Her Majesty the Queen ) Jasmine Zurbriggen , for the Crown ) - v. -, 2018 MBPC 48

2018 MBPC 48 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN: Her Majesty the Queen ) Jasmine Zurbriggen , for the Crown ) - and - ) ) Jonnathon Cheyenne Chartrand ) Tara Walker , for the Accused ) ) Decision delivered: December 17, 2018 LANG K, P.J. I. Factual Background [ 1 ] As a result of two separate searches executed by Winnipeg Police on May 9 and 11, 2017 at the address 133 Stanier Street in Winnipeg, the accused was charged with a variety of drug related offences including possession for the purpose of trafficking in: oxycodone hydromorphone methamphetamine carfentanil [ 2 ] Mr.

Chartrand was also charged with one count of simple possession relating to cocaine and one count of possessing proceeds of crime. [ 3 ] Mr. Chartrand was further charged with numerous weapons offences relating to four rifles (one of which was loaded), ammunition, emulsion explosives and detonators found during the searches. [ 4 ] Following trial Mr. Chartrand was convicted of 30 drug and weapons related offences.

It was the conclusion of this Court that with respect to the methamphetamine and carfentanil, the accused was possessing these drugs for the purpose of trafficking at a high level given the quantities involved, the circumstances surrounding the housing of these drugs, and the opinion of the police expert. [ 5 ] Sentencing submissions were heard on November 21, 2018, (a date agreed upon by the Crown and Defence to accommodate their schedules). [ 6 ] Today Mr. Chartrand appears before the court for sentencing. II. Position of the Parties a.

Crown Position [ 7 ] The Crown’s position on sentencing, as set out in its Brief of Law, is as follows: An exemplary sentence is required to reflect the gravity of the offences and the deadly mix of drugs and weapons possessed by the Accused. High level trafficking in carfentanil should attract sentences in the range of 18-20 years. Taking into account proportionality and all of the circumstances of this case, the Crown seeks a sentence at the top of that range. Drug Convictions - Information 012-62092 Count Charge Substance Sentence Sought by Crown 6 5(2) CDSA Carfentanil – 500 blotters.

High level 20 years 3 5(2) CDSA Methamphetamine – 1kg. High level 10 years concurrent 1 5(2) CDSA Oxycodone – 10 pills Concurrent sentence 2 5(2) CDSA Hydromorphone – 12 x 24mg pills Concurrent sentence 4 4(1) CDSA Cocaine – 1.07g Short concurrent sentence

Weapons Convictions – Information 012-62094 Counts Charges Sentence Sought by Crown Remington 760 .270 cal semi-automatic rifle : loaded with three rounds, prohibited firearm. Sawed-off barrel. Functioned correctly as a pump-action firearm. Ammunition tested and functioned correctly with the firearm. 2 19 1 95 CC 92 CC 86(2) 6 years concurrent Concurrent sentence Concurrent sentence Remington 870 12 gauge action shotgun : non-restricted firearm, functioned correctly as a pump- action firearm 16 23 92 CC 86(2) CC Concurrent sentences Savage Axis 22-250 cal bolt action rifle : prohibited firearm. Sawed-off barrel.

Serial number obliterated. Functioned correctly as a bolt-action firearm. 3 17 24 108(1)(b) 92 CC 86(2) Concurrent sentences Weatherby 12 gauge pump action shotgun : non-restricted firearm, functioned correctly as a pump-action firearm 18 25 92 CC 86(2) CC Concurrent sentences Emulsion Explosives & Detonators 20 21 22 92 CC 92 CC 82(1) CC 3 years concurrent & concurrent Breach of Weapons Prohibitions Counts 4-15 12 x 117.01 CC 1 year consecutive (but concurrent to each other) The following ancillary orders: a. Forfeiture of all the items seized b.

DNA order c. s. 109 weapons prohibition – the crown is seeking a lifetime prohibition (the Crown gave notice of its intention to seek enhanced punishment) b. Defence Position [ 8 ] The Court understands the Defence position on sentencing, given during oral argument, to be as follows: Drug Convictions Count Charge Substance Sentence 6 5(2) CDSA carfentanil 10 years 3 5(2) CDSA methamphetamine 8 years concurrent 1 5(2) CDSA oxycodone 2 years concurrent 2 5(2) CDSA hydromorphone 2 years concurrent 4 4(1) CDSA cocaine short concurrent

Weapons Convictions Defence submits that all weapons convictions should be dealt with by way of 3 year sentences concurrent to each other and concurrent to the drug offence convictions. Breaches The Defence agrees with the Crown to a one year sentence, consecutive to the drug and weapons sentences, but concurrent to each other, for each of the breach convictions. Totality The Defence would then reduce the overall sentence from 11 years to 9 years based on the totality principle. III. The Offender [ 9 ] Much can be learned about Mr. Chartrand from the comprehensive Pre-Sentence Report (PSR) filed with the court.

Although the entire report has been reviewed and considered, I summarize it as follows: a. Criminal History [ 10 ] Mr. Chartrand has an extensive criminal record starting as a youth in 2002 (19 youth convictions) and continuing as an adult in 2006. His adult record is without any significant gap up to the date of these offences. [ 11 ] Mr. Chartrand has convictions for numerous offences as an adult including: 1 theft under 1 theft over 1 possession of break in instruments 1 assault with a weapon 2 mischief 1 traffic in a

schedule substance 4 fail to comply probation order 2 disobeying order of court 9 utter or use counterfeit money 2 possession of property obtained by crime 1 dangerous operation of a motor vehicle 1 assault causing bodily harm 1 uttering threats 1 theft of motor vehicle 1 fail to comply with recognizances 1 possession of scheduled substances for purpose of trafficking (cocaine and methamphetamine) 1 possession of scheduled substances 2 possession of prohibited weapon (from 2007 and 2015 but not on record as filed) __ 33 [ 12 ] In total Mr.

Chartrand has 19 youth, 33 adult, and 30 new adult convictions from the current matters, for a total of 82 criminal convictions. [ 13 ] Notably two of his previous convictions relate to trafficking in a scheduled substance and therefore are directly related to the offences he is now being sentenced upon. [ 14 ] Mr. Chartrand has previously received periods of probation with mixed success. He has received custodial sentences as an adult on 13 separate occasions. The last custodial sentence commenced on February 22, 2016 and was for a period of 162 days (taking into

account 288 days of pre-sentence custody). Notably, therefore, Mr. Chartrand would have been freshly out of prison on his last incarceration when he began planning his most current set of convictions. We know he began moving items into the “stash house” on Stanier Street in January 2017. [ 15 ] On May 9, 2017 Mr. Chartrand was charged with the current offences and has been in custody continually since that date. b. Gang Life [ 16 ] Although Mr. Chartrand freely admitted that he partook in gang life from ages 15 – 25, he reported no longer being involved with gangs. Probation Services however contended that Mr.

Chartrand is still actively engaged as a member of a known Winnipeg street gang. Probation services further reported that if Mr. Chartrand would have been released while awaiting trial, the names he provided as being people he could stay with were known gang members (page 11 of the PSR). [ 17 ] Notably Mr. Chartrand, in his institutionalized history of misconduct, has actively promoted gangs. Interestingly as well is, that his mother, Ms.

Monica Wiebe, was interviewed for the pre-sentence report and she expressed that, “she wishes he would stop associating with gang members and spend more time with his family”. (page 7 of the PSR) c. Institutional Misconduct [ 18 ] While in custody on the current charges, Mr. Chartrand has demonstrated institutional misconduct including: - damage to the facility - possession of contraband - disrespectful behavior towards staff - urinating on the cell door of another inmate - disobeying staff directions (page 4 of the PSR) [ 19 ] Mr.

Chartrand has been disciplined for his behavior by multiple terms of segregation while in custody in 2018. He also refused to attend the “End to Aggression” program in June 2017, (page 4 of the PSR). [ 20 ] Notably however, Mr. Chartrand did perform better while in custody once transferred to the Medium Security General Population Unit. [ 21 ] Mr. Chartrand does not identity as being a violent person despite his convictions for uttering threats, assault with a weapon and assault causing bodily harm. d. Family [ 22 ] Mr.

Chartrand was born and raised in Winnipeg, Manitoba and is 30 years of age. [ 23 ] His parents are Monica Wiebe and step father, Kenny Moran. He has four sisters and three brothers. He has only met his biological father on two occasions. He advised that his stepfather was a more prominent father figure in his life. [ 24 ] Mr. Chartrand described his childhood as “normal”, “absent of neglect, abuse or excessive substance use”. He noted that his mother gambled a lot. (page 7 of the PSR) [ 25 ] Mr. Chartrand’s mother stated that Mr. Chartrand had an “ok childhood”. [ 26 ] Mr.

Chartrand’s brother, Daniel Wiebe, described Mr. Chartrand’s upbringing as “pretty rough” and that on occasion there was not enough food and the kids wore “hand-me-down clothing”. [ 27 ] Mr. Chartrand has two children with different mothers. He has had no real involvement in their lives. e. Education [ 28 ] Mr. Chartrand achieved his grade 8 education. He has never taken education seriously even though he was considered cognitively advanced, compared to others, at the Learning Assistance Centre, which he attended while in school. In that program Mr.

Chartrand was noted to be manipulative of others. (page 9 of the PSR) f. Employment [ 29 ] Mr. Chartrand has had minimal employment throughout the years. He attributed this to his gang involvement. (page 10 of the PSR) g. Substance Abuse [ 30 ] Mr. Chartrand is a “meth” user and has been for seven years, according to him. He indicated at page 10 of the PSR, “I think I have a problem with meth”. He reported using it on a daily basis when he was last in the community. He most certainly has an addiction issue.

[ 31 ] Mr. Chartrand indicated no issues with alcohol although notably Mr. Chartrand has been taken into custody while intoxicated on previous occasions. (page 10 of the PSR) h. Gladue [ 32 ] Mr. Chartrand self-identified as Metis and is “unsure if his mother or his father is Indigenous”. He has had no cultural training.

He believed his mother and grandmother may have been involved in residential schools however his mother Monica Wiebe, who was also interviewed for the PSR, indicated her mother, (and presumably herself) was not involved in the residential school system, although her mother “may have been involved in day school”. (pages 11 and 12 of the PSR) i. Risk to Reoffend [ 33 ] Mr. Chartrand advised that he grew up in Winnipeg his whole life and he liked it, although he did mention that it was easy to become involved in negative lifestyles.

Presumably this is a reference to his history with gangs and drugs. [ 34 ] The PSR considered Mr. Chartrand a “very high risk to re-offend”. The reasons for that conclusion are as follows (page 15 and 16 of the PSR): His significant criminogenic risk factors include: Companions, Education/Employment, Criminal History, Social Patterns, and Leisure/Recreation. Although the subject stated he is no longer a gang member, Probation Services file information indicates he is still involved with a gang. He admitted he associated with criminal peers in the community, but he stated they were not gang members.

The subject reported he has two friends in the community whom are positive influences. Other than one of his brothers, the subject does not have a close relationship with his family members who live prosocial lives. The subject revealed he does not have his high school education and that he does not have a history of long term, stable employment. He attributed his lack of employment experience to his history of involvement with gangs. The subject has used criminal activity as a means for financial gain in the community. He displayed insight into how the drug trade contributes to crime in the community.

The subject has been sentenced on multiple prior occasions. His criminal history includes violence, a drug offence, and non-compliance. He has been involved with Manitoba Justice numerous times since 2002. He has demonstrated an inability to abide by rules in custody and an inability to abide by the law in the community. Although he has demonstrated some compliance in the community, he has been unable to maintain long term compliance and refrain from reoffending.

He advised he is willing to work with authority figures and comply with their direction; however, to note, he has been disrespectful and oppositional to authority while in custody. The subject has been in custody since May 2017. During his current term of incarceration, he has [demonstrated] institutional misconduct which has included damaging a cell window, being in possession of contraband, disrespectful behavior towards staff, urinating on the cell door of another inmate, and disobeying staff direction.

He refused to attend formal programming and he has not fully taken advantage of accessible workbooks in custody. On a positive note, the subject’s custody case manager advised the subject has been respectful and unproblematic since being housed on his unit. IV. Analysis [ 35 ] In determining the appropriate sentence for this offence, I am guided by the provisions of sections 718 to 718.2 of the Criminal Code . A sentence must be one that fits the particular offence and the individual offender before the Court. [ 36 ] In order to achieve the fundamental purpose of sentencing outlined in

section 718 of the Criminal Code , namely contributing to respect for the law and the maintenance of a just, peaceful and safe society, the sentence I impose must be a just sanction. It must pursue one or more of the following objectives: denunciation of unlawful conduct; deterring the offender and others from committing offences; separation of the offender from society if necessary; rehabilitation; providing reparation to the victim and community; and promoting a sense of responsibility and acknowledging the harm done.

The relative emphasis to be placed on each of these objectives must be appropriate for the circumstances of this offence and this offender. [ 37 ] Even though the emphasis given to the sentencing objectives listed in

section 718 may vary according to the circumstances of the case, the resulting sentence must respect the principle of proportionality.

Section 718.1 of the Criminal Code says that the fundamental principle of sentencing is that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: R. v. Nasogaluak , 2010 SCC 6 , [2010] 1 S.C.R. 206 . [ 38 ] I must also have regard for the secondary sentencing principles listed in

section 718.2 of the Criminal Code , including consideration of aggravating and mitigating circumstances, totality, parity, the need to consider all available reasonable sanctions other than imprisonment, and the need to consider the circumstances of aboriginal offenders. a. Proportionality -

section 718.1 [ 39 ] Proportionality is central to the sentencing process: R. v. Nasogaluak , supra ; R. v. Solowan , 2008 SCC 62 , [2008] 3 S.C.R. 309 . It is the most important of the factors codified in sections 718 to 718.2 : R. v. Arcand , 2010 ABCA 363 . In R. v.

Ipeelee , 2012 SCC 13 , [2012] 1 S.C.R. 433 at paragraph 37 , Justice LeBel described proportionality as the " sine qua non " of a just sanction, saying that a sentence which properly respects the principle of proportionality inevitably ensures that secondary goals such as denunciation, restraint, promoting justice for victims, and maintaining public confidence in the administration of justice, are met. [ 40 ] In R. v. Yuzicapi , 2011 SKCA 134 , Chief Justice Klebuc emphasized the importance of proportionality in sentencing, and provided guidance as to its application. At paragraph 28, he wrote:

The gravity of an offence and the moral culpability of the offender in committing the offence are the principal factors to be considered in sentencing. In D.S.K. this Court stated the gravity of an offence lies in three considerations: (

i) the nature and comparative seriousness of the offence, (ii) the circumstances of its commission, and (iii) the harm caused by it. [ 41 ] The matters for which Mr. Chartrand has been convicted are extremely serious. Possession for the purpose of trafficking is an indictable offence carrying a maximum penalty of life imprisonment. [ 42 ] In this case not only did Mr. Chartrand possess carfentanil for the purpose of trafficking but he went to extraordinary lengths not to be detected.

He set up a stash house complete with numerous monitoring cameras and barricades fortifying the front door of the house. [ 43 ] In addition, both loaded and unloaded altered rifles were found at this location as were several sticks of emulsion explosives and detonators. [ 44 ] The carfentanil possession was of a high amount. Mr. Chartrand was aware that he specifically possessed a large amount of carfentanil. The lethal effects of carfentanil are well known in the community.

The devastation from these drugs in our communities has been extensively documented and reported upon. [ 45 ] Dealers of these types of drugs prey on perhaps the most vulnerable in our society – the hopelessly addicted. The devastation to our communities is widespread. [ 46 ] The Crown filed a Brief of Law and several documents relating to the effects of fentanyl and carfentenil. The Defence did not challenge the documents nor the Crown’s conclusions. Those documents included firstly, statements regarding fentanyl by Dr. Graham Jones; Dr.

Jones qualifications include a Phd, Chief Toxicologist from the Office of the Chief Medical Examiner and Clinical Professor, Department of Laboratory Medicine and Pathology Faculty of Medicine and Dentistry, University of Alberta. Secondly, a document titled General Report – Fentanyl prepared by Daniel S. Sitar, BScPharm, MScPhD, FCP dated February 7, 2017; and lastly, General Report – Carfentantil prepared by Daniel S. Sitar, BScPharm, MScPhd, FCP, dated February 7, 2017. [ 47 ] The Crown also relied upon the testimony of Sgt.

Claudio Belfiglio, the Crown’s expert at trial, with respect to the harmful effects of fentanyl and carfentanil. Again, this was not challenged by the Defence. [ 48 ] The Crown nicely summarized these reports in it’s Brief of Law at paragraphs 16 and 17 as follows: 16. Cocaine and methamphetamine are insidious and vile drugs that can be deadly, usually over time or by way of accidental overdose in a user. Fentanyl, however, a drug that is estimated to be 100 x more potent than morphine, can be lethal in just one small dose.

The risk associated with this particular drug is therefore extremely heightened for users, their families and friends, first responders, and police officers who might inadvertently and unknowingly come into contact with the smallest amount of residue. 17. Carfentenil, a drug used to sedate wild animals with no human application in any legitimate setting, is even more potent – up to 100 x more so than fentanyl. This poses significant health hazards to humans and there is potential for “sudden death” after exposure (which can be airborne or through inadvertent skin contact).

As a result of the current fentanyl crisis in Canada, new sentencing ranges are emerging across the country to adjust the gravity of trafficking in fentanyl and carfentanil. [ 49 ] The courts in Manitoba have recently remarked on the significance of fentanyl and carfentanil and their devastating effects on society and in the Winnipeg community. Notable cases brought to my attention by the Crown which are worthy of repeating are as follows: R v Falconer , December 20, 2017 MBPC (unreported) at page 2 lines 17 – 26 Fentanyl is a plague.

It is something we are scrambling to deal with as a community and as a criminal justice system. The dangerousness of that particular substance cannot be exaggerated. It is killing people, its killing young people, and it is something that we are trying to come to terms with and one of the ways that we do that is by ensuring that those that peddle that substance into our community, that provide it to our young people, have to be dealt with with determination, hostility, and severity.

R v Cyr , February 21, 2018 MBPC (unreported) at pages 3 and 4 The court recognized that carfentanil is an “entirely different drug.” Its potency and impact on the community is “far more significant than other

Schedule 1 drugs”. It has broader reaching implications, and more immediate consequences. Sentences must reflect that difference. The more “dangerous and potent a drug and the consequences to society” – the more significant the sentence for trafficking the drug will be. In R v Parris and Zegarac , April 16, 2018 CR17-01-36283 CR16-01-35609 MBQB (unreported) Justice Spivak underscored the gravity of the offence as follows at page 5 line 13: Carfentanil is a deadly drug with devastating consequences. Unlike fentanyl, which is medically managed, carfentanil was not created for human consumption.

There is a higher risk of overdose because of its strength and uncertainty of its potency and potential for sudden death after human exposure. In addition to the risk to users and traffickers, the risk to public safety is significant. Carfentanil can be inadvertently inhaled or absorbed through the skin. Trafficking in such a substance involves a high degree of moral culpability. R. v. Csincsa, June 21, 2018 CR17-01-36464 MBQB (unreported) at page 5. This is a case involving the importation of fentanyl. Justice Martin’s comments are insightful as it relates to the dangers of fentanyl and carfentanil.

The Court had this to say as it addressed the accused starting at page 5 line 5:

You have no idea that there was any quality control, the fentanyl came in as fentanyl as opposed to carfentanil, and whether that may have had an impact on anybody who accidentally touched it like postal people or people working at customs. But more importantly, for the people that you were going to let have this stuff, every single time that you either did or would give them, sell them a unit of this drug, no matter how you cut it or dealt with it, you gambled with their lives, every time.

It was just a pure roll of the dice. … ... there is no question that it is quite clear that deaths from fentanyl, carfentanil, impure fentanyl, opioids of this particular nature, are at an all time, unprecedented high. As I understand it, at this point in the year 2018 we are a thousand deaths ahead of where we were last year, at this point.

And particularly in relation to this matter, not only is specific deterrence important but general deterrence is a very, very significant factor here because other people who might be inclined to do what you did, and I take it it is not actually that difficult to do, but other people who might be inclined to do what you did and ultimately roll the dice with some poor addicts life, must know that this will be treated exceptionally seriously by the courts. [ 50 ] In the Chartrand case, in addition to the carfentanil, significant amounts of methamphetamine were also seized, again suggestive of high level trafficking. [ 51 ] Other opioids in smaller amounts, but still for the purpose of trafficking, were also found during the searches. b.

Mitigating [ 52 ] Unfortunately for Mr. Chartrand there are few mitigating factors. In the Court’s view Mr. Chartrand himself has an addiction to methamphetamines, which presumably has driven some of his offending, including a long and related criminal conviction history. [ 53 ] In terms of Gladue factors, Mr. Chartrand does identify as Metis although he was not sure which of his parents is Indigenous. Although he knew his father, “his stepfather has been a more prominent father figure in his life”. His mother gambled. Mr. Chartrand did not experience any neglect or abuse and felt he had a normal upbringing.

He enjoyed growing up in Winnipeg. [ 54 ] With respect to the possibility of a Gladue report being prepared, it was agreed, prior to sentencing submissions occurring, that a Pre-Sentence report would be ordered to start the process. If Defence then wanted more in terms of consideration of Gladue factors, the court would consider such a request. Having received and reviewed the Pre-Sentences report the Defence specifically declined the preparation of a Gladue report. [ 55 ] Therefore, while some consideration was given to Mr. Chartrand’s “moral culpability”, the Gladue factors for Mr.

Chartrand are minimal in comparison to many cases that come before the courts. c. Aggravating [ 56 ] Unfortunately for Mr. Chartrand, there is an extensive list of aggravating factors including: • he was trafficking at a high level. This required a deep and lasting involvement in the drug trade and supports a high level of moral blameworthiness; • he was trafficking in a drug that has no application for humans, even in a medical setting: it is extremely dangerous, addictive, and often fatal.

Every dose of carfentanil is a potentially lethal dose; • this was a commercial enterprise; • he has a lengthy criminal record including two prior convictions for 5(2) CDSA –

schedule 1; • he appears to be climbing the ladder of criminal offending; his last convictions for possession for the purpose involved cocaine and methamphetamines; • he was a “one-stop shop” trafficker dealing in four different

Schedule 1 drugs to meet the demands of all users: carfentanil, methamphetamine, oxycodone, hydromorphone; • he was specifically aware that he possessed carfentenil. He acknowledged as much during his recorded telephone call from jail when he admitted, “I got caught with fuckin …. a bunch of carfententil”; • he was trafficking out of a residence that was set up for that purpose using anti-detection techniques; there were surveillance cameras in place, the front door was barricaded, the Accused maintained an address elsewhere “on paper” to shield himself; • he was convicted of possessing 4 firearms.

One of the firearms was a prohibited, loaded firearm with a sawed-off barrel while another was also prohibited with a sawed-off barrel and an obliterated serial number; • he possessed highly regulated emulsion explosives – along with detonators – which can lead to death when used by an untrained individual, as was described at trial; • he possessed four weapons and emulsion explosives while being on two separate court orders not to possess any weapons; • he has not demonstrated any significant prospects at rehabilitation; • he has not done well while in custody having been found to demonstrate institutional misconduct including damage to the facility, possession of contraband, disrespect towards staff and disobeying staff directions and urinating on another inmates cell door; and

• he is at a “very high risk” to reoffend. d. Parity

i) Established Ranges [57] Consideration needs to be given to similar cases, and especially to those decided in Manitoba. The Supreme Court has noted: Sentencing is an individualized process and in any event, sentences for a particular offence should be expected to vary some degreeacross various communities and regions in this country, as the just and appropriate mix of accepted sentencing goals will depend on theneeds and current conditions of any particular community where the crime occurred. R. v.

M(CA), (SCC), [1996]1S.C.R. 500, 105 C.C.C. (3d) 327 [58] In the case at bar, the Crown contended that the quantity and level of trafficking is relevant for the purposes of assessing thegravity of the offences under

section 718.1 of the Criminal Code. In Manitoba, three leading cases set out the appropriate ranges fortrafficking drugs at the street, mid, and high level. [59] R v Gilchrist, (2004 MBCA 21 at para. 27) sets out the range for first-time offenders trafficking in hard drugs at the street levelin Manitoba. This range “may start at less than two and a half years” but is wide and “extends beyond four years”. [60] R v Rocha, (2009 MBCA 26 at para. 64) sets out the range for mid-level (ounce level) dealers.

The range in Manitoba for thesetypes of offences is 5-8 years for mid-level traffickers and 3-6 years for “mere couriers”. [61] When it comes to high level trafficking of methamphetamine and other

Schedule 1 substances, the range is 8-12 years, asaffirmed by the Court of Appeal in R v Grant, (2009 MBCA 9 at par 108). [62] The categorization of traffickers as street-level, mid-level, and high-level and the corresponding application of sentencingranges are useful tools that help the court assess the moral culpability of an offender. However, courts have repeatedly recognized thatthis is not a “scientific exercise” and there is no “bright line” dividing the different types of traffickers – rather, it’s more of a continuum.

Categorizing drug traffickers and arriving at a fit sentence always involves the weighing of many factors. (R v Bisson, 2018 MBCA 92 atpara. 6) [63] In this case, the Crown contended, and the Court agrees, that the previously established range for high level traffickers does notaddress the emerging fentanyl epidemic which is currently plaguing the country as described herein.

While the 8-12 year range appliesto high-level cocaine and methamphetamine traffickers, fentanyl and carfentanil are different creatures posing significantly higher risks. ii) Crown Cases [64] I received and reviewed many cases from the Crown and Defence. The cases I found most relevant are as follows: [65] In R v Betteridge, (December 12, 2017 MBPC, unreported) the accused was in possession of 300 carfentanil blotter tabs, 2g ofpowdered fentanyl, and $1,100 in her vehicle. A further search of her home revealed 56g of powder fentanyl, 120 carfentanil blotters, and$2,000.

The court accepted that she was a mid-level dealer. She had no criminal record, had a very difficult upbringing, was a drugaddict, had Gladue factors, and expressed remorse by entering an early guilty plea. She was sentenced by Judge Killeen on December20, 2017. The Court imposed the jointly recommended sentence of 10 years but noted that this is “clearly at the lower end of the rangeof sentences imposed for this drug”. [66] In R v Falconer, (December 20, 2017 MBPC unreported) the accused was in possession of 227 fentanyl blotter tabs, an ounceof meth, and $220.

Falconer was also characterized as a mid-level dealer. The accused had no criminal record and expressed remorse byentering a guilty plea. She had significant addictions issues. Judge Roller imposed a sentence of 6.5 years. [67] In R v Cyr (February 21, 2018 MBPC, unreported) (“Cyr”), the police located a small amount of fentanyl in the accused’shome during execution of a search warrant. The accused wasn’t immediately located but later, upon arrest, he was found to be inpossession of 25 carfentanil blotters.

The accused had a lengthy criminal record with one prior conviction for 5(2) CDSA and significantaddiction issues spanning 20 years. He pled guilty to possession for the purpose of trafficking in carfentanil and was sentenced to 5.5years. [68] In Cyr the Court underscored its significant role to play in sending a message to those who traffic in this extremely potent andoften lethal drug. [69] In R v Parris and Zegarac, (April 16, 2018 CR17-01-36283; CR16-01-35609, MBQB) the two accused were arrested togetherin a taxi in possession of cash and fentantyl. A search warrant executed at Mr.

Parris’s hotel suite resulted in the seizure of 1,477 blottertabs of carfentanil and $6,600 in cash. He was at large at the time, having left his court-ordered residence at the Teen Challengeprogram. The accused had a criminal record with multiple convictions. He suffered from opioid dependency. [70] Mr. Parris plead guilty to possession of the 1,477 blotter tabs for the purposes of trafficking and the court endorsed the jointlyrecommended sentence of 13 years.

Justice Spivak noted that the accused “acknowledged the magnitude of his wrongdoing” by hisguilty plea and his participation in a joint recommendation for a significant sentence. He had strong family support. He was noted to beopioid dependant. [71] R v Csinesa (June 21, 2018 CR17-01-36464 MBQB), (“Csinesa”), is a case involving the importation of fentanyl. The accusedimported fentanyl on 3 occasions: 2 grams, 3 grams, and then 9.26 grams. He had a recent conviction for 5(2) CDSA involvingcannabis marihuana.

He plead guilty to 6(1) CDSA and Justice Martin endorsed the joint recommendation for a sentence of 10 years. The Court described the offence as “absolutely appalling” and further noted that for every person that would have received some portion

of the drugs, the accused “rolled the dice with their life”. [ 72 ] R v Mckay (October 19, 2018 MBPC, unreported) is a very recent fentanyl/carfentanil trafficking sentencing decision in Manitoba. In that case, the accused engaged in the sale of fentanyl and carfentanil over a lengthy period of time. He ultimately admitted to selling carfentanil to a user who subsequently died of an overdose.

Judge Lord endorsed the joint recommendation for a 15 year sentence and echoed the sentiments of Justice Martin in Csinsca . [ 73 ] These cases demonstrate that Manitoba courts have been following the approach that was laid out by the British-Columbia Court of Appeal in R v Smith . In that case, the Court recognized that the sentencing range for fentanyl should be “materially higher” or “different and markedly higher” than the sentencing range for other dangerous drugs, even heroin, because of the enhanced risks associated with fentanyl.

As a result of the “continuing escalation in the number of fentanyl-detected deaths” and the now “ubiquitous awareness” of the risks posed by illicit fentanyl, a very substantial increase in the sentencing range for trafficking in fentanyl was justified. ( R v Smith , 2017, BCCA 112 at paragraphs 48-49 ; 65) iii) Defence Cases [ 74 ] R v Brown , 2016 MBCA 115 (“Brown”) . The accused plead guilty to trafficking in heroin, possession of heroin for purposes of trafficking, and possession of a restricted firearm.

The sentencing judge found that the accused was a mid-level drug trafficker and sentenced him to six years imprisonment concurrent for two drug offences, plus three years consecutive for a firearm offence involving a “loaded restricted firearm,” for a total of nine years. The accused appealed sentence. The appeal was dismissed. It was held that the sentencing judge’s reasons demonstrated that she was clearly alive to, and carefully considered, arguments regarding the accused’s level of involvement in trafficking heroin.

Finding that the accused was a mid-level drug trafficker was open to her on the facts. [ 75 ] In Brown , the Court of Appeal also found that having imposed a consecutive sentence for the weapons offence, the sentencing judge considered the totality principle and correctly exercised her discretion by declining to reduce the total sentence. The Court of Appeal found that if, as the sentencing judge concluded, the accused was a mid-level dealer, then the sentence imposed fell within the range and was not demonstrably unfit. [ 76 ] R v Williams , 2018 ONCA 367 (“Williams”) .

The accused was arrested in possession of drugs, large amounts of money, and a handgun. The accused was released on bail and was arrested again, this time in possession of 1.02kg of cocaine and a handgun with ammunition. The accused was convicted of possession of cocaine for the purpose of trafficking, careless storage of a firearm, unlicensed possession of firearm, unauthorized possession of a restricted weapon, possession of a loaded handgun, and possession of a firearm with defaced serial number.

The accused plead guilty to possession of cocaine for the purpose of trafficking, possession of cannabis for the purpose of trafficking, carrying a concealed weapon, possession of a restricted firearm with readily accessible ammunition and breach of recognizance. The accused was sentenced for two sets of convictions at the same time, and sentenced to an aggregate of 12 years of imprisonment. The accused appealed sentence. The appeal was allowed. [ 77 ] In Williams , it was concluded that the sentence was unfit.

The Court of Appeal found that while the sentencing judge noted guilty pleas to the second set of charges, the judge’s reasons did not indicate he took the guilty pleas into account in determining the appropriate sentence. While the trial judge noted the relative youth of the accused at the time of sentencing, his reasons did not indicate he took into account the accused was just 23 years of age and a first time offender at the time of his first set of offences. The total sentence was varied to nine years imprisonment. [ 78 ] R v Mann , 2018 BCCA 265 (“Mann”) .

Two accused, KM and SM plead guilty to several drugs and firearms offences. They sold potentially lethal doses of fentanyl to undercover police officers. The accused used dangerous methods to combine substances and their operation had features of a mid-level trafficking. SM received concurrent five year imprisonment for trafficking in cartentanil, and three year imprisonment, consecutive for possession of a loaded firearm discovered when police conducted search warrant at his residence.

SM’s global sentence was reduced to seven years after taking into consideration the totality principle while KM received a global sentence of five years imprisonment. SM appealed, the appeal was dismissed. [ 79 ] While a large part of SM’s appeal centered around whether or not he was aware of the nature of the drug that he was trafficking, several other interesting comments appear in of this case. [ 80 ] The Court of Appeal found that the brothers plead guilty to engaging in a joint enterprise that involved dial-a-dope trafficking in fentanyl and in analogues in the Fraser Valley.

In addition to the drug related offences, SM plead guilty to being in possession of a loaded 38 calibre handgun, a restricted firearm that was found in the execution of a search warrant on the residence where the drugs were being mixed and packaged for street level sale. [ 81 ] SM alone plead guilty to trafficking in carfentanil and possession of carfentanil for the purpose of trafficking. [ 82 ] The court held at paragraph 13 that the dial-a-dope operation was small and unsophisticated. Deliveries were only made during the day.

The appellants were the only two people involved in the operation. [ 83 ] The court commented fairly significantly on the lethalness of carfentanil. At paragraph 27 the court held; “Carfentanil is about 100 times more potent than fentanyl and 10,000 times more potent than morphine. Due to its extreme toxicity carfentanil has no safe or beneficial human use, even within the medical community in highly controlled environments. Its sole use appears to be as a large animal tranquilizer agent.

Sergeant Boechler said there is “no way to effectively and safely try to mix carfentanil for any sort of street level distribution”. A user of carfentanil will likely go into immediate overdose and require the administration of naloxone… Sergeant Boechler testified that the introduction of carfentanil into illicit substances sold on the streets has significantly increased overdose deaths in British Columbia.” [ 84 ] With respect to the personal circumstances of SM, it was held that he was born in the Fraser Valley and lived with his parents.

The drugs were mixed and packaged for street level sale from his residence. SM was 22 years of age when he participated in the drug offences and 23 at the time of sentencing. He had no criminal record. Through his counsel SM advised the sentencing judge that when

the drug related offences were committed he was struggling with his own addiction to opioids, including fentanyl. SM expressedremorse for his behavior and took responsibility for his conduct.

He had several letters of support from family members. [85] SM submitted that he should be sentenced as a youthful first time offender who ran an unsophisticated street level dial-a-dopeoperation in circumstances where he was unaware of the true dangers of fentanyl. [86] The court at paragraph 73 held: First, as the appellant’s counsel acknowledge in oral argument, the offence of trafficking in carfentanil is even more serious than theoffence of trafficking in fentanyl.

The fundamental principle of proportionality requires courts to craft sentences reflecting both thegravity of the offence committed and the moral blameworthiness of the offender: R v Ipeelee 2012 SCC 13 , [2012] 1 SCR433… The proportionality principle, said in Ipeelee to be the sine qua non of a just sanction, finds statutory expression in

section 718.1of the Code. A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. As the proportionalityprinciple takes its meaning, in part, from the gravity of the offence, it is not surprising that the more serious of the offences committed by[SM] attracted a harsher penalty.

I see no error in principle in the judge’s decision to distinguish, for sentencing purposes, between theoffences involving carfentanil and those involving fentanyl. [87] At paragraph 75 the court had this to say with respect to the trafficker’s ignorance of the drug he or she is trafficking: A traffickers ignorance as to the exact composition of drugs will not, as a general rule, operate as a mitigating factor.

In R v Herrell,BCCA 114 at paragraph 19 the court noted that “the seller of a synthetic illegal drug must be assumed to recognize an inherent riskassociated with distributing synthetic drugs, which is that a composition of the drugs may be unknown”. Herrell reflects the wellestablished sentencing principle that determining moral culpability involves an examination of the “intentional risks taken by theoffender, the harm he or she has caused and the degree of deviation of acceptable standards of behavior the conduct represents”.

R v Johnson (1996) (BC CA), 112 CCC (3d) 225 (BCCA) at paragraph 33. [88] The court concluded at paragraph 79 as follows: In my view, and as a general rule, where an offender knowingly trafficks a controlled substance that is subsequently discovered tocontain an additional, more harmful substance, the offender cannot maintain that his or her moral culpability is reduced simply becausehe or she was unaware of the additional substance. [89] In my view, Mann stands for the proposition that carfentanil in many respects is in a league of its own. The most serious of alldrugs.

Accordingly, it must be dealt with differently, and more harshly, than any other drug. Having said that, mitigating factors stillmust be taken into account. In Mann, SM was a youthful offender with no prior criminal record who entered guilty pleas at an early stageand was arguably operating an unsophisticated street level to mid-level trafficking operation. In my view the facts in the present case arefar more egregious. [90] R v Vezina, 2017 ONCJ 775.

The accused plead guilty to possession for the purpose of trafficking methamphetamine, heroin,fentanyl and marihuana, possessing a loaded prohibited firearm, possessing firearm and ammunition while prohibited, possessing firearmwithout being the holder of a license and carrying a concealed weapon. The accused had a significant prior related criminal record andhe was subject to two weapons prohibitions. The accused was sentenced to 12 years imprisonment after he was credited with time servedon pre-trial custody (six months). It was noted that Mr.

Vezina entered a guilty plea to the charges before the court, and that he had along standing addiction to illicit substances. Mr. Vezina also suffered from mental health issues and turned to street drugs for self-medication. Mr. Vezina was amenable to rehabilitation and was making plans to take those steps at the time of his arrest. Mr. Vezinawas co-operative with police from the time of his arrest and volunteered the information that the gun was loaded and willingly disclosedthe nature of the substances in the toolbox. [91] R v Aujla, 2016 ABPC 272.2016.

The accused was convicted of possession for the purpose of trafficking in fentanyl, cocaine,heroin and methamphetamine. He was also convicted of five firearms offences related to possession of two unloaded handguns,possession of $31,000.00 in cash which were crime proceeds and possession of body armor. Police found in his possession 454 fentanylpills, 1, 867g of cocaine, 769g of heroin and 401g of methamphetamine. The accused did not have a criminal record and his prospectsfor rehabilitation were good. The accused received a global sentence of seven years imprisonment. [92] R v MMA, 2018 ABQB 250.

The accused worked as a runner for an organization that trafficked illegal drugs. The accused’srole was to deliver drugs to the purchaser and take the money he received back to the head of the organization. The accused plead guiltyto conspiracy to trafficking drugs, possession of cocaine for the purpose of trafficking and possession of fentanyl for the purpose oftrafficking.

The accused was sentenced to three and one half years imprisonment. [93] What is significant in this case is that it confirmed the case law from Alberta and Ontario suggesting that the starting point formid-level fentanyl trafficking was in the five to seven year range. In the MMA case, it is noted that the accused was extensivelycooperative with police, had no criminal record, demonstrated remorse, and had complied with all terms of his judicial interim release. [94] In my view the case of MMA was that of a drug courier.

He also had considerable mitigating factors in his favor. [95] R v Parranto, 2018 ABQB 863 (“Parranto”). Mr. Parranto entered guilty pleas to four offences committed on March 24, 2016;and four additional offences committed October 22, 2016.

The guilty pleas included four possession of fentanyl for the purpose oftrafficking in a wholesale commercial operation, illegal possession of a loaded handgun for use in his drug trafficking operation andpossession of the handgun knowing he was prohibited by court order, and breach of recognizance. [96] The sentencing judge sentenced Parranto to seven years on the first set of drug charges followed by two years on the guncharges and on the second set of charges sentenced him to eight years on the drug charges followed by three years on the gun charges.

All were consecutive but then were reduced down to a global sentence of 11 years based on the totality principle and the several mitigating factors. [ 97 ] What is notable in this case is that the judge reduced his original sentence by one third for the fact that guilty pleas were entered. Mr. Parranto’s moral culpability also fell in the mid-range. [ 98 ] At paragraph 92 of Parranto the judge held as follows: “As mentioned earlier, the most significant mitigating circumstance is the guilty plea. In this context, I agree with the Crown that Mr.

Parranto’s sentence should be reduced by approximately one third because of this consideration… the other mitigating circumstances that should reduce the sentence are Mr. Parranto’s personal circumstances of being a long term addict, who is presently in the methadone treatment program and the fact that he is an Aboriginal offender.” [ 99 ] R v Armstrong (November 16, 2018 MBPC, unreported). Armstrong was a very recent decision out of the Manitoba Provincial Court. A transcript of the oral sentencing was submitted by Defence. Mr. Armstrong was 43 years of age and had a criminal record.

He was described by his defence counsel as a forthright, honest and trustworthy person who possessed skills in the construction industry. The Armstrong sentencing was a joint recommendation of legal counsel. Mr. Armstrong plead guilty to possession of fentanyl and received a sentence of 4.5 months incarceration. He further plead guilty to possession of methamphetamines for the purpose of trafficking and received a sentence of 6.5 years incarceration. The sentencing judge accepted the joint recommendation but noted that the sentence could have been much longer given the drugs involved and Mr.

Armstrong’s prior criminal record. iv) Additional Cases [ 100 ] R v Swales , 2016 BCCA 502 . This was an appeal by Mr. Swales of an aggregate sentence of 15 years’ imprisonment following his conviction on drug and weapons-related offences, and for failing to stop as directed by a peace officer. In addition to trafficking in four kilograms of cocaine, Mr. Swales was in possession of 19 kilograms of cocaine with other drugs, and an arsenal of handguns, ammunition, and silencers. His appeal of sentence was dismissed. It was noted that at the time of sentencing Mr.

Swales was 42 years of age and had a dated criminal record. Prior to sentencing he had suffered a number of strokes, which affected his speech, vision and mobility. He required assistance on a day to day basis. The Crown sought an aggregate of 22 years imprisonment, reduced to 17 years by reason of the totality principle. Mr. Swales sought a sentence of eight to nine years. [ 101 ] In Swales the trial judge dealt with each set of offences separately.

He found that the most serious drug charge was possession of 19kg of cocaine for the purpose of trafficking and that a fit sentence for that offence was 9 years imprisonment. He further concluded that the sentence on the charges relating to other drugs in the safe and 4kg of cocaine should be terms of imprisonment to be served concurrently to that 9 year sentence.

But with respect to the 15 offences of possession of prohibited weapon or restricted firearm with readily accessible ammunition combined with a large number of handguns, ammunition and silencers the judge concluded that a fit sentence would be 9 years imprisonment and that the sentence on the remaining 5 weapons related charges would be imprisonment to be served concurrent to that 9 years.

With respect to failing to stop for a peace officer the judge imposed a one year term of imprisonment. [ 102 ] In Swales the judge then turned his mind to the totality principle, that is, whether the total of the sentences he had determined would otherwise be fit. Having concluded that 19 years would be unduly harsh the judge reduced the aggregate sentence by 4 years to 15 years imprisonment. He did so by:

a) reducing the sentence with respect to the 19kg of cocaine to 7 years;

b) imposing lesser sentences on the other drug charges, concurrent with each other and with the 7 year sentence,

c) reducing the sentence on each charge of possession of a firearm with readily accessible ammunition to 8 years, concurrent with each other but consecutive to the 7 year sentence;

d) imposing lesser sentences on the other weapons related offences, concurrent with each other and with the 8 year sentences; and

e) imposing a sentence of one year on the failing to stop offence, concurrent with the 7 year sentence. [ 103 ] R v Loor , 2017 ONCA 696 . Mr. Loor was a low level member of a small drug trafficking ring dealing in fentanyl. Loor used a forged prescription to obtain 45 patches of fentanyl, 15 at a time, from a pharmacy. He was eventually charged and convicted in the Ontario Court of Justice and sentenced to 6 years in jail. [ 104 ] Aggravating considerations for Mr.

Loor were that he had a previous criminal record including a conviction for trafficking; he trafficked in 45 patches of the highest strength of fentanyl; he deceived a pharmacy and two of its pharmacists. [ 105 ] On the mitigating side the court noted that Mr.

Loor had a fairly significant gap in his criminal record and had no convictions for nearly five years prior to these offences; he did not profit much from the trafficking; he had strong family support and young children; he had done significant volunteer work in the community; he showed good behavior while in custody. [ 106 ] At page 50 the court held: “Few fentanyl trafficking cases have reached this court. It is thus perhaps too early at our jurisprudence to establish a range.

But I think it fair to say that generally, offenders – even first offenders – who traffic significant amounts of fentanyl should expect to receive significant penitentiary sentences.” v. Weapons [ 107 ] Many of the cases cited included not only drugs but weapons (often times loaded weapons) as well. Consideration has been given to those cases when considering a fit and proper sentence for Mr. Chartrand on the weapons related offences for which he was convicted.

[ 108 ] Other cases that the court has considered included: R v Nur , 2015 SCC 15 ; R v Maddigan , 2009 ONCA 269 ; R v Choken , 2012 MBPC 44 ; R v Noovali , 2010 ONSC 3747 [ 109 ] Mr. Chartrand has been convicted of numerous weapons related offences. The most serious of these convictions related to

section 95 of the Criminal Code (loaded prohibited firearm). [ 110 ] The Defence contended that a proper range for sentencing when dealing with offences of this nature is between 18 months and five years. Clearly the Crown does not agree with that range as it suggested a sentence of six years relating to the

section 95 conviction of Mr. Chartrand. [ 111 ] Notably, the maximum penalty for this offence is 10 years imprisonment. Subsequent offences are treated more harshly and, like any sentencing, there are an abundance of factors that go into crafting the proper sentence in any given situation. d. Concurrent v Consecutive [ 112 ] There are good arguments to be made that sentences for drug and firearm related offences should be made consecutive, as they are different legally protected interests.

In the case of Mann (supra) at para 59 the court had this to say: Applying R v Crevier , 2015 ONCA 619 (Ontario C.A.) , the judge concluded that a consecutive sentence should be imposed for the firearm offences committed by Sarabjit because the gun and the drug offences, although committed at the same time, engage different legally protected interests: In my view, there are different legally protected interests at stake in the case at bar.

Controlled drugs carry the potential of human misery and violence due to the nature of the drug trade, but firearms represent not merely the potential for the violence but actual capacity for immediate and lethal violence. On the facts of this case, the firearm and drug offences, specifically the possession for the purpose of trafficking offences, have different legally protected interests and should result in consecutive sentences.

Moreover, a loaded handgun, in combination with the drug business, particularly located in close proximity to the drugs, is a serious aggravating factor on both the possession for purpose of trafficking charge and the firearm charge. [ 113 ] In the case of Parranto (supra) at paragraph 26 the court held that regarding the sentencing principle governing totality,

section 718.2 (

c) of the Criminal Code stipulates that, “where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh.” The issue of consecutive and concurrent sentences is closely related to the totality principle. Usually, sentences will be consecutive if the offences arise from separate events, subject to a last look for totality reasons.

The Alberta Court of Appeal in R v Bedi , 2015 ABCA 361 at paragraphs 3 , 12, 609 stated that the sentences for distinct drug and gun offences, even if the gun is for the purpose of furthering the trafficking enterprise, serve “different legally protected interests,” and, as such, are properly considered distinctively for consecutive sentencing. V. Conclusions a.

General Conclusions [ 114 ] Having considered all of the above, I have drawn the following conclusions: 1) Sentencing is an individual process; some variance should be expected from communities and regions to meet the needs and conditions of these communities. Accordingly I have put more emphasis on cases from Manitoba. 2) The range of sentencing for high level trafficking is loosely 8 to 12 years.

This does not include carfentanil for which no established range confidently exists; 3) Carfentanil is in a category of its own and crosses a line of community tolerance when it comes to hard drugs due to its significant lethal potential for people not only using it, but even coming into contact with it; 4) Mr. Chartrand was in possession for the purpose of trafficking of carfentanil and methamphetamine at high levels; 5) Mr.

Chartrand, despite being on two separate weapons prohibitions, was found in possession of loaded, restricted and altered rifles as well as explosives; 6) Sentencing for weapons and drugs, even if part of the same transaction, should be sentenced consecutively given the different legally protected interests. 7) Mr. Chartrand has numerous significant aggravating factors as enumerated herein. He has few mitigating factors; 8) In my view, of the cases provided, none reach the level of seriousness that exists in this case.

In large part this is because most cases reviewed either did not relate to carfentenil; dealt with lesser amounts of carfentenil; dealt with fewer weapons; had the presence of significant mitigating factors (such as early guilty pleas) or; did not have nearly the aggravating factors as apply to the present case. b. Deterrence and Denunciation

[ 115 ] The courts have long held that deterrence and denunciation are the primary objectives with respect to sentencing involving drugs and/or firearms. ( R v Neary , 2017 SKCA 29 at para 36 ; R v McMillan , 2016 MBCA 12 at para 12 ). [ 116 ] The deadly cocktail of “drugs and guns” is particularly alarming in a civil society.

In R v Rider , 2013 MBQB 116 at par number 20 the Court had this to say: The court is well aware of the ever-present and large docket of homicides in this community and other places in Canada in drug related shootings … there is a growing consensus in appellate courts across the country that sentences for criminality involving the combination of drugs and guns should be “exemplary” to meet the objectives of denunciation and deterrence. c.

Sentence [ 117 ] Accordingly, I impose the following sentence: Drug Convictions – Information 012-62092 Count Charge Substance Sentence Of The Court 6 5(2) CDSA Carfentanil – 500 blotters 15 years 3 5(2) CDSA Methamphetamine 10 years concurrent to count 6 1 5(2) CDSA Oxycodone 2 years concurrent to count 6 2 5(2) CDSA Hydromorphone 2 years concurrent to count 6 4 4(1) CDSA Cocaine Simple Possession 6 months concurrent to count 6 Weapons Convictions – Information 012-62094 Count Charge Sentence of the Court Remington 760 .270 cal semi-automatic rifle : loaded with three rounds, prohibited firearm.

Sawed-off barrel. Functioned correctly as a pump-action firearm. Ammunition tested and functioned correctly with the firearm. 2 19 1 95 CC 92 CC 86(2) CC 4 years consecutive to the drug convictions 2 years concurrent to count 2 1 year concurrent to count 2 Remington 870 12 gauge action shotgun : non-restricted firearm, functioned correctly as a pump- action firearm 16 23 92 CC 86(2) CC 2 years concurrent to count 2 1 year concurrent to count 2 Savage Axis 22-250 cal bolt action rifle : prohibited firearm. Sawed-off barrel. Serial number obliterated.

Functioned correctly as a bolt-action firearm. 3 17 24 108(1)(b) 92 CC 86(2) CC 3 years concurrent to count 2 2 years concurrent to count 2 1 year concurrent to count 2 Weatherby 12 gauge pump action shotgun : non-restricted firearm, functioned correctly as a pump-action firearm 18 25 92 CC 86(2) CC 2 years concurrent to count 2 1 year concurrent to count 2 Emulsion Explosives & Detonators 20 21 22 92 CC 92 CC 82(1) CC 3 years concurrent to count 2 3 years concurrent to count 2 3 years concurrent to count 2 Breach of Weapons Prohibitions

Counts 4-15 12 x 117.01 CC 1 year consecutive to drug and weapons convictions (but concurrent to each other) d. Totality Principle [ 118 ] In the Manitoba Court of Appeal decision of R. v. Wozny 2010 MBCA 115 [ Wozny ] , the Court of Appeal expanded upon the totality principle which is enshrined in s. 718.2 (

c) of the Criminal Code . That

section states that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh. In Wozny the Court had this to say about the totality principle starting at paragraph 58: 58 It is only then, as the final step of the sentencing exercise where consecutive sentences are involved (and not at all regarding concurrent sentences), that the totality principle comes into play.

Application of the totality principle does not require reapplication of a sentencing principle (including proportionality) undertaken at the outset of the analytical process to determine term or duration of the sentence. 59 Rather, the totality principle requires that a “last look” be taken to ensure that the total or cumulative sentence is a fit sentence in that it does not exceed the overall culpability of the offender.

Again, due regard is to be given to the “intentional risk – taking of the offender, the consequential harm caused by the offender, and the normative character of the offender’s conduct” see M (C.A., at paragraph 80). 60 In addition, the intended tool or cumulative sentence may offend the totality principle if it is substantially above the maximum sentence available for that type of crime or if its effect is a “crushing sentence,” that is, a sentence not in keeping with the offender’s record and future prospects. [ 119 ] In the present case, taking into consideration the totality principle, I have carefully taken “one last look” at the sentence imposed.

I have concluded, notwithstanding the aggravating and egregious circumstances in this case, that the total sentence is unduly harsh. I would therefore reduce the overall sentence from 20 years to 17 years by deducting 2 years on count 6 (possession for the purposes of trafficking carfentanil), and 1 year on count 2 (loaded weapon), leaving a total of 17 years. e. Time Served [ 120 ] Mr. Chartrand has been in custody since May 9, 2017. Giving him credit of approximately one and a half times for time served to date, as agreed to by the Crown, Mr.

Chartrand will be credited with 28 months to be applied to his sentence under count 6 (possession for the purpose of trafficking – carfentanil). [ 121 ] Therefore, on a go forward basis, taking into consideration both the totality principle and credit for time served, Mr.

Chartrand will serve: Count 6 possession for purpose of trafficking carfentanil 10 years and 8 months Count 2 possession loaded weapon 3 years consecutive Counts 4-15 breaches of weapons prohibition et al 1 year concurrent to each other but consecutive to drug and weapon convictions Total going forward 14 years and 8 months [ 122 ] All other convictions continue to be served concurrent as outlined herein at paragraph 117. f. Ancillary Orders [ 123 ] The following ancillary orders will also be made:

a) forfeiture of all weapons and drugs seized from Stanier Street in Winnipeg relating to these convictions;

b) DNA order with a sample of Mr. Chartrand’s DNA to be provided forthwith; and

c) section 109 weapons prohibition for life. “Original signed by:” _________________________________ Kevin A. Lang, P.J.