R. v. Peters, 2016 MBPC 43

Cite: 2016 MBPC 43 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Richard Smith, ) for the Crown - and – ) ) Heinrich Wiebe, ) Richard Wolson, Q.C., Accused ) ) for the Accused ) Judgment delivered: August 5, 2016 ) R.L. POLLACK P.J. [ 1 ] On August 6, 2015 Heinrich Wiebe elected to be tried in Provincial Court and entered a plea of guilty to trafficking in cocaine between July 4 and July 11, 2014; the particulars specify two occasions on which he connected an undercover police officer with a supplier.

This sentencing concerns an offender who has not previously been in conflict with the law and who - by now - could have completed serving a conditional sentence which might have included addiction treatment, community service, rehabilitation and a curfew. But Mr.

Wiebe was not eligible for a conditional sentence order because Parliament removed that option in its Safe Streets and Communities Act , S.C. 2012, c.1, s.34. [ 2 ] The claw back of conditional sentence availability for drug trafficking prompted a series of appeals to the Manitoba Court of Appeal concerning drug trafficking and the remaining alternatives to incarceration. They seemed relevant to this case and counsel made a joint request that I defer sentencing until the guidance of our appellate court was available.

The cases were heard a month later and judgments were released on December 17, 2015. [ 3 ] In the summer of 2014 Heinrich Wiebe was a twenty-six year old addicted drug user. A resident of Winkler, Manitoba since he was four years old, he had a grade nine education and was single. The history and values of those who settled in southwestern Manitoba have not insulated their communities from drug traffickers.

The Morden Police Service, Winkler Police Service and Royal Canadian Mounted Police coordinated an effort – “Project Denver” - to investigate and this case concerns one of the earliest steps in this effort. [ 4 ] An undercover officer took a taxi to a well-known lounge in Winkler. He had information that the driver, a man named Neufeld, was able to find cocaine so the officer asked about it. The driver said that he would make inquiries and let him know. The same day Mr. Neufeld returned to the lounge and the officer got back into his taxi. Mr. Wiebe also got into the taxi and the driver told Mr.

Wiebe that his passenger wished to buy some cocaine. Mr. Wiebe agreed to sell him three grams of cocaine for $300.00 at a later date but then handed a bag containing a small amount of what was supposed to be cocaine to the officer, telling him to let him know what he thought of its quality. Upon analysis the substance was found to have no trace of cocaine. [ 5 ] On July 4, 2014 the officer received a text from Mr. Wiebe inquiring whether he still wanted three grams of cocaine. The men met at the lounge and the officer drove Mr. Wiebe and another undercover officer to the residence of a supplier.

Along the way the men agreed that the price would be $290.00 for three grams and that Mr. Wiebe could have some. They arrived at the residence and Mr. Wiebe went in with the officer’s money; he emerged a short time later with a man named Buhler. Mr. Buhler, Mr. Wiebe and the two undercover officers went inside and Mr. Buhler handed the first officer three bags, each purporting to contain one gram of cocaine. Upon analysis the substance was found to be cocaine weighing a total of 1.9 grams. [ 6 ] On July 11, 2014 Mr. Wiebe called the undercover officer to ask if he wanted some more cocaine for the weekend.

The officer asked for four grams and they agreed to meet at the lounge. This time Mr. Wiebe handed the officer two bags and the officer paid him $360.00. This transaction took place in the officer’s vehicle. Upon analysis the bags were found to contain cocaine weighing 1.9 grams. [ 7 ] The facts are not in issue. The taxi driver introduced the offender to the undercover officer because Mr. Wiebe was a known local addict. The shortage in the amounts of cocaine acquired is attributed to cocaine ingested by Mr. Wiebe and that was his complete remuneration for each transaction.

In the drug trafficking pyramid, beginning with a broad base of street level dealers and narrowing to those in its peak who are trusted with large quantities of drugs and cash, Mr. Wiebe was at the level of a pothole. [ 8 ] The prosecution appeal in R. v. Peters , 2015 MBCA 119 was one of the cases for which counsel wished to wait. Writing for the panel, Michel Monin JA wrote at paragraph 3 that:

On first impression, the common issue raised in these appeals is whether there were “exceptional circumstances” warranting a departure from the established sentencing range. However, in this particular appeal, the issue is not restricted to the consideration of the existence of “exceptional circumstances”. In my view, this appeal turns mainly on the applicability of what are commonly referred to as the Gladue-Ipeelee principles . . .

Having reviewed the manner in which the sentencing judge arrived at a suspended sentence, which included focusing on the antecedents of that Aboriginal offender, the decision continued at paragraph 26: In my view, because of the changes that the accused brought into his life following his arrest, he would have been a good candidate for a conditional sentence. However, because that option has been taken away from judges, the sentencing judge had to consider what other options were available to her, short of incarceration.

She was dealing with an exceptional set of circumstances and, in my view, dealt with them in a manner that was open to her. In addition, in crafting her sentence she properly considered what the Supreme Court of Canada has said with respect to sentencing Aboriginal offenders. and at paragraph 28: There was evidence that could lead the sentencing judge to conclude that this accused had turned his life around since the time of his arrest and that in the circumstances of this case,, the long-term protection of the public, was better served by the non-custodial sentence that she imposed. [ 9 ] In R. v.

Tran, 2015 MBCA 120 , the prosecution was granted leave to appeal from a conditional sentence order in a possession for the purpose of trafficking in cocaine case. Writing for the panel, Michel Monin JA summarized why the appeal was dismissed: 31. The sentencing judge was dealing with a youthful, immature young offender with no prior involvement with the criminal justice system. The sentencing judge accepted the accused’s claim that he had sought out the opportunity to become involved in the drug trade to earn money to pay his university tuition.

The accused was on bail from the time of the offence in July of 2010 to the time of sentencing on November 4, 2014, with strict conditions and complied with those conditions including serving 12 months of his conditional sentence by way of house arrest. There was, in my view, an inordinate amount of time that passed between the time of the accused’s arrest and the time of sentencing. The sentencing judge properly effected a balance between the need for denunciation and deterrence with the accused’s more than apparent rehabilitation. The accused has completed the community service imposed as part of his sentence.

He has been gainfully employed and has the support of his employer. This is one of those rare cases where, in my view, it would be counterproductive to send this offender to jail, let alone a penitentiary term. 32. In the long term, society will be best protected and served by having this accused rehabilitated and continuing to be a productive member of the community as opposed to serving time in jail. Although this case would be a paradigm, I cannot consider conditional sentencing for Mr. Wiebe. [ 10 ] His personal history has some contrasts. At age sixteen he began to abuse both alcohol and drugs.

By the time he was nineteen he found it necessary to go into treatment in Mexico but his recovery was short-lived. By age twenty he was using drugs regularly. Notwithstanding that, he has been employed most of his adult life. The owner of the firm he was most recently employed with confirmed that he worked there for seven years. He now has employment in Saskatchewan for which he had to receive some relief from the terms of his interim release.

For the past two years he has been compliant with a curfew of 10:00 P.M. [ 11 ] The prosecution urged me to impose a provincial jail sentence to send a message to the community that trafficking in cocaine is a serious offence that must attract a deterrent sentence, even in the case of an addict who merely facilitated two small purchases in order to get himself high. In letters of reference provided by his counsel, there is information that Mr. Wiebe is in recovery and doing well. The prosecution say that this is not an exceptional circumstance. [ 12 ] Cocaine is a scary drug.

It causes parents to ignore the needs of their children. It propels some of them into committing serious crimes for which they are jailed and therefore cannot attend to their children’s needs. It prompts violence in which innocent people are harmed or killed. For some it is an enterprise crime and the cocaine that Mr. Wiebe acquired for the police certainly came from enterprising criminals.

And, as small a part of that enterprise as the offence here may be, this offender was part of it. [ 13 ] I agree that rehabilitation undertaken by an offender is not an exceptional circumstance but, just as Monnin JA found other important circumstances to consider in the Peters appeal, there are some here. They concern the role the offender played and his incentive to participate in the first place. Heinrich Wiebe was known as a drug addict, not as a drug dealer, when the police asked Mr. Neufeld where someone could obtain some personal-use cocaine. It was the taxi driver who was their first suspect.

The undercover investigative initiative presented an opportunity for Mr. Wiebe to get a free dose of cocaine; he seized it and got caught in the tight netting of Project Denver. [ 14 ] In my opinion, this offender is the kind of person contemplated by McLachlin CJC in R. v. Lloyd , 2016 SCC 13 during the Court’s Charter analysis of the once-mandatory minimum one-year sentence: 30 Second, the definition of "traffic" in the CDSA captures a very broad range of conduct.

It targets not only people selling drugs, but all who "administer, give, transfer, transport, send or deliver the substance" (s. 2(1)), irrespective of the reason for doing so and regardless of the intent to make a profit.

As such, it would catch someone who gives a small amount of a drug to a friend, or someone who is only trafficking to support his own habit . ( emphasis added ) Against that background the prosecution seek a sentence of eighteen months and I agree with the Chief Justice that I ought not to be considering a sentence of even one year in this case. [ 15 ] In saying that, I am cognizant of the need to impose a sentence that denounces a dangerous drug and those who make it available but, with great respect for the prosecutor’s well-argued submissions, his position is that there still exists a minimum sentence

for this low-level trafficking case. There is an interesting online paper referred to later by McLachlin CJC: Department of Justice Canada, Research and Statistics Division, Mandatory Sentences of Imprisonment in Common Law Jurisdictions: Some Representative Models (2005) . In its

summary one finds this section: Public Attitudes to Mandatory Sentencing Proponents of mandatory sentencing have long argued that such penalties are consistent with public attitudes toward sentencing. In reality, the public supports mandatory sentencing only when asked to consider the most serious crimes of violence, and when the poll question prevents respondents from considering the potential deficiencies associated with mandatory sentences of imprisonment (such as a loss of proportionality in sentencing).

Recent polls conducted in Australia and in the United States demonstrate that public support for mandatory sentencing has declined in recent years. This, in turn, explains in part the decline in support for mandatory sentencing among politicians.

Certainly, as the Manitoba Court of Appeal judges have recently written, there is a decline in judicial support for a jail sentence to demonstrate denunciation and deterrence in every drug trafficking case. [ 16 ] Assuming arguendo that the starting point for cocaine trafficking sentencing is incarceration, one must be cautious about starting points because they can become vague minima and those are the worst kind. Earlier this year in R. v.

McGill , 2016 ONCJ 138 , Green J. gave this important caution about common law minimum sentencing (in paragraph 31): With respect, there is a risk of injustice in relying on a sentencing model premised on judicially-created fixed ranges of imprisonment from which the sole reprieve is resort to an uncertain doctrine of exceptionality. [ 17 ] The dominant aggravating feature of this case is that, given the opportunity, the offender made a dangerous drug available for sale and the sale included agency remuneration. Its mitigating features include

a) the two sales were opportunities that arose at the undercover officer’s request;

b) the remuneration was an immediate and direct satisfying of the offender’s addiction with a cocaine dose and nothing more;

c) the offender surrendered himself to police on August 8, 2014;

d) two years of interim release, including a curfew, have passed without a violation;

e) the offender has taken meaningful steps to engage in rehabilitation and to be productive. Therefore this is more than another example of “exceptional circumstances”.

The facts of this case and the antecedents of the offender demonstrate that a suspended sentence will be a proportionate sentence. [ 18 ] Heinrich Wiebe, your sentence is suspended for a period of two years during which there will be supervised probation, subject to these conditions in addition to those required by Criminal Code , s. 732.1(2): (1) report to a probation officer within one working day and thereafter as directed; (2) report your home address and any temporary address required by your employment to your probation officer; (3) do not move your home address from Manitoba without taking all necessary steps to transfer this order to another province; (4) do not possess or consume any alcohol or drugs unless you have a prescription with your name on the container; (5) do not enter any place in which the sale of alcohol is its primary purpose; (6) provide a sample of a bodily substance suitable to enable an analysis to be made, on demand, to any peace officer or probation officer who has reasonable grounds to believe that the alcohol or drug abstention condition of this order has been breached; (7) enrol in, attend and complete all assessments, counselling and rehabilitative programs as directed by your probation officer, including those that address addiction and addiction-related issues; (8) maintain employment or upgrade your education or employment skills and provide proof as required by your probation officer; (9) under the supervision of your probation officer, provide 100 hours of community service without reward or remuneration between now and October 31, 2017; (10) do not communicate directly or indirectly through any person or medium with Ernest Buhler or Henry Neufeld and stay 100 metres away from wherever either may live, be employed, worship or further his education. [ 19 ] Pursuant to Criminal Code, s. 109, you are prohibited from possession of a series of weapons, ammunition and explosive substances for ten years. [ 20 ] Pursuant to Criminal Code, s. 487.051(1), you are ordered to provide within thirty days a sample of your DNA suitable for forensic DNA analysis. [ 21 ] Pursuant to Criminal Code, s. 737(2)(b), you are required to pay a victim surcharge of $200.00 within ninety days. [ 22 ] If forfeiture has not already been ordered, there will be an appropriate order with respect to the subject matter of the offence.

“Original signed by” R.L. POLLACK P.J.