R. v. Campbell, 2013 MBPC 19

CITATION: R. v. Campbell , 2013 MBPC 19 THE PROVINCIAL COURT OF MANITOBA BETWEEN: ) Ms. A. Turner ) for the Crown HER MAJESTY THE QUEEN ) ) Ms. S. Inness - and - ) for the Accused ) AARON WILLIAM CAMPBELL, ) ) Sentence delivered Accused. ) February 7, 2013 _____ DEVINE, P.J. (Orally) Aaron William Campbell is a 26-year-old aboriginal man who pleaded guilty to two counts of possession for the purpose of trafficking cocaine that occurred on May 7th, 2010.

Possession of cocaine for the purpose of trafficking in section 5(2) of the Controlled Drugs and Substances Act (CDSA) is a strictly indictable offence for which the maximum sentence is life imprisonment. The accused elected to have the matter heard in the Provincial Court. The issue in this case is what would be a fit and appropriate sentence for this offence and this aboriginal offender. I have reviewed the psychological assessment report prepared by Dr.

Kent Somers on November 21st, 2012, the Gladue report prepared by Heather Bristow and Julia Robson for Onashowewin Justice Circle submitted December 4th, 2012 and several letters of reference attached to the Gladue report. The letters are from the mother of his children, his mother, two of his teachers, an aboriginal elder and teacher and a friend who is the administration officer for the Manitoba Association of Native Firefighters. I have also considered Mr. Campbell's record and the case law provided by both counsel.

Both the Crown and defence counsel made able, comprehensive submissions at the sentencing hearing on December 18th, 2012. The Crown is seeking incarceration for a period of four years concurrent on both charges. The defence is seeking a conditional sentence order. CIRCUMSTANCES OF THE OFFENCES A confidential informer advised police that the offender was involved in a drug operation in the north end of Winnipeg, storing drugs both at his residence and that of his mother. Police executed warrants at both locations on May 7th, 2010 at 10:15 a.m. and 11:00 a.m.

The police found seven ounces of crack cocaine at the offender's mother's residence, worth about $7,000, and 13.2 ounces of crack cocaine at his residence, worth about $13,200, as well as $1100 in cash. Mr. Campbell spent six days in custody and was then released on a recognizance on May 12th, 2010. He has been out of custody since that time, a period of two years and nine months. THE OFFENDER

Background Mr. Campbell was 23 years of age at the time of the offences. More will be said about his background later in this decision. Previous court history The offender has a youth record of break, enter and theft and possession for the purpose of trafficking from 2004, for which he received probationary sentences. As an adult, he had convictions for failing to comply with a recognizance and failure to comply with a youth disposition in 2005.

Also in 2005 he had convictions for possession of proceeds obtained by crime, careless storage of a firearm, possession of an unauthorized firearm and failure to comply with a youth disposition. He received one month concurrent on the substantive charges plus 73 days of pre-sentence custody. In 2007 he had a conviction for possession of a weapon under

section 88 of the Criminal Code for which he received a conditional discharge and six months of probation. CROWN'S SUBMISSIONS In seeking a four-year penitentiary sentence, the Crown stated she was taking into consideration the gap in the offender's record of a related drug offence in 2004. The Crown highlighted several aggravating features of the offence and the offender's involvement. She emphasized that Mr. Campbell is unemployed, had been selling drugs since age 15 and is entrenched in a criminal gang lifestyle. She pointed to Dr.

Somers' report which indicated that the offender had conveyed to him that in the early days of selling drugs he experienced a positive impact on his self-esteem and his living situation, stating that, "it feels good to look good, have money in your pocket". He reported that as a dealer, "people know me" and that "being known in Winnipeg I was respected." Dr. Somers stated that the offender described selling drugs as an addiction, meeting both his material needs and emotional and identity needs. The Crown stated that by age 18 the offender considered himself to be an associate of the Manitoba Warriors.

He asserted that it was a club, not a gang. The Crown pointed out that the offender has not yet successfully distanced himself from the Manitoba Warriors, rather, that he is "trying" to distance himself from them, or at least their criminal activity. The Crown emphasized that the offender was not selling drugs to feed his own addiction, which, when considered in sentencing, can mitigate an otherwise lengthy penitentiary sentence for drug dealers. She characterized him as a dealer connected with a gang lifestyle.

DEFENCE SUBMISSIONS The defence described the offender as an exceptional individual whose detailed plan for a community-based disposition put him in a unique position to assist the court in crafting a sentence that would give expression to

section 718.2 (

e) of the Criminal Code which requires the court to take into consideration all available sanctions other than imprisonment that are reasonable in the circumstances, with particular attention to the circumstances of aboriginal offenders. Several people attended the sentencing hearing in support of Mr. Campbell, including one of the authors of the Gladue report. Mr. Campbell has been living in the community for two years and nine months monitored by the Gang Response and Suppression Plan, GRASP, with Probation Services. It is no secret that the requirements of compliance with the GRASP program are onerous. Mr. Campbell has been compliant. THE PURPOSE OF SENTENCING

Section 10(

a) of the CDSA mirrors the wording of

section 718 of the Criminal Code , which sets out the purpose of sentencing drug offences: Without restricting the generality of the Criminal Code , the fundamental purpose of any sentence for an offence under this

Part is to

contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community. Our courts have repeatedly emphasized the harm that drug trafficking does in our communities, especially a highly addictive dangerous drug such as crack cocaine. Crack cocaine's links to violent street crime in Winnipeg is well-known.

Accordingly, every sentence emanating from our courts must denounce this crime and deter others from engaging in drug trafficking, but it must also deter this offender from re-offending, provide for his rehabilitation, provide reparations for harm done in the community and promote a sense of responsibility in Mr. Campbell. Proportionality The fundamental principle in sentencing is proportionality. I must ensure that the sentence I impose reflects proportionality between the seriousness of the offence and the degree of responsibility of the offender. Trafficking in cocaine is a very serious offence.

It is a dangerous drug. It is a highly addictive drug. It is connected with violent gang crime. For that reason, penitentiary sentences for possession of the purpose of trafficking are not uncommon. Against the seriousness of the offence I must balance the degree of responsibility of the offender. At this juncture, is it useful and in accordance with the Supreme Court of Canada's direction in the cases of Gladue and Ipeelee to take into consideration Mr. Campbell's aboriginal background and how he came before the courts.

The offender's moral culpability What has brought Aaron Campbell before the courts is a legacy of colonialism, residential schools and displacement. Although the Supreme Court held, in Ipeelee , that it is not necessary to establish the nexus between these historical factors and the particular aboriginal offender, tragically, it is easy to see the nexus in Mr. Campbell's case.

His people come from the Animo-ziibiing (Lake Manitoba) First Nation whose people were described in the Gladue report as nomadic trappers and fishers, but who, after the signing of Treaty 2 in 1871 experienced poor fisheries in late 1885 coupled with the diminution of forbearing animals. They were forced to start farming, now having to rely on agriculture for subsistence. Mr. Campbell's maternal grandmother went to residential school. The legacy she passed on to Mr. Campbell's mother was horrific. Both Mr. Campbell's maternal grandparents were alcoholics. The grandmother sold Mr.

Campbell's mother into prostitution as a child. She and her husband beat the child. Mr. Campbell's mother stated it like this in the Gladue report: There were other abuses from my mother including sexual abuse. She would beat me with a broom, emotional abuse. I was her bread and butter, a welfare cheque. She sold me to her friends. We lived a rough life. I would see men fight my mother. I was the one made responsible for my two younger brothers and I was only eight years old. It was like I had my own baby at eight. From the time she brought him home and put him in my arms, I was responsible for him. It was hard.

We were poor. Mr. Campbell's grandmother died from an alcohol-related liver condition in 2004. Mr. Campbell's mother likewise passed on the legacy. She had her children when she was very young. She abused alcohol and drugs and worked in the sex trade. Mr. Campbell's father was a prisoner at Stony Mountain when Mr. Campbell was born. He was brought up mainly in the Child and Family Services system going into care at the age of two and a half years of age because of abuse. Mr.

Campbell remembers getting beaten with a leather belt at that age, having his head held under hot water and getting a bleeding nose from his stepfather, who subsequently killed himself some years later when Mr. Campbell was in care. Again, in his mother's words: I didn't want the same things for my child and I struggled. I took jobs at minimum wage and worked long hours. I wasn't home for them. Homelessness was really rough. I struggled lots and they were in and out of CFS.

I was wanting to be with someone who loved me but I was drinking and doing drugs, there was physical/emotional abuse, homelessness, being poor, and it took me too long to break that cycle. It affected my children. I felt racism by the cops. They were beating me and calling me a stupid Indian and told me I should have stayed on the reserve. I think Aaron saw this.

Mr. Campbell stayed with family members when he was in care but they, too, had a history of being in residential schools. He was incare until age seven, then moved with his mother to B.C. where she followed the abusive stepfather. The stepfather again abused Mr.Campbell and the other children. Mr. Campbell came back to Winnipeg. He tried to commit suicide when he was twelve. His olderbrother saved him. He stayed at the Psychealth Centre for a month. After that, he stayed with a very good woman for two years wholooked after a lot of troubled boys, a moniker Aaron Campbell used to describe himself.

He was not taught to go to school, he was taught to sell drugs. He could not read, write or type. He then lived with an aunt who was very kind but who had many children, so the home was crowded. He returned to his motherwhen he was 14 but by that time he had started using alcohol. In his words: I had zero education, dropped out in grade eight or nine, started selling drugs. I'm not proud that I sold drugs. My family was using. But when I left drugs, they came, too. They followed me. He was "sucked into, forced into", in his words, the gang life when he was 19, "right from the start I didn't want to be involved".

And so this is the context in which this young aboriginal offender comes before the court selling drugs and being connected to a gangin the north end of Winnipeg. The moral culpability or degree of responsibility of Mr. Campbell is coloured by this background, none ofwhich he chose. He did not choose to be born into a family at least two generations of whom have been wracked by poverty, sexual andphysical abuse of its children, alcoholism, drug abuse, criminality and poor education. Quite simply, Mr.

Campbell's moral culpability islesser than that of an offender trafficking in cocaine whose background is devoid of this overwhelming legacy of inequality,disenfranchisement and pain. OTHER SENTENCING PRINCIPLES IN

SECTION 718.2 Similarity to other sentences The sentencing principle of parity in

section 718.2(

b) requires that I consider the sentences imposed for similar offenders committingsimilar offences in similar circumstances. The sentencing decisions filed by counsel are of value insofar as they demonstrate the widevariability of fit sentences for drug trafficking offences in Manitoba, ranging from penitentiary sentences to conditional sentences. However, not one of the cases in the two books of authorities filed by counsel involved an aboriginal offender where Gladue factors wereconsidered. Because of the imperative that I sentence Mr. Campbell by considering the unique systemic and background factors whichmay have played a

part in bringing him before the court as required by

section 718.2(

e) and the Supreme Court of Canada cases ofGladue, (SCC), [1999] 1 S.C.R. 688, and Ipeelee, 2012 SCC 13, the cases filed are of value only insofar as they tell uswhat non-aboriginal offenders not in Mr. Campbell's circumstances were sentenced for similar offences. The cases tendered by the Crown represent the sentencing guidelines for various players in the drug-selling hierarchy, whether theyare couriers (Rocha, 2009 MBCA 26), mid-level dealers (Traimany, 2011 MBCA 104), or something above street level dealer (Gilchrist,2004 MBCA 21).

Traimany was a mid-level cocaine trafficker who was selling the drug in one-ounce packages to low-level dealers. He was onprobation for cocaine trafficking at the time of the offence. The Court of Appeal found that the sentencing judge had erred in notsentencing him within the five to eight years for mid-level cocaine traffickers and, as such, the sentence was increased to five years. Rocha dealt with a Crown appeal from a sentence of four years.

The Court of Appeal found that the sentencing judge had erred insentencing the offender to the same sentence as a co-accused where there was evidence that Rocha had been trafficking at the multi-ounce level and supplying the crack cocaine to the co-accused. However, there was no evidence to take Rocha out of the courieroperating at a multi-ounce level, which Justice Chartier said was in the three to six-year range. The four-year sentence was upheld.

In Gilchrist the Court of Appeal was also dealing with a crack cocaine dealer and acknowledged that: The range for this type of [sentence], and for this type of offender, may start at less than two and a half years but it is certainly wide, andextends beyond four years. (at para. 27) Gilchrist was a 20-year-old first-time offender. His sentence of four years, acknowledged by the Court of Appeal to be at the high end ofthe range, was upheld on appeal. The Crown conceded at this sentencing hearing, however, that there is no evidence as to where in such a hierarchy, Mr. Campbellwould fit.

Clearly, he was operating at the multi-ounce level as the police found seven ounces of crack cocaine in his mother's home and

13.2 ounces in his home. All three of the cases filed by the Crown involved penitentiary sentences. The cases tendered by the defence were for conditional sentences of two years less a day. Although I have reviewed them all carefully, I will note only a few. Marchioni (8 November 2012), Manitoba Court of Queen's Bench, involved a 31-year-old trafficking in $10,000 worth of methamphetamine and possession of $500 to $1,000 worth of ecstasy. He was an addict who owed money to a street gang and was paying it off by dealing.

He had previously served two penitentiary terms, one for robbery and one for possession for the purpose of trafficking. In the seven years preceding the offence he had been convicted of 10 drug-related offences. He had, in that period, been sentenced to two conditional sentences. In the significant gap between the offence and the sentencing date, five and a half years, however, the offender was crime-free and had turned his life around and was now a responsible employee, father and husband.

Justice Dewar found that these circumstances justified departure from the Court of Appeal's penitentiary ranges for drug traffickers and he sentenced Mr. Marchioni to two years less a day conditional sentence. Viznaugh , 2010 MBQB 17 , involved 12½ ounces of cocaine. It took five years to resolve the matter. Again, the offender had very much turned his life around in the intervening time on strict bail conditions and had enrolled at Red River College sponsored by the MMF and had favourable personal references and report from Dr. Somers. He was sentenced to two years less a day CSO.

Both Marchioni and Viznaugh involved offenders who had been in the community on bail for almost five years. In Viznaugh , when asked by the judge for a case involving an offender who had been free for almost five years and then incarcerated, the Crown could not supply such a case. Tarnowski involved 7.8 ounces of methamphetamine worth about approximately $30,000 if sold in bulk. The offender was 50 years old at the time of sentencing and had a lengthy criminal record, containing no violence but several drug offences. He had been out of custody for two and a half years, released to the Teen Challenge program.

He had become the program manager for the outreach program in that time and would become the general manager of one of the lodges. He was also ill with cancer and was HIV positive. The trafficking was of a social not commercial nature. He was sentenced to two years less a day conditional sentence. Deleon , 2011 MBQB 165 , involved 8 ounces of powder cocaine in separate baggies. The accused was relatively young, had no record and had approached acquaintances to become involved in the drug trade to make money. He was involved for about six months in three or four transactions.

He was otherwise a law-abiding citizen operating his own courier business, was an involved father, and had been out on bail for four years without re-offending. As in the case at bar, the Crown sought a penitentiary sentence and the defence sought a conditional sentence. He was sentenced to two years less a day CSO. As I mentioned, none of the cases filed by counsel involved the sentence of a similar offender in similar circumstances so their value is limited to determining what a non-aboriginal offender might expect as a sentence for possessing that quantity of crack cocaine for the purpose of trafficking.

It is observed, however, that several sentences from Manitoba courts have been conditional sentences notwithstanding that they were not aboriginal offenders. In addition to those noted, also filed in this case, Alcantara (9 December 2010), Manitoba Provincial Court; Dare (3 September 2008), Manitoba Provincial Court; Calculli (9 March 2012), Manitoba Provincial Court; Piche , (19 April 2011), Manitoba Provincial Court; and Borillo (19 June 2009), Manitoba Provincial Court. Aggravating and mitigating circumstances I must also take into consideration in

section 718.2 any circumstances that are aggravating and mitigating, in other words, that would increase or decrease the sentence I would otherwise impose. Aggravating circumstances As I indicated earlier, this is a serious offence because of the nature of the drug. But also the quantity. Mr. Campbell was operating at the multi-ounce level, which is very often a penitentiary sentence. He has a related conviction on his record, albeit from 2004. It is also aggravating that there was an admitted gang connection by Mr. Campbell. Thus, it is not surprising that the Crown is seeking a sentence of four years.

Mitigating circumstances There are also several mitigating circumstances. First and foremost is Mr. Campbell's guilty plea. He has saved the state the expense of a trial where expert evidence and several police witnesses would have been called. He has strong family and community support. On the day of the sentencing hearing a great number of people attended the court in support of Mr. Campbell, including one of the writers of the Onashowewin report, his mother, the mother of his three children, and Lucien Spence, an aboriginal elder who runs the men's group at the Indian Family Centre where Mr. Campbell attends.

Mr. Spence addressed the court eloquently and spoke of the close connection

he has made with the offender, and he put his personal guarantee on the positive future of Mr. Campbell, something he says he has only done once before. I am struck by this young man's credible efforts to access the many community resources and support of aboriginal people in the community to support his efforts to stay away from criminal influences, to continue to be a good father and, indeed, to improve upon that and to become a strong aboriginal man, a potential leader and mentor. He plans to finish his grade 12 with plans for further education, studies and work. I must heed the direction parliament has set out in subsections 718.2(

d) and (e). 718.2(

d) says: an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; Referring to that subsection in the Proulx decision in 2000, Chief Justice Lamer of the Supreme Court of Canada stated: Parliament has sent a clear message to all Canadian judges that too many people are being sent to prison. That's at paragraph 1. I must also consider subsection (e): all available sanctions other than imprisonment that are reasonable in the circumstances should be considered ... with particular attention to the circumstances of aboriginal offenders. In 1999 the Supreme Court, in Gladue , instructed sentencing judges on how to apply

section 718.2(e), which was enacted to remedy the crisis of over-representation of aboriginal people in Canada's prisons. Unfortunately, judges did not fully embrace the direction and the problem actually worsened. In 2012 the Supreme Court re-affirmed its earlier decision in Ipeelee . The purpose of subsection (

e) is to ameliorate the over-representation of aboriginal people in prisons and to encourage sentencing judges to take a restorative approach to sentencing aboriginal offenders. The

section directs sentencing judges to undertake the sentencing of aboriginal offenders individually but also differently because the circumstances of aboriginal people are unique. In sentencing an aboriginal offender, the judge must consider 1) the unique systemic or background factors which may have played a

part in bringing the particular aboriginal offender before the courts, and, 2) the types of sentencing procedures and sanctions that may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection. As Justice LeBel stated at paragraphs 73 and 74 of Ipeelee , a two-part analysis is required, and I'm quoting here from the case.

First, systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or her level of moral blameworthiness...Many Aboriginal offenders find themselves in situations of social and economic deprivation with a lack of opportunities and limited options for positive development. While this rarely - if ever - attains a level where one could properly say that their actions were not voluntary and therefore not deserving of criminal sanction, the reality is that their constrained circumstances may diminish their moral culpability.

As Greckol J. of the Alberta Court of Queen's Bench stated at para. 60 of R. v. Skani,...after describing the background factors that led to Mr. Skani coming before the court, '[f]ew mortals could withstand such a childhood and youth without becoming seriously troubled.' Failing to take these circumstances into account would violate the fundamental principle of sentencing - that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender .

The existence of such circumstances may also indicate that a sanction that takes account of the underlying causes of the criminal conduct may be more appropriate than one only aimed at punishment ... As Cory and Iacobucci JJ. state in Gladue , at para. 69 : In cases where such factors have played a significant role, it is incumbent upon the sentencing judge to consider these factors in evaluating whether imprisonment would actually serve to deter, or to denounce crime in a sense that would be meaningful to the community of which the offender is a member.

In many instances, more restorative sentencing principles will gain primary relevance precisely because the prevention of crime as well as individual and social healing cannot occur through other means. The second set of circumstances - the types of sanctions which may be appropriate - bears not on the degree of culpability of the offender, but on the effectiveness of the sentence itself.

Judges must take judicial notice of the broad systemic and background factors affecting aboriginal people, and of the priority given in aboriginal cultures to a restorative approach to sentencing. [emphasis in original] I take judicial notice of the history of colonialism, displacement and residential schools and how that history continues to translate into lower educational achievement, lower incomes, higher unemployment, high rates of substance abuse and suicide and, of course, higher levels of incarceration of aboriginal peoples. As well, in the specific case of Mr.

Campbell, I take into consideration the history of colonialism and displacement of the people of Animo-Ziibiing and their traditional hunting and fishing areas and the legacy of family

and cultural destruction that started with Mr. Campbell's grandmother going to residential school and how that has led very clearly to Mr. Campbell's criminality, including the charges currently before the court. With respect to the second stage of analysis, Justice LeBel directed in Ipeelee , I will now consider the type of sanctions that may be appropriate, bearing not only on Mr. Campbell's degree of culpability but also on the effectiveness of the sentence. A RESTORATIVE APPROACH TO SENTENCING It is recognized that the sentencing process in the criminal context is not a panacea.

Sentencing alone will not get to the roots of the problem of over-incarceration of aboriginal people. In Gladue Justices Cory and Iacobucci were mindful of that, recognizing that poverty, substance abuse, lack of education and lack of employment opportunities leads to incarceration. However, they also said that there is something that sentencing judges can do, at paragraph 65: Sentencing judges are among those decision-makers who have the power to influence the treatment of aboriginal offenders in the justice system.

They determine most directly whether an aboriginal offender will go to jail, or whether other sentencing options may be employed which will play perhaps a stronger role in restoring a sense of balance to the offender, victim, and community, and in preventing future crime.

In Ipeelee , Justice LeBel quoted with favour Professors Rudin and Roach who posed the question: ...[if an innovative] sentence can serve to actually assist a person in taking responsibility for his or her actions and lead to a reduction in the probability of subsequent re-offending, why should such a sentence be precluded just because other people who commit the same offence go to jail? (at para.67) Is a conditional sentence available in this case? A conditional sentence order is a jail sentence that is spent in the community.

The offender's liberty is restricted to a form of house arrest with conditions put in place to satisfy the particular sentencing objectives called for in the circumstances.

The following observations about conditional sentence made by the Supreme Court in Proulx are warranted at this juncture, particularly in light of the Supreme Court's reminder in Ipeelee just last year that sentencing courts must seriously give expression to crafting sentences that are meaningful and ameliorative for aboriginal offenders. 1 ) There is no presumption against a conditional sentence for any offence. 2 ) Sentencing is an individualized process.

A judge must impose a sentence that is fit or appropriate for the specific offender, given the nature and circumstances of the specific offence. 3 ) The sentencing judge should consider which sentencing objectives are most important in the particular circumstances of the case before her. 4 ) Where both punitive and restorative objectives can be achieved in a given case, a conditional sentence is likely a better sanction than incarceration. 5 ) Where the need for punishment is particularly pressing and there is little opportunity to achieve any restorative objectives, incarceration will likely be the more attractive sanction. 6 ) Judges should be wary of placing too much emphasis on deterrence.

The empirical evidence suggests that the deterrent effect of incarceration is uncertain. 7 ) A conditional sentence can provide significant deterrence if sufficiently punitive conditions are imposed and the public is made aware of the severity of the sanctions. 8 ) In determining whether restorative justice objectives can be satisfied in a particular case, the judge should consider the offender's prospects of rehabilitation, including whether the offender has proposed a particular plan of rehabilitation, the availability of the appropriate community service and treatment programs, whether the offender has acknowledged his wrongdoing and expresses remorse.

In the 2011 case of Deleon filed by the defence, Justice Bryk, at paragraphs 36 and 37, explained the analysis that a sentencing judge

must conduct in order to determine the appropriateness of a conditional sentence. The first step in the analysis is to determine whether a probationary or penitentiary sentence would be excluded. If neither are appropriate, the court must then consider the availability of the conditional sentence. First, the court must consider whether the safety of the community would be endangered by having the offender serve his sentence in the community.

Finally, the court must consider whether the conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 and 718.2 of the Code . I have determined that a penitentiary sentence is not fit and appropriate in this case. It is disproportionate to Mr. Campbell's degree of culpability. It would also be ineffective.

Although it would send a denunciatory message and give expression to the objective of general deterrence, the damage it would do to any hope of rehabilitation, reparations to the community and restoration makes it an unattractive and unfit option, especially when the objectives of general deterrence and denunciation can be achieved without sending Mr. Campbell to a penitentiary. Nor is probation. General deterrence and denunciation play a significant role in sentences for possession for the purposes of trafficking in cocaine.

A probationary sentence is not appropriate because a custodial sentence is necessary to give expression to denunciation and general deterrence. The only question is, where, in jail or in the community? The Supreme Court determined in Proulx that a conditional sentence can accomplish the objectives of denunciation and deterrence and should be considered where appropriate. In determining whether the offender is a danger to the community, I must consider Mr. Campbell's risk to re-offend, that is, not only the statistical risk formula utilized by Dr.

Somers, which found him to be a low to medium risk to re-offend, but also whether he has previously complied with court orders, whether he has a record indicating that he would not abide by a conditional sentence and his conduct following the commission of the offences in this case. Mr. Campbell does have failures to comply with court-ordered conditions on his record but they are from 2005. His more recent ability to comply with his bail conditions over the past two years and nine months is a better indicator. While out on bail, Mr.

Campbell has been subject to GRASP, the Gang Response and Suppression Plan, which is a very strict, closely monitored bail or probation supervision program run by police and Probation Services. He was released on a recognizance on May 27, 2010 with strict conditions, including a curfew from 10:00 p.m. to 7:00 a.m. The Crown consented to a variation removing the curfew on June 28th, 2010. The condition not to have any contact or communication with Kayla Moar was consented to by the Crown on April 21st, 2011.

The condition that he not possess or consume any alcohol or drugs was varied on April 20th, 2012 to allow him to consume alcohol only. This variation was consented to by the Crown who conducted this sentencing hearing. There was also a variation to change his address, which the Crown also consented to on August 10th, 2011. I note these conditions and the fact that he made proper arrangements through the Crown Attorneys' office and the courts to obtain variations on four occasions. This is evidence of his ability to follow court-imposed sanctions.

No conditions of the recognizance have been breached in the intervening two years and nine months. He has been totally compliant with the GRASP program. I should add that GRASP is available not only for those out on bail but also for those serving conditional sentences and probationary sentences. I also consider his post-offence conduct at this stage of the analysis, as directed by the Court of Appeal in Luff , 2002 MBCA 173 .

In that case, the Court of Appeal held that the sentencing judge had erred in not considering the offender's exemplary conduct in the 22 months between the time of the offence and sentencing to determine if he was eligible for a conditional sentence. Instead, the sentencing judge sentenced the offender to jail and then considered post-offence conduct only in mitigation of the length of the sentence.

The Court of Appeal stated that the determination as to whether a conditional sentence is appropriate must include consideration of the offender's behaviour in the community pending sentencing. (see also Champagne , 2000 MBCA 66 , at para. 8 ) At paragraph 41 in Luff , Justice Freedman stated: The accused's conduct in the almost two years from the offence to sentence was exemplary, and was clearly a factor which should have militated against the strong concerns of the judge that the accused was a danger to the community at the time of sentencing.

When she said that he had had the opportunity to turn himself around in the community, and that he was a proven case of failure to comply with probation conditions, she was giving no weight whatsoever to his 22 months' pre-sentence conduct. She essentially disregarded it, and took no account of that conduct when deciding the threshold question.

She should have considered it at that stage, and had she done so in the way in which she later did, in reducing the length of his jail term, she surely would have concluded that, whatever might have been the degree of risk two years earlier, it had substantially diminished by June, 2002. Turning to the present case, in addition to following his bail conditions, Mr. Campbell has made significant strides in turning his life around. He has demonstrated a real maturity in accepting responsibility for the crime he committed. He was very frank in his meetings with Dr.

Somers and Onashowewin and did not shy away from providing information that might be seen as disadvantageous to him on sentencing. He has left the gang life and has not associated with gang members. He has started individual counselling for the first time in his troubled life. He goes to a Men's Sharing Circle on Fridays run by aboriginal elder Lucien Spence. Mr. Spence wrote a letter of recommendation attached to the Gladue report and also attended court, as I indicated earlier, speaking in very positive terms about Mr. Campbell's commitment to change and his very real chance of success. Mr. Campbell meets Mr.

Spence on a one-on-one basis in addition to attending the group. In terms of his home and family life, it is stable. He has the support of his mother now as a role model. She has overcome all the obstacles in her life and is sober and is a transit bus driver with the City of Winnipeg. His youngest brother is captain of the football

team and will be graduating from grade 12 in June. Mr. Campbell has the continued support of Kayla Mondor, his partner and mother of his children. He is a very involved father with his three young children. His education and employment prospects are good. While on bail he has attended school at the Aboriginal Community Campus in the Aboriginal Centre. He has one more credit to obtain his grade 12. He has done seasonal work to earn income. He worked security for Impact Security and a labourer with Abalon Foundation Repair.

He has started a landscaping business Sun Up Sun Down which he put on hold pending the outcome of this sentencing, not wanting to be in a position where he cannot complete contracts. He has also started meeting with SEED Winnipeg, an organization that helps people start small businesses and save money for future goals, to reduce inner city poverty and help renew Winnipeg's inner city. He did volunteer work with the Honourable Kevin Chief, Minister for Children and Youth Opportunities and MLA for Point Douglas. I am satisfied that Mr.

Campbell is not a danger to the community and is thereby eligible for a conditional sentence. Any risk posed by Mr. Campbell could be adequately addressed by the protective conditions attached to a conditional sentence. The final question I must determine is whether a conditional sentence meets the relevant sentencing objectives in this case, which are general and specific deterrence, denunciation, rehabilitation and reparations to the community. More succinctly, can both the punitive and restorative objectives of sentencing be achieved in this case?

In the case of this offender, specific deterrence can be better achieved by him serving his sentence in the community with the pro- social contacts he has fostered since being charged with the offences rather than in the prison population where his chances of re- involving himself with past gang associates is more likely. The conditions I impose will be strict, a form of punishment which will also serve to deter this offender and send a signal of deterrence to others in his situation in this community as well as a message denouncing the conduct of drug dealers in this province.

In determining whether restorative justice objectives can be achieved in a particular case, the judge should consider the offender's prospects of rehabilitation, including whether the offender has proposed a particular plan of rehabilitation, the availability of the appropriate community service and treatment options, whether the offender has acknowledged his wrongdoing and expresses remorse. Mr. Campbell has acknowledged his wrongdoing and is remorseful. He has a plan for his rehabilitation, deterrence and reparations that meet the restorative goals of the sentence. He will continue to attend school as required.

He will retain employment. He is going to volunteer with Siloam Mission if accepted as a volunteer there. He had submitted his application at the time of sentencing. He will continue to receive one-on-one counselling. He will get his name on the list to attend the Saving Circle Program through SEED Winnipeg, which will be offered monthly, commencing March 1st. As for the business development services part of SEED Winnipeg, he can apply on-line, attend an orientation session and then attend the business development service’s 10 weeks of sessions in aid of assisting him as a legitimate small businessman.

He has expressed an interest in attending culturally-based programs in aid of reclaiming his culture and addressing his spiritual health. He will continue to attend the Men's Sharing Circle at the Indian Family Centre. Onashowewin can also connect him with local community aboriginal organizations and community circles to facilitate his request for participating in aboriginal studies and cultural teachings with elders. Onashowewin has several programs that Mr.

Campbell has expressed an interest in attending: Adult Healthy Decisions, where he can learn about positive lifestyle changes, building self-esteem and how to resist peer pressure; Inini, which is the Ojibway word for man, where the role of the man, his responsibilities and codes of conduct within society is taught and how he is to treat women; Ways of Being, which is a workshop where participants build a sweat lodge and participate in a sweat lodge ceremony and a sharing circle; Negative Energy, where participants learn to deal with their own triggers of negative emotions and how to respond in a healthy way to others' negative emotions and the root causes of anger and balancing emotions.

SENTENCE I am satisfied that the objectives of denunciation and general deterrence, as well as the restorative goals of specific deterrence, rehabilitation and reparations to the community can be met by permitting the offender to serve his sentence in the community with appropriate stringent conditions. I conclude that a conditional sentence for Mr. Campbell is fit and appropriate and is consistent with the objectives of sections 718 to 718.2. Accordingly, I sentence him to two years less a day to be served in the community followed by 12 months of supervised probation.

He will report to a CSO supervisor by 4:00 p.m. February 9th and thereafter as required by the supervisor. In addition to the compulsory conditions set out in

section 742.3(1) of the Criminal Code , the offender shall be kept under house arrest for the duration of the sentence except for: 1) The purpose of attending to employment and the necessary travel time to and from. 2) Time attending counselling, programs and treatment as directed by the supervisor and the necessary travel time to and from.

3) Time attending spiritual ceremonies and services as pre-approved by the supervisor. 4) Time attending to the daycare or educational needs of his children, as may be pre-approved by writing by the supervisor. 5) Time attending to his medical or dental appointments as may be pre-approved in writing by the supervisor. 6) Time doing community service and the necessary travel time to and from. 7) Medical emergencies for him or his immediate family. 8) One four-hour period per week for the purpose of conducting other personal business. 9 ) After the first 12 months of the sentence, such other time periods not to exceed six hours per time period, as may be pre-approved in writing by the supervisor.

Mr. Campbell shall also comply with the following conditions: 1) Abstain absolutely from the consumption and possession of alcohol, drugs and other intoxicants except as may be prescribed by a medical doctor. As there is no drinking in jail, there is no drinking during a conditional sentence. 2) Attend, participate in and successfully complete such programs and treatment as directed by the supervisor. 3) Complete within the first 12 months of the sentence 120 hours of community service at Siloam Mission or other such community organization approved by the supervisor.

As Judge Heinrichs stated in Alcantara , this is for you to see, Mr.

Campbell, firsthand and to repay directly with your time and effort those members of our community, some of whom have become helpless and needy as a result of addiction, including to crack cocaine sold by you and others like you. 4) Answer the door or telephone in response to police or supervisor or their designates checking your compliance with house arrest and maintaining a land line for that purpose. 5) The offender may possess only up to one cell phone for business and personal use and shall make available to the supervisor upon request the records of the cell phone use.

In addition to the conditions by which the accused will be bound on probation, as set out in

section 732.1(2), the accused shall also, while on probation, report to his probation officer when required by and in the manner directed by the probation officer. I am also ordering a 10-year gun prohibition pursuant to

section 109 of the Criminal Code . Additionally, I will make the requested DNA order. Mr. Campbell must provide a sample of his DNA within 30 days of the making of this order. I will also make the order of forfeiture. Mr. Campbell will also be required to pay the victim surcharge and costs in the amount of $102. Any questions? MS. INNESS: One month to pay on that, please, Your Honour, if we can. THE COURT: One month to pay. MS. TURNER: Just one question, please, Your Honour. The -- I think it was exception number eight to the curfew was one four- hour period.

I'm wondering if that can be as approved in advance by the supervisor, just that the supervisor is aware of when that period is going to be. THE COURT: Yes. MS. TURNER: And given the nature, at least it sounded to me from some of the reports, the nature of Mr. Campbell's employment, if he could provide a

schedule to the supervisor in advance on perhaps a weekly basis, that would be of assistance in terms of monitoring. THE COURT: Yes. MS. TURNER: Thank you. MS. INNESS: I'm just going to ask Your Honour if we can, if we can say: and to update the sentence supervisor of any changes in advance of that. And I'm not trying to create problems, I can just foresee if somebody is on a job site or something runs later and you think you're going to be there from, you think you're going to be doing a particular job from 12:00 to 4:00 and then it's running a little later, at least so Mr.

Campbell is keeping -- the whole thrust is so the sentence supervisor knows exactly where he is at his employment. THE COURT: Um-hum. MS. INNESS: But we don't want him so constrained that he has to leave a job site or something because he's given him the

schedule and something has changed. And sometimes in that nature of work things can change. So, and then to update the sentence supervisor of any changes in the

schedule in advance.

THE COURT: Can you propose a wording? MS. INNESS: I would just say and to update. We've got that the exception is for the attendance to employment and travel to and from, to provide the

schedule on a weekly basis in advance, and to update the sentence supervisor of any changes in that schedule. THE COURT: Thank you. MS. INNESS: Thank you so much, Your Honour. MS. TURNER: Thank you. THE COURT: Okay. Thank you. _____