Her Majesty the Queen - v. -, 2013 SKPC 103

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 103 Date: July 15, 2013 Information: 33832370 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Danny Fiddler, Jr. Appearing: C. Andriashek For the Crown P. Chetty For the Accused JUDGMENT M.M. BANIAK , J I. INTRODUCTION [ 1 ] The accused, Danny Fiddler, Jr. entered a guilty plea to the following: On or about the 3 rd day of April, A.D. 2012, at or near Prince Albert District, in the Province of Saskatchewan, did,

1) unlawfully have in his possession a controlled substance to wit: cannabis marihuana in an amount not exceeding three kilograms for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act ; 2) unlawfully have in his possession a controlled substance to wit: cocaine for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act ; 3) have in his possession proceeds of property, to wit: money of a value not exceeding five thousand dollars knowing that all of the proceeds of the property was obtained or derived directly or indirectly as a result of the commission in Canada of an offence punishable by indictment, contrary to sections 354 and 355 of the Criminal Code . and further pled guilty to count #1 on Information 39591718, namely: On or about the 8 th day of June, A.D. 2012, at or near Prince Albert, Saskatchewan, did, 1) being at large on his undertaking given to a justice or a judge and being bound to comply with a condition thereof, to wit: abide by a curfew of 9:00 p.m. to 7:00 a.m. daily.

Must remain in the approved residence during the said hours, except for the purpose of or as allowed by the bail supervision officer. Any change must be with the prior written permission of the bail supervision officer/Court and he/she must personally present him/herself to any police officer, bail supervision officer or designate checking on the curfew, fail without lawful excuse to comply with that condition, contrary to section 145(3) of the Criminal Code . [ 2 ] Crown counsel have filed a number of sentencing decisions and I thank them for those.

Relying on those decisions, the Crown argued for a sentence of 18 months incarceration; a s. 109 order; forfeiture of all items seized, including the money; and an order for provision of a DNA sample by the accused. [ 3 ] Defence, citing the small scale of the enterprise; the difficult childhood of the accused; his good employment record; his young age (22) and his lack of a criminal record, argued for a conditional sentence order. [ 4 ] By way of background, the accused is 22 years of age and is of Metis background. He experienced an abusive and difficult childhood.

He was a victim of severe beatings at the hands of his father. He spent time in foster care. He was introduced to alcohol and drugs at an early age. His association with known criminals led to his involvement with drugs. [ 5 ] Despite all these obstacles, he started working at age 15 and has, for the most part, held a job on a regular basis.

On October 28, 2011, he became a father, and I ’ m advised that he pays child support in the amount of $250.00 per month. [ 6 ] His overall risk for general re-offending was assessed as being medium. [ 7 ] He has been on bail since April 4, 2012, and his only breach occurred on June 8, 2012, when he failed to abide by a curfew of 9:00 p.m. to 7:00 a.m. There have not been any reported breaches in the last 13 months.

The bail supervision officer reports that he is doing well and as a result his reporting has been reduced from weekly to bi-weekly, to monthly. [ 8 ] Miss O ’ Brian, who prepared the report, is of the opinion that his risk can be managed in the community. [ 9 ] The amount of cocaine found and attributed to the accused was 20.3 grams; the estimated street value about $1,600.00. Also

seized were 486.6 grams of marihuana; the street value of which could, according to the Crown, vary from $4,868.00 to $12,170.00. II. ISSUES & ANALYSIS [ 10 ] The issue that I have to determine is what is an appropriate sentence for this accused, having regard to the range of sentences for cocaine trafficking in Saskatchewan. [ 11 ] Over the course of the last twenty years, our Court of Appeal, starting with R. v. Goy , [1] where Mr. Justice Cameron remarked that for an offence of this type, “ The usual range is in the order of one and a half to four years. ” , to R. v.

Shawile , [2] has maintained that the starting point should be 18 months. [ 12 ] On occasion, the Court of Appeal has departed from this range and imposed lesser sentences - R. v. Faubert ; R. v. Larivier ; and R. v. McIntyre [3] come to mind. [ 13 ] On rare occasions, the Court of Appeal has upheld conditional sentences for trafficking: R. v. Laliberte ; R. v. Keepness ; and in R. v. Von Hagen , [4] it substituted a conditional sentence for a jail sentence. More recently, the Court of Appeal in R. v. McCallum and R. v.

Martin , rendered consent judgments where the conditional sentences were upheld with additional terms and conditions being added. [5] [ 14 ] Lower courts in this province have also imposed conditional sentences from time to time. [ 15 ] It is of note, moreover, that other appellate Courts have recently held that a conditional sentence is sometimes appropriate for trafficking in cocaine. In R. v.

Bernier , [6] the Quebec Court of Appeal held that conditional sentences are available in cases involving hard drugs where the possibility of rehabilitation was convincingly demonstrated and were not restricted to cases with exceptional circumstances. In Bernier the accused was a courier for a criminal organization. He had a minor criminal record. [ 16 ] Similarly, the Alberta Court of Appeal in a case indexed as R. v. Liparoti , [7] held that conditional sentences are not unfit in cases where there are exemplary mitigating factors and low level of trafficking.

In Liparoti the accused was sentenced to a global 18 month conditional sentence for three counts of trafficking in cocaine and one count of possession of proceeds of crime. At the time of the offence Mr. Liparoti was 35 years of age and had a substantial record accumulated during the previous ten years. [ 17 ] Interestingly, the Alberta Court of Appeal, in Liparoti , also held that a sentencing judge may take into account strict bail conditions as akin to custody - “ Whether credit is to be given, and the amount, is within the sentencing judge ’ s discretion. ” [8] [ 18 ] Finally, in R. v. Pankewich and R. v.

Gaveronski , Madam Justice Jackson of our Court of Appeal set out the factors to be considered in determining an appropriate sentence for trafficking in cocaine: [9] 1. the sophistication and significance of the offence and the accused's place in it; 2. the type and quantity of drug; 3. the motivation for the offence: those who traffic to support their own habit may be more likely to receive a restorative disposition than those who traffic for other reasons;

4. the need for and the utility of the deterrence which will be provided by the sentence imposed; 5. the factors relating to the community like the significance of the problem; and, 6. the age, lack of record and other personal circumstances of the accused. [ 19 ] These factors seem to suggest that under the right circumstances the principles of rehabilitation are on par with the principles of deterrence and denunciation.

Further, the Criminal Code does not prescribe minimum punishment for trafficking in cocaine, and s. 35 of the Safe Streets and Communities Act does not apply to offences committed prior to November 20, 2012.

Finally, our Court of Appeal has on occasion recognized that there are exceptions to incarceration in a custodial facility and agreed that a conditional sentence is appropriate in cases where the circumstances warranted it. [ 20 ] Having regard to all of the above, do the circumstances of this accused warrant consideration of a conditional sentence? [ 21 ] Based on the submissions of the Crown, defence counsel, and the contents of the pre-sentence report, I find as follows: (

a) The accused was addicted to drugs at the time of the offence; (

b) His association with known criminals led to his involvement in the drug trade; (

c) The quantities, particularly of cocaine, were relatively small; (

d) The accused, at 22 years of age, has no criminal record; (

e) He has had a very difficult childhood and was introduced to alcohol at a very early age; (

f) He has been diligent in obtaining and keeping employment; (

g) He pays child support in the amount of $250.00 (18 month old son); (

h) Except for one curfew breach (June 8, 2012) he has complied with strict Court imposed conditions for more than a year; (

i) The pre-sentence report rates him as a medium risk to re-offend and concludes that “Based on all information, the writer is of the opinion Danny’s risk can be managed in the community.” [10] III. CONCLUSION [ 22 ] Based on all of the above, I am satisfied that a conditional sentence is an appropriate disposition. I do not believe that a

conditional sentence would be inconsistent with the fundamental principles of sentencing, or that it would result in the public being endangered. [ 23 ] The sentence on the cocaine trafficking charge (Count 2, of Information 33832370) will be a conditional sentence for a term of two years less a day. Count 1, shall be six (6) months concurrent to count 2, and count 3 shall be three (3) months concurrent to count 2.

In addition to the mandatory conditions (as per s. 742.3 of the Code ), he will be subject to the following additional conditions: 1) That he reside at a residence approved by the supervisor; 2) That for the first six (6) months of this Order remain continuously in your approved residence except as permitted by the supervisor or for employment or medical emergencies; 3) That for the last 18 months of this Order obey a curfew of 11:00 p.m. to 6:00 a.m., seven days a week and not be outside of the approved residence except with the permission of his supervisor or for employment purposes or for medical emergencies; 4) That he attend such counselling or assessment programs as directed by his supervisor, including, residential treatment facility if so ordered; 5) That he shall not possess or consume any alcohol or non-prescription drugs; 6) That he shall not attend any premises where the primary function is the sale or consumption of alcohol; 7) That he shall perform 100 hours of community service work within the first 18 months of the Order; 8) That he shall submit to urinalysis or Breathalyzer tests on demand of a police officer or his supervisor; 9) That he shall come to the door of his approved residence when requested to do so by a police officer or his supervisor who may be checking the residence for curfew conditions of this Order; and 10) That he have no contact directly or indirectly with Dustin Korecki. [ 24 ] There will also be an order pursuant to s. 109 of the Criminal Code prohibiting Mr.

Fiddler from possessing any firearms for a period of ten (10) years (concurrent on each charge). [ 25 ] He will also be required to provide samples suitable for DNA analysis pursuant to s. 487.05 of the Criminal Code . And, finally, there will be an order of forfeiture of all items seized including currency as per s. 16(1) of the Controlled Drugs and Substances Act . [ 26 ] Since Mr. Fiddler is employed, all applicable victim surcharges will apply. [ 27 ] With respect to the charge in Information # 39591718, he is fined the sum of $200.00, plus surcharge.

[28] All fines and surcharges to be paid on or before October 31, 2013. [29] Dated at the City of Prince Albert, in the Province of Saskatchewan, this 15th day of July, A.D. 2013. ___________________________________ M. M. Baniak, J [1] R. v. Goy (1992), (SK CA), 105 Sask. R. 131. [2] R. v. Shawile, 2012 SKCA 51. [3] R. v. Faubert (1999), (SK CA), 152 Sask. R. 228; R. v. Larivier, 2006 SKCA (Sent Dig.) 40; and R. v. McIntyre,2012 SKCA 111. [4] R. v. Laliberte, 2000 SKCA 27; R. v. Keepness, 2000 SKCA 28; and R. v. Von Hagen, 2008 SKCA 123. [5] R. v. McCallum, CACR 2226, April 10, 2013; R. v.

Martin, CACR 2253, June 4, 2013. (In R. v. Martin the conditional sentence orderincreased from 20 months to two years less one day.) [6] R. v. Bernier, 2011 QCCA 228. [7] R. v. Liparoti, 2011 ABCA 250. [8] R. v. Liparoti, supra, para.13. [9] R. v. Pankewich and R. v. Gaveronski, 2002 SKCA 7, para. 49. [10] Page 9, Pre-Sentence Report, dated May 31, 2013.