R v Kipling, 2023 MBPC 37

CITATION: R v Kipling , 2023 MBPC 37 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN His Majesty the King ) ) S. Sisson for the Crown – and – ) ) Nida Diane Kipling Accused ) ) L. Tailleur for the Accused ) ) ) ) Reasons for Decision: July 11, 2023 C.A. DEVINE, P.J. INTRODUCTION [ 1 ] I found Nida Kipling guilty of possessing .69 grams of fentanyl for the purpose of trafficking, and possessing $225 cash as proceeds of that crime, after a trial. This is my decision with respect to the sentence Ms. Kipling will receive. [ 2 ] Ms.

Kipling is a 38-year-old woman who was without a criminal record at the time of the offences. Her life circumstances as an Indigenous woman have often been extremely difficult. She was selling drugs to support her methamphetamine habit. The drug fentanyl is extremely dangerous and continues to cause overdoses leading to death, especially when diluted with a benzodiazepine, which it was in this case. [ 3 ] The defence is seeking a conditional sentence order (CSO) and the Crown is seeking a four-year penitentiary term.

Parliament recently amended the Criminal Code to make CSOs available for many offences, including drug offences. [ 4 ] I am sentencing Ms. Kipling to a 2-year less a day CSO to be followed by a two-year supervised probation order. These are my reasons. [ 5 ] I have relied heavily on the framework for analysis from a previous decision of mine involving the sentencing of an Indigenous offender who committed serious offences, R v Harper , 2021 MBPC 47 . FACTS [ 6 ] On October 3, 2020, Winnipeg Police pulled over a taxi in which Ms. Kipling was a passenger.

She was wearing a small side- bag containing five dime baggies of fentanyl cut with etizolam (a benzodiazepine-type of drug), worth approximately $350 packaged for resale, along with a contaminated working scale, two cell phones, 100 unused dime-baggies contained in another baggie, and the cutting agent etizolam. The defence did not challenge the drug expert’s opinion that the drug was possessed for the purpose of trafficking. At trial, Ms. Kipling’s defence was that she was not aware of the contents of the bag she was carrying.

I was satisfied beyond a reasonable doubt that she was aware, and convicted her of possession of the purpose of trafficking fentanyl. There was a second passenger in the taxi, and a sawed-off shotgun and ammunition in the trunk. I acquitted Ms. Kipling on the firearm offences, not being satisfied that she was aware of the firearm’s presence until well after when she saw it during the police stop, and also that she had no control over it.

SENTENCING OFFENCES UNDER THE CONTROLLED DRUGS AND SUBSTANCES ACT : ITS PURPOSE, GUIDING PRINCIPLES AND OBJECTIVES [ 7 ] Any sentencing decision must be understood within the context of the purpose of sentencing. When sentencing drug offences, one must have reference not only to the Criminal Code but also to the Controlled Drugs and Substances Act ( CDSA ).

[8] The fundamental purpose of sentencing as set out in Criminal Code is “to protect society and to contribute, along with crimeprevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society” (at s. 718). [9] The fundamental purpose of sentencing under the CDSA is similar, save for one important difference.

Section 10 of the CDSAincludes in its fundamental purpose encouraging rehabilitation, and in appropriate circumstances, treatment, as follows: Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this

Part is tocontribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, andtreatment in appropriate circumstances. [10] On November 17, 2022, Parliament enacted further amendments to the CDSA and the Criminal Code to allow for greater useof conditional sentences and to establish diversion measures for simple possession of drug offences. A CSO is once again available forthe offence of possession for the purpose of trafficking in a

Schedule 1 substance. [11] The case of R v Parranto, 2021 SCC 46, involved the sentencing of two offenders engaged in the wholesale trafficking offentanyl. They were both sentenced in Alberta, whose Court of Appeal employs starting point sentences. The issue of whether appellatecourts should be allowed to set starting points or ranges was answered in the affirmative by the Supreme Court. The majority also stated(at para 45): When conducting an individualized analysis, sentencing judges are expected to account for other relevant sentencing objectives,including rehabilitation and restraint.

Indeed, this Court has held that the 1996 sentencing reforms were intended to both ensure courtsconsider restorative justice principles and to address the problem of over-incarceration in Canada (Gladue, at para. 57; Proulx, atparas. 16-20).

Sentencing judges have discretion over which objectives to prioritize (Nasogaluak, at para. 43; Lacasse, at para. 54) andmay choose to weigh rehabilitation and other objectives more heavily than “built-in” objectives like denunciation and deterrence.Appellate courts should not lose sight of these principles — nor the deferential standard of review — when reviewing sentences thatdepart from a starting point or range. (Emphasis added.) [12] The overarching principle in sentencing is that the sentence is proportional to the seriousness of the offence and the moralculpability of the offender. Because Ms.

Kipling is an Indigenous woman, the principles enunciated by the Supreme Court of Canada inR v Gladue, (SCC), [1999] 1 SCR 688 and R v Ipeelee, 2012 SCC 13, and affirmed in Parranto, are critical to theanalysis in this case. Trafficking in fentanyl is serious, however Ms. Kipling’s moral culpability in committing that offence was impactedsignificantly by her circumstances as an Indigenous woman. SENTENCING INDIGENOUS PEOPLE [13]

Section 718.2(e) “creates a judicial duty to give its remedial purpose real force” (Gladue at para 34. Emphasis added). [14]

Section 718.2(

e) was enacted to change the way in which Indigenous people are sentenced, to “reduce the tragicoverrepresentation of aboriginal people in prisons” (Gladue at para 87).

It is only by taking into consideration the unique circumstancesof Indigenous people, that is, by taking into account their difference, that they can be treated fairly in the criminal justice system. [15] Sentencing judges are reminded that: [I]t must in every case be recalled that the direction to consider these unique circumstances flows from the staggering injustice currentlyexperienced by aboriginal peoples with the criminal justice system. (Gladue, at para 88) [16] In the Gladue case, counsel for Ms. Gladue expressed their fear that the

section might come to be interpreted and applied in amanner that would have no real effect upon the day-to-day practise of sentencing Indigenous people in Canada. Justices Cory andIacobucci stated that this was unfortunately a reasonable fear, given the “tragic history of the treatment of aboriginal peoples within theCanadian criminal justice system” (Gladue at para 34). But they stated that the subsection creates a judicial duty to give its remedialpurpose real force. [17] The reason that subsection 718.2(

e) specifically referred to Indigenous offenders was because of the “acute problem” of thedisproportionate number of Indigenous offenders in prison in Canada (see Gladue at para 50). In committee hearings for the Billenacting s. 718.2(

e) in 1994, Justice Minister Rock referred to the Manitoba Aboriginal Justice Inquiry (AJI: Commissioner A.C.Hamilton and C.M. Sinclair, Report of the Aboriginal Justice Inquiry of Manitoba (1991), vol.

I) which found that although Indigenouspersons made up 12 percent of the population of Manitoba, they comprised over 50 percent of prison inmates. In Ipeelee, Justice LeBelcited the report itself, noting the rising incarceration rates of Indigenous people “from 22 percent in 1965 to 33 percent in 1984, and up to46 percent” in 1989 (at para 57). [18] By 2012 when the Supreme Court decided Ipeelee, the situation for Indigenous offenders had worsened.

Between 1996 and2001, while non-Indigenous admissions to custody declined by 22 percent, the incarceration rate for Indigenous offenders increased bybetween 3 and 4 percent nationally. As Professor Rudin is quoted asking the Court in Ipeelee: “If Aboriginal overrepresentation was acrisis in 1999, what term can be applied to the situation today?” (at para 62, citing J. Rudin, “Addressing Aboriginal OverrepresentationPost-Gladue: A Realistic Assessment of How Social Change Occurs” (2009), 54 Crim. L.Q. 447, at p 452). [19] Unfortunately, the situation has become more critical since Ipeelee.

In the five-to-four decision of R v Sharma, 2022 SCC 39,Justice Karakatsanis, writing the dissenting judgment, outlined the history of incarceration rates for Indigenous people in Canada, the

1996 sentencing amendments, and the application and direction from the Supreme Court in Gladue and Ipeelee (see Sharma at paras 114 – 138 ). There are a few newer statistics and phenomena worth noting. In Manitoba and Saskatchewan, admissions of Indigenous peoples into federal custody reached 75 percent. “Incredibly, Canada’s Indigenous inmate population grew by nearly 43 percent between 2009 and 2018 even as the sirens of overrepresentation continued to sound ever louder” ( Sharma at para 124, citing the Office of the Correctional Investigator of Canada (OCI), Annual Report 2017-2018 (2018), at p 61).

The rates for Indigenous women is higher. Indigenous women comprise only 4 percent of the female population in Canada, but now account for 42 percent of federally-incarcerated women. Their population in the federal prisons has increased “by an astounding 73.8 percent” in the past 10 years ( Sharma at para 125, citing OCI, Annual Report 2020-2021 (2021), at p 41). [ 20 ] Justice Karakatsanis noted and I take judicial notice of the fact that the overwhelming majority of accused persons in the Provincial Court of Manitoba are Indigenous.

That percentage unfortunately does not drop after conviction and sentencing. [ 21 ] The tragedy does not end with the number of incarcerated Indigenous people in Manitoba, but with incarceration’s “peculiarly devastating impact upon Canada’s aboriginal peoples” ( Gladue at para 51 ). Quoting at length M. Jackson’s

article “Locking up Natives in Canada” (1988-89), 23 U.B.C. L.

Rev. 215, the Supreme Court in Gladue adopted the statement that prison has become for many young Indigenous people what residential schools were in the past (see para 60). [ 22 ] The particular impacts on Indigenous women was discussed by Justice Karakatsanis in Sharma , at paragraphs 127 and 128 as follows: As with incarceration rates themselves, those harms are further pronounced for Indigenous women (National Inquiry into Missing and Murdered Indigenous Women and Girls, Reclaiming Power and Place: The Final Report , vol. 1a (2019), at p. 635; I.F., Queen’s Prison Law Clinic, at para. 7), over 70 percent of whom in federal custody are also mothers to underage children (OCI, Annual Report 2014- 2015 (2015), at p. 50).

Those mothers are most often young, single, and the sole supporting parent (K. Miller, “Canada’s Mother-Child Program and Incarcerated Aboriginal Mothers: How and Why the Program is Inaccessible to Aboriginal Female Offenders” (2018), 37 C.F.L.Q. 1, at p. 7).

The dislocations that the statistics imply — the lost jobs, the separated families, the cultural alienations, the broken societies — are harder to quantify, but no less grave. [ 23 ] The Supreme Court of Canada in Gladue strongly questioned the efficacy of incarcerating such a significant proportion of sentenced offenders for the purpose of reducing crime, recidivism and achieving the just, peaceful and safe society which our sentencing scheme endeavours to support: Thus, it may be seen that although imprisonment is intended to serve the traditional sentencing goals of separation, deterrence, denunciation, and rehabilitation, there is widespread consensus that imprisonment has not been successful in achieving some of these goals.

Over incarceration is a long-standing problem that has been many times publicly acknowledged but never addressed in a systematic manner by Parliament . In recent years, compared to other countries, sentences of imprisonment in Canada have increased at an alarming rate. The 1996 sentencing reforms embodied in

Part XXIII, and s. 718.2(

e) in particular, must be understood as a reaction to the overuse of prison as a sanction, and must accordingly be given appropriate force as remedial provisions. (at para 57)(Emphasis added.) [ 24 ] The

section of Gladue titled “The Overrepresentation of Aboriginal Canadian in Penal Institutions” (at para 58) is strongly worded. Saskatchewan and Manitoba are featured as the provinces with the most disproportionate number of Indigenous people incarcerated. The statistics are included as likely to “shock the conscience of everyone in Canada” (at para 60, citing “Locking Up Natives in Canada”). That was in 1999. [ 25 ] Every Indigenous community in Manitoba has a unique history. There are seven distinct Indigenous language and cultural groups in Manitoba.

The history and impacts of resource development, agriculture, private property development and residential schools have had distinct impacts on different communities. Many Indigenous peoples historically from these many communities now live in Winnipeg, which also brings its own culture and difficulties.

While there are commonalities in the experience of being Indigenous in Manitoba, there are differences between Indigenous peoples because of their particular cultural and geographical roots and of course, their individual histories. [ 26 ] The Supreme Court’s direction to sentencing judges could not have been more clear in Gladue (at para 64 ): These findings cry out for recognition of the magnitude and gravity of the problem, and for responses to alleviate it. The figures are stark and reflect what may fairly be termed a crisis in the Canadian criminal justice system.

The drastic overrepresentation of aboriginal peoples within both the Canadian prison population and the criminal justice system reveals a sad and pressing social problem. It is reasonable to assume that Parliament, in singling out aboriginal offenders for distinct sentencing treatment in s. 718.2(e), intended to attempt to redress this social problem to some degree.

The provision may properly be seen as Parliament's direction to members of the judiciary to inquire into the causes of the problem and to endeavour to remedy it, to the extent that a remedy is possible through the sentencing process . (Emphasis added) [ 27 ] The requirement of judges to address these problems was reiterated in Ipeelee (at para 68 ):

Section 718.2(

e) is therefore properly seen as a “direction to members of the judiciary to inquire into the causes of the problem and to endeavour to remedy it, to the extent that a remedy is possible through the sentencing process ” ( Gladue , at para. 64 (emphasis added)).

Applying the provision does not amount to “hijacking the sentencing process in the pursuit of other goals” (Stenning and Roberts, at p. 160). The purpose of sentencing is to promote a just, peaceful and safe society through the imposition of just sanctions that, among other things, deter criminality and rehabilitate offenders, all in accordance with the fundamental principle of proportionality. Just sanctions are those that do not operate in a discriminatory manner.

Parliament, in enacting s. 718.2( e ), evidently concluded that nothing short of a specific direction to pay particular attention to the circumstances of Aboriginal offenders would suffice to ensure that judges undertook their duties properly. (Emphasis in original.) [ 28 ] In Gladue , the Supreme Court set out “A Framework of Analysis for the Sentencing Judge”. Paragraph 65 of Gladue states : It is clear that sentencing innovation by itself cannot remove the causes of aboriginal offending and the greater problem of aboriginal alienation from the criminal justice system. . .

What can and must be addressed, though, is the limited role that sentencing judges will play in remedying injustice against aboriginal peoples in Canada. Sentencing judges are among those decision-makers who have the power to influence the treatment of aboriginal offenders in the justice system.

They determine most directly whether an aboriginal offender will go to jail, or whether other sentencing options may be employed which will play perhaps a stronger role in restoring a sense of balance to the offender, victim, and community, and in preventing future crime . (Emphasis added.) [ 29 ] Ipeelee starts from the frank and grim baseline that the disproportionate number of Indigenous people in jails and prisons stems in part from the fact that they commit more crimes and that they are victims of a discriminatory justice system.

As to the former, the Supreme Court recognized that the levels of criminality among Indigenous people “are intimately tied to the legacy of colonialism” ( Ipeelee at para 77 ). But, the Supreme Court held that addressing these matters does not lie beyond the purview of sentencing (see para 65). The Court directed that sentencing judges can address these matters in two ways. [ 30 ] First, sentencing judges can endeavour to reduce crime rates by Indigenous people by imposing sentences that effectively deter criminality and rehabilitate offenders.

Where the sentencing practises do not further those objectives, “those practices must change” (at para 66). Secondly, sentencing judges must beware of inadvertently incarcerating persons who are unemployed, poor, transient, poorly educated and drug-addicted, which are systemic problems experienced by Indigenous peoples (see para 67). [ 31 ] Ipeelee is a blueprint for sentencing Indigenous offenders.

The analytical work takes place within the overarching principle in Canadian sentencing, proportionality , that is, that a sentence must be proportional to the seriousness of the offence and the moral culpability of the offender in committing the offence. The Crown filed the Supreme Court decision of R v Wells , 2000 SCC 10 , with particular reference to paragraph 44 of that decision in which the Court stated that the method of analysis for sentencing Indigenous offenders is different, but that does not mean that the sentence for an Indigenous person will be different.

That argument is problematic for several reasons. First, the whole point of the Parliament’s 1996 amendments to the Criminal Code , and the Supreme Court’s decision in Gladue were to address over-incarceration in Canada, especially among Indigenous peoples. Secondly, the Supreme Court reiterated the need to address the crisis in Ipeelee , which was in 2012, several years after Wells . Thirdly, the Gladue / Ipeelee analysis in this case leads to the imposition of a CSO. [ 32 ] What follows is a discussion of proportionality generally and within the context of sentencing Indigenous people.

PROPORTIONALITY [ 33 ] In R v Nasogaluak , 2010 SCC 6 , Justice LeBel explained what proportionality means in the context of sentencing, as follows (at paras 42-43): For one, it requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence. In this sense, the principle serves a limiting or restraining function. . .

Whatever the rationale for proportionality, however, the degree of censure required to express society's condemnation of the offence is always limited by the principle that an offender's sentence must be equivalent to his or her moral culpability, and not greater than it. The two perspectives on proportionality thus converge in a sentence that both speaks out against the offence and punishes the offender no more than is necessary.

The language in ss. 718 to 718.2 of the Code is sufficiently general to ensure that sentencing judges enjoy a broad discretion to craft a sentence that is tailored to the nature of the offence and the circumstances of the offender. (Italicized emphasis in original; underlined emphasis added.) THE OFFENCE: POSSESSION OF FENTANYL FOR THE PURPOSE OF TRAFFICKING [ 34 ] There is no question that possessing fentanyl for the purpose of trafficking is extremely serious and harmful.

Several decisions from this court and appellate courts have emphasized fentanyl’s particular dangerousness. ( See Parranto at paras 93-98 ; R v Petrowski , 2020 MBCA 78 at paras 43-49 ; R v McLean , 2022 MBCA 60 at paras 88-89 ; R v Muswagon (21 November 2017), Winnipeg 012-50131 (Man Prov Ct); R v Lander (1 November 2018) Winnipeg (Man Prov Ct); R v Hurdon , 2023 MBPC 1 .) [ 35 ] The Manitoba Court of Appeal has made it clear that the increased harm posed by the substance fentanyl as opposed to other

Schedule I drugs, such as cocaine and methamphetamine, must be reflected in increased sentences ( See Petrowski at paras 37, 46-47 ; McLean at para 120 ). [ 36 ] Between January and June, 2022, the office of the Chief Medical Examiner in Manitoba reported between 17 and 21 fentanyl deaths monthly, although there was carfentanil involved in several cases as well. If the cases involving carfentanil are removed, there were still between 11 and 19 fentanyl deaths monthly. The month of June had 11 deaths involving only fentanyl; the other months had

between 14 and 19 fentanyl deaths per month. [37] The Crown also filed a report from the Winnipeg Fire Paramedic Service, showing the increasing naloxone treatment (foropioid overdoses) provided between January 2015 and January 2022. [38] The fentanyl was cut with etizolam in this case, which makes the drug more serious and dangerous. The Crown filed materialsfrom the Canadian Centre on Substance Use and Addiction and Health Canada’s Drug Analysis Service showing the increased harm ofopioids mixed with benzodiazepines. There is an increased risk of drug poisoning.

There is more complex care required for people whohave overdosed from combining these drugs, specifically that the naloxone will restore breathing, but will not affect the sedation causedby the etizolam. The person may start breathing again, but may not regain consciousness. There is also a hidden or unknowndependence on the benzodiazepines and withdrawal if stopped abruptly. [39] Patrol Sergeant Hourd, whose expert evidence was accepted at trial about the pricing, packaging and distribution of fentanyl,testified that the amount of fentanyl seized in this case was consistent with street-level trafficking.

The amount of fentanyl involved wasextremely small, the equivalent of approximately five doses. [40] The other part of the proportionality analysis requires that I consider the degree of moral culpability Ms. Kipling possessed incommitting these offences. ASSESSING THE ACCUSED’S MORAL CULPABILITY [41] In assessing proportionality for a drug trafficking sentence, it is important to consider the “magnitude of the individual’sparticipation” (McLean at para 61, citing R v Lecapoy, 1974 ALTASCAD 50 , [1974] AJ No 144 (QL)). In this case, it isconceded by the Crown that Ms.

Kipling was engaged in street-level trafficking, without authority. She played no other role in atrafficking operation. There is no evidence of her having any decision-making authority or responsibility. This case is thereforedistinguished from Parranto and McLean, which both involved the wholesale trafficking in fentanyl, nor is it within the six- to eight-yearrange the Court of Appeal set for mid-level trafficking. [42] Ms. Kipling had in her possession the equivalent of five doses of fentanyl.

There is no evidence that she was aware that it wasmixed with etizolam. [43] She admitted that she was selling fentanyl to support her methamphetamine habit. [44] The typical markers of moral culpability point to a high level of moral culpability (See R v Johnson, 2020 MBCA 10 at paras16-20; Hurdon at paras 32-37):

i) She engaged in intentional risk-taking behaviour; the dangers of fentanyl are not only known in the criminal justice system, they areknown among users. ii) The consequential harm of fentanyl is extremely high. As Justice Moldaver noted in his concurring judgement in Parranto, thenumber of deaths caused by fentanyl overdoses vastly exceeds the number of homicides in Canada (see also McLean at paras 86 and 89). iii) The normative character of Ms. Kipling’s conduct, that is, making a deliberate decision to support her habit by selling a highlyaddictive and often fatal drug, seriously violates societal values.

The dire consequences of street-level drug use in Manitoba is palpable,especially in the city of Winnipeg. Although it is not unusual for drug addicts to support their habit by drug trafficking, it cannot beconfused with somehow characterizing the behaviour as “normal” or divorcing it from an assessment of the consequential harm andintentional risk taking behaviour (See Johnson at para 20). [45] This is only the beginning of the assessment of Ms. Kipling’s moral culpability however. Considering Ms.

Kipling’scircumstances as an Indigenous woman is critical. [46] A Pre-sentence Report (PSR) was filed in this matter and provides additional background information about Ms. Kipling.Defence counsel aptly described colonialism’s “profound effect [on] and disintegration” of Ms. Kipling’s life. [47] She has suffered from racism, abuse, has experienced family breakdown, poverty, has lost many people to premature death andillness, and has been separated from her own children. [48] Ms. Kipling is of Ojibway and Russian descent.

Her parents split up when she was six years old, “as her mother’s negativebehaviour began to escalate” (PSR at page 3) and then her father died when she was 13. Her life started unravelling. She wrotepoignantly about this loss in her letter to the Court, stating that she felt “empty” inside, and felt a “deep sadness tears your soul”. HerOjibway mother was a professional woman who worked for a child protection authority, but her education and employment did notshield her from the devastating effects of generations of trauma caused by residential schools and colonialism.

She suffered fromalcoholism and fell prey to the abuse and neglect of her own children. Ms. Kipling was often left responsible to care for the youngersiblings and run the household, often stealing food for them to eat. She ran away from the family when she was a young teenager andended up on infamous East Hastings in Vancouver, where she fell into drug use and was sexually-exploited. She eventually made herway back to Winnipeg.

Drug use had by then become an ongoing problem. [49] She came back to Winnipeg pregnant and heavily reliant on opiates. [50] Her mother took her in, and although their relationship remained strained, her mother was an excellent grandmother to Ms.Kipling’s children.

[ 51 ] She has limited education and almost no employment history, although she was employed for approximately eight months at a tiling company at the time of the PSR interview, and enjoyed it. [ 52 ] Her children are in care of a child protection authority. [ 53 ] She had a significant and positive relationship for about five years, then her partner became physically violent, addicted to crack cocaine, and wholly unable to be a positive partner and father to the children. Ms. Kipling was a desperate single mother with little or no support. She started acting like her mother had.

Her partner, when he was in a psychotic state, took the children to his father’s house and called Child and Family Services (CFS). They were apprehended. Ms. Kipling now has four children who are permanent wards and a fifth who lives in Alberta and is taking post-secondary education. [ 54 ] The PSR writer summarized the intergenerational impacts that have harmed the parent-child relationships in Ms.

Kipling’s family and the how she may work to heal it: It is clear from the subject’s description of the distance she felt from her mother, who struggled to show maternal instincts to her children, was directly related to her mother’s experience in the residential school system which has been documented to have stripped the survivors of parenting skills and left them with trauma that is often unaddressed.

These harms continue to have impacts on future generations and can be viewed in the subject’s own family as she has admitted to a strained relationship with her older children and her younger ones being raised in CFS care. It might be beneficial for the subject to attend the Reclaiming our Identity program through Manitoba Corrections for persons in custody or the community. This program aids in the understanding of the impacts of colonization on First Nation communities and the harms caused to the Indigenous family by the legacy of Residential Schools.

This might provide her insight into the cycle of abuse she experienced and its relation to her mother surviving residential school. This insight could help repair the distant relationship and assist in reconnecting her to her natural support system. (PSR at page 10.) [ 55 ] She associated with gangs and drug users as a form of community and survival. In her letter to the Court, she wrote about finding “comfort in the street life and in gangs, a place where individuals/misfits like [her] become a family by sharing the same upbringing and emotions.

It made [her] feel needed and cared for.” But she recognized that this steered her in the wrong direction and ripped her away from her children. [ 56 ] She did not have a criminal record at the time of these offences.

Since that time she has incurred a limited record (on February 15, 2023) consisting of failing to attend court, for which she was sentenced to her one day court appearance, and failing to attend to the police station for fingerprints and possession of bear spray, for which sentence was suspended and she was placed on probation for six months. [ 57 ] Ultimately, proportionality cannot be determined in a vacuum. It must be assessed on an individual basis and also by comparison with sentences imposed in similar circumstances by similar offenders, which I have considered in light of the cases filed by counsel.

PARITY IN SENTENCING [ 58 ] The defence filed cases in support of his argument for imposition of a CSO. The Crown filed cases involving penitentiary sentences. I have noted only the cases involving fentanyl trafficking. [ 59 ] It should be noted that other than in the recent case of R v McDougall (6 July 2022) Winnipeg (Man.Prov.Ct.), CSOs were not available for drug trafficking in Manitoba until recently. The defence filed several cases from other jurisdictions. In McDougall , the offender was involved in street level trafficking of fentanyl at the lower end; he sold fentanyl to an undercover police officer.

Judge Chapman sentenced the offender to a two-year less a day CSO, reduced by the amount of time he spent in presentence custody (19 months) and followed by three years of probation. There is no indication in the decision that he is of Indigenous background. He had made significant and “exceptional” rehabilitative efforts in the two years since he had been awaiting sentencing. [ 60 ] In R v Grant , 2021 ONCJ 507 , the 18-year-old, first-time offender was sentenced after trial. He was in possession of 9.5 grams of fentanyl, as well as similar amounts of cocaine, methamphetamine and pills.

At that time in Ontario, a CSO was available after the Ontario Court of Appeal had struck it down as unconstitutional in R v Sharma , 2020 ONCA 478 . The offender had made significant rehabilitative steps since the time of his arrest. A two-year less a day CSO, followed by three years of probation was imposed. [ 61 ] In R v Han , 2022 ONCJ 343 , the 24-year-old fentanyl addict pleaded guilty to possessing 15.6 grams of fentanyl for the purpose of trafficking. She was an immigrant, had a difficult life and no criminal record.

A two-year less a day CSO was imposed. [ 62 ] In R v Hogan , 2022 BCPC 101 , the 20-year-old offender was caught in a sting operation selling .2 grams of mixed heroin, fentanyl and cocaine to police. He had a very difficult childhood and adolescence and a record reflective of the difficulties he had with poverty, drug addiction and homelessness. He had been doing well in the three years between charge and sentencing and had many supportive people in his life.

He was sentenced to a two-year less a day CSO and one-year probation order. [ 63 ] In R v Sehn , 2021 BCSC 2292 , the 35-year-old offender was found to be a low-level fentanyl dealer, and had a long-standing addiction problem. There were several weapons and indicia of trafficking in his home, which had been under surveillance for several months. More recently, he had made efforts at rehabilitation.

A two-year less a day CSO followed by a one-year probation order was imposed. [ 64 ] In R v Howard , 2021 BCPC 167 , the offender was found with 51.47 grams of fentanyl and OxyContin pills, 1.63 grams of mixed heroin and fentanyl, and 115.39 grams of cocaine. She was 38 years old, and had a criminal record including a previous conviction for drug trafficking. She had received an eight-month CSO for the previous trafficking offence and it had been terminated. She pleaded guilty, had more insight into her offending behaviour and had recently taken several positive rehabilitative steps, including

going to school. A 22-month CSO was imposed. [65] The Crown filed several cases from Manitoba which support its position for a four-year penitentiary sentence. [66] In R v Antczak, 2021 MBCA 39, the 20-year-old accused sold .81 grams of fentanyl to an undercover police officer. He had alengthy youth record and drug addiction; he was selling to support his habit. He was sentenced to three years in prison. [67] In Muswagon, the accused sold 18 fentanyl pills she believed to be Percocet. She had a previous conviction for trafficking forwhich she received a sentence of three and one-half years.

There were significant Gladue factors and she was taking positiverehabilitative steps. She was sentenced to a four-year penitentiary sentence. [68] In Lander, the 42-year-old offender was found to be in possession of 23 fentanyl pills for the purpose of trafficking. He hadbeen an addict since the age of 15. He had a serious criminal record and had received three penitentiary sentences in the past. At the timeof the offence he was on a CSO.

At the time of sentencing he was in the Winding River Therapeutic Community at HeadingleyCorrectional Centre, a very rigorous in-custody rehabilitation program that has benefitted many inmates. A sentence of five and one-halfyears was imposed. [69] In R v Bruce, (2 November 2021) Winnipeg (Man.Prov.Ct.), the 38-year-old offender had a lengthy record which included aprevious sentence of 15 months for possession of 6.9 grams of fentanyl for the purpose of trafficking. He had tried rehabilitation severaltimes in the past. He also had convictions that post-dated his arrest on the current charge.

A sentence of five years was imposed. [70] In Hurdon, the offender had in his possession 8.37 grams of fentanyl. I sentenced the 32-year-old offender to three and one-half years, which was lower than I otherwise would have, but for the significant rehabilitative efforts he had made in the Teen ChallengeProgram. I did not find the circumstances that would have allowed for a non-incarceral sentence, including the fact that he had a verylengthy record, including 37 convictions for crimes of dishonesty and a previous drug trafficking conviction. [71] The circumstances of Ms.

Kipling’s offence suggest seriousness at the lower end of the scale: she had significantly less drugsin her possession than the offenders in the cases noted above (the amount of fentanyl she had in her possession was .69 grams, in fivebaggies, or five doses of fentanyl); although there was a weapon in the vehicle, she was not aware of it; she had not been undersurveillance by police; and she was not caught selling to undercover officers.

AGGRAVATING AND MITIGATING CIRCUMSTANCES [72] The nature of the substance, fentanyl, is aggravating, as I discussed at length earlier in this decision, compounded by the cuttingagent etizolam. [73] It is a mitigating factors that Ms. Kipling did not have a criminal record when she committed this offence, she is a mother andshe was a mature woman in her 30s. There are other mitigating circumstances as well. [74] Ms.

Kipling expressed remorse and a great deal of insight into the offence and her offending behaviour and is very candidabout her struggles, which demonstrate an ability and desire for change. [75] She has significant support from her mother and older sister and her plan upon release is to live with them and help to look aftertheir mother, who now has serious health issues. It is a sober household.

RESTORATIVE SENTENCING AND CONDITIONAL SENTENCE ORDERS [76] The Criminal Code was amended in 1996 as discussed earlier in this decision to address the over-incarceration rates in Canada.One of the amendments provided for was the CSOs, such that a “jail” sentence can be served in the community rather than in acorrectional institution. This accords more closely with some of the principles and objectives in taking responsibility for harmfulbehaviour in many Indigenous communities.

A CSO may be imposed where neither a probationary period nor a penitentiary sentencewould be appropriate, but where some jail is required, and where the person would not represent a danger to the community. [77] The Supreme Court and Parliament have reiterated and reiterated that jail should be reserved for the most dangerous offendersand only where it is necessary.

Recently, in R v Hills, 2023 SCC 2, Justice Martin for the Court (in the context of confirming the correctanalysis under s. 12 of the Charter) discussed the enormous and negative impact of jail on offenders (at para 101): Imprisonment is the harshest form of punishment in Canada (Gladue, at paras. 36 and 40), and “[a]part from death, imprisonment is themost severe sentence imposed by the law” (Re B.C. Motor Vehicle Act, (SCC), [1985] 2 S.C.R. 486, at p. 532, perWilson J., concurring).

Incarceration entails not only a complete removal of an offender’s liberty, it also has a ripple effect that touchesnearly every aspect of the offender’s life and physical and mental health, employability, children, and community (R.

Mangat, MoreThan We Can Afford: The Costs of Mandatory Minimum Sentencing (2014), at pp. 40-44). [78] I would add that the costs and impacts are doubly so for female, Indigenous offenders. [79] The Supreme Court in Gladue questioned the efficacy of imposing jail to deter offenders and has recently repeated the query inthe context of analyzing mandatory minimum sentences (Hills at para 137): In addition, this Court has repeatedly referred to longstanding doubts about whether mandatory minimum sentences, or incarceration writlarge, are effective tools of deterrence (Nur , at paras. 113-14; Bissonnette , at para. 47; R. v.

Proulx, , 2000 SCC 5, [2000] 1 S.C.R. 61,at para. 107; see also Canadian Sentencing Commission, Sentencing Reform: A Canadian Approach (1987), at pp. 136-37). Though thecertainty of criminal punishment may produce certain deterrent effects, empirical evidence indicates that mandatory minimum sentences

do not deter crime any more than a less harsh, proportionate sentence would ( Nur , at para. 114). [ 80 ] Judge Green in R v McGill , 2016 ONCJ 138 , described the proposition that harsh jail sentences will have a deterrent impact on like-minded people, as having “at best, only tepid empirical support” (at para 104).

He cited several cases, including R v Proulx , 2000 SCC 5 , where the unanimous Supreme Court stated, “[t]he empirical evidence suggests that the deterrent effect of incarceration is uncertain” ( McGill at para 104 , citing Proulx at para 107 ). [ 81 ] The Crown has argued that a CSO is not appropriate in this case because Ms. Kipling has not taken a sufficient number or type of rehabilitative programs, specifically a residential treatment program. He is arguing essentially that a CSO should be available for fentanyl trafficking only in exceptional circumstances.

He also points to the fact that she incurred additional offences while on release for this offence. [ 82 ] That analysis precludes consideration of restorative sentencing principles, which are relevant and appropriate in this case. [ 83 ] Ms. Kipling’s letter to the Court expressed one woman’s visceral understanding of restorative justice.

Her letter ended with words expressing a heartfelt desire to be released from custody “sober” to have “a new life with new changes and the most important thing ever” to her, her children, and being restored to being a family marked by “endless opportunities” and “unconditional love”. She asked the Court to allow her to “have a chance to fix and make [her] wrongs right”. [ 84 ] The PSR is very positive and reflects Ms. Kipling’s demonstrated desire to escape the circumstances of her previous life. She approached her Custody Case Manager (CCM) at the Women’s Correctional Centre (WCC) to participate in programming.

While waiting for programs, she worked on workbooks independently. She met regularly with the chaplain. [ 85 ] Ms. Kipling’s grandmother, Mary-Bella Kipling was a medicine woman and recognized by the Peguis community as an Elder. She taught Ms. Kipling and her other grandchildren their language, Ojibway. Ms. Kipling was a pow-wow dancer as a child. These antecedents are critically important for Ms. Kipling’s successful reintegration and regaining her place in the community. Ms.

Kipling wishes to connect to her culture and ceremony, wants to be more traditional and share culture with her children, and has demonstrated her desire to connect with an elder and work with Indigenous counsellors and addictions counsellors. Her children live in Peguis and she has a good relationship with the CFS worker. She hopes to regain custody of her children. [ 86 ] Even before the many programs Ms.

Kipling has completed in custody, the PSR writer believed her to be candidate for community release: When considering the [subject’s] honesty in interview, openness to seek treatment/counselling and lack of criminal history, it is the writer’s assessment that they would be a decent candidate for community supervision despite her elevated risk level. Should the court be considering a community-based disposition, the following conditions are recommended (PSR at page 11). [ 87 ] She has made further efforts since the PSR was written.

She has taken Project Choices Coming to Terms, meets with an Elder, has attended sweat lodges with the Elder, and her CCM is helping her set up counselling in the community with an Indigenous counselling program, and has also been assisting her to obtain Employment Income Assistance and Anger Management programming. [ 88 ] Neither a penitentiary sentence nor solely a probationary sentence would be appropriate in this case. [ 89 ] I am also satisfied that Ms. Kipling will not represent a danger to the community.

She has now been sober for an extended period of time and has taken many rehabilitative programs in jail. She has obtained her safe food handling certificate while in jail. She wants to get a job. [ 90 ] I am satisfied a proportional sentence in Ms. Kipling’s case is a sentence that sends a message of denunciation and deterrence, but that does not eschew rehabilitative principles, especially given her status as an Indigenous woman. [ 91 ] A CSO is the proportional sentence. It sends a message of denunciation and deterrence while at the same time allowing for the rehabilitation and support that Ms.

Kipling requires. SENTENCE [ 92 ] In returning to the Supreme Court’s direction in Nasogaluak about the central role and meaning of proportionality in sentencing, I believe a CSO is fit and appropriate. The rights-based protective angle of proportionality is thereby counterbalanced with the need to ensure that Ms.

Kipling is held responsible for her actions and that the sentence properly reflects and condemns her role in the offence and the harm that fentanyl causes ( See Nasogaluak at para 42 ). [ 93 ] I have taken into account the Supreme Court of Canada’s direction in Parranto (which involved fentanyl trafficking) that sentencing judges must account for rehabilitation and restraint, and not lose sight of restorative justice principles even when denunciation and deterrence are the primary sentencing objectives (at para 45). [ 94 ] The sentence on the possession of fentanyl for the purpose of trafficking will be a CSO for two years less one day.

Subtracted from that will be the time Ms. Kipling has been in custody, which is 258 days (at a rate of one and a half days for every day in custody), or approximately eight and one-half months. The sentence for the possession of proceeds of crime will be a concurrent three-month CSO. [ 95 ] Ms. Kipling’s CSO will be followed by two years of supervised probation, to provide further support for her return to

wholeness, healing and rehabilitation. [ 96 ] The sentence I have imposed is the same length as that sought by the Crown, four years, but it is outside of a traditional jail setting, which is the more appropriate sentence for Ms. Kipling. [ 97 ] The conditions of the CSO are: - Keep the peace and be of good behaviour. - Appear before the court when required to do so by the court. - Report to your CSO supervisor within two working days by calling 1-800-334-8792.

After you report the first time, you must continue to report when and how you are told to report by your CSO supervisor. - Remain in Manitoba unless you get written permission from your CSO supervisor or the court to go outside the province. - Reside as directed by the court. - Do not change your address without prior permission of your CSO supervisor or the court. - Promptly tell your CSO supervisor if you change your job or occupation. - Observe an absolute curfew with the following exceptions: • For purposes of complying with other terms of the order as directed by your supervisor including attending scheduled visits to your supervisor; • attending assessments, programming or counselling, and travelling directly to and from such locations; • employment, educational programming and travel directly to and from; • for four hours once per week as approved in advance by the CSO supervisor to attend to personal business. • for regularly scheduled medical or dental appointments and travel directly to and from with prior written approval of your CSO supervisor; • in the event of a medical emergency involving you or an immediate family member, and in such case report the absence to your CSO supervisor within 48 hours; • any other circumstances with the prior written permission of the CSO supervisor. - Submit to curfew checks by a peace officer or a CSO supervisor by presenting yourself at the door or answering your telephone. - Attend, participate and complete any assessment, programming or counselling as directed by the CSO supervisor. - Do not to possess any firearms or prohibited weapons. - Do not to possess any cell phone, pager, BlackBerry or other wireless or radio communication devices except you may have one cell phone that is not password protected and the number has been provided to your CSO supervisor. - Abstain absolutely from the consumption of alcohol, illegal drugs, and prescription drugs for which you do not have a prescription, - Do not attend any licensed establishment primarily engaged in the sale of alcohol such as pubs or bars. - Provide a breath sample or submit to drug testing on reasonable demand of a peace officer or the CSO supervisor. - Submit to a search for contraband conducted by a peace officer of your person, your cell phone, your personal vehicle, or your residence, no more than one time per month and during day light hours. - Carry a copy of your conditional sentence order at all times you are outside of your residence and produce it upon interaction with any peace officer. [ 98 ] The CSO will be followed by two years of supervised probation.

The conditions will be: - Keep the peace and be of good behaviour. - Notify the court of any change of name or change of address. - Report to your probation officer as required by them. - Attend, participate and complete any counselling, programming, and support for your sobriety as directed by your probation officer. - Abstain absolutely from the consumption of all illegal drugs, and alcohol, and do not consume prescription medication unless it is prescribed to you by a medical professional.

[ 99 ] The following ancillary orders are made: - Forfeiture of the items seized at the time of your arrest; -

Section 109 10-year weapons prohibition (except for hunting for food for yourself and your family) on the possession for the purpose of trafficking offence; -

Section 487.051(1) DNA order on the possession for the purpose of trafficking offence, which is a secondary designated offence. You must provide a sample of your DNA at a police station within 60 days of your release from jail. [ 100 ] The victim surcharge is waived. Original signed by Judge Devine C.A. DEVINE, P.J.