sentenced for two offences, they arise out of overlapping facts, and as submitted by the parties, I will be imposing concurrent sentences. Given this, achieving the proper balance in totality does not require any adjustment as may have been considered by the sentencing judge regarding Bradley Squires. [ 47 ] These other considerations support that Bradley Squires’ 3 year sentence for his

part in trafficking in cocaine, does not mean when all considerations are taken into account, that a similar sentence of 3 years is too severe for Shane Clarke; notwithstanding that Bradley Squires’ role in the conspiracy was more integral than Shane Clarke. Brandon Glasco [ 48 ] The sentence achieved for the co-accused Brandon Glasco ( R. v.

Glasco , 2020 NLSC 142 ) further illustrates how the fact that Bradley Squires received a 3 year period of imprisonment does not support a sentence of less than 3 years imprisonment for Shane Clarke. [ 49 ] Brandon Glasco pleaded guilty to conspiracy to trafficking in cocaine and possession for the purpose (9.3 grams). He was arguably lower in the hierarchy of Dustin Etheridge’s organization than was Bradley Squires. Khaladkar, J. in Glasco described Brandon Glasco’s place in the conspiracy at paragraph 16: 16.

The Offender’s participation in the scheme was not at the lowest end of the trafficking spectrum – meaning that the Offender was not merely a street level drug dealer. The offender was part of a criminal hierarchy involved in the trafficking of cocaine and marijuana. It is clear from the intercepts in this case that the Offender was attempting to buy a kilogram of cocaine in hard form.

Despite those attempts, however, the Offender had not yet succeeded in achieving what would be characterized as a middle level status within the pyramid. [ 50 ] While not “having yet achieved what would be described as middle level status”, before considering the principle of totality, Khaladkar, J. was satisfied that a sentence of 36 months imprisonment was fit for the conspiracy (same sentence received by Bradley Squires), and two years less a day imprisonment for the possession for the purposes of trafficking ( Glasco , at paragraph 19 ) [ 51 ] Because only days earlier, Brandon Glasco had been sentenced to 5 years imprisonment for his role in the conspiracy to commit murder, totality also played a role in the ultimate sentence.

While the total 3 year imprisonment for the conspiracy and possession charges would run concurrently, the 3 years imprisonment would run consecutive to the 5 year sentence imposed on the separate conspiracy to murder offence; resulting in a total period of imprisonment of 8 years. This, Khaladkar, J. reasoned (properly in my view) would result in a sentence that was too severe in the circumstances (see Glasco , at paragraphs 22-25 ).

Adjusting for totality, a further period of 16 months imprisonment on each count was imposed. [ 52 ] I find the role Brandon Glasco played in the conspiracy closer to the circumstances of Shane Clarke. Brandon Glasco, also like Shane Clarke, is youthful. He was 21 years of age at sentencing; although in so observing I also accept, as was pointed out by Crown counsel, that all of the participants in the conspiracy in these circumstances were youthful, or relatively so. [ 53 ] Brandon Glasco’s circumstances also include that he pleaded guilty to the offences.

That is not a mitigating factor of which I can take into account in these circumstances. Corey Stevens [ 54 ] Finally, the Crown advised that the co-accused, Corey Stevens, who was the person directed to receive the package of 4 kilograms of cocaine on May 4 th , 2018, and who also pleaded guilty, received a sentence of 3½ years imprisonment. His role in the shipment of the cocaine, or level in the hierarchy is similar to Shane Clarke’s. He was also youthful, and possessed a short unrelated record.

THE FIT SENTENCE The offence of conspiracy to traffic in cocaine [ 55 ] In my view, applying the principles of sentencing, and the guidance from the jurisprudence, the circumstances require a significant sentence. There is also nothing in the circumstances that takes the sentence to be imposed outside the range established by

our Court of Appeal. [ 56 ] While I agree that Shane Clarke was not as integral to the conspiracy as was Bradley Squires, or Mr. Noftall in Noftall , I do not agree with the submission that the circumstances place Shane Clarke at the lowest level in the conspiracy. As explained by Corporal Lane, there are many levels to those who might be considered at the “mid-level” of trafficking. [ 57 ] Shane Clarke was a mid-level player. I find the circumstances here similar to the circumstances in Noseworthy , and that of the co-accused Corey Stevens. Like Mr. Noseworthy, Mr .

Clarke was trusted by the leader of the group, and participated in the conspiracy to traffic significant quantities of cocaine. Shane Clarke actively tracked the shipment of four kilograms of cocaine. He also offered to help Bradley Squires and hide him when the police became involved in the delivery. He also tried to warn Bradley Squires that maybe they should abandon taking delivery of the package. He also participated in the delivery of money on behalf of Dustin Etheridge, and also counted significant quantities of cash for him as well.

In the time period of the indictment, there were multiple communications by him with both Dustin Etheridge and Bradley Squires. He may be at the lower end of mid-level, but I am satisfied that as a trusted participant, the knowledge he possessed regarding the May 4th shipment, he was far more than a street level or low level participant in the conspiracy. [ 58 ] Counsel for Shane Clarke submits that there is nothing in the evidence that connects Shane Clarke’s delivery of money on behalf of Dustin Etheridge to trafficking cocaine. I disagree.

I accept that there was no explicit statement that the money that was delivered was in payment for cocaine.

One could hardly expect such. [ 59 ] When I consider the delivery of money, in the context of all the circumstances, including that Dustin Etheridge was in the business of trafficking cocaine, that this is knowledge that Shane Clarke had of Dustin Etheridge’s business, the fact that there was no evidence that Dustin Etheridge was engaged in trafficking in some other substance, or needed to deliver money for some other reason, and the timing of the delivery being only days before the shipment of cocaine on May 4th and well within much other more explicit activity of trafficking in cocaine, in my view it is not only reasonable to infer, but more likely than not that this money was for the payment of cocaine, or related to trafficking in cocaine.

I accept that the delivery of money on April 22 nd by Shane Clarke was for the purposes of trafficking cocaine. [ 60 ] In

summary, the aggravating circumstances are the quantity and value of the drugs, the level of sophistication of the conspiracy and Shane Clarke’s role in the conspiracy. The mitigating circumstances are that Shane Clarke is young and his prospects for rehabilitation are positive. [ 61 ] While the emphasis is on denunciation and deterrence, I have considered Mr. Clarke’s positive prospects for rehabilitation. Shane Clarke is a young man and his prospects for rehabilitation are good. I believe this process has impressed upon him the error of becoming involved in this kind of serious criminal conduct.

I agree with counsel for Shane Clarke that the sentence must ultimately reflect not only the offence, but Shane Clarke’s moral blameworthiness. [ 62 ] Taking into account the aggravating and mitigating factors, a sentence of three and one half (3½) years incarceration is warranted for the offence of conspiracy to traffic in cocaine. The offence of trafficking [ 63 ] For the offence of trafficking, the evidence established that the quantities involved in the “dial-a-dope” enterprise were not large. Likewise, only a small amount of cocaine was located at Shane Clarke’s residence, and small amounts of cutting agent.

There was evidence that Shane Clarke owed Dustin Etheridge $14,000 and the parties agreed that this likely reflects the level of business with which Shane Clark was engaged. [ 64 ] On the other hand, the evidence also supports that this was an ongoing venture for Shane Clarke, as there was more than one instance of intercepted conversations that illustrated Shane Clarke’s business of selling cocaine.

Corporal Lane also testified that the amount of cutting agent found in Shane Clarke’s residence was consistent with someone who was trafficking in “kilo” amounts of cocaine. [ 65 ] I accept that if the dial-a-dope business was the only trafficking in which Shane Clarke engaged, the sentence might be less than three and a half years. However, I also consider that Shane Clarke participated in the cocaine trafficking business of Dustin Etheridge.

That participation is more serious than a dial-a-dope scheme. [ 66 ] Looking at all the circumstances, and in conjunction with the conduct discussed in relation to the conspiracy charge, I sentence him to 3 ½ (three and one half) years incarceration for the offence of trafficking. As suggested by the parties, the two sentences shall run concurrently. [ 67 ] The total sentence imposed is 3½ (three and one half) years incarceration. Credit for time in pre-trial custody [ 68 ] Shane Clarke spent two periods in pre-trial custody.

From August 30th, 2018 to September 20th, 2018 for a period of 22 days, and from April 8th, 2022 to April 21st, a period of 14 days, for a total of 33 days in custody. Awarding credit on a basis of 1:1.5, as per

section 719 of the Criminal Code , the time spent in pre-trial custody is the equivalent of 53 days. [ 69 ] The period of 53 days shall accordingly be deducted from his overall sentence of 3 and ½ years. ANCILLARY ORDERS [ 70 ] A firearms prohibition for 10 years will be imposed, as well as a forfeiture order for the items seized from Shane Clarke’s residence.

[ 71 ] I further impose a DNA order pursuant to

section 487.051(3). This is a discretionary order as the offence for which Shane Clarke was convicted, trafficking in cocaine, is a “secondary designated offence” under

section 487. 04(b)(

i) of the Criminal Code . [ 72 ] Finally, a victim fine surcharge of $200 will be imposed for each offence, for a total of $400.00. CONCLUSION [ 73 ] In conclusion, Shane Clarke is sentenced to a total period of imprisonment of 3 and ½ years; less 53 days which is time spent on remand at a credit of 1:1.5. An order for DNA, order for forfeiture, firearms prohibition for 10 years, and victim fine surcharge totalling $400 are also imposed. [ 74 ] Judgment accordingly. _____________________________ Frances J. Knickle Justice