R. v. Martin, 2012 NBCA 95

COURT OF APPEAL OF NEW BRUNSWICK 178-11-CA HER MAJESTY THE QUEEN APPELLANT SA MAJESTÉ LA REINE APPELANTE - and - - et - BERNARD JOSEPH MARTIN RESPONDENT BERNARD JOSEPH MARTIN INTIMÉ R. v. Martin, 2012 NBCA 95 R. c.

Martin, 2012 NBCA 95 CORAM: The Honourable Justice Richard The Honourable Justice Bell The Honourable Justice Quigg CORAM : L’honorable juge Richard L’honorable juge Bell L’honorable juge Quigg Appeal from a decision of the Provincial Court: November 21, 2011 Appel d’une décision de la Cour provinciale : Le 21 novembre 2011 History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : Inédite Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : S.O.

Appeal heard: September 25, 2012 Appel entendu : Le 25 septembre 2012 Judgment rendered: November 22, 2012 Jugement rendu : Le 22 novembre 2012 Reasons for judgment by: The Honourable Justice Quigg Motifs de jugement : L’honorable juge Quigg

Concurred in by: The Honourable Justice Richard The Honourable Justice Bell Souscrivent aux motifs : L’honorable juge Richard L’honorable juge Bell Counsel at hearing: For the appellant: Cameron H. Gunn For the respondent: Howard M. Peters Avocats à l'audience : Pour l’appelante : Cameron H. Gunn Pour l’intimé : Howard M.

Peters THE COURT Leave to appeal is granted, the appeal is allowed and the conditional sentences are varied to a term of 15 months imprisonment, commencing November 21, 2011, the date the sentence was originally imposed for the offence under s. 5(2) of the Controlled Drugs and Substances Ac t and concurrent terms of one month for the other offences. The probation and ancillary orders are unaffected. LA COUR L’autorisation d’interjeter appel est accordée.

L’appel est accueilli et les peines d’emprisonnement avec sursis sont remplacées par une peine carcérale de 15 mois calculée à partir du 21 novembre 2011, date à laquelle la peine initiale a été infligée, pour l’infraction décrite au par. 5(2) de la Loi réglementant certaines drogues et autres substances , et par des peines concurrentes d’un mois pour les autres infractions. Les ordonnances de probation et les ordonnances accessoires demeurent inchangées. The judgment of the Court was delivered by QUIGG, J.A. I.

Introduction [ 1 ] The Attorney General seeks leave to appeal concurrent conditional sentences imposed by a Provincial Court judge after Bernard Joseph Martin pled guilty to two separate indictable charges, one of possession of cocaine for the purpose of trafficking ( s. 5(2) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19) and the other for possession of a prohibited weapon ( s. 91 of the Criminal Code ). Mr.

Martin pled not guilty to two additional indictable charges of possession for the purposes of trafficking (cannabis and cannabis resin), but, pursuant to s. 606(4) of the Criminal Code , pled guilty to the lesser included offences of possession of a controlled substance ( s. 4(1) of the Controlled Drugs and Substances Act ), which pleas were accepted.

The sentencing judge imposed a conditional sentence of 22 months for the offence under s. 5(2) of the Controlled Drugs and Substances Act , concurrent terms of 12 months for those under s. 4(1) of the Act , and a concurrent term of 6 months for the offence under the Criminal Code . [ 2 ] For the reasons that follow, I would grant leave to appeal, allow the appeal, and vary the custodial portion of the sentences to a term of 15 months imprisonment for the s. 5(2) offence, and, because it will have no affect on the total, one month concurrent for the s. 4(1) offences and the Criminal Code offence.

The probation orders and the various ancillary orders made in the Provincial Court remain unaffected. As stated in R. v. R.T.S. , 2006 NBCA 65 , 301 N.B.R. (2d) 338, at paras. 30 and 31 , the custodial portion of the sentences takes effect from the date of the original sentence and the time served under the original conditional custodial sentence must be deducted from the balance of the sentence to be served in prison.

II. Background [ 3 ] On March 11, 2010, members of the Fredericton Police Force Drug Crimes Unit set up surveillance in close proximity to Mr. Martin’s residence. As a result of an ongoing investigation, the Unit determined it had grounds to arrest Mr. Martin for various drug offences. At 1:05 a.m., a Detective advised other officers that Mr. Martin was in his truck on Main Street in Fredericton. Mr. Martin was subsequently stopped and was asked for his driver’s license, registration and insurance, all of which were provided.

He was arrested, and a search of his truck revealed the following items were in his possession: ➢ various small Ziploc bags of hash (cannabis resin) totalling 4.12 grams (approximate street value of $61.80); ➢ 7.01 grams of marihuana (approximate street value of $91.70); ➢ 13 individual Ziploc baggies of cocaine totalling 5.75 grams, (approximate street value of $575); ➢ a cell phone; ➢ a pair of silver coloured brass knuckles; and ➢ $585 in Canadian bills. [ 4 ] Mr.

Martin acknowledged the drugs were his and stated he had been “rounding them up” to give out to people who would be attending his brother’s birthday party the following week. He admitted he used marihuana, and that he had sold marihuana in the past, and explained that a friend made the brass knuckles for him. Mr. Martin was eventually charged and, as indicated above, pled guilty. A pre-sentence report was ordered. III. Sentencing [ 5 ] A sentencing hearing was held on November 21, 2011, at which counsel for Mr.

Martin sought a conditional sentence while Crown counsel requested a sentence of 12-18 months imprisonment to be followed by probation. Crown counsel also sought various ancillary orders. The sentencing judge considered the pre-sentence report to be favourable and particularly noted that Mr. Martin was paying child support for three children and that he had worked hard to reduce various debts, including payment of approximately $13,000 of $15,000 in child support arrears. On the other hand, the judge found a previous conviction in 2003 to be an aggravating factor. [ 6 ] The judge imposed the following sentences:

a) With respect to Count #1, 22 months imprisonment to be served concurrently to any other sentence and in the community pursuant to

section 742.1 of the Criminal Code of Canada , a probation order for a period of 12 months and a victim fine surcharge of

$100;

b) With respect to Count #2, 12 months imprisonment to be served concurrently to any other sentence and in the communitypursuant to

section 742.1 of the Criminal Code of Canada, a probation order for a period of 12 months and a victim fine surcharge of$100;

c) With respect to Count #3, 12 months imprisonment to be served concurrently to any other sentence and in the communitypursuant to

section 742.1 of the Criminal Code of Canada, a probation order for a period of 12 months and a victim fine surcharge of$100;

d) With respect to Count #4, 6 months imprisonment to be served concurrently to any other sentence and in the community pursuantto

section 742.1 of the Criminal Code of Canada, a probation order for a period of 12 months, a prohibition from possessing firearms fora period of 10 years pursuant to

section 110 of the Criminal Code of Canada, a weapons forfeiture order pursuant to

section 485 of theCriminal Code of Canada and a victim fine surcharge of $50. [App. Sub., pp. 4-5] IV. Issues raised on appeal [7] The Attorney General seeks leave to appeal on the grounds that the sentencing judge erred inlaw and in principle by:

(1) Imposing a sentence that is manifestly inadequate and unreasonable having regard to all of the circumstances.

(2) Failing to adequately consider the principles of sentencing as delineated in the Criminal Code. V. Standard of Review [8] In R. v. R.K.J. (1998), (NB CA), 207 N.B.R. (2d) 24, [1998] N.B.J. No.483 (C.A.) (QL), Drapeau J.A. (as he then was) sets out the analytical framework that should be applied to the determination ofapplications for leave to appeal sentence: It is the undoubted duty of this Court to review the fitness of any sentence imposed. That it must do so bearing in mind the privilegedposition occupied by the trial judge is settled law. All agree that the sentencing process is hardly an exact science.

It is a subjectiveprocess which features a large measure of discretion. The intrinsically discretionary nature of the sentence decision explains, at least inpart, the Supreme Court's insistence on a deferential approach to all sentence reviews. See R. v. Shropshire, (SCC),[1995] 4 S.C.R. 227, R. v. M.(C.A.), (SCC), [1996] 1 S.C.R. 500, and R. v. MacDonnell, (SCC),[1997] 1 S.C.R. 305. Nevertheless, deference has its limits, and this Court is duty bound to vary a sentence in appropriate circumstances.

Indeed, if thesentencing court commits an error of law or an error in principle, or if the sentence imposed is clearly unreasonable, there is no longerroom for deference and this court is required to impose the sentence which it considers fit. See R. v. F.S.A. (1996), (NB CA), 182 N.B.R. (2d) 20; 463 A.P.R. 20 (C.A.), and R. v. Melanson (E.R.) (1998), (NB CA), 199 N.B.R. (2d)338; 510 A.P.R. 338 (C.A.). In this context, an error in law most commonly occurs as a result of a misapprehension of the evidence or a misapplication of judicialprecedents.

As for an error in principle, it typically involves one or more of the following: the application of wrong sentencing principles,a failure to consider relevant factors or the taking into account of irrelevant considerations. As well, there will be cases where the failureto give proper weight to each relevant circumstance will amount to an error in principle. (Our court will necessarily be slow to find anerror of this nature for, if it was otherwise, professions of deference would soon ring hollow.) Finally, a sentence will be clearlyunreasonable where it is either inordinately long or inordinately short.

It will reach this level only if it is a substantial and markeddeparture from the sentence customarily imposed for similarly situated offenders committing similar crimes. [paras. 11-13]

This standard of review has since been applied in numerous cases, the most recent being R. v. Frost , 2012 NBCA 94 , which is being released concurrently with this decision. VI. Analysis [9] The appropriateness of a conditional sentence for a drug trafficking offence is dealt with in Frost .

In brief, the principles of denunciation and general deterrence must take precedence in cases of trafficking or possession for the purpose of trafficking, and, absent exceptional circumstances, this Court has consistently emphasized these principles, in such cases, by imposing jail sentences. [10] In my view, this case does not reveal any “exceptional circumstances”. An accused’s child support obligation has been determined not to be an exceptional circumstance ( see R. v. Bowlin , 2010 NBQB 59 , 354 N.B.R. (2d) 144 , aff’d 2010 NBCA 90 , 366 N.B.R. (2d) 292 , leave to appeal refused [2011] S.C.C.A. No. 95 (QL)).

To the extent the sentencing judge considered this to be a mitigating factor, he erred. [11] For the reasons given in Frost , the conditional sentences imposed in this case are unreasonable in that they do not take into account the governing sentencing principles for cases of possession for the purposes of trafficking. In addition, this case reveals a need for specific deterrence considering that Mr.

Martin has a previous conviction for an offence of possession for the purpose of trafficking and has previously served time in jail. [12] Considering the above, and considering the nature of the drug involved in the charge under s. 5(2) , I am of the view that a fit sentence for that offence would have been 15 months in jail. I would therefore vary the sentence imposed for that offence to a term of 15 months imprisonment. As for the other offences, they may, absent the possession for the purpose of trafficking, have commanded much more lenient sentences.

In the circumstances, because nothing will flow from these sentences, I would vary these to concurrent terms of one month in jail. I would not vary the probation and other orders. VII. Disposition [13] For these reasons, I would grant leave to appeal, allow the appeal and vary the conditional sentence to a terms of 15 months imprisonment in a provincial jail commencing November 21, 2011, the date the sentence was originally imposed. I would vary the other sentences to concurrent terms of one month in jail. I would note the effect of R.T.S. with respect to the calculation of the balance of any time Mr.

Martin has left to serve. Finally, the probation orders and all other ancillary orders imposed by the sentencing judge are unaffected. _______________________________ KATHLEEN A. QUIGG, J.A. WE CONCUR: _______________________________ J.C. MARC RICHARD, J.A.

_______________________________ B. RICHARD BELL, J.A.