Her Majesty the Queen - v. -, 2018 SKPC 53

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2018 SKPC 053 Date: September 6, 2018 Information: 24539882 Location: La Ronge, Saskatchewan _____________________________________________________________________________ Between: Her Majesty the Queen - and - Cheryl McKenzie Appearing: Brent P. Slobodian/ Daniel Heffernan For the Crown Richard W. Bell For the Accused SENTENCING R.N. MACKENZIE, J [ 1 ] Cheryl Nancy McKenzie has pled guilty to one count that she did, on the 25 th and 30 th day of May 2017 at La Ronge unlawfully traffic in a controlled substance included in

Schedule I to wit: cocaine, contrary to section 5(1) of the Controlled Drugs and Substances Act. [ 2 ] Sentencing began before me on April 9, 2018 at La Ronge. Filed on the sentencing was a Pre-Sentence Report [PSR] with specific canvassing of Gladue factors. I also directed the preparation of a supplementary report to look into rehabilitative options in Regina, where Ms. McKenzie now lives, and at the Pinegrove Correctional Centre. The matter was then adjourned to September 6, 2018, to conclude sentencing.

[ 3 ] These are my reasons for sentence. Circumstances of the offence [ 4 ] Ms. Mackenzie was heavily addicted to cocaine. At the time of the offence, she was consuming 2 g of crack cocaine about five times per week. In order to supply her habit she had an arrangement with a local cocaine dealer named Cody McKenzie to be paid 1 g of cocaine for each 2 g that she sold on his behalf. This arrangement began in May 2017, shortly before the offence that led to her arrest. [ 5 ] On the evening of May 25, 2017, Ms. McKenzie was at a La Ronge drinking establishment known as Eddie’s bar.

Two undercover members of the Royal Canadian Mounted Police entered the bar. Eddie’s bar was known to the police as a place where traffickers peddled their goods. The police did not know Ms. McKenzie. She was not a target of the investigation. [ 6 ] The two undercover officers were in the bar when Cheryl McKenzie noticed them. She felt that they looked like the kind of people who might be interested in cocaine. She approached them as they were playing pool and whilst pointing to her own nose, asked them if they liked cocaine. The undercover officer said maybe and asked if Cheryl could get them some.

They sought $200.00 worth of cocaine. They arranged with Cheryl McKenzie to get it and meet for a cigarette outside. Cody McKenzie left in a half-ton truck and came back a little later. The undercover officers paid the money by placing it inside Cheryl McKenzie’s bunny hug pocket. It was then given to Cody McKenzie who told her “there is one in there for you too”. Cody said, “I can get 1/8 ounces and shatter”. I gather that shatter is a toffee-like, highly potent marijuana derivative. [ 7 ] The cocaine sold to the undercover police officers totaled 1.3 g divided into two packets of .7 and .6 g each.

The value of the transaction was $180.00. [ 8 ] On May 30, the accused received a text message from the undercover operatives. They wished to buy 2 g of cocaine. They agreed to meet at the pool table at Kostas, which is another local drinking establishment. The operatives gave the accused $160.00. Approximately one hour later, she supplied the undercover operatives with 2 g of cocaine. [ 9 ] The total amount of cocaine trafficked was 3.3 g with a total value of $340.00. Crown Position on Sentence [ 10 ] The Crown submits that the sentencing range for trafficking in

Schedule I hard drugs is between 18 months and four years imprisonment. The Crown is seeking 12 months in jail followed by two years of supervised probation. There is a mandatory 10-year firearms prohibition pursuant to

section 109 of the Criminal Code . The Crown also seeks a DNA order pursuant to

section 487.051 of the Code . Defence Position on Sentence [ 11 ] The defence proposes a sentence of 90 days in jail intermittent followed by a year of supervised probation. Personal Circumstances of the Offender [ 12 ] Cheryl McKenzie is a status member of the Lac La Ronge Indian Band. Her father is non-Indigenous. Her mother is from La Ronge. Her father and mother were caring parents who were gainfully employed throughout her youth. Ms. McKenzie’s parents separated before she was born. Thereafter, her father entered a common-law relationship with another woman. Cheryl and her stepmother did not get along.

According to the Pre-Sentence Report, Cheryl became “terrified” of doing anything that would trigger her stepmother’s frustration. Cheryl’s relationship with her stepmother became adversarial and Cheryl acted out. [ 13 ] Ms. McKenzie spent a substantial amount of her childhood residing at her mother’s residence. There she was exposed to drinking and marijuana use. Her mother drinks and that drinking has been problematic. Ms. McKenzie relates that there were times during her childhood when she preferred to stay with her father because of conflict at her mother’s home or because of her mother’s drinking.

[14] The accused’s teenage years were generally healthy but she dropped out of school in grade 10 to work and started to party. Generally, her lifestyle, and intoxicant consumption, was normal. [15] However, in 2012 Ms. McKenzie moved to British Columbia with a new boyfriend. During her two-year relationship with thatboyfriend, she was exposed to more drinking and drug use than accustomed to whilst living in Saskatchewan. She and her boyfriendconsumed cocaine and alcohol and she became addicted. [16] After returning to La Ronge Ms.

McKenzie entered another relationship with a man whom she described as verbally andemotionally abusive. Both she and the new boyfriend developed a dependency on alcohol and drugs resulting in the breakup of therelationship in March of 2017. [17] At this point, her life became quite unstable. She was transient and began associating with high-risk peers who consumedalcohol and drugs. Her consumption of cocaine increased as she struggled emotionally with the breakup.

Shortly thereafter, she sold thecocaine in question to the undercover police officers. [18] The PSR indicates that following her arrest and release she abstained from drugs for a short period of time. Ms. McKenziethen returned to consuming cocaine. She did so until September 2017 when she attended the Pine Lodge Treatment Centre near IndianHead.

Since being released from the Centre, she has abstained from the use of drugs. [19] The accused has attended regular NA/AA meetings whilst living in Regina and has taken significant steps to ensure that herpeers are sober and their lifestyle consistent with her maintenance of sobriety. Bail [20] Ms. McKenzie was kept in custody for 13 hours following her arrest. She was released on an undertaking on 16 June 2017. Itrequires that she report to a probation officer, reside as directed and abide by an 11 p.m. to 7 a.m. curfew.

She is not to consume non-prescribed drugs nor enter any place the main purpose of which is the sale of alcohol such as bars or liquor stores. Significantly, she wasdirected to submit to a search of her person or any vehicle she may be occupying by any peace officer having reasonable grounds tobelieve she was committing a drug related offence. [21] The Saskatchewan Court of Appeal considered the impact of pre-sentence release in R v Lever, 2014 SKCA 58, 438 Sask R181.

It noted (at para 13) [13] Fourth, and speaking generally, time spent on pre-sentence release can reduce an otherwise appropriate sentence only if it involvesmeaningful hardship or important limitations on the offender’s liberty. Those kinds of impacts should be clearly explained ordemonstrated to the sentencing judge. Scott C.J.M. said this in R. v.

Irvine, supra: 30 While the accused's counsel referred on a number of occasions at the sentencing hearing and before this court to the "strict" terms ofbail constituting "effectively house arrest," no further details with respect to any alleged undue hardship were provided. For bailconditions to be considered as a mitigating factor they must impose significant custodial and penal attributes. As this court said in R. v.Higgins, 2001 MBCA 177 , 160 Man. R. (2d) 105 (Man.

C.A.), when the terms "merely mimic the conditions of ordinary lifefor the accused ... [they] do not contain any punitive sanction" (at para. 17), nor do they if the "house arrest required duplicates the hourswhen most working people are at home in any case" (at para. 20). [22] Ms. McKenzie’s liberty was somewhat restricted by virtue of the reporting, residence, no bars and curfew clauses. Her privacywas potentially compromised by the search clause. There is no indication that she was searched. She has complied with her bailconditions for a year. I cannot say that they duplicate the conditions of ordinary life.

I also cannot say that they were particularlyonerous. [23] I consider her time on bail to be a minor mitigating factor. Gladue factors

[ 24 ] Cheryl McKenzie is a status member of the Lac La Ronge Indian band to whom

Section 718.2 (

e) of the Criminal Code applies.

It states that, All available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to the victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [ 25 ] In approaching this analysis, I am guided by the comments of Chief Justice Richards in R v Chanalquay , 2015 SKCA 141 . [37] I observe as well that the analysis mandated by s. 718.2( e ), as explained in Gladue and Ipeelee , is not a free-standing inquiry that is brought into play to adjust an otherwise fit sentence after it has been determined.

Instead, the analysis is an integral part of the reasoning which leads to a fit sentence ( Gladue at para 88). It does not stand outside of that reasoning and judges should not approach the sentencing exercise with a view to giving (or not giving) a specific or express reduction in a sentence because of Gladue factors. This is not what Gladue and Ipeelee provide. [38] Further, and relatedly, s. 718.2(

e) and the Gladue analysis mandated by it do not automatically trump or displace other sentencing considerations and objectives. More particularly, s. 718.2(

e) does not require that Aboriginal offenders always be sentenced in a manner which gives greatest weight to the principles of restorative justice, as opposed to goals such as deterrence, denunciation and separation ( Gladue at para 78). As the Supreme Court has said, “The analysis for sentencing aboriginal offenders, as for all offenders, must be holistic and designed to achieve a fit sentence in the circumstances” ( Gladue at para 81). In other words, Gladue considerations should not drive a judge to ignore other sentencing principles and objectives.

The question in sentencing an Aboriginal offender, as for other offenders, will always be “For this offence, committed by this offender, harming this victim, in this community, what is the appropriate sanction under the Criminal Code ?” (Emphasis in original) ( Gladue at para 80) … [50] It is true, of course, that Ipeelee says there is no requirement that “an offender must establish a causal link between background factors and the commission of the current offence before being entitled to have those matters considered by the sentencing judge” (para 81).

A direct cause-and-effect correlation will simply not be possible to establish in most cases. [51] However, at the same time, I understand the Court in Ipeelee to have also warned against an approach to assessing the impact of Gladue factors on moral culpability which is entirely abstract and not rooted in the factual realities of the case before the sentencing judge. In this regard, LeBel J. wrote as follows: [83] … Systemic and background factors do not operate as an excuse or justification for the criminal conduct.

Rather, they provide the necessary context to enable a judge to determine an appropriate sentence. This is not to say that those factors need not be tied in some way to the particular offender and offence.

Unless the unique circumstances of the particular offender bear on his or her culpability for the offence or indicate which sentencing objectives can and should be actualized, they will not influence the ultimate sentence. (emphasis added) [52] A sentencing judge should not simply stack up all of the Gladue -type considerations at play in a case and, if the list is long or severe, automatically proceed on the assumption such factors have had a substantial limiting effect on the offender’s culpability. The required analysis is more demanding than that.

To determine the extent to which Gladue factors impact on an offender’s moral culpability, a sentencing judge must examine both the nature of the relevant factors and the particulars of the crime in issue. He or she should then consider the extent to which the unique circumstances of the offender “bear on his or her culpability” ( Ipeelee at para 83) in the specific context of the case at hand. As mandated by the Supreme Court, the search here is not for a cause-and-effect relationship but for circumstances that cast light on the degree of the offender’s blameworthiness for the specific offence in issue.

It might be that the Gladue considerations impact the offender’s culpability a great deal, not at all, or only to some intermediate extent. [ 26 ] Ms. McKenzie grew up in La Ronge, a northern cluster of communities of approximately 6000 people. It is 150 miles north of the nearest urban centre. La Ronge and the reserves surrounding it form a primarily Indigenous community. It is replete with the artifacts, and aftermath of colonialism. Ms. McKenzie’s experience of problem-drinking by a parent is common. [ 27 ] Both her mother and her mother’s parents are residential school survivors. Ms.

McKenzie relates that her mother’s residential school experience had a profound effect on her mother’s overall health. Ms. McKenzie asserts that her mother suffers from depression and alcoholism annually, specifically during the time of the year that her mother was taken to residential school. Accordingly, she attributes her mother’s ongoing drinking problems at least partially to her residential school experience. [ 28 ] The PSR also indicates that a stepbrother sexually abused Ms. McKenzie. He occasionally touched her in a sexual matter for about a decade.

[ 29 ] Ms. McKenzie was not affected by some of the other common circumstances of northern Aboriginality. She never had to do without the necessities of life; finances, whilst occasionally tight, were always sufficient. She was not adversely affected by racism simply because her appearance did not attract that odious attention. [ 30 ] In considering Ms. McKenzie’s moral culpability, I note the direct connection between the residential school experience and Ms. McKenzie’s difficulties with her natural mother.

The PSR does not indicate that alcohol use led to the family breakup, but the fact of a divided family throughout her childhood is a matter for me to consider as part of the picture. [ 31 ] Ms. McKenzie was exposed to maternal alcohol and drug consumption as a child, and to the La Ronge party scene during her teen years.

As one commentator has recently noted, La Ronge has a serious alcohol and drug problem. [1] This certainly accords with my experience in the La Ronge judicial centre for the last 23 years. [ 32 ] The sexual abuse suffered is not, without more, correctly considered as part of Indigenous experience. However, it is part of Ms. McKenzie’s makeup and was formative in her self-confidence, bodily image and ability to trust men.

These, in turn, likely shaped her ability to form relationships. [ 33 ] Chief Justice Richards calls for a nuanced evaluation of the role of the work of both systemic and personal Indigenous factors in the accused’s offending. Because Ms. McKenzie’s offence was motivated solely by her addiction or, more exactly, the cost of satisfying that addiction, it is that element of her life that I must evaluate. I emphasise that I cannot, and need not, find cause and effect. However, I must, and do, consider carefully her background.

I find that these factors more than “shed light” on the offending; they bear directly upon her culpability. One sees a clear thread leading from her background to her addiction, and hence to her offending, and I so find. Mitigating and aggravating circumstances [ 34 ] The mitigating circumstances are these: • Ms. McKenzie was 29 years old at the time of the offence. • She has no criminal record. • She entered a guilty plea and takes full responsibility for the offence. • She spent 13 hours in custody, and has been on bail for more than 14 months.

During this time, she has been subject to reporting, curfew, abstinence and search clauses. • Ms. McKenzie successfully completed an in-patient course of drug rehabilitation. Since that time, she has not relapsed. She has been attending NA/AA regularly and is willing to continue with treatment. • The amount trafficked was small: 3.4 grams. • She received no money and was not involved in the commercial trafficking of drugs for profit. • The PSR considers her to be at a low risk to re-offend. • She is ashamed of her behaviour and fully understands that it was wrong.

She understands the serious negative impact that drugs have on individuals and communities. • She has a positive attitude toward the justice system. • She was addicted to cocaine, and sold the drugs purely to obtain drugs to satisfy her addiction. • She has changed communities and peer groups to reduce her exposure to negative influences. [ 35 ] Aggravating factors: • The transactions involved a hard drug that is highly addictive. It is dangerous to users; it is capable of causing death or serious injury to health.

The mechanisms, by which cocaine is grown, manufactured, transported and distributed cause serious social problems. • There were two transactions. • She consumed drugs during her first three months on bail, thereby breaching her conditions of release.

Analysis [36] My task is to determine a fit sentence. Conditional sentences are not available for trafficking in cocaine. [37] Cocaine is a

Schedule I drug. The maximum sentence for trafficking is life in prison. Cocaine is highly addictive; Ms.McKenzie is evidence of this. Its effects in society are manifold. When used as intended it destroys health, lives and families. Theproduction, importation and distribution of cocaine is highly lucrative. The proceeds from this offence are the motive for crime andinnumerable gang related activities. They and it are a scourge on our society. [38]

Section 718 and 718.1 of the Criminal Code state: Purpose 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect forthe law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the followingobjectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;(

b) to deter the offender and other persons from committing offences;(

c) to separate offenders from society, where necessary;(

d) to assist in rehabilitating offenders;(

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility to offenders, and acknowledgments of the harm done to victims or to the community. Fundamental principle 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Section 10 of the CDSA provides; 10(1) Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this

Part isto contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, andtreatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community. [39] The Crown suggests that the principles of deterrence and denunciation are to be emphasised; this can be accomplished byimposing a substantial jail sentence. The range, says the Crown, is 18 months to four years. [40] As the Court of Appeal stated in R v Shawile, 2012 SKCA 51, 393 Sask R 211: [12] While we agree that Mr.

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

R. 303, Smith J.A. articulated thispoint as follows: 19 This Court has repeatedly said that the range of sentencing for trafficking in cocaine is 18 months to four years, and that the personalcircumstances of an accused, while not to be ignored, are secondary considerations to the issues of deterrence and denunciation. It is anerror in principle to over-emphasize the personal circumstances of the offender to the exclusion of an examination of other sentencingfactors. See. R. v. Patryluk, 2002 SKCA 33, and especially paragraphs 21-23.

This decision, in particular, where the circumstances weremuch less serious, cannot be reconciled with the sentences imposed in the instant case. See also R. v. Goy (1992), (SKCA), 105 Sask. R. 131 (Sask. C.A.); R. v. Grewal, 2003 SKCA 56; R. v. Dubai, 2008 SKCA 49; and R. v. McCallum, 2007 SKCA 139.

However, in its subsequent decision in R v McIntyre 2012 SKCA 111 at para 36, 405 Sask R 28 [McIntyre], the Court of Appeal noted, [36]…. 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 thegoals of deterrence and denunciation. In this regard, the Court has said that it is in error to "over-emphasize the personal circumstances ofthe offender to the exclusion of an examination of other sentencing factors".

See: R. v. Aube, supra, at para. 19. [41] I note well that the Court’s admonition with respect to the primacy of deterrence and denunciation in sentencing applies whenthe offence is committed for pecuniary benefit. Clearly, the motivation for trafficking is a consideration. [42] Courts may depart from this range for a number of different reasons. For example, in some communities a Drug TreatmentCourt is an option.

As Kovatch PCJ noted in the very recent case of R v Gariepy, 2018 SKPC 48 at para 19, [19] Clearly, when an individual uses the Drug Treatment Court and successfully completes that program, the Court is entitled to verysubstantially depart from this sentencing range. Sometimes, the departure will be to a sentence of no time in actual custody.

However, itseems to me that this extreme departure is justified on the basis of the successful completion of the Drug Treatment Court, and thecorresponding rehabilitation of the accused. [43] Indeed, participation in such programmes can justify a court imposing a sentence less than a mandatory minimum. See CDSASection 10(4). [44] Ms. McKenzie pursued rehabilitation through the Regina Drug Treatment Court but returned to La Ronge to be sentenced. Ihave no evidence that she in any way failed the programme.

The material before me indicates that she did on her own what would havebeen expected of her had she progressed through that programme. She completed an in-patient course of treatment and has maintainedsobriety. La Ronge does not offer a Drug Treatment Court. Generally, rehabilitative options are limited in the north. It is not acceptablethat a person be treated differently because of where they happen to reside, or be sentenced, in the province.

Accordingly, and inconsidering sentence, I weigh her rehabilitative efforts as functionally equivalent to having completed the Drug Treatment Court’sprogramme. [45] In the recent decision of this Court in R v Burke, 2018 SKPC 43, Judge Rybchuk sentenced a man whom he had convicted ofpossession for the purposes of trafficking contrary to section 5(2) of the CDSA.

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

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

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

or decrease the offender's personal responsibility for the crime. In drug importation cases, the offender's role in the importation scheme will be an important consideration in assessing the offender's personal responsibility. [ 46 ] Counsel cited a number of Saskatchewan Court of Appeal cases in argument before me. The Crown referred me to R v Joey McKenzie, 2012 SKCA 92 , 399 Sask R 246 [ McKenzie ] . The case is factually distinguishable from the case at bar, but provides useful guidance with respect to analysing these two factors. Mr.

McKenzie was convicted, for the second time, of operating a large-scale commercial enterprise trafficking cannabis. The Court of Appeal varied his 15-month conditional sentence to 12 months in the Correctional Center. The Court noted that the commercial element of the offence was a significant factor in determining the gravity of the offence. Similarly, the offender’s willingness to continue in this sophisticated enterprise, despite having been recently convicted of a similar offence, spoke clearly to his “degree of responsibility” or culpability.

These factors in McKenzie are in marked contrast to the case at bar. [ 47 ] In McIntyre , the offender appealed his 14 month jail sentence for running a dial-a-dope operation that trafficked cocaine. He sought a shorter, or conditional sentence; a sanction then available. Like Cheryl McKenzie, he was trafficking to support a habit and pled guilty. He had re-offended whilst on bail. The appeal case is mostly concerned with conditional sentencing but dealt with the effect of motivation for trafficking on sentence.

As the Court stated, at paras 28-29 of McIntyre , [28] Given the case law laid down by this Court and the concerns of the sentencing judge, Mr. McIntyre cannot succeed on this point. The Court has clearly recognized that the fitness of a sentence for a trafficking offence will depend on a variety of factors. One of those factors is the motivation for the offence. For example, the Court said in R. v. Pankewich , 2002 SKCA 7 , 161 C.C.C. (3d) 534 at para. 49 , that "those who traffic to support their own habit may be more likely to receive a restorative disposition than those who traffic for other reasons".

The potential significance of an offender's addiction has been referred to in a variety of other decisions as well. See, for example: R. v. Shawile, 2012 SKCA 51 , 393 Sask. R. 211 at para. 10 . [29] It is important to remember, however, that an offender's motivation for trafficking is only one of the factors that bears on the determination of an appropriate sentence.

Other considerations include matters such as the sophistication and significance of the offence and the accused's place in the trafficking scheme, the type and quantity of the drug involved, the need for and the utility of the deterrence which will flow from the sentence imposed, the offender's record, and the offender's age and personal circumstances. See: R. v.

Pankewich , supra at para. 49 [ 48 ] The Court, at para 40, reviewed a series of appellate sentencing decisions and reduced the sentence to 10 months in custody. [ 49 ] One must recall that in R v Pankewich , 2002 SKCA 7 , 161 CCC (3d) 534 [ Pankewich ] , the Court was considering the fitness of a conditional sentence for an offender who pled guilty to participating in a very sophisticated enterprise that trafficked cocaine at the pound level. He had a criminal record and was trafficking purely for personal profit.

The Court of Appeal (at para 34) clearly distinguished for- profit from habit- motivated trafficking. [34] …In my opinion, the sentencing objectives which figure most prominently, for drug traffickers acting for profit where the trafficker is not addicted, are denunciation and personal and general deterrence. The reason for this is the nature of the offence which lacks immediate victims and is often the product of much previous thought.

In such circumstances, it is not unreasonable to conclude that deterrence and denunciation will have greater effect in preventing these crimes than they might be in preventing others. [ 50 ] In R v Juker, 2015 SKCA 127 , [ Juker ] the Court of Appeal added 18 months probation to a sentence of 6 months jail for a disabled Prince Albert resident convicted of possession for the purposes of trafficking cocaine. He trafficked to feed his addiction. Indeed, he continued to reoffend whilst on bail in order to provide for his ongoing drug consumption.

That case is significant because the Court, in upholding the jail sentence, considers the effect that that sentence had on that offender. Mr. Juker required prescription drugs to control his pain. Whilst in custody, the prison authorities decided that his prescribed drugs would not be made available to him. The Court stated at para 11 of Juker [11] …Thus, Mr. Juker's custodial sentence has fallen much more heavily on him than on someone else who did not suffer from a similar disability.

[ 51 ] In the recent decision of R v Suter , 2018 SCC 34 [ Suter ] , the Supreme Court of Canada overturned a decision of the Alberta Court of Appeal. Between the time of the offence and the time of sentencing, vigilantes cut off one of Mr. Suter’s thumbs with a pair of pruning shears. The Supreme Court held that the Court of Appeal erred “when it held that the vigilante violence inflicted on Mr. Suter could not be considered when crafting an appropriate sentence.” As Mr.

Justice Moldaver stated, at para 47, [47] …In my view, a collateral consequence includes any consequence arising from the commission of an offence, the conviction for an offence, or the sentence imposed for an offence, that impacts the offender. And further, at para 48, [48] …The question is not whether collateral consequences diminish the offender’s moral blameworthiness or render the offence itself less serious, but whether the effect of those consequences means that a particular sentence would have a more significant impact on the offender because of his or her circumstances.

Like offenders should be treated alike, and collateral consequences may mean that an offender is no longer “like” the others, rendering a given sentence unfit. They are part of the personal circumstances of the offender. [ 52 ] In the case at bar, it is therefore necessary to look at the sentencing alternatives to determine potential collateral consequences. To this end, a supplementary PSR canvassed rehabilitative possibilities within and without the institution.

This enquiry was also dictated by the fundamental purpose of sentencing, which is to protect public safety and contribute to the maintenance of a just, peaceful and safe society. [ 53 ] The PSR reveals a stark distinction between what is available in-centre and what is available in the community. In Regina, Corrections can refer an offender to Addiction Services, where assessment and counselling can be completed immediately. Screening appointments are available on a walk-in basis every day.

Aftercare is available through a number of community resources. [ 54 ] Metis Addictions Council of Saskatchewan provides a 28 day residential treatment option. The wait time for referral is two to three weeks. [ 55 ] Prairie Spirit Connections provides extensive and culturally appropriate services to Indigenous women. Clients are able to attend the same week that they are referred. [ 56 ] The Four Directions Community Health Centre provides addictions and Indigenous based programmes.

They do not require a referral and are available to clients every weekday afternoon. [ 57 ] Reviewing the available resources for each of the noted providers, one is struck by how comprehensive they are. Even the brief

summary in the PSR indicates an impressive range of modalities and approaches. [ 58 ] At the Pinegrove Correctional Centre, the availability and wait times of rehabilitative programmes “cannot be reliably anticipated”. Only those sentenced to a year or more are generally able to attend the focussed Women’s Substance Abuse programme. It, in any event, is only three weeks long.

[59] The report lists a small number of programmes that would be available to her. [60] The Courage to Change programme is not addictions focussed. It involves filling out a series of booklets. One of the ninetopics covered is substance abuse. [61] The Thinking for Change programme involves daily role-playing with facilitators. It is not directed specifically at substanceabuse, but at changing thinking to change behaviors. This would address Ms. McKenzie’s risk factors to some degree. Unfortunately, ananticipated start time for Ms. McKenzie could not be determined.

The duration of the programme was not specified. [62] Finally, Pinegrove offers some basic Indigenous programming, in the form of a two-week course and access to elders forcounselling and traditional ceremonies. [63] My concern is that the consequence of sending Ms. McKenzie to Pinegrove for the year suggested by the Crown would be toincrease the risk to public safety. Many of the people in jails, including Pinegrove, have addictions. For a significant number, addictionhas led to their incarceration. Many of the cases that the courts deal with that arise in jails have their genesis in drug use therein.

According to Correctional Services Canada, in the federal system, eleven percent of offenders admit injecting drugs whilst in custody. Twenty five percent of inmates report that they are under pressure to smuggle drugs into the institutions. Random urinalysis shows that 12% of inmates test positive for drugs or alcohol at any given time.[2] I have no reason to believe that Provincial jails differ very much. [64] The choice for the Court is this: I can place Ms. McKenzie in a place where she has built a healthy, sober community, hasmaintained sobriety, and has access to rehabilitative resources if needed.

Alternately, I can put her in a place populated by people withsubstance abuse problems, with access to drugs and little access to programming. Beating an addiction is a life-long process. Theopportunity for relapse is close, and ever present. Were I to accede to the Crown’s request, I am of the view that I would increase thelikelihood of Ms. McKenzie relapsing, and compromise her chances of rehabilitating thereafter. Upon her release from custody, shewould likely turn back to whatever means necessary to feed her addiction.

If that means were to be drug trafficking, public safety couldbe compromised. [65] Because of her status as an addict, the collateral consequence of placing her in custody, where access to substance abuserehabilitation is more limited than in the community, would be significant precisely because of her addiction. [66] This is not to say that this outcome would be inevitable or even probable. However, given the seriousness of drug trafficking,this Court must view any increase in risk as significant, and to be avoided if possible. [67] I have considered R v Felix, 2017 SKCA 16, cited by the defence.

With respect, I cannot agree that the circumstances arecomparable. Mr. Felix and Ms. McKenzie are of similar age. Neither had a criminal record. The amount of drugs trafficked was small. However, the resemblance ends there. The police were virtue-testing Mr. Felix. He was attracted to the police officer as a woman, notas a drug customer. He provided drugs on one occasion and turned down the police when they attempted to entice him to repeat hisactivity. He was not trafficking to service his own addiction to drugs.

The case is distinguishable. [68] In passing sentence, I must address all of the purposes and principles of sentencing set out above, whilst breathing life into theapproach set out in R v Gladue, (SCC), [1999] 1 SCR 688 [Gladue] and R v Ipeelee, 2012 SCC 13, [2012] 1 SCR 433[Ipeelee]. LeBel J., writing for the Court in Ipeelee, outlines the task of the sentencing judge, starting at paragraph 66: [66] First, sentencing judges can endeavour to reduce crime rates in Aboriginal communities by imposing sentences that effectivelydeter criminality and rehabilitate offenders. These are codified objectives of sentencing.

To the extent that current sentencing practicesdo not further these objectives, those practices must change so as to meet the needs of Aboriginal offenders and their communities. AsProfessors Rudin and Roach ask, “[if an innovative sentence] can serve to actually assist a person in taking responsibility for his or heractions and lead to a reduction in the probability of subsequent re-offending, why should such a sentence be precluded just because otherpeople who commit the same offence go to jail?” (J. Rudin and K. Roach, “Broken Promises: A Response to Stenning and Roberts’‘Empty Promises’” (2002), 65 Sask. L.

Rev. 3, at 20).

[ 69 ] I must be mindful of the need to denounce and deter. I must consider, based upon my experience in the north, what sentence in La Ronge and the north will effect these objectives. To repeat Gladue (at para 80 ), “ For this offence, committed by this offender, harming this victim, in this community, what is the appropriate sanction under the Criminal Code ?” The type of general deterrence sought complicates the task. Am I to attempt to deter drug addicts from supporting their habit through trafficking?

Or to deter the public more generally from becoming addicted to drugs? [ 70 ] However, it is essential that drug trafficking be denounced and deterred, and for this reason I reject a purely community based disposition. Northerners must see a clear connection between drug trafficking and punishment. A period of jail is necessary. Balancing this with the factors set out at length above, and being guided by the Court of Appeal decisions cited, I am of the view that a sentence of 90 days in custody, served intermittently, will effectively denounce this crime.

It will be followed by two years on probation, the first five months on very strict conditions. The combination of these conditions, combined with the time spent on bail, will denounce and deter, both generally and specifically. [ 71 ] Whilst on probation, Ms. McKenzie shall: 1. Keep the peace and be of good behaviour. 2. Appear before the Court when required to do so by the Court. 3. Notify the Court or the probation officer in advance of any change of name or address and promptly notify the Court or probation officer of any change of employment or occupation. 4.

Report to a probation officer at 1328 La Ronge Avenue today (306 425 4347, toll free 1- 888-228 2275) and after that as told to do so by her probation officer or designate. 5. Surrender herself into custody at a Correctional Centre designated by your probation officer by no later than 6:00 p.m. on Friday, September 14, 2018, and each Friday after that, and remain in custody following every Friday admission until 7:00 a.m. on the following Monday, until her sentence is completed. 6.

Not use alcohol or drugs including cannabis that have not been prescribed for her 24 hours before going to the Correctional Centre to serve your sentence. 7. Live at a residence approved by the probation officer and not change that residence without the prior permission of the probation officer or the Court. 8. For the first five months of this order, stay inside her approved residence 24 hours a day, unless she has the prior permission of the probation officer or the Court. 9.

For the remainder of this order, stay inside her approved residence from 10:00 p.m. each night to 7:00 a.m. the next morning, except with the permission of her probation officer or the Court. 10. Not possess or consume alcohol or drugs that have not been prescribed for her by a medical doctor. 11. Not enter or be in any place in which the main purpose is the sale of alcohol, such as bars or liquor stores.

12. Participate in an assessment and complete programming for addictions, as told to do so by her probation officer. 13. Participate in assessments and complete programming for personal counselling as told to do so by the probation officer. 14. Seek and maintain employment or educational programming as directed by the probation officer. 15. Perform 120 hours of community service work by December 31, 2019, in a manner directed by your probation officer. 16. No contact, direct or indirect, with Cody McKenzie. [ 72 ] Pursuant to

section 109 of the Criminal Code , I impose the mandatory firearm prohibition for a period of 10 years. Ms. McKenzie is prohibited from possessing any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance for a period of 10 years. She is also prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. I give you one day to dispose of any such items. [ 73 ] Trafficking is a secondary designated offence with respect to forensic DNA analysis. I consider the factors set out in

Section 457.051(3). Given the circumstances of the offence, the lack of record and the impact that a DNA order has on the privacy and security of a person, I decline to make a DNA order. [ 74 ] Finally, Ms. McKenzie shall pay a victim fine surcharge of $200.00, payable on or before May 30, 2019. [ 75 ] I thank counsel for their helpful submissions and the cases filed. __________________________ R.N. MACKENZIE, J