Her Majesty the Queen - v. -, 2013 SKPC 24

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 024 Date: February 12, 2013 Information: 24485788 Location: Melfort _____________________________________________________________________________ Between: Her Majesty the Queen - and - Trevor Severight Appearing: Trent Forsyth For the Crown James Streeton For the Accused DECISION RE: SENTENCING I. J. CARDINAL , J I. INTRODUCTION [ 1 ] On July 27, 2012, a package from Italy addressed to Mr. Severight in Melfort was intercepted by the Canadian Border Services Agency, field tested and found to be marijuana.

The package was forwarded to the Saskatoon Integrated Drug Unit, where it was opened and found to contain 297.24 grams of cannabis marijuana.

[ 2 ] The police conducted a controlled delivery and the package was delivered to the accused on August 2, 2012, at his residence. The police also obtained a search warrant on that date and executed it shortly after the package was delivered. [ 3 ] During the search of the residence the package containing the cannabis marijuana was found in the master bedroom and the contents of it in a closet of the bedroom. Digital scales and five vials of cannabis resin were also located in the residence. [ 4 ] Further investigation determined the accused had imported the cannabis marijuana, paying $1,000.00 for the product.

He intended to resell it for $1,800.00. As well, he had purchased the cannabis resin in Alberta and intended to resell the vials for $30.00 each. Fortunately, this trafficking plan was thwarted by the actions of the police. [ 5 ] The accused has now entered guilty pleas to three offences under the Controlled Drugs and Substances Act ( CDSA ): - importing into Canada a substance included in

Schedule II to wit Cannabis Marijuana, contrary to s. 6(1); - possessing a substance included in

Schedule II to wit Cannabis Marijuana, for the purpose of trafficking, contrary to sections 5(2) and 5(4); and - possessing a substance included in

Schedule II to wit Cannabis Resin, for the purpose of trafficking, contrary to sections 5(2) and 5(4). II. POSITION OF THE PARTIES [ 6 ] The Crown seeks a global sentence of two years less a day incarceration and argues against a conditional sentence being imposed. The Crown submits a conditional sentence is not appropriate in the circumstances, as the accused has pled guilty to the offence of importing cannabis marijuana into Canada, which carries a maximum sentence of life imprisonment.

Further, the availability of life imprisonment indicates Parliament views this as a more serious offence than the other two charges of being in possession of marijuana for the purposes of trafficking, each of which carry maximum sentences of five years less one day. [ 7 ] The Crown submits that the sentence for the importation of cannabis marijuana should be in the range of 18 months to four years, as that is the range of sentence when one is convicted of the possession of cocaine for the purposes of trafficking, as it too carries a maximum sentence of life imprisonment. [ 8 ] Counsel for Mr.

Severight acknowledges a period of incarceration is warranted, but urges the Court to impose a conditional sentence of 18 months given the guilty plea, the favourable Pre-Sentence Report (PSR), and his family circumstances. He argues that a period of incarceration in a correctional centre would impact the accused and his entire family, as they are likely to lose the home they bought one year ago, leaving his common-law wife and five year old daughter without a place to live.

He notes the PSR indicates the accused is a medium risk to re-offend and he has other positive people in his life, such as his spouse and his brother. Mr. Severight is willing to follow any conditions imposed under a Conditional Sentence Order and is agreeable to abiding by the terms of the Electronic Monitoring Program. The motivation to commit these offences was one of paying down debt.

The accused works ten months of the year on a seasonal basis for a bee keeper and believed he would be able to pay down some of his outstanding debt if he turned to selling drugs. [ 9 ] I agree with the parties that incarceration is warranted and the sentence of imprisonment should be one of less than two years. The question is whether the accused should serve his sentence of incarceration in the community by way of a conditional sentence, or whether it should be served in a correctional facility. III.

AVAILABILITY OF A CONDITIONAL SENTENCE [ 10 ] It should be noted at the time of the commission of the offence of importing cannabis marijuana into Canada in July - August, 2012, no minimum punishments were yet imposed for that offence, contrary to s. 6(1) of the CDSA . Thus, a conditional sentence is available to offenders pursuant to s. 742.1, if the Court is satisfied that in doing so:

a) Would not endanger the community; and

b) Would be consistent with the fundamental purposes and principles of sentencing set out in s. 718 to s. 718.2.

a) Would not endanger the community [ 11 ] Mr. Severight has one previous conviction from 2010 for a drinking and driving offence for which he was fined. He has no other criminal record. He was arrested on August 2, 2012, and remained in custody until he was released on his recognizance August 7, 2012 on the deposit of $1,000.00 cash bail, and conditions including curfew, reporting to the police, and residence. [ 12 ] Since his release he has not been charged with any further criminal offences nor come to the attention of the authorities. [ 13 ] The PSR found Mr.

Severight’s overall risk for general criminal re-offending was medium. The major risk factors include: peers and companions, residence instability, substance use, and a lack of self management. Mr. Severight advised the probation officer that the only high risk situation for him would be abusing alcohol, or being in the wrong place at the wrong time. He was prepared to attend counselling and/or treatment to address substance abuse, but feels it is not warranted at this time. He also advised the probation officer that he was willing to participate in one-on-one programming to deal with his depression.

However, there is no indication to the Court that he has done anything about programming since he was released from custody. Although he is not bound by his Recognizance to take counselling, one would expect Mr. Severight would take steps immediately to work on issues that had been long-standing with him, such as substance abuse, and possible depression. [ 14 ] There is no indication that any violence was involved in these offences, or that the accused has violent tendencies.

I find that appropriate conditions could be fashioned to ensure his risk to re-offend is lowered and I find that his serving a sentence in the community would not endanger the community and a conditional sentence is not barred on this branch of the test.

b) Fundamental purposes and principles of sentencing. [ 15 ] Both s. 718 of the Criminal Code and s. 10(1) of the CDSA share the same purpose of sentencing.

Section 718 states that the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions to address one or more of the following objectives: - denouncing unlawful conduct; - deterring both the offender being sentenced and other persons from committing offences; - separating offenders from society where necessary; - rehabilitating offenders; - providing reparation for harm done to victims or the community; and - promoting a sense of responsibility in offenders, and an acknowledgment of harm done to the community. [ 16 ] The weight placed on each of the above factors will vary depending upon the circumstances of the offence and the circumstances of the offender. [ 17 ] I must also be mindful of s. 718.1 to ensure that the sentence is proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 18 ] Further, s. 718.2 outlines other sentencing principles to be considered before imposing sentence, taking into account both aggravating and mitigating factors.

Sections 718.2(

b) through (

e) outline other principles such as parity of sentence and directs Courts

that particular attention must be given to the circumstances of Aboriginal offenders, such as Mr. Severight. IV. CIRCUMSTANCES OF THE OFFENCE

a) Aggravating Circumstances [ 19 ] Of significance is that the importation of the cannabis marijuana was across international borders. In order to import this illegal substance, the accused would have had to locate a contact, arrange for someone to sell him the product at a price he was willing to pay, and arrange for delivery into Canada. Mr. Severight was able to arrange all of this to import the cannabis marijuana from Italy to Saskatchewan. This requires, in my opinion, a level of sophistication and knowledge that most ordinary people would not have. [ 20 ] Mr.

Severight imported nearly 300 grams of cannabis marijuana solely for the purpose of resale. This was a deliberate, calculated act on the part of the accused. It also would have occurred over a period of time, as the accused would have to formulate the plan and bring it to fruition, all without being detected by the authorities because he knew he was engaging in unlawful behaviour. [ 21 ] The five vials of cannabis resin were also inter-provincially imported from Alberta and purchased by the accused for the purposes of resale as part of his overall commercial scheme.

b) Mitigating Factors [ 22 ] The drugs involved are cannabis marijuana and cannabis resin, often referred to as soft drugs, as opposed to cocaine, which is considered a hard drug. [ 23 ] In the context of the importation, the amount of the drug was small, 297.24 grams. Most cases involving the importation of marijuana for resale involve large amounts, usually several pounds. [ 24 ] The accused entered a guilty plea and has been in the community on conditions since August 7, 2012, and has not incurred any further criminal charges, nor come to the attention of the police or the Court. V.

CIRCUMSTANCES OF THE OFFENDER [ 25 ] Mr. Severight is a 25 year old aboriginal man, a member of the Gordon First Nation, currently living in Melfort. He has never lived on reserve, nor attended residential school, nor does he feel he is disconnected from his aboriginal community.

The PSR indicates he did suffer racism in his childhood, and his life at home growing up had some verbal and physical abuse, as he believes his mother was an alcoholic and his father seemed angry and took it out on the kids. [ 26 ] He is currently in a common law relationship with a young woman, and they have a five year old daughter together.

She was aware he was illegally importing the marijuana, and his plans to resell it, and did not approve of his decision to do so, but remains supportive of him. [ 27 ] His parents are recently divorced and he barely speaks to his mother as he is upset with her over the divorce. His father is incarcerated but they occasionally talk. He has three siblings, but is only close with two of them, and closest to his brother. The PSR notes that when he and his brother get together they may have “A cup of coffee or a drink of alcohol, however, on rare occasions they drink to the point of intoxication.”

[ 28 ] He admits he has been consuming alcohol since the age of 14 and had some pockets of sobriety early on , but also had a “slight” problem with alcohol between the ages of 18-21. Although his family have encouraged him to stop drinking as they believe he has a problem with alcohol, he does not listen to them. Alcohol was not involved in this offence. [ 29 ] The PSR notes that while he has employment, it is sporadic, and his wage fluctuates depending on whether he is employed or not. The Court was also advised that he does work for a bee keeper ten months of the year.

The report notes that when he is not working “ he stays at home, gets up, has a coffee, plays some video games, works out, eats and plays more video games”. While he has made minimal efforts to find other employment, he has not made efforts to further his education, or become involved in positive activities in his community. [ 30 ] He also advised the probation officer that he has had depression, as when he started “thinking about too many things” it made him depressed.

Yet, he has not seen a health professional to be formally assessed or prescribed medication if necessary. [ 31 ] Despite being aware of these issues, Mr. Severight has not taken any steps towards helping himself at this time. The report indicates the only thing he has been doing is avoiding similar situations and keeping himself busy. Clearly, Mr. Severight lacks insight and motivation to change his behaviour. VI. CASE LAW [ 32 ] It is not unusual to sentence a person to a conditional sentence order (CSO) for offences of possession for the purpose of trafficking or trafficking in cannabis marijuana.

For example, in R. v. Randell , [1] the Saskatchewan Court of Appeal overturned a conditional discharge and imposed a sentence of nine months incarceration by way of a Conditional Sentence Order on a count of possession of cannabis for the purpose of trafficking. The accused and her co-accused were roommates. The co-accused had lost her job and took to selling drugs from the apartment. The accused would sell drugs when the co-accused was unavailable and did so to undercover police officers.

This was part of a commercial enterprise and was not a single impulsive act, but rather deliberate acts over an extended period of time. There were mitigating factors and the Court noted her post-sentencing conduct had been exemplary. [ 33 ] Sentencing is, as the case law reflects, an individualized process, that takes into account all of the surrounding circumstances and factors. It requires a Court to balance many things bearing in mind the fundamental purposes and principles of sentencing; the circumstances of the offence; and the circumstances of the offender.

While one offender may be granted a conditional sentence for offences involving marijuana, another offender and their unique circumstances may not. [ 34 ] Our Courts have long held that deterrence and denunciation are foremost in sentencing offenders who commit offences such as trafficking in controlled drugs and substances; or importing controlled drugs and substances. [ 35 ] In R. v. McIntyre , [2] the accused was convicted of one count of trafficking in a controlled substance, cocaine, contrary to s. 5(1) of the CDSA , and one count of possessing proceeds of crime, contrary to s. 355 (

b) of the Criminal Code . At paragraph 36 the Court stated: The reality is that the Court has stressed the importance of deterrence and denunciation in crafting sentences for drug trafficking offences.

As a result, it has long taken the position that a conviction for trafficking in a “hard” drug, such as cocaine, should generally attract a significant jail sentence...Several decisions of the Court have identified a sentencing range of 18 months to four years as being applicable for the offence of trafficking in cocaine...Moreover, the Court (at least in the context of offenders who traffic solely for profit) has also cautioned against over-emphasizing the personal circumstances of an offender in crafting a sentence and indicated that such considerations are secondary to the goals of deterrence and denunciation.

In this regard, the Court has said that it is in error to “over-emphasize the personal circumstances of the offender to the exclusion of an examination of other sentencing factors”.

[36] In R. v. Phan,[3] the two accused pled guilty to possessing marijuana for the purposes of trafficking. The accused were foundwith ten pounds of marijuana, were co-operative with the police and advised them what they knew in relation to their contact. Oneaccused was 22 years of age and employed with no criminal record, while Mr. Phan was 30, employed and had a minor record. Therewas a joint submission by counsel for a period of incarceration of ten months, but the Court instead imposed a ten month ConditionalSentence Order.

The appeal was allowed, and the Court of Appeal, given the passage of time since the imposition of sentence, increasedthe conditional sentence to 18 months and imposed further strict conditions. [37] Although not directly on point, this case does provide some further direction from our Court of Appeal. At paragraph 11, the Court speaks to the gravity of the offence, and observed:[4] ...the type or gravity of the offence alone does not determine the appropriateness of a conditional sentence.

If it were determinative, itwould offend the proportionality principle contained in s. 718.1 of the Criminal Code which requires that the Court look at both thegravity of the offence and the degree of responsibility of the offender. As Lamer C.J.C. said in R. v.

Proulx, 2000 SCC 5 ,[2000] 1 S.C.R. 61, "[p]roportionality requires an examination of the specific circumstances of both the offender and the offence so thatthe ‘punishment fits the crime’ " (see para. 82). [38] The inter-provincial transportation of marijuana is viewed as a significant problem in Saskatchewan.[5] While the amount andkind of drug involved will be a central consideration, the Court reiterated that “a proper sentence will always be a function of the full matrix of considerations identified in sections 718 to 718.2 of the Code.”[6] [39] Deterrence and denunciation play a central role in sentencing for these types of offences.

Those who import an illegalsubstance into Canada are aware significant consequences will follow if they are detected. A period of incarceration is the rule, not theexception. VII. CONCLUSION [40] In all of the circumstances, I am of the opinion that Mr. Severight is not an appropriate candidate for a Conditional SentenceOrder. He alone is responsible for the importation and bears a high degree of responsibility. The gravity of the offences is high. Theimportation and possession for the purposes of trafficking in illegal substances brings serious issues with it to our communities.

Heintended to resell the cannabis to others in an effort “to make extra money to pay off his debt quicker” rather than looking to gainfullegitimate employment to do so. [41] I am not confident that he will abide by the terms of a Conditional Sentence Order or that appropriate terms can be fashionedso as to stress the importance of deterrence, both specific and general, and denunciation for this type of criminal behaviour. As notedearlier, he lacks insight into his behaviour, and is not motivated to change.

Since being charged with these offences, he has taken nosteps to help himself or address any of the issues he faces. [42] He completely disregarded how this illegal venture would impact his wife and child. While he is remorseful, the impressionis left that his remorse lies in having been caught and his child being present when the police searched the residence and arrested him.

He forged ahead knowing, but apparently not caring, that his actions would put his family and livelihood in significant jeopardy. [43] With respect to the charge of importing cannabis marijuana, I find that a fit sentence in the circumstances is 17 monthsincarceration, in addition to the six days credit for the time already spent on remand. [44] With respect to the charge of possession of cannabis marijuana for the purposes of trafficking, I find a fit sentence is one yearincarceration concurrent.

With respect to the possession of cannabis resin for the purpose of trafficking, I find a fit sentence of eightmonths concurrent to

all other sentences is appropriate. I will hear submissions from counsel respecting ancillary orders to be made. Dated at the City of Melfort, in the Province of Saskatchewan this 12 th day of February, A.D. 2013. _____________________________ I. Cardinal J. [1] R. v. Randell , 2011 SKCA 124 . [2] R. v. McIntyre , 2012 SKCA 111 , para. 36 . [3] R. v. Phan , 2002 SKCA 8 . [4] R. v. Phan , supra , para. 11 . [5] See: R. v. Bolla , 2005 SKCA 111 ; and R. v. Le , 2013 SKCA 9 . Both cases involved “couriers” transporting several pounds of cannabis marijuana across Canada for resale. [6] R. v. Bolla , supra , at para. 11 .