Her Majesty the Queen - v. -, 2018 SKPC 43

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2018 SKPC 43 Date: July 26, 2018 Information: 24507583 Location: Yorkton _____________________________________________________________________________ Between: Her Majesty the Queen - and - Christopher Daniel Burke Appearing: Rhiannon Rees For the Crown Richard Leland, Q.C. For the Accused SENTENCING DECISION RYBCHUK, J Introduction [ 1 ] Christopher Daniel Burke was found guilty after trial of trafficking cocaine contrary to section 5(1) of the Controlled Drugs and

[ 1 ] Christopher Daniel Burke was found guilty after trial of trafficking cocaine contrary to section 5(1) of the Controlled Drugs and Substances Act , SC 1996, c 19 (“ CDSA ”) and possession of cocaine for the purpose of trafficking contrary to section 5(2) of the CDSA . Circumstances of the Offence [ 2 ] Mr. Burke was staying with family in Yorkton, SK when a cousin asked him if he could give him a ride to Regina, SK because his vehicle had broken down. Mr. Burke knew his cousin was a drug dealer but decided to help him out anyway.

He did not know that his cousin’s residence was under police surveillance at the time. [ 3 ] Mr. Burke drove to his cousin’s house, picked him up and gave him a ride to Regina. When they arrived in Regina his cousin got out of the vehicle and went into a house for approximately 5 to 10 minutes. He then returned to the vehicle and they both drove back to Yorkton where his cousin was observed carrying a white plastic bag from the vehicle into his house. [ 4 ] A search warrant was conducted of the cousin’s house. 181 grams of cocaine, 16 grams of cannabis marihuana and the usual drug paraphernalia were seized.

At trial, I found that Mr. Burke had actual knowledge or at the very least was wilfully blind to the fact that he and his cousin had travelled to Regina to pick up drugs. Mr. Burke did not know the type or quantity of drug that his cousin had picked up in Regina and he was not involved in the commercial trafficking of drugs for profit. I also found that Mr. Burke had knowledge or was wilfully blind as to the drug operation that was taking place in his cousin’s home at the time. However, there was no evidence Mr.

Burke was involved or participated in the drug operation which was not sophisticated or large scale in nature. Crown Position on Sentence [ 5 ] The Crown submits that the sentencing range for trafficking in

Schedule I hard drugs is between 18 months and 4 years imprisonment. The Crown is seeking a sentence of 30 months incarceration for Mr. Burke. The Crown also seeks the mandatory

section 109 ten-year firearms prohibition and

section 487.051 DNA order. Defence Position on Sentence [ 6 ] The defence acknowledges the sentencing range, but argues that the sentencing principles can be met by a suspended sentence with or without a fine and probation for Mr. Burke. In the alternative, if I find that a period of incarceration is necessary, the defence asks that I impose a jail sentence of no more than 10 months. Personal Circumstances of the Offender [ 7 ] Mr. Burke’s parents separated when he was five years old. His mother was subjected to emotional abuse and controlling behaviour by Mr. Burke’s father. She took Mr.

Burke and his younger brother to go live with her and her extended family on the Keeseekoose First Nation near Yorkton. She had support raising the boys from her sisters and parents who were educated and employed with the Ministry of Social Services. However, the boys also had some uncles who were involved in the criminal justice system and lived right across the street from them. [ 8 ] When Mr. Burke was six years old and his brother was four years old they were kidnapped by their father. He took the boys to Toronto for almost 12 months and told them that their mother had died.

They were eventually returned to their mother’s care. Mr. Burke’s mother passed away unexpectedly in 2013. Since then, his relationship with his Aunt Bonny has strengthened to the point that she has become like a second mother to him. He has also become more involved with his Aboriginal culture and ceremonies.

[ 9 ] Mr. Burke is 34 years old. He completed his grade 12 education and one year of university at the University of Saskatchewan in the Faculty of Arts and Science. However, when his father lost his licence due to an impaired driving conviction and needed support, Mr. Burke quit school, moved to Lloydminster, SK and secured employment in the oil field. There he worked his way up the ranks to the position of a Senior Aboriginal Pipeline Construction Monitor. [ 10 ] Mr.

Burke has been gainfully employed most of his adult life but shortly before these offences he was laid off due to a downturn in the oil and gas industry in Lloydminster. Mr. Burke therefore returned to live with his Aunt Bonny in Yorkton and was looking for work there when the offences were committed. [ 11 ] Mr. Burke has always been the caregiver for his family. He provides financial support and personal assistance for his aging and ailing father, grandfather and his younger brother and niece. Mr.

Burke has close family bonds and good pro-social supports with his aunts, brother, grandparents and other extended family members. As well, Mr. Burke has a pro-social attitude. [ 12 ] Mr. Burke does not have any alcohol or drug issues and has not consumed alcohol for three years. He has not consumed any drugs or illegal substances since the night of the offence. [ 13 ] Mr. Burke is Aboriginal and has adopted many of the traditional celebrations of his Indigenous community. He also regularly attends sweats and pipe ceremonies. Criminal Record [ 14 ] Mr.

Burke has four previous convictions on his criminal record dating back to 1999 when he was convicted as a youth of aggravated assault and assault causing bodily harm. Mr. Burke was also convicted as an adult of impaired driving in 2003 and again in 2012. Mr. Burke does not have any drug-related offences. Pre-Sentence Custody [ 15 ] Mr. Burke was arrested and spent eight days in jail. He was released on strict conditions that he has complied with successfully for almost 24 months. He spent the first 6.5 months on electronic monitoring and has been on a curfew from 11:00 p.m. to 5:00 a.m. ever since.

He was required to report to a bail supervision officer and submit to searches of his body, vehicle and home. He was also prohibited from consuming any alcohol or drugs and required to provide samples of his breath to police upon demand. [ 16 ] Pre-sentence release can have an effect on the determination of an appropriate sentence.

The Court of Appeal in R v Lever, 2014 SKCA 58 , 438 Sask R 181 [ Lever ] recognized a significant body of appellate-level decisions that have held that it falls within the discretion of the sentencing judge to determine the extent to which the terms and duration of pre-sentence release might mitigate a sentence.

The Court specifically mentioned electronic monitoring at paragraph 14 of Lever and gleaned a number of principles from the court decisions that can guide a judge when exercising this discretion. [ 17 ] The Court stated the following starting at para. 10 of Lever : 10 First, pre-sentence release should not be seen as the necessary equivalent of pre-sentence custody and it obviously does not automatically reduce what would otherwise be a fit sentence. See , for example: R. v. Walsh, 2011 ONCA 325 at para. 10 ; R. v.

Voeller , 2008 NBCA 37 , 335 N.B.R (2d) 143 at para. 21 . 11 Second, pre-sentence release does not generate sentencing "credits" in the same way as pre-sentence custody. Rather, it is one of many potentially mitigating factors to consider when formulating an appropriate sentence. See: R. v. Irvine , 2008 MBCA 34 , [2008] 6 WWR 438 at para. 27 ; R. v. Knockwood , 2009 NSCA 98 , 283 N.S.R. (2d) 156 at para. 33 ; R. v. Nghiem , supra at para. 16. 12 Third, the harsher and more burdensome the pre-sentence release conditions, the more likely they are to have a valid mitigating effect.

The factors to be taken into account in this regard include (but are not limited to) the length of time spent on release, the stringency of the release conditions, and the impact of those conditions on the offender's ability to carry on normal personal relationships, employment and the like. See , for example: R. v. Irvine , supra at para. 29 .

13 Fourth, and speaking generally, time spent on pre-sentence release can reduce an otherwise appropriate sentence only if it involvesmeaningful hardship or important limitations on the offender's liberty. Those kinds of impacts should be clearly explained ordemonstrated to the sentencing judge. Scott C.J.M. said this in R. v. Irvine, supra: 30 While the accused's counsel referred on a number of occasions at the sentencing hearing and before this court to the "strict" terms ofbail constituting "effectively house arrest," no further details with respect to any alleged undue hardship were provided.

For bailconditions to be considered as a mitigating factor they must impose significant custodial and penal attributes. As this court said in R. v.Higgins, 2001 MBCA 177, 160 Man. R. (2d) 105 (Man. C.A.), when the terms "merely mimic the conditions of ordinary life for theaccused ... [they] do not contain any punitive sanction" (at para. 17), nor do they if the "house arrest required duplicates the hours whenmost working people are at home in any case" (at para. 20). [emphasis added] See also: R. v. Knockwood, supra at para. 34; R. v. Kane, 2012 NLCA 53, 325 Nfld. & P.E.I.R. 78 at para. 36; R. v.

Ijam, 2007 ONCA597, 226 C.C.C. (3d) 376 at para. 29. [18] In this case, Mr. Burke was the caregiver and provider for many of his extended family members, which included a sick father,grandfather, brother and a young niece. They were of various ages and stages in life and lived throughout the province. They neededhim and he was unable to be there for them. He was required to live away from his family in Blackfoot, Alberta and Moose Jaw, SKwhere he found work most of the time he was out on bail. Given the length of time Mr.

Burke spent on release (2 years) and on stringentconditions of release including electronic monitoring (6.5 months) and a curfew, this impacted his ability to carry on normal personal andcaring relationships and to provide assistance and support to his family. [19] Mr. Burke’s house arrest did not mimic the ordinary conditions of life. He could not leave his house without permission. Justlike a prisoner in jail, he could not have a drink of alcohol. He had to submit to searches of his person and home upon demand.

Theresult was the imposition of significant custodial and penal attributes that he could not simply ignore when required to take care of hisfamily. This constituted meaningful hardship and important limitations on his liberty. Mr. Burke’s pre-sentence custody and conditionsof release are mitigating factors to be considered when determining an appropriate sentence. However, these factors alone do notautomatically reduce Mr. Burke’s sentence substantially. Gladue Factors [20] Mr. Burke is a registered status member of the Keeseekoose First Nation.

Section 718.2(

e) of the Criminal Code must be takeninto consideration when determining a fit sentence for him. That

section states that, “all available sanctions, other than imprisonment,that are reasonable in the circumstances and consistent with the harm done to the victims or to the community should be considered forall offenders, with particular attention to the circumstances of Aboriginal offenders”. R v Gladue, (SCC), [1999] 1SCR 688 [Gladue] provides that the purpose of

section 718.2(

e) is to ameliorate the serious problem of over-representation of Aboriginalpeople in prison, and to encourage sentencing judges to have recourse to restorative approaches to sentencing. The Saskatchewan Courtof Appeal has on numerous occasions explained the importance of Gladue factors when determining an appropriate sentence. [21] In R v Chanalquay, 2015 SKCA 141, 472 Sask R 110, Richards C.J.S. stated that when sentencing judges apply Gladue factorsit is necessary to first examine both the nature of the relevant factors and the particulars of the crime in issue.

Richards C.J.S. calls for a“more demanding” individualized analysis and recognizes that while Gladue factors are not unvarnished calls to impose shorter jailterms, restorative justice approaches should be utilized when appropriate. Further, in R v Slippery, 2015 SKCA 149, 472 Sask R 181,Richards C.J.S. indicated that a judge must recognize that different or alternative restorative justice-type sanctions may effectivelyachieve necessary sentencing objectives.

Richards C.J.S. went on to say that an offender is not required to establish a causal linkbetween the systemic background factors and an offence for the Gladue factors to become relevant in the sentencing process. In R vDelorme, 2017 SKCA 3, 136 WCB (2d) 115, Wilkinson J.A. agreed with Richards C.J.S. that although the link between Gladueconsiderations and offending behaviour need not be causal, it must be comprehensible, shedding light on moral blameworthiness.

In R vWhitehead, 2016 SKCA 165, 344 CCC (3d) 1 [Whitehead], Caldwell J.A. added that there must also be an analysis of the link betweenthe Gladue circumstances and the actualization of other sentencing objectives such as rehabilitation. [22] Mr. Burke’s Gladue factors include the following: - Mr. Burke is a registered status member with Keeseekoose First Nation located near Yorkton;

- Mr. Burke’s Aboriginal status comes from his mother’s side of the family; - Mr. Burke and his brother grew up on the Keeseekoose First Nation with their mother and her family; - Mr. Burke’s has other extended family members who live on Keeseekoose and in Yorkton that are in constant conflict with the law; - Both of Mr. Burke’s grandparents attended residential schools when they were young and suffered abuse while they were there. Both describe it as a “horrific time”; - Mr. Burke’s mother was also a student at Qu’Appelle Indian Residential School in Lebret, SK. Mr.

Burke’s mother almost had a mental breakdown and had periods of her life where she was suicidal due to the abuse she suffered in the residential school. She struggled with parenting and raising her children at times; - Mr. Burke suffered from a break-down in the family which resulted in his father kidnapping him and his brother. This in turn took Mr. Burke and his brother away from their Aboriginal culture; - Mr. Burke knew racism was always present when he was younger and has experienced racist comments and attitudes while working in the oil industry; - Mr.

Burke is very connected with his culture and attends sweats and pipe ceremonies. [ 23 ] Mr. Burke’s systemic background factors provide context for his offending behavior and diminish his overall moral culpability. Mr. Burke has very close bonds with his mother’s side of the family living on the Keeseekoose First Nation and in Yorkton. They helped raise him and he feels a strong sense of familial obligation towards them. His Aunt Bonny has become like a second mother to him since his mother passed away.

So it was only natural for him when he lost his job in the oil and gas industry in Lloydminster that he would return to Yorkton to live with her and look for work there. Unfortunately, not all of Mr. Burke’s family in Yorkton is pro-social. It is not unfathomable how he might encounter the wrong family members and fall into bad company with them when he returned to Yorkton without a job. [ 24 ] Mr. Burke has always been the caregiver for his family, providing support and assistance to them whenever and however he can.

For example, he is one of the only members of his family who has a car and would regularly give rides to them whenever they needed it, such as getting to medical appointments and the hospital. Mr. Burke turned to his family in Yorkton for help when he needed them, and they turned to him for help when they needed him. That is what his cousin did the day his vehicle broke down and he needed a ride to Regina. They both counted on each other for help. [ 25 ] There is a comprehensible link between Mr. Burke’s Gladue factors and his offending behaviour.

His degree of responsibility is diminished to some extent by his family upbringing and circumstances. Were it not for Mr. Burke’s cousin being involved in the drug trade, Mr. Burke would not be in the situation he is now. The fact that Mr. Burke grew up in an environment that commonly brings other members of his family into conflict with the law is relevant to his moral blameworthiness, as is the fact that he has previously avoided unlawful conduct for the most part. [ 26 ] Mr. Burke had a challenging upbringing and suffered from racism. He is relatively young, with a good prospect for rehabilitation.

Sentencing outcomes other than incarceration can and should be actualized in his individual circumstances. I believe that an appropriate sentence for Mr. Burke should include a restorative justice approach which would allow Mr. Burke to continue with his gainful employment and Aboriginal customs, while also receiving programming and counselling that promotes a sense of responsibility and an acknowledgement of the harm he has done in the community. A rehabilitative disposition will require him to perform community service work and prevent him from coming into contact with his cousin for a longer period of time.

Given his limited criminal record and considerable Gladue factors, a lengthy term of imprisonment would not be appropriate or beneficial to him or the community. Imprisonment cannot be swept off the sentencing table entirely, but should be limited in order to allow for this restorative justice component while still meeting the other legitimate objectives of sentencing.

[ 27 ] Parity is a sentencing principle that must be taken into consideration given that the courts have set out a sentencing range of 18 months to 4 years. However, the Court of Appeal explained in Whitehead that parity is of lesser relevance than

section 718.2 (

e) to sentence proportionality because the wording of

section 718.2 (

e) speaks more fundamentally than parity to the individualized nature of sentencing. Thus, while parity is still a factor to consider, I place more emphasis on

section 718.2 (e). Wilful Blindness [ 28 ] Mr. Burke was found to have deliberately ignored the fact that his cousin was picking up some form of narcotic while in Regina. I also found that Mr. Burke did not know the precise narcotic or quantity of it. The defence argues that this should be a mitigating factor in sentencing him. [ 29 ] This issue is more commonly seen in drug importation cases, but the courts have looked at it on occasion. In R v Sidhu, 2009 ONCA 81 , 242 CCC (3d) 273, the offender imported a large quantity of a drug that turned out to be heroin.

At para. 17 the Court of Appeal stated the following: As a matter of principle and policy, we ought not to be sending a message to would-be-couriers that if they wear blinders, they will receive a lower sentence than if they actually learn the nature and quantity of the substance they are importing.

In assessing degrees of moral blameworthiness, we see no meaningful distinction between the two. [ 30 ] Further, in R v Burchell , 2014 ONCA 242 , 112 WCB (2d) 782, the Court of Appeal held that it is not open for a judge to treat the accused’s mistaken belief in the nature of the substance seized as a mitigating factor in sentencing. [ 31 ] Wilful blindness is tantamount to actual knowledge, and therefore an equally morally blameworthy state of mind. Thus, Mr. Burke’s wilful blindness as to the type and quantity of the drug is not a mitigating factor.

Mitigating and Aggravating Factors [ 32 ] The mitigating circumstances include: - Mr.

Burke was a relatively young person at the time of the offence (32 years of age); - He has a supportive pro-social family; - He has been employed since being arrested and has a desire to continue to work; - He has successfully complied with strict conditions of release while out on bail for the past 24 months and spent 6.5 months on electronic monitoring; - This was an isolated incident; - He was more of a chauffeur for his cousin than a traditional drug mule or drug courier hauling drugs between wholesalers and dealers; - He was not involved in the commercial trafficking of drugs for profit;

- His degree of participation in the offence was low. He was not part of the drug trafficking activities that were taking place inside his cousin’s home; - This was not a sophisticated or large scale commercial drug operation; - He has a limited, unrelated criminal record with no history of involvement with drugs; - He has not done any drugs or alcohol since the night of the offence; - He is rated at a medium risk to re-offend in the Pre-Sentence Report; and - He is remorseful and freely and openly apologized to the court.

He sees now that he made a big mistake trying to help his cousin out that day. [ 33 ] The aggravating circumstances include: - The offence involved a hard drug, which is highly addictive and dangerous, posing a serious risk for users; and - A substantial amount of drugs was seized (6.5 ounces). Analysis [ 34 ] The issue before me is what is the appropriate sentence for these offences committed by this offender in these circumstances. The purposes, principles and objectives of sentencing are set out in

section 718 of the Criminal Code . They include: denunciation, deterrence, separation of offenders from society where necessary, rehabilitation, reparation to victims, promotion of a sense of responsibility and acknowledgement of harm done. [ 35 ] The CDSA is also relevant here. Section 10(1) of the CDSA speaks directly to the purpose of sentencing in the context of drug offences: 10(1) 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. [ 36 ] The Court of Appeal has repeatedly stressed the importance of denunciation and deterrence, with consideration of the personal circumstances of the offender coming in second when crafting sentences for trafficking hard drugs ( R v Shawile , 2012 SKCA 51 , 393 Sask R 211 [ Shawile ]). Also, the Court of Appeal has set a range for the trafficking of cocaine at 18 months to 4 years. The Court in Shawile provided a useful

summary: 12 While we agree that Mr. Shawile's circumstances are mitigating and would justify a sentence at the low end of the range, it is our view that the sentencing judge gave them undue weight in comparison to the principles of denunciation and general deterrence, which must play a significant role in offences of this nature. In R. v. Aube et al. , 2009 SKCA 53 , 324 Sask.

R. 303 , Smith J.A. articulated this point as follows: 19 This Court has repeatedly said that the range of sentencing for trafficking in cocaine is 18 months to four years, and that the personal circumstances of an accused, while not to be ignored, are secondary considerations to the issues of deterrence and denunciation. It is an error in principle to over-emphasize the personal circumstances of the offender to the exclusion of an examination of other sentencing

factors. See. R. v. Patryluk, 2002 SKCA 33, and especially paragraphs 21-23. This decision, in particular, where the circumstances weremuch less serious, cannot be reconciled with the sentences imposed in the instant case. See also R. v. Goy (1992), (SKCA), 105 Sask. R. 131 (Sask. C.A.); R. v. Grewal, 2003 SKCA 56; R. v. Dubai, 2008 SKCA 49; and R. v.

McCallum, 2007 SKCA 139. [37] It must also be stressed that the determination of an appropriate sentence involves more than the application of a fixed tariff (Rv McIntyre, 2012 SKCA 111, 405 Sask R 28 [McIntyre]) and the fundamental principle of sentencing is always that a sentence must beproportionate to the gravity of the offence and the degree of responsibility of the offender.

As such, it remains possible for a court toimpose a sentence outside of the 18 month to 4 year jail term range (McIntyre). [38] In R v Hamilton, (2004) (ON CA), 186 CCC (3d) 129 (ONCA), the Court of Appeal provides guidance on themeaning of the terms “gravity of the offence” and “responsibility of the offender”: 90 The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposedby Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harmto the community occasioned by the offence.

For example, in drug importation cases, the nature and quantity of the drug involved willimpact on the gravity of the offence. Some of the factors which increase the gravity of the offence are set out in s. 718.2(a). 91 The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elementsof the offence — especially the fault component — and any specific aspects of the offender's conduct or background that tend to increaseor decrease the offender's personal responsibility for the crime.

In drug importation cases, the offender's role in the importation schemewill be an important consideration in assessing the offender's personal responsibility. [39] There are a number of mitigating factors that reduce the degree of responsibility of Mr. Burke, including the fact that this wasan isolated incident motivated by his desire to help his cousin, the fact that he only played a minor role in the offence and there was noevidence of any profit motive in Mr. Burke’s actions or any indication of his involvement with the drug trade. Also, the Gladue factorsapplicable in Mr.

Burke’s life reduce his degree of responsibility. On the other hand, there is no dispute that trafficking in cocaine is aserious crime that has devastating social effects and that the amount of cocaine in this case makes the gravity of the offence more severe. While I find that Mr. Burke played a minor role in the offence, this does not negate the fact that someone who serves as a courier ofdrugs is vital to the scheme and that but for Mr. Burke’s assistance in driving, the cocaine would likely have never made it to Yorktonthat day. [40] In addition, I must take into consideration the principle of parity.

A sentence should be similar for similar offences committedby similar offenders in similar circumstances. [41] In the present case, Mr. Burke’s cousin was convicted and sentenced to 30 months incarceration for the same offences. However, he was sentenced based on a joint submission between the Crown and defence. In R v MacLeod, 2018 SKCA 1 [MacLeod] theCourt of Appeal made clear that the sentence given to a co-accused under a joint submission is not evaluated for its fitness and istherefore of limited value as a comparator when sentencing another co-accused.

It is inappropriate for a sentencing judge to over-emphasize a co-accused’s sentence following a joint submission. [42] The Court went on further in MacLeod to state at para. 35 that, “an emphasis on sentence parity leading to the imposition of thesame sentence on all co-accuseds when the individual circumstances and principles and objectives of sentencing militate in favour ofdisparate sentences amounts to an error in principle.” I have no idea what the personal circumstances of Mr. Burke’s cousin are andtherefore give little weight to the sentence imposed on him in determining a fit sentence for Mr.

Burke. [43] The circumstances in the present case are unique and make it difficult to apply the principle of parity. In McIntyre, the accusedwas convicted of trafficking cocaine and possessing proceeds of a crime. The accused had a positive and supportive upbringing. He hadmany pro-social supports. He graduated from high school and was employed. The accused was addicted to cocaine and the chargesarose from an undercover operation conducted by the Regina Integrated Drug Unit. An undercover officer called a dial-a-dope numberand made two purchases of cocaine from the accused on the same night.

The Court held that the fitness of a sentence for a traffickingoffence will depend on a variety of factors such as the motivation for the offence and: 29 … the sophistication and significance of the offence and the accused’s place in the trafficking scheme; the type and quantity

of the drug involved, the need for and the utility of the deterrence which will flow from the sentence imposed, the offender’s record, and the offender’s age and personal circumstances. See: R. v. Pankewich, supra at para. 49. [ 44 ] The sentencing judge in McIntyre held that the accused’s addiction went towards his motivation but it was not enough to overcome her concern about the reality that he had been trafficking cocaine. The Court of Appeal took into consideration that the sentencing range was 18 months to 4 years, but decided that this was an appropriate case to go outside of the range.

The Court held that the accused sentence was unduly heavy and reduced his prison term from 14 months to 10 months. The Court took into consideration that the accused also committed another offence for possession of drugs while out on bail for these offences, the quantity of cocaine was small (two grams), he was acting at the lowest end of the trafficking food chain (i.e. street-level dealer), he was an addict, he had no meaningful record, he had been a productive member of society and he had taken steps to turn his life around. [ 45 ] The circumstances in McIntyre are similar to the present case as Mr.

Burke has no meaningful record, it was an unsophisticated drug operation, he is a productive member of society and he was acting at the lowest end of the trafficking food chain. However, the main difference is that the accused in McIntyre was actively trafficking cocaine in order to feed his addiction. In the case at hand, Mr. Burke did not have any motivation other than to simply help his cousin out when he needed a ride to Regina. Also, unlike in McIntyre , there was a large quantity of cocaine involved here, but Mr.

Burke also did not commit any further drug-related offences while out on bail. [ 46 ] In R v Felix, 2017 SKCA 16 [ Felix ] the Crown appealed a 30 day intermittent sentence and 12 months probation for one count of trafficking in cocaine. The appeal was dismissed. The accused sold 1.6 grams of cocaine to an undercover police officer in order to impress her. The sentencing judge found the offence to be an isolated incident. He was not trafficking either for profit or to support his own personal addiction. The accused did not use cocaine. He had no record, notwithstanding having a difficult childhood.

The accused abided by strict conditions for two and one-half years except for failing to report on one occasion. The accused was an Aboriginal offender and the Court took into consideration his Gladue factors. [ 47 ] The sentencing judge based his sentence on the uncommon nature of the offence, the accused’s personal circumstances and his post-offence actions. The Court held that the circumstances of the offence played an integral role in justifying a departure from the usual range for offences of trafficking.

The sentencing judge held that given the need for general deterrence and denunciation, “a period of actual incarceration is necessary to appropriately denounce the harm done to this community through the sale of illegal drugs such as cocaine and to deter other persons from committing this same offence”. The Court of Appeal held that the sentencing judge did not overemphasize the accused’s personal circumstances.

It stated that sending the accused to jail for a long period of time would be counterproductive since the accused had become fully rehabilitated and a productive member of society since the offence. [ 48 ] The decision in Felix is useful when applying the principle of parity because the circumstances are so similar. The nature of the offence committed in each case is uncommon. Both accused had an ulterior motive and were not trafficking cocaine for profit or to support a drug addiction. In both cases, Gladue factors come into play.

Also, both cases involve isolated incidents with both accused abiding by strict release conditions for long periods of time. Both accused were also productive members of society. I do recognize that in the case at hand, there was a larger quantity of cocaine involved. Thus, I find that a longer period of incarceration is necessary to appropriately denounce and deter. [ 49 ] I considered two other cases of the Saskatchewan Court of Appeal in R v Von Hagen , 2008 SKCA 123 , 314 Sask R 77 and R v Rohovich , 2007 SKCA (SentDig) 17 [ Rohovich ] in determining a fit and just sentence for Mr. Burke.

Only Rohovich bears mentioning. In that case, the police pulled the accused’s vehicle over and found 32 grams of cocaine in a plastic bag and a hidden compartment of the console along with cash, marijuana and other drug paraphernalia. The accused admitted to police that he acted as a chauffeur for one of the other individuals in the car, driving him to drug deals approximately three times per week. The accused earned $500.00 per deal. The accused’s criminal record consisted of one conviction for over .08. He was 20 years old and had several other respectable jobs.

The Court dismissed a Crown appeal from the original sentence of 12 months custody followed by 6 months probation. [ 50 ] Outside of Saskatchewan, the decision of R v Huggins , 2014 ONCJ 270 , 113 WCB (2d) 587 [ Huggins ] is factually similar to the case at hand and is persuasive. In Huggins , the accused acted as a surety for her boyfriend who was charged with robbery. The accused drove her boyfriend to sell drugs to an undercover officer three times. The accused was convicted of trafficking in cocaine.

The accused was a single mother of two children, had no prior record, was remorseful and her motivation for involvement was not for financial gain or because of addiction. This case involved 4.25 ounces or 120 grams of cocaine. The Court found that an aggravating factor was the accused allowed her role as a surety to be used by the principal offender to commit crimes. The accused was detained for over five months and then on a curfew from 10:00 p.m. to 6:00 a.m. for three years, six months of which she spent on electronic monitoring.

The trial judge took into consideration the time spent on remand and sentenced the accused to a conditional sentence of 18 months.

[ 51 ] In both Huggins and the present case there was a substantial amount of cocaine involved. Also, both accused were not motivated by financial gain or because of addiction. Instead, both accused were helping out someone close to them. As well, both accused have the same mitigating circumstances of being remorseful, a productive member of society, having no criminal record related to drugs and being on release conditions for a long period of time. The main distinguishing factor is that in Huggins the accused drove her boyfriend to sell cocaine three times.

This is an aggravating factor not present in this case. Another distinguishing fact is that Mr. Burke was only detained for eight days prior to being released on electronic monitoring. Conditional sentences are no longer permitted for this type of offence. But when conditional sentences can be imposed they are often longer than their equivalent straight jail sentences.

As such, I find Huggins provides some useful guidance on what an appropriate sentence is in a unique situation like the case at hand. [ 52 ] When taking into consideration the appropriateness of a community based sentence, I have also considered the decision of R v Dickey , 2016 BCCA 177 , 335 CCC (3d) 478 [ Dickey ] where the Court of Appeal held that a community sentence may be appropriate for drug trafficking offences in exceptional circumstances.

In Dickey at para. 31 the Court quoted with approval from its earlier decision in R v Voong , 2015 BCCA 285 , 325 CCC (3d) 267 [ Voong ] that exceptional circumstances may include: [59] ... a combination of no criminal record, significant and objectively identifiable steps towards rehabilitation for the drug addict, gainful employment, remorse and acknowledgement of the harm done to society as a result of the offences, as opposed to harm done to the offender as a result of being caught.

This is a non-exhaustive list, but at the end of the day, there must be circumstances that are above and beyond the norm to justify a non-custodial sentence. There must be something that would lead a sentencing judge to conclude that the offender had truly turned his or her life around, and that the protection of the public was subsequently better served by a non- custodial sentence. However, Parliament, while not removing a non-custodial sentence for this type of offence, has concluded that CSO sentences are not available.

Thus, it will be the rare case where the standard of exceptional circumstances is met. [ 53 ] As I have stated, Mr. Burke has a limited criminal record, he is gainfully employed, he is remorseful and he has acknowledged the harm done. Mr. Burke has always been a productive member of society and truly understands the severity of his offence. The circumstances of this case are rare. They rise above and beyond the norm and constitute exceptional circumstances. I conclude that the protection of the public and the remaining rehabilitation of Mr.

Burke would be better served by the imposition of a non-custodial sentence rather than a lengthy custodial sentence. Although I do not believe that a non-custodial disposition can entirely displace the custodial portion as it did in Dickey and Voong , I do find it appropriate to impose a sentence on Mr. Burke which is partially community- based. Conclusion [ 54 ] This is not a typical case of drug trafficking. There is no minimum punishment for cocaine trafficking prescribed in the Criminal Code or CDSA and there are exceptions to the identified range of 18 months to 4 years custody in Saskatchewan.

The circumstances of this offence and this offender are unprecedented and justify a departure from the usual range. A period of imprisonment is necessary to meet the sentencing objectives of denunciation and deterrence. However, a lengthy term of imprisonment would be counter-productive to the protection and safety of the public as well as the ongoing rehabilitation and re-integration of the offender into the community. These latter sentencing objectives are more effectively achieved through a restorative justice approach. Thus, I sentence Mr.

Burke to 10 months imprisonment followed by a period of probation for 15 months concurrent on each offence. I will address the terms and conditions of probation and victim surcharges separately in court. [ 55 ] As well, I order the mandatory 10 year firearm prohibition pursuant to

section 109 of the Criminal Code and make a DNA order pursuant to

section 487.051 of the Criminal Code. _______________________ Rybchuk, J