R. v. Brown, 2015 MBPC 46

Citation: R. v. Brown Citation No. 2015 MBPC 46 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Ms. A. Turner, for the Crown ) - and – ) ) Cameron Brown ) Ms. K. Jones, for the Accused ) ) ) Judgment delivered: ) September 17, 2015 CARLSON, P.J. Introduction [ 1 ] Mr.

Cameron Brown pleaded guilty to three charges, as follows: • Between April 9 and April 28, 2014, he did unlawfully traffic a controlled substance, being heroin, contrary to section 5(1) of the Controlled Drugs and Substances Act (the “ CDSA ”); • On April 28, 2014, he did unlawfully possess for the purpose of trafficking, a controlled substance, being heroin, contrary to section 5(2) of the CDSA ; and • On April 28, 2014, he did possess a restricted firearm together with readily accessible ammunition capable of being discharged in the firearm, and was not the holder of an authorization or licence under which he may possess such firearm, contrary to section 95(1) (

a) of the Criminal Code of Canada (the “ Criminal Code ”). [ 2 ] All of these offences were committed in Winnipeg, Manitoba. [ 3 ] Sentencing submissions were heard on July 28, 2015. Crown counsel called Sergeant Tony Atkins of the Winnipeg Police Service to testify. Sergeant Atkins was qualified as an expert in the trafficking of heroin, and as to the significance of items seized pursuant to a search warrant executed at Mr. Brown’s residence on April 28, 2014. The issue [ 4 ] At issue are the appropriate sentences to be imposed on Mr. Brown for committing these offences.

The circumstances of the offences [ 5 ] On April 9, 2014, an undercover officer called a number, which the Winnipeg Police Service suspected was a drug line being operated by Mr. Brown. The officer advised the person who answered the call that he wanted to buy some heroin. That person agreed to meet the caller at a 7-11 store on Corydon Avenue. An individual who turned out to be Mr. Brown attended at the 7-11 and met the officer. They spoke but there was no transaction, and they both left.

Later on the same day, the same officer called the same number, and the person who answered said “OK, I’ll send my guy” and also told the caller that he did not have to pay for the drugs. At 11 p.m., the undercover officer attended the same 7-11 and was given two points of heroin by a male who was not Mr. Brown. No payment was made. On April 10, the officer called the same phone number and arranged to buy heroin. Mr. Brown himself this time arrived at the same 7-11 and sold the officer two points of heroin, in exchange for a payment of $100.

On April 17, the same officer called the line and arranged to meet the seller at the 7-11. At 5:20 p.m. Mr. Brown arrived and sold the officer three points of heroin for $130, after the officer and Mr. Brown negotiated a price. The officer asked Mr. Brown if he could do three points for $130. Mr. Brown responded that he didn’t usually do that but he said “yeah I guess” before completing the transaction. On April 26, the officer again called the line and arranged to meet at the 7-11. At 12:15 a.m. on April 27, Mr. Brown attended the 7-11 and sold the officer three points of heroin for $130.

The heroin was packed in gel capsules. [ 6 ] On April 28, police obtained a search warrant for Mr. Brown’s residence. Prior to police attending the residence, the undercover officer called the line and arranged to buy three points of heroin for $150 and to meet at the 7-11. Before the transaction

happened, the tactical team attended at Mr. Brown’s residence and arrested Mr. Brown in his truck. During a search of Mr. Brown’s person, police found $605 in his back left pant pocket and $660 in the consul of his truck. Three points of heroin were found on his person, as well as two cellular phones and another cell phone in the passenger seat. Mr. Brown was arrested and charged with a number of offences. [ 7 ] When police executed the search warrant at Mr.

Brown’s residence, they found and seized a number of items including the following: 10.878 grams of heroin, 228 grams of marijuana, four cell phones, two of which were functional, a money counter, $440 cash, score sheets, packaging materials, empty gel caps, tin foil, documents bearing Mr. Brown’s name and address (corresponding with the residence subject to the search warrant), and a kilo size empty wrapper bearing cocaine residue. Also found, in a nightstand by the bed in a bedroom, was a loaded handgun with one round in the chamber and nine rounds in the magazine.

The search did not turn up any pipes or other items that would be typically possessed by a drug user. [ 8 ] On April 29, police told Mr. Brown what items they had located at his residence. He spoke to counsel, and gave no statement except to admit that the residence searched was his residence. Mr. Brown has been in custody continuously since April 28, 2014 and has not made a bail application. Background of the Offender [ 9 ] Mr. Brown is 29 years old. He has a fiancé who is supportive of him. Mr. Brown moved out of his parents’ residence when he was 15 years old and has been living on his own since then.

He graduated from high school at age 19 and did a year at the University of Manitoba. He has a history of working in construction. Mr. Brown’s plan, while in custody, is to work and to continue his post secondary education by correspondence. [ 10 ] Mr. Brown’s counsel says he has a history of drug addiction, which began when he was legitimately prescribed morphine after sustaining physical injury. Over the years, he was re-injured and was prescribed oxycontin. As a result, he became physically dependent on opiates. He was on the methadone program at the time he was arrested on his prior drug offence.

During his last incarceration, Mr. Brown was on methadone and hoped to stay off drugs. But after being released in March, 2013, he re-injured his back, was prescribed medication, and his addiction took over. That addiction was expensive and he says at the time of these offences, he was selling heroin to support his own habit. Mr. Brown hopes that by the time he has finished serving his sentence for these offences he will leave custody with no addiction issues. Despite Mr. Brown’s prior incarceration, he has never been in a penitentiary, and has not been able to take addictions programming.

While on remand for these offences, he has not had relevant programming available to him. When he was released from custody in March, 2013, from a provincial institution, he had no supervision or imposed structure. [ 11 ] Crown counsel takes issue with the characterization of Mr. Brown as an addict selling heroin to support his own addiction. [ 12 ] Mr. Brown has a limited record. But it is related, recent and serious. In 2006 he has 2 convictions for breaching a recognizance. In January of 2012, he was convicted of trafficking cocaine during Project Divide.

He received a sentence equivalent to 5 years imprisonment. Mr. Brown’s connection with a criminal organization was a factor in that prior offence. By the time of sentencing for that offence, he had removed himself from that organization. There is no suggestion that Mr. Brown has ties to a criminal organization now or at the time of the offences for which he is now being sentenced. Expert evidence [ 13 ] Sergeant Atkins testified about heroin, and the heroin trade in Winnipeg. Heroin is an opiate, and provides the same sort of effect on a user as oxycontin.

Oxycontin has become increasingly difficult to obtain in Winnipeg over the last couple of years, and there has been a corresponding and growing demand for heroin in Winnipeg. In the last two years, there has been a significant increase in the heroin trade in Winnipeg, including more dealers in heroin, and more dealers trafficking in larger quantities of heroin, including at the kilo level. [ 14 ] Heroin can be used by sniffing, orally ingesting it or injecting it. Heroin is sold in points.

One point is equivalent to one tenth of a gram and sells typically for $50 to $70 on the street. [ 15 ] Heroin is highly addictive. A dealer may give a new customer a reduced price for his first purchase, so that the purchaser will become addicted and will then be an ongoing and loyal customer of that dealer. [ 16 ] In this case, there was just under 11 grams of heroin found in Mr. Brown’s residence. That is about 110 points, worth about $5500 on the street. [ 17 ] Sergeant Atkins testified as to other items found in Mr. Brown’s residence. Four scales were found. They were tested.

Two of them were contaminated with heroin; one with cocaine, heroin and fentanyl; and one with heroin and cocaine. Digital scales are common in the drug trade to ensure that the quantities being sold are accurate. Many different substances are added to heroin, including fentanyl. [ 18 ] Heroin is typically packaged in gel capsules. A bag of empty gel capsules was located in Mr. Brown’s residence. [ 19 ] Also found was a kilo package wrapper contaminated with cocaine. Sergeant Atkins said that someone who has a kilo of cocaine would be at the high end of the drug trade.

He agreed on cross examination that there was no cocaine seized from the residence, that he could not say how long that wrapper had been there, and that he did not know who had lived in the residence for the last number of years. [ 20 ] A money counter was seized. A money counter is commonly used in the drug trade when dealing with high volumes of cash. It would be someone at a high level that would use a money counter. A street level dealer would not use one.

Sergeant Atkins agreed on cross examination that there was no evidence how long the money counter had been there, that no fingerprints were taken from it, and that there were not large stacks of cash located in the residence.

[ 21 ] Sergeant Atkins testified that the loaded gun being in a residence with drugs is consistent with a dealer needing to protect the drugs, and himself from other drug dealers. [ 22 ] A street level dealer typically does sales himself. The fact that Mr. Brown had someone else delivering drugs for him demonstrates that he had people working for him. Sergeant Atkins said that, although the higher level dealers often avoid handling product themselves, so as to insulate themselves from police detection, in fact some high level dealers in fact do street sales themselves.

He said that usually street level dealers would have only about 10 to 20 points of heroin at a time, so as to lower the risk of losing product. 110 doses were found at Mr. Brown’s residence, which is a mid-level amount. Sergeant Atkins said that typically street level dealers do usually not have the authority to make deals as to the price of the drugs they sell with customers, or to give it to them for free. [ 23 ] Sergeant Atkins opined that based on the items seized from Mr. Brown’s residence, and on the circumstances of the sales made in this case, Mr.

Brown was a mid to high level dealer of heroin, and not a street dealer. Findings as to disputed matters [ 24 ] There are two disputed matters that require determination. Findings on these matters will factor into crafting an appropriate sentence for Mr. Brown. Defence counsel argues Mr. Brown was a street level dealer selling heroin to support his own addiction. Crown counsel says Mr. Brown was a mid to high level drug dealer who was selling for profit. [ 25 ] Was Mr. Brown an addict who was selling drugs to support his own habit at the time he was arrested?

This is important because often an addict selling due to his own desperation and physical dependence on drugs will receive consideration on sentence, and may receive a shorter sentence than someone selling purely for profit. For the Court to accept that Mr. Brown was an addict, he must persuade the Court of that, on a balance of probabilities, as required by s. 724(3) Criminal Code . Defence counsel provided Mr. Brown’s information about his drug use during her submissions. No evidence was called. There was no addictions assessment provided. There was no documentation provided from the methadone program.

No items that would be consistent with Mr. Brown using drugs himself, according to Sergeant Atkins, were found at Mr. Brown’s residence. The Court also notes that in the decision on Mr. Brown’s previous sentencing ( R. v. Brown [2012] MBCA 60), there was no mention made of any addiction. Based on all the information the Court has about Mr. Brown and about the circumstances of the sales of heroin in this case, the items found at his residence and the cash found on his person and in his truck, the Court is not satisfied that Mr. Brown was an addict who was selling heroin only to support his own addiction.

Whether or not Mr. Brown had his own addiction, the Court finds that Mr. Brown was trafficking heroin for profit. [ 26 ] Next, was Mr. Brown’s level of involvement in trafficking heroin at the low, mid or high level? This is important because the jurisprudence in Manitoba generally recognizes these three levels of participating in drug trafficking, and the Manitoba Court of Appeal has determined generally accepted ranges of sentence for each level. Sentences for low or street level dealers typically range from less than two years to beyond four years ( R. v. Gilchrist 2004 MBCA 21 ).

Mid-level traffickers who are trusted more than just being a mere courier generally receive sentences of five to eight years, and a mid- level dealer who is used just to transport drugs would typically receive a sentence in the range of three to six years ( R. v. Rocha 2009 MBCA 26 ). High level traffickers of multi kilograms are typically sentenced in the range of eight to 12 years ( R. v. Oddleifson , 2010 MBCA 44 ). [ 27 ] Mr. Brown does not fit precisely into one of the three categories in terms of meeting all criteria for one category.

On the one hand he attended and did at least some of his own hand to hand drug transactions. This is consistent with street level dealing. Sergeant Atkins did testify that some higher level dealers do, on occasion, transact some street level deals themselves. Further factors that are consistent with Mr.

Brown having a higher level of involvement are that he had discretion to waive payment and to negotiate payment for the heroin, that he had at least one person working for him as he sent someone else to do one of the transactions, the quantity of drugs he had at his residence was more significant than a street level dealer would typically have, and he had many items at his residence seized, including a loaded handgun, that were consistent with higher than street level dealing. Sergeant Aitkins opined that Mr. Brown was a medium to high level trafficker of heroin, and not a street level dealer. Although Mr.

Brown did at least some transactions himself, the Court’s view is that there are more elements of higher level involvement than street dealing. Sergeant Atkins has significant knowledge of the elements and levels of drug trafficking. The Court is not satisfied that his opinion was successfully challenged. The Court accepts that Mr. Brown, based on all the evidence, was a mid level dealer in trafficking heroin, who was more than a courier. Positions as to sentence [ 28 ] There is not a joint recommendation as to sentence for Mr. Brown. Since heroin is a

Schedule 1 drug, as set out in the CDSA , the maximum punishment for trafficking is life imprisonment. The mandatory minimum punishment is one year, given his prior related conviction. [ 29 ] The Crown submits that a global sentence equivalent to ten years incarceration is required to properly address denunciation and deterrence, both specific and general.

The Crown recommends seven years concurrent on the drug offences and three years consecutive on the firearm offence. [ 30 ] Defence counsel says a global sentence equivalent to five to six years incarceration is appropriate, specifically three years on the firearm offence, consecutive to concurrent sentences of two to three years on the drug offences. Purpose and objectives of sentencing [ 31 ] The fundamental purpose of sentencing, set out by s. 718 of the Criminal Code , is to contribute to respect for the law and the maintenance of a just, peaceful and safe society.

Section 718 mandates courts to structure sentences that achieve that purpose by addressing one or more stated objectives. These objectives are denunciation, specific and general deterrence, rehabilitation, separation of offenders from society to protect the public where necessary, reparation to victims or the community, and promotion of responsibility of offenders and acknowledgment of harm. [ 32 ] The purpose of sentencing specifically for drug offences, set out in s. 10 CDSA , is, as under s. 718 Criminal Code , to contribute to respect for the law and the maintenance of a just, peaceful and safe society, and is to do so while encouraging rehabilitation and

treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community. [33] In drug trafficking cases, the objectives of general deterrence and denunciation are paramount. The Court needs to send amessage that people who facilitate and enable the movement of illicit drugs throughout our community will be dealt with severely by thecourts, so as to dissuade others from doing so.

Someone who sells drugs, or enables drugs to be circulated in the community creates or atleast contributes to the addictions of others, and to the criminal and often violent behaviour of others, perpetrated for monetary profitand/or driven by desperation, to fuel an addiction. Sergeant Atkins testified that heroin trafficking is becoming more prevalent inWinnipeg. The sentence imposed on Mr.

Brown needs to send a deterrent message to those in the community who may be, or may beconsidering selling heroin, at any level, that significant jail sentences will be imposed. [34] A firearm offence, committed along with, or in close proximity to a drug offence, heightens the need for a denunciatory anddeterrent sentence. Mr. Justice Mainella in R. v. Rider 2013 MBQB 116 , [2013] M.J. No. 165, made the following commentsabout sentencing offences involving the combination of drugs and guns, at paragraphs 20 and 21: “The deadly cocktail of “drugs and guns” is particularly alarming in a civil society.

This court is well aware of the ever-present andlarge docket of homicides in this community and other places in Canada in drug-related shootings. Unfortunately these events have analmost banal quality because of their all too common re-occurrence here and elsewhere.

However, there is a growing consensus inappellate courts across the county that sentences for criminality involving the combination of drugs and guns should be “exemplary” tomeet the objectives of denunciation and deterrence… In my view the courts must calibrate their sentences when faced with the toxic cocktail of drugs and guns to the reasons behind thiscriminal conduct. Drug dealers arm themselves because they know the stakes are high in their illicit business and sometimes self-help isnecessary.

Accordingly, sentences must reflect these high stakes to reassure the public, and remind like-minded perpetrators that the ruleof law prevails over the law of the jungle.” [35] Specific deterrence is also important in this case. Mr. Brown had just finished serving the equivalent of a five year sentence,and within 13 months of release, was again trafficking in hard drugs. A five year sentence was not sufficient to deter him. [36] Rehabilitation remains a consideration. Mr. Brown is a young man. He has an education and work history. He can besuccessful in the community if he stops committing offences.

He has not previously had the programming and supports that apenitentiary can provide, but he will have that opportunity this time. Relevant principles of sentencing [37] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender (s. 718.1Criminal Code). The gravity of Mr. Brown’s offence is high, and he is solely responsible. [38] The Court must consider the principle of totality (s. 718.2(

c) Criminal Code). Where consecutive sentences are imposed, thecombined sentence should not be unduly long or harsh. [39] As well as the circumstances of the offences and the offender, the Court must take into account mitigating and aggravatingfactors relating to the offences or the offender (s. 718.2(

a) Criminal Code). These factors will tend to increase or decrease the length of asentence. Mitigating and Aggravating Factors [40] There are mitigating factors, as follows: • Mr. Brown has pleaded guilty and taken responsibility for his offences. • He is 29 years old, still a youthful offender. • He says he wants to take advantage of programming and educational opportunities while in custody. Aggravating factors • Mr. Brown has a recent conviction for trafficking cocaine, for which he received a sentence equivalent to five years incarceration.Section 10(2)(

a) CDSA specifically makes it a statutorily aggravating factor when an offender has been previously convicted of adesignated substance offence. • He committed these offences within 13 months of being released from custody and just 6 months after finishing his prior sentence. • Possession of the loaded firearm is an offence in and of itself, but the combination of heroin and the loaded firearm in the presenceof each other is aggravating. • The nature of the drug. Heroin is a hard drug that is highly and quickly addictive. • Mr. Brown’s level of involvement. The Court has found that Mr.

Brown was a mid level trafficker of heroin. • There were multiple drug transactions – three sales, and one instance of giving the heroin to the undercover officer withoutreceiving any payment. • Mr. Brown was subject to a 10 year weapons prohibition pursuant to s. 109 Criminal Code at the time of these offences. Analysis and Decision

Trafficking and Possession for the Purpose of Trafficking [41] The jurisprudence in Manitoba establishes that sentences for mid level traffickers of dangerous drugs who are involved beyondjust being a courier are typically in the range of five to eight years (R. v. Rocha). [42] There are few reported sentencing decisions in Manitoba that deal with trafficking in heroin. [43] In R. v. Seman (MB CA), [1996] M.J.

No. 125, an accused was found guilty after trial and sentenced tothree two year sentences for trafficking in cocaine, all consecutive, and then six years plus a three year concurrent sentence fortrafficking in heroin, for a total of 12 years. The Court of Appeal upheld the sentence. Mr. Justice Kroft referred to a decision of theAlberta Court of Appeal in R. v. Maskell, (1981) 1981 ABCA 50 , 58 C.C.C. (2d) 408, in which Mr. Justice Moir noted thatgenerally courts have concluded that cocaine is not as dangerous a drug as heroin. Mr.

Justice Kroft noted that the sentencing judge inSeman stated that “with commercial trafficking, deterrence remains the most important consideration in sentencing and that that waseven more true “where there is a question of trafficking in heroin rather than cocaine.” (para. 18). [44] In R. v. Grant, 2007 MBQB 135, a Manitoba court had the opportunity to consider the distinction, if any, in sentencing fortrafficking in cocaine on the one hand, and heroin on the other. In Grant, Mr.

Justice Scurfield sentenced a high level drug trafficker fornumerous charges including trafficking in heroin, cocaine and methamphetamine. Based on the evidence of an expert that the courtaccepted, Mr.

Justice Scurfield stated that there is “no longer a logical sentencing distinction between persons who traffic in heroin,cocaine or methamphetamine.” (para. 37) [45] So the more recent jurisprudence in Manitoba suggests it is reasonable for a sentencing judge to treat trafficking in heroin, interms of the dangerousness of the drug and the need for deterrence for the safety of the community, in a similar fashion to trafficking incocaine. Both heroin and cocaine are controlled substances listed in

Schedule 1 of the CDSA. [46] The other case provided that dealt with trafficking in heroin is R. v. Kukelka, 2010 BCCA 180. Mr. Kukelka was convictedafter trial of possession of heroin for the purpose of trafficking. The court accepted that he was a low level dealer and addict supportinghis addiction by selling drugs. He had a long record including two prior convictions for trafficking drugs.

The Court of Appeal reducedhis 36 month jail sentence to 24 months time served, citing precedents for offenders trafficking to support their own addiction, with priorrelevant convictions, in the range of sentences of 12 to 18 months. Such sentences are just not in keeping with sentences imposed forsimilar offences in Manitoba.

The Manitoba Court of Appeal has clearly established ranges of sentences for drug traffickers based onlevel of involvement and, even for street level dealers with addictions, sentences in Manitoba are higher than the ones imposed by BritishColumbia courts discussed in the Kukelka case. [47] Defence counsel provided the Court with the case of R. v. Ramos, 2007 MBCA 87. The offender in Ramos, convicted ofpossession of cocaine for the purpose of trafficking, had no prior record, had a positive pre-sentence report and his role was found tohave been one of a mere conveyor of drugs and he was only involved once.

The Court of Appeal found his 30 month sentence to beinappropriate based on the sentencing judge’s improper finding that he had mid level involvement in a criminal distribution network. The Court of Appeal said there was no evidence to support that finding and reduced his sentence to a conditional sentence order of twoyears less a day. That is entirely different from Mr. Brown’s case, who has a prior and recent conviction for mid level trafficking incocaine, and the fact an expert opined, and the evidence establishes, that Mr.

Brown, in committing the offences before the court was involved at the mid- level. [48] The facts in R. v. Kunicki, 2014 MBCA 22, a case provided by defence counsel, are also very different from the case nowbefore this Court. Mr. Kunicki ultimately was sentenced to the equivalent of two years incarceration, followed by probation. Mr.Kunicki was arrested with 6.136 ounces of crack cocaine. But Mr. Kunicki was an addict who had the cocaine for personal use but soldpieces of it to fuel his own addiction. That is very different from Mr.

Brown’s situation, as this Court did not accept that he was anaddict and found him to be a mid level dealer, who had just finished serving a long sentence for a related offence. [49] In R. v. Brown [2012] MBCA 60, the Manitoba Court of Appeal upheld a sentence equivalent to 5 years of imprisonment forthe same accused now being sentenced, for one count of trafficking five ounces of cocaine. He was found to be a mid level dealer whowas more than a courier, and as such fit into the five to eight year range set out in R. v. Rocha.

A statutorily aggravating factor waspresent in that case that is not present in this one, and that is that Mr. Brown when he committed the cocaine trafficking offence, wasassociated with a criminal organization. There were mitigating factors, including no record, and that he had left the criminal organizationprior to sentencing. Also in that case, the offence was one sale. This time, there were multiple sales. The sentencing judge, in 2012, saidthat although she was sentencing Mr.

Brown as a mid level dealer, the five year sentence was at the low range, which recognizedmitigating factors including his positive prospects for rehabilitation. Clearly those prospects did not come to fruition as Mr. Brown re-offended again within 13 months of being released from custody. He was clearly not deterred and not rehabilitated, and he is now backbefore the court being sentenced again, as a mid level dealer, making multiple sales of another hard drug. [50] Mr. Brown’s sentence for the drug offences must go up, not down.

His sentence must send a message to those who do traffic indrugs and who may be thinking about it, and particularly in heroin in Winnipeg, that such offences will be severely sanctioned andsignificant enough that such people may be deterred from committing such offences. Mr. Brown and others like him need to see thatsociety will not tolerate people selling heroin and ruining other people’s lives. Mr. Brown wants rehabilitation. He will have opportunityfor rehabilitation in custody. The Court is of the view that concurrent sentences equivalent to six years imprisonment for the drugoffences, are fit and proper.

It is a step up from his last sentence, but is still not at the top of the range for a mid level trafficker, whichreflects that he is still young, is open to rehabilitation and to becoming a productive member of society and that this offence did not haveany alleged ties to a criminal organization. Firearm offence [51] As to the firearm offence, it is punishable by a minimum sentence of three years according to s. 95(1) Criminal Code. TheSupreme Court of Canada struck down the mandatory minimum sentence for s. 95 offences prior to sentencing for Mr. Brown, in R vNur, 2015 SCC 15.

In light of the Nur decision, the Court must decide what sentence is appropriate, without being constrained by the

prescribed mandatory minimum. [52] In R. v. Rider 2013 MBQB 116 , [2013] M.J. No. 165 (C.A.), an accused pleaded guilty to possession of cocaine forthe purpose of trafficking, possession of a sawed off 12 gauge shotgun with ammunition and possession of a .45 calibre handgun withouta license. Essentially he stored cash, drugs and guns for others who were running a mid level cocaine operation. He was a young,aboriginal man, with no prior record. He was sentenced as having mid level involvement in the cocaine trafficking business beyond thatof a mere courier and, in accordance with the range set out in R. v.

Rocha, was sentenced to the equivalent of seven years and two monthson the possession for the purpose of trafficking, and equivalent to 54 months concurrent for the possession of the shotgun withammunition and 24 months concurrent for possession of the handgun without a licence. [53] In R. v Connolly 2015 MBPC 25, an offender pleaded guilty to drug and firearm offences including possession for the purposeof trafficking cocaine and possession of a prohibited or restricted firearm with ammunition contrary to s. 95(1)(

a) Criminal Code. Hewas young, and was selling drugs to fuel his own significant addiction. He had a lengthy criminal record including convictions forpossession of drugs for the purpose of trafficking. This is a situation in which cocaine was found at his residence together with thefirearm. He was not convicted of actually selling the cocaine. He was a street level trafficker. A global sentence equivalent to sevenyears concurrent was imposed. [54] In Mr.

Brown’s case, there is no evidence of his actually using the gun during any of the transactions, nor of his even carrying itoutside his residence to the transactions. The Court is of the view that a three year consecutive sentence recognizes the seriousness of theoffence of simply possessing the loaded firearm, in proximity to a quantity of dangerous drugs. Enhanced credit for time in custody [55] Mr. Brown has been in continuous custody since April 28, 2014. He has not made a bail application.

He is therefore notstatutorily barred from making an application for enhanced credit for the time he has spent in custody. Mr. Brown seeks enhanced creditat the rate of 1.5 to 1. Crown counsel submits he should receive credit for his time in custody on remand, but at the rate of 1:1. [56] Section 719(3.1) Criminal Code permits an offender to be considered for credit for his time spent in pre-sentence custody, to amaximum of 1.5 to 1, “if the circumstances justify it”. Based on the Supreme Court of Canada’s decision in R. v. Summers, 2014 SCC26, such circumstances need not be exceptional. As long as Mr.

Brown would likely be eligible for early release based on earnedremission, had he been serving his time in custody as a sentenced prisoner instead of on remand, he should receive enhanced credit. Thecourt did not hear any evidence that Mr. Brown has had disciplinary issues while on remand, nor was any information provided as towhy he would not be likely to receive early release. Defence counsel advised that Mr. Brown has been held at the Winnipeg RemandCentre for all of his pre-sentence custody.

While there he has been allowed 45 minutes of outdoor activity every other day; he has notbeen able to access programming there; and the facility is over capacity. In the circumstances, Mr. Brown is entitled to credit for histime spent in custody prior to sentencing at the rate of 1.5 to 1. [57] He has been in custody a total of 508 days. At 1.5, he will receive credit for 762 days for his time in custody to date. Sentence [58] On the trafficking and possession for the purpose of trafficking, concurrent, the sentence is equivalent to 6 years imprisonment.

The 508 days of time in custody, credited at 1.5:1 is equivalent to, and noted as 762 days, or 2 years and 1 month. The sentence goingforward is 3 years and 11 months. [59] On the firearm offence, the sentence is 3 years going forward, consecutive to the sentences on the drug offences. [60] When as I am required to do, I take a last look at the overall sentence, in order to consider totality, I am not persuaded that thereshould be any reduction for totality. A global sentence equivalent to nine years for this offender having committed these offences isappropriate.

Ancillary Orders [61] Crown counsel seeks ancillary orders to which defence counsel did not object. [62] Trafficking and possession for the purpose of trafficking are secondary designated offences pursuant to s. 487.04. Accordinglypursuant to s. 487.051(3) Criminal Code, and due to Mr. Brown’s prior record, the nature of the offences and the circumstances of theircommission, and that there has been no information provided that such an order would have a disproportionate impact on Mr.

Brown’sprivacy and security, there will be an order requiring him to provide bodily samples for submission to the national DNA data bank. [63] There will be a mandatory weapons prohibition, pursuant to s. 109(1) Criminal Code. Given that Mr. Brown previously wasissued a 10 year prohibition order, the prohibition order this time is a lifetime prohibition, pursuant to s. 109(3) Criminal Code. Accordingly Mr.

Brown is prohibited from possessing any firearm, cross -bow, restricted weapon, ammunition and explosive substancefor life. [64] There will be an order of forfeiture as to all items seized pursuant to s. 491 Criminal Code and s. 16(1) Controlled Drugs andSubstances Act. [65] There will be an order of costs and surcharges in the amount of $606, to be paid within one year of Mr. Brown’s statutoryrelease date. “ORIGINAL SIGNED BY:”

CARLSON, P.J.