2023 MBPC 23, 2023 MBPC 23

2023 MBPC 23 THE PROVINCIAL COURT OF MANITOBA DAUPHIN CENTRE B E T W E E N: ) ) HIS MAJESTY THE KING, ) Colin Gray - and – ) ) ) for the Crown KATIE ANN SCHABLER, ) ) ) Jonathan Pinx accused. ) ) for the Accused ) Reasons for Sentence: ) Delivered: May 18, 2023 BAYLY, P.J. Introduction [ 1 ] On May 2, 2023, the Court accepted guilty pleas from Katie Ann Schabler in relation to two offences both occurring on July 1, 2022. The offender pled guilty to possession of cocaine for the purpose of trafficking, as well as possession of a firearm without a license.

These are Indictable proceedings, and the defence election was Provincial Court. The maximum sentence for the Controlled Drug and Substances Act (CDSA) offence is life in prison. The maximum sentence for the Criminal Code offence is ten years in prison. [ 2 ] An agreed statement of fact was filed and read into the record by the Crown. The parties agree that on July 1, 2022, Dauphin RCMP enter into a drug investigation in relation to the offender. While the RCMP were conducting preliminary surveillance at the offender’s residence, they observed her exit her home and drive away in a blue Chevy Impala.

The vehicle was stopped, a traffic stop conducted, and the offender was arrested for trafficking cocaine. [ 3 ] The RCMP search the vehicle and locate a black smart phone, two baggies of pills, $705. dollars in Canadian currency, and three baggies of cocaine. While officers were in possession of the offender’s phone, two calls were answered, the first caller was looking to purchase “T3’s” while the second caller was looking to purchase “Gabbies.” [ 4 ] The offender was given her notice of arrest, police caution, and her right to counsel.

The offender indicated that she understood and requested to speak with a lawyer. The RCMP told her that they were seeking a warrant to search her residence to which she responded that they would find cocaine. The offender was taken to RCMP headquarters and put in contact with counsel. [ 5 ] At approximately 9:30PM that day, RCMP officers receive and execute a CDSA search warrant at Ms. Schabler’s residence.

The following items were located: 83.38 g of cocaine in a false bottom of a WD40 can, 1.93 g of cocaine in a clear plastic container, 23.49 g of cocaine located in a blue container, 39 g of cocaine located on a plate in a kitchen cupboard. A rough calculation has the total amount of cocaine at 147.8 grams or just over 5.2 ounces. Also, seized was $8,960. in Canadian currency, score sheets, empty dime

baggies 5,500 un-stamped and untaxed Canadian brand cigarettes and 176 g of loose marijuana. Further several large pill bottles containing the following: 791 gabapentin pills, 108 T3 pills, 622 oxycodone pills, 27 Lorazepam pills, 6 Clonazepam pills.

Finally, a loaded 22-calibre Cooey model 600 rifle, with one round in the chamber was seized after it was located beside a bed in the residence. [ 6 ] In addition to the agreed statement of fact the Crown filed two photo booklets; the first contained photographs from the RCMP seizure of July 1, 2022, which displays an astounding number of pills, money, cocaine, marijuana, and cigarettes.

The pictures put into context for the Court, the significant nature of the RCMP seizure and demonstrates that the offender’s drug stash was large and diverse. [ 7 ] The agreed statement also referenced an earlier RCMP drug investigation pertaining to the offender and her residence occurring a year prior on April 28, 2021. That investigation also involved a search warrant and resulted in a number of seizures from the offender’s house. The second photo booklet contained photographs of the items seized at that time.

This earlier search resulted in the RCMP seizing an unloaded bolt action rifle, two digital scales, three cartons of un-stamped and untaxed cigarettes, 61 g of cocaine, 2892 pills of Xanax, 7 T3 pills, a box with 11 rounds of ammunition for the seized rifle, a magazine clip with 3 rounds of ammunition for the seized rifle and a pistol style BB gun. [ 8 ] The Crown stayed all charges related to that initial investigation with the agreement that the Court could consider the fact that Ms.

Schabler was pending on similar charges when she was arrested on the July 1, 2022 and that the two incidents were factually comparable. Crown Position [ 9 ] The Crown’s position on sentence is one of 4.5 years less the time in custody, which at the time of submission, resulted in a sentence recommendation of 39 months and 12 days going forward. The Crown seeks a sentence of two years concurrent on the firearms charge. The Crown seeks forfeiture of all items seized in connection with investigations, a

section 109 weapons prohibition for 10 years, and a DNA order. [ 10 ] The Crown submitted that prior to having considering the Gladue Report filed as an exhibit in this proceeding, the Crown position on sentence was one of five (5) years; but after reviewing the report, it is acknowledged that the offender’s moral culpability is reduced. The Crown submitted that the offender’s reduced moral culpability is reflected in a reduction in the sentence sought to 4.5 years. [ 11 ] The Crown views Ms.

Schabler as a street-level dealer and acknowledges that the range of sentence is anywhere from mid- provincial custody to a low penitentiary sentence. The Crown seeks the high end of that range primarily because of the presence of a loaded firearm. The Crown submits to the Court that “firearms” are tools of the drug trade and that the available inference should be made that offender’s possession of the firearm is only in furtherance of her drug trafficking enterprise.

Given that the gun was loaded, the available inference should be made that she was prepared to defend her drug stash with significant force if necessary. The Crown seeks the high end of the range because the offender operated “a one-stop shop for her customers” and importantly she on release for the same type of offence when arrested for the index offence. [ 12 ] The Crown acknowledges that the offender does not have a criminal record, has pled guilty and that there are significant Gladue factors to consider.

Nonetheless, the Crown indicates that the overarching sentencing principals that need to be addressed are denunciation and deterrence and that while there are mitigating factors in this case, there is nothing that would amount to an exceptional circumstance.

Defence Position [ 13 ] Defence counsel indicated that in their view, the sentence imposed by this court, should be a time in custody sentence, or perhaps time in custody followed by either a short conditional sentence or a lengthy period of supervised probation. [ 14 ] Defence counsel indicates that the offender is 43 years old, has a college education and has been previously employed as a Canada Post employee for 14 years. While she struggles with addiction, she has been sober for long periods of her life. The offender is a Métis woman from the first nation community of Duck Bay.

Defence counsel indicates that the offender did not seek bail on these charges because she wanted to focus on maintaining sobriety. She also wanted access to programming while in custody to deal with the underlying issues that bring her into conflict with the criminal justice system and have exacerbated her addictions issues.

[ 15 ] As indicated, defence counsel filed a private Gladue report and three-character references, the Gladue report was quite helpful. The report demonstrates that the offender grew up estranged from her biological father, because he was violent towards her mother. Shortly after her birth, the offender was placed in CFS care along with her older brother. She was later returned to the care of her mother, but by the age of 8, she had suffered sexual violence in her home at the hand of an older male babysitter.

Tragically, due to her mother’s substance abuse and lifestyle choices she was unable to provide an appropriate level of care for her young daughter. Later in life, the family situation improved significantly, her mother was present and as were two of her mother’s partners who were both caring and considered to be stepfathers. The offender’s early life was nonetheless marked by physical, emotional and substance abuse. [ 16 ] Both Ms. Schabler and her mother were negatively affected by the aftermath of the residential schooling system.

The offender advised that she was exposed to alcohol and drug addiction growing up and she began experimenting with substances at the age of 8 years old. The offender has experienced the loss of two of her siblings to suicide. The offender’s mental health has suffered and she struggles with anxiety, depression and poor coping skills. In 2012, she suffered a miscarriage while at work with Canada Post. She was treated very poorly by her immediate supervisor who required that she remain at her place of employment while suffering from a medical emergency.

This event caused a significant relapse in the offender’s drug addiction. Later in 2014, Child and Family Services again became involved in her life, this time by putting the offender’s daughter into care. This stress contributed to a suicide attempt by the offender. [ 17 ] Defence counsel emphasizes that addiction is a disease, but that the offender has demonstrated the ability to maintain sobriety and live a life that is productive and prosocial.

While in custody defence counsel indicated that the offender has completed a number of programs including the Walking Bear Therapeutic Program and a number of other programs relating to building healthy relationships, alcohol and drugs, stress and anxiety, PTSD, depression, budgeting and substance abuse. She is also taken the Thinking Awareness Group Program, Coming to Terms Program, and the Reclaiming Your Identity Program. She has been actively involved in sweat lodges and Bible studies.

Defence counsel indicated that while in custody she has been diagnosed with a bipolar disorder and that she has previous diagnoses of PTSD and anxiety. [ 18 ] Defence counsel disagrees with the Crown’s approach to sentencing this offender. They argue that a more nuanced approach needs to be taken, one which recognizes denunciation and deterrence but also balances those principles with the need for rehabilitation and recognizes the offender’s history of addiction and trauma. Defence counsel half-heartedly suggested that Ms. Schabler’s success with her in-custody programing amounted to an exceptional circumstance.

It does not. Recognizing this, they argued correctly that exceptional circumstances are not required to depart from the established range, as sentencing is a deeply individualized process. Defence counsel stressed that there are significant signs of remorse, and that this guilty plea is meaningful because there may have been a few Charter arguments available to the offender. Analysis [ 19 ] The Court was provided with a number of cases by both counsel, Crown provided two cases which were of particular assistance: R. v. Gilchrist 2004 MBCA 21 and R. v.

Rider 2013 MBQB 116 . [ 20 ] In Gilchrist , the Manitoba Court of Appeal dismissed an accused sentence appeal. The accused was sentenced to four years incarceration after pleading guilty to CDSA 5(2), which involved the search of his residence and the recovery of 351 rocks of crack cocaine and $7,640. in cash. The value of the cocaine was $13,000. The offender was 20 years old, no criminal record, and was an addict who sold crack cocaine to support his habit.

The Manitoba Court of Appeal emphasized that general deterrence was the primary sentencing objective and that an appropriate sentence is one that makes it unattractive for people to engage in drug trafficking. In upholding the 4-year sentence, the Court indicated that the range of this type of offence and for this type of offender may start at less than 2 ½ years but it is certainly wide and extends beyond four years.

This case is a standard sentencing precedent for individuals involved at street-level trafficking. [ 21 ] In Rider , Justice Mainella, at the time sitting in the Court of King’s Bench, considered what an appropriate sentence would be for an offender involved a mid-level cocaine operation. The offender pled guilty to CDSA 5(2) as well as possession of a 45 calibre handgun without a license. The offender was a 21-year-old aboriginal male with a troubled upbringing, he had no criminal record and was not a gang member. There was a joint submission for the range of 6 to 8 years imprisonment.

Justice Mainella imposed a sentence of seven years two months on the possession charge and a concurrent sentence on the firearm charge. In so doing Justice Mainella found that the offender’s moral culpability was high, remarking that “this is not fleeting for impulsive conduct; it was premeditated, long- standing, and commercially motivated.

The harm caused to society by these offences is immense as well as deeply offensive to society’s norms.” [ 22 ] Importantly, Justice Mainella recognized that the overriding sentencing objectives for serious gun crimes are well-known, they are denunciation and deterrence. “These are the primary considerations when sentencing individuals who arm themselves either with handguns or with other types of dangerous firearms, (which I interpret as including any firearm that is unsafely stored, loaded or with readily accessible ammunition, possessed by an individual who has no lawful right to possess any type of firearm in the first place), that

may jeopardize public safety and put innocent lives risk. Sentences for such offences must reflect society’s utter contempt for such conduct.” [ 23 ] The Defence provided three cases of particular assistance, they were R. v. Deleon 2011 MBQB 165 , R. v. Peters 2015 MBCA 119 and R. v. Tran 2015 MBCA 120 . [ 24 ] In Deleon , Justice Bryk imposed a 2 year less one day Conditional Sentence Order (CSO) for the offence of possession of cocaine for the purpose of trafficking. In that case, police executed a warrant and recovered 232 grams of cocaine. Crown sought a 30- month sentence, Defence sought the CSO.

When imposing a CSO, Justice Bryk considered the fact that the accused had been in the community on bail, for 4 years without re-involvement, had become a business owner, was the sole provider of financial support for his two children who were aged 9 and 3 at the time of sentencing. His involvement was commercially motivated but he was assessed as a low risk to reoffend.

When concluding that a CSO would not endanger the community, Justice Bryk “obviously, if the accused re- involved himself with trafficking in cocaine or other illicit drugs the consequences to the community could be serious.” The central distinguishing factors in this case are obviously the conduct while on bail, the fact that only cocaine was found in Mr. Deleon’s possession, as opposed to the smorgasbord of illicit narcotics found in the possession of Ms.

Schabler as well as the absence of a loaded firearm. [ 25 ] In Peters , the Manitoba Court of Appeal upheld a lower court sentence of a 3 year suspended sentence with supervised probation. In that case, the offender was convicted of possession of cocaine for the purpose of trafficking. The offender was arrested after conducting a hand-to-hand transaction with an undercover officer, and his girlfriend had hidden cocaine, which was attributed to the accused, on her person. Upon his arrest, the accused was found with $405. in cash.

At the time of sentencing, the accused had sole custody of his three children, the youngest was 2 months at the time of sentencing. The accused was on bail at time of sentencing. The sentencing judge found that the way in which Mr. Peter’s had turned his life around while on bail amounted to an exceptional circumstance.

The Court of Appeal applied a deferential standard of review and upheld the sentence. [ 26 ] The central distinguishing factors in this case includes the absence of multiple different illicit drugs, the absence of a loaded firearm, the absence of exceptional circumstances and the presence of good behaviour while on bail. [ 27 ] In Tran , the same Manitoba Court of Appeal panel that upheld the sentencing Judge in Peters , also upheld a sentencing Judge who imposed a CSO for an offender who plead guilty to possess cocaine for the purpose of trafficking as well as possessing the proceeds of crime.

The accused in Tran was 19 years old, had no criminal record and was a University Student. The Judge found as fact that Mr. Tran involved himself in cocaine trafficking in order to pay for his university education. At the time of sentencing, the accused was on bail and had been in the community for 4 years at the time of appeal, having completed half of his CSO. The Court concluded that society would be best protected and served by having the offender rehabilitated as opposed to serving time in jail.

The appeal was dismissed. [ 28 ] The defence cases are important because they demonstrate that in order to achieve a proportionate sentence, sentencing Judges are not strictly bound by sentencing ranges or starting points. They are a clear reminder that sentencing is an individualized process, offender centered and dependant on the circumstances of both the case and the offender. Decision [ 29 ] Sentencing is more art than science. When done correctly, an appropriate sentence balances the seriousness of the offence with the moral culpability of the offender.

This is a delicate balance, one which is achieved with a consideration of the circumstances of the offence and of the offender, the impact on the community and the aggravating and mitigating factors. [ 30 ] In terms of the aggravating features; it is aggravating that when Ms. Schabler was arrested for the index offence, she was on bail and pending on charges that were committed in almost identical circumstances. That an unsafely stored and loaded firearm was recovered from her residence. The there were a significant and varied amount of illicit drugs seized.

The cellphone seized and the drug calls intercepted by the arresting officers is aggravating because not only was she stashing drugs, but she was clearly also involved in their sale and distribution. The size and commercial nature of her operation coupled with the fact that her involvement had grown in size while she was on bail, is both aggravating and deeply troubling in light of this offender’s own struggle with addiction. The facts of the earlier arrest in March 2021 demonstrates that the offender’s criminal involvement was continued and longstanding.

Her involvement was not fleeting or impulsive, quite the opposite, this was a clearly planned, premeditated and well developed criminal operation. From the size and varied nature of the seizure I infer that Ms. Schabler at the time of her arrest was a trusted member of the Dauphin’s illegal drug subculture. Again, the most significant aggravating fact and the key distinguishing feature from all cases submitted by defence counsel, is the presence of a loaded firearm.

From it, I infer that the offender had taken the preparatory steps necessary to engage in violent behaviour, either defensive or offensive with a view to protecting her drug stash and preserving her status in the Dauphin illegal drug hierarchy. This aggravating feature had the potential to jeopardized public safety and put innocent lives at risk.

[ 31 ] Ms. Schabler’s issues with addiction may have introduced her to the lifestyle of drug trafficking, but given the size and scale of her operation at the time of her arrest, I have no difficulty concluding that her continued participation in the lifestyle was for profit, clout and greed. I view this as being a very serious offence. [ 32 ] In terms of the moral culpability of Ms. Schabler, there are some significant mitigating factors to consider, first and foremost is the absence of a criminal record and the significant remorse demonstrated by the guilty pleas.

The offender’s prior good behaviour in the community, lengthy periods of employment and her high level of education demonstrate that she is a person who can live a pro-social lifestyle when she wants to. Her remorse is made all the more significant by virtue by the amount of programing successfully completed while in custody. While this does not amount to exceptional circumstance, it is nonetheless very mitigating in my view. [ 33 ] Additionally, the court appreciates that the Gladue report demonstrates that Ms.

Schabler is a Metis woman disenfranchised from her cultural identity, one who grew up with very little exposure to her culture but with significant amount of exposure to violence, trauma and substance abuse. Ms. Schabler is a person who is deeply impacted by this country’s shameful legacy of colonialism and colonization, and I find that her moral culpability is mitigated by these truths.

While these factors lower her moral blameworthiness, overall it nevertheless remains very high. [ 34 ] Given the serious nature of these offences and the high degree of moral blameworthiness, the punishment imposed needs to be significant and it needs to make an example of Ms. Schabler. Protection of the community, denunciation and general deterrence need to take centre stage in this sentencing proceeding. [ 35 ] The range e stablished by the Manitoba Court of Appeal for possession of cocaine for the purpose of trafficking in R. v. Gilchrist hovers around the 2.5 - 4-year range.

This is an appropriate starting point for Ms. Schabler. I recognize that appellate court starting points are to be considered as non-binding guidance for lower courts. ( See R. v. Parranto 2021 SCC 46 (at para 3 )) I, nonetheless, find the Gilchrist range to be quite instructive. In my view, there is significant value in respecting the ‘starting point’ or ‘range’ type of analysis. I see them as useful tools designed by appellate courts to reduce arbitrariness and disparity in sentences for similar offences imposed by lower courts.

They are also designed by appellate courts in an attempt to maintain the public’s confidence in the administration of justice by ensuring parity. [ 36 ] In the circumstances of this case, for the reasons outlined above, but emphasizing again, the presence of a loaded firearm and the significant and lengthy commercial aspect of her offending, I conclude that a sentence of 5 years is appropriate on the possession of cocaine for the purpose of trafficking offence. The primary focus of this court is punishment and protection of the community of Dauphin.

The mitigating factors and Gladue considerations reduce her moral culpability. In light of those factors, it is appropriate to reduce the sentence by 6 months.

Thus, the actual sentence imposed on the possess cocaine for the purpose offence is 4½ years (or 54 months) with a concurrent sentence of 2 years (or 24 months) on the firearm charge. [ 37 ] I am prepared to credit the offender with her time in custody, which I understand to be 321 days, which at time and a half, is 481 days (or the equivalent of 16 months.) Globally, the remaining sentence is 38 months going forward. [ 38 ] The disposition sheet should reflect 54 months on the CDSA offence less time in custody of 16 months, the remaining go forward sentence is one of 38 months.

On the firearm offence, the sentence is one of 24 months, concurrent to the CDSA offence. In addition to the custodial portion of this decision, I impose the following ancillary orders, a DNA order, a

section 109 weapons prohibition for 10 years, forfeiture of all items seized. I will waive costs and surcharge. ” original signed” ____ BAYLY, P.J.