Her Majesty the Queen - v. -, 2013 SKPC 46

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 046 Date: March 18, 2013 Information: 31082230 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Darcy Marciszyn Appearing: Mr. Alan McIntyre For the Crown Mr. Merv Nidesh, Q.C. For the Accused SENTENCING DECISION D. KOVATCH , J [ 1 ] Darcy Marciszyn has entered a guilty plea to one charge of trafficking cocaine.

It is alleged that he trafficked cocaine at Moose Jaw between May 27, 2011 and June 16, 2011. [ 2 ] Counsel have referred me to a substantial number of sentencing decisions. These decisions leave little doubt that the courts have identified a general sentencing range of 18 months to four years as being applicable for the offence of trafficking in cocaine. See for example McIntyre v. The Crown , 2012 SKCA 111 ; R. v. Dubai , 2008 SKCA 49 ; R. v. Aube , 2009 SKCA 53 ; R. v. McCallum , 2007 SKCA 139 ; R. v. Shawile , 2012 SKCA 51 and R. v. Leitner , 2013 SKQB 1 .

These cases seem to me to indicate that on a charge of

trafficking in cocaine, there will be a bit of a presumption in favour of actual jail unless there are some fairly exceptional and mitigating circumstances that will justify the Court in granting a conditional sentence order. The courts have made it fairly clear that if the trafficking operation is of a larger scale and a commercial enterprise, a significant term of actual incarceration will be the result. A conditional sentence for trafficking cocaine will only be considered where the accused is a small scale street dealer that may be supporting his or her own personal addiction.

The smaller scale operation to support one’s personal addiction, is however, only one factor to be considered by the Court in making the determination between actual jail and a conditional sentence order. See in particular R. v. McIntyre , supra . [ 3 ] Having identified these significant restrictions on the use of the conditional sentence order, there are a significant number of cases where the courts have determined that a conditional sentence order will be appropriate. See for example R. v. Laliberte , 2000 SKCA 27 ; R. v. Balon , 2009 SKQB 233 ; R. v. Fowler , 2012 SKPC 93 ; R. v.

Williamson , 2011 SKPC 37 ; R. v. McCallum , 2012 SKPC 162 and R. v. Agecoutay , 2012 SKPC 186 . [ 4 ] On the basis of all of the above mentioned cases, the fairly narrow issue in this case is whether Mr. Marciszyn should be sentenced to a term of actual jail. The Crown has requested a sentence of 15 months in jail. Or, alternatively, whether Mr. Marciszyn should be sentenced to a conditional sentence, as requested by the defence. In light of the facts of this case and the submissions made by counsel, there is one further fairly narrow but closely related issue to be considered.

That is, whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing as set out in s. 718 to 718.2 of the Criminal Code .

Section 742.1 of the Code indicates that a conditional sentence may be granted where the term of imprisonment would be less than two years, where the Court is satisfied that service of the sentence in the community would not endanger the safety of the community, and where the conditional sentence order is consistent with the purpose and principles of sentencing. Mr. McIntyre, for the Crown, has requested a 15 month term of incarceration, and concedes that any sentence imposed will be less than two years, and thus this prerequisite for a conditional sentence order is met. Mr.

Marciszyn’s criminal record is minimal, and he has been assessed as a low risk to re-offend. I am satisfied that the safety of the community would not be endangered by his serving the sentence within the community. Thus, I must consider what kind of sentence best meets the purposes and principles of sentencing set out in the Criminal Code . [ 5 ] On all of the evidence, I have determined that this is an appropriate case to be dealt with by a conditional sentence order. Mr. McIntyre has argued that he is suspicious about Mr. Marciszyn’s addiction or claims that he has now dealt with his addiction. Mr.

McIntyre argues that such an argument is easily made to advance the argument for a lesser penalty in cases such as this one. There is clearly some reason for Mr. McIntyre to be suspicious. For example, the Crown filed a log of intercepted telephone calls that Mr. Marciszyn was involved in between May 26 and May 29, 2011. In my view these calls establish that Mr. Marciszyn was a low level dealer, but nevertheless was fairly active. The pre-sentence report indicates that there were a number of statements by Mr. Marciszyn intended to minimize his involvement. However, at the sentencing hearing, Mr.

Nidesh led evidence from a number of family members and friends, involved with Mr. Marciszyn. This evidence was to the effect that over the years, Mr. Marciszyn has been a good family and community man. For a relatively short period of time, he descended into a fairly sharp and steep spiral downward. At the time, most did not know that he was involved in the drug trade. In retrospect, those individuals now believe that the spiral downward was directly brought on by Mr. Marciszyn’s involvement with drugs. These individuals now say that Mr. Marciszyn is “back”.

He is no longer actively using and is again active in family and community life. They will support him as he proceeds with recovery. I believe that I should accept and act upon this evidence and consider a sentence that will assist Mr. Marciszyn in his treatment and rehabilitation. [ 6 ] There are other factors which cause me to lean toward emphasizing rehabilitation, as opposed to denunciation and deterrence through a term of actual incarceration. Mr. Marciszyn is 46 years of age. His record is very minimal. He has no prior convictions related to drug use or the drug trade and has never been incarcerated.

He is identified by the writer of the pre-sentence report as a low risk to re-offend. He clearly has good support from his family and friends. In the pre-sentence report he is identified as a good candidate for the electronic monitoring program. The PSR further states that Mr. Marciszyn is willing to comply with all conditions imposed by a CSO. [ 7 ] In sentencing Mr. Marciszyn, I am clearly required to consider other sentencing factors and principles beyond rehabilitation. I must consider denunciation and deterrence, and sentencing parity.

However, I have mentioned above, a number of sentencing decisions where the courts have imposed a conditional sentence order for trafficking offences. In each of those cases, the Court looked at a low level trafficking operation, and determined that these sentencing principles could be met by a conditional sentence order. I have reached a similar determination here, and will sentence Mr. Marciszyn to a conditional sentence order in the range of 18 months. I am satisfied that such an order will be quite restrictive, and adequately meet the sentencing goals. [ 8 ] For these reasons, I sentence Mr.

Marciszyn to a term of 18 months in jail, to be served conditionally and in the community. For the first six months of the CSO, Mr. Marciszyn will be involved in the electronic monitoring program and will comply with the following conditions:

1) Keep the peace and be of good behaviour. 2) Appear before the Court when required to do so by the Court. 3) Report to the supervisor forthwith and thereafter when required and in the manner directed by the supervisor or his designate. 4) Remain within the jurisdiction of the Court (Saskatchewan) unless written permission to go outside that jurisdiction is obtained from the Court or supervisor. 5) Notify the Court or supervisor of any change of name or address and promptly notify the Court or supervisor of any change of employment or occupation. 6) Enroll in the electronic monitoring program and comply with the electronic monitoring program as directed by the supervisor for the first six months.

Report to the supervisor immediately and as directed. 7) Come to the door of your approved residence when asked to do so by a police officer or supervisor or designate and permit them entry into your approved residence to check equipment operation. 8) Reside at the home of Denise Sauer and Tom Overs at D 19 Trans Canada Trailer Court, Moose Jaw and not change that residence without the prior written permission of the supervisor or designate or the Court. 9) Stay inside your approved residence 24 hours per day unless you have the prior written permission of the supervisor or designate or the Court. 10) Not possess or consume any alcohol or drugs that have not been prescribed for you by a medical doctor and not enter or be in any place in which the main purpose is the sale of alcohol such as bars or liquor stores except with the prior written permission of the supervisor. 11) Seek and maintain employment or educational programming as directed by the supervisor. 12) Participate in an assessment and complete programming for addictions which may include an out-patient treatment as directed by the supervisor. 13) Provide suitable samples of your breath or blood or urine for testing upon the request of a police officer who has reasonable grounds to suspect that you are in breach of a condition of this order regarding consumption of alcohol. 14) Submit to a search without warrant of your person, vehicle or residence by any police officer who has reasonable grounds to believe you are in breach of a condition of this order regarding the illegal use, possession or control of drugs, provided that such power of the Crown is not to be exercised any more than twice per month. [ 9 ] After the first six months on electronic monitoring, and for the entire balance of the conditional sentence order, all of the above mentioned conditions shall remain the same, except that Mr.

Marciszyn shall not be on the electronic monitoring program, and he shall abide by a curfew and be in his place of residence from 11:00 p.m. until 7:00 a.m. each day except when he has the prior written permission of the supervisor. [ 10 ] There will be an order under s. 109 of the Criminal Code prohibiting Mr. Marciszyn from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substances for a period of 10 years from the date of this order. [ 11 ] As Mr.

Marciszyn is employed and will be able to remain employed under the terms of this order, the criminal victims surcharge will apply. Mr. Marciszyn will have until May 31 to make a payment of the applicable surcharge. [ 12 ] Dated at Moose Jaw, Saskatchewan this 18 th day of March, 2013.

D. Kovatch, J