Her Majesty the Queen - v. -, 2012 SKPC 162

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 162 Date: October 18, 2012 Information: 31223250 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Allan David McCallum Appearing: A. Hunter For the Crown G. Douglas For the Accused SENTENCING DECISION H. M. HARRADENCE, J I. INTRODUCTION [ 1 ] This offender, Allan McCallum, is Métis. He lived in the northern village of Green Lake until he was age 41, when he moved to the Mistawasis First Nation to live with his common-law spouse, Emily Duquette.

They have been together for 18 years. He has pled guilty to selling $80.00 worth of cocaine to an undercover police officer and to possession of proceeds of crime, that being the $80.00. Crown counsel informed me during the sentencing hearing that his spouse, Ms. Duquette, has previously pled guilty to trafficking in cocaine as a result of the same incident. Ms. Duquette received a 20 month conditional sentence, ordered by my colleague, His Honour Judge Carter. I also sentenced an offender, Douglas Fowler, who pled guilty to cocaine trafficking as a result of this same

undercover investigation, to an 18 month conditional sentence order. [1] I am informed that neither the Duquette or Fowler sentences have been appealed. [ 2 ] The Crown says that the appropriate sentence for this offender is 18 months jail. The defence suggests that the Court consider a conditional sentence order. II. THE FACTS

a) The Circumstances of the Offence [ 3 ] The circumstances of the offence are concisely described by Crown counsel, Ms. Hunter, at the sentencing hearing: [2] On March 24, 2011, members of the ICET team were involved in an undercover operation targeted street-level drug dealers. This accused Mr. McCallum is a known drug trafficker in Prince Albert and was contacted by an undercover officer to purchase cocaine. The accused agreed to meet the undercover officer at the 7-Eleven on Branion Drive in Prince Albert at 6:03 p.m. The undercover officer pulled up beside the passenger side of McCallum’s vehicle.

McCallum was the passenger and Emily Duquette was the driver. The operator went to the passenger side of the vehicle and purchased four hypodermic syringes of cocaine which had 10 cc’s in each syringe. The operator paid $80. The needles were purchased from McCallum. At 10:50 undercover officers attempted to contact the accused to make another purchase. There was no answer. He called again at 11:11 and the phone was answered by a female who stated that they were reloading and to call back in half an hour. He was then advised by text that he could not be hooked up as they were out of cocaine.

McCallum set up subsequent buys with undercovers with other individuals. However, on March 26, 2011, the undercover received a text from McCallum asking him who he really was because people were telling him he was an undercover officer and they were freaked out. There was no more communication after that.

b) The Circumstances of the Offender [ 4 ] The offender has a lengthy criminal record. It begins in 1976 and concludes in 2008. He has been sentenced for various thefts, property related offences, driving offences, as well as assaultive offences. Largely he has received either fines or periods of incarceration. Significantly in 1998 he was convicted of trafficking in cocaine. At that time he was sentenced to 18 months incarceration. Clearly this conviction must be recognized as an aggravating factor as indicated in s. 10 of the Controlled Drugs and Substances Act .

He has never been sentenced by the Court to serve a conditional sentence order. [ 5 ] Ms. Douglas, on behalf of this offender, urges the Court not to be blinded by this 14 year old cocaine trafficking conviction, but rather examine Mr. McCallum’s personal circumstances and evaluate his progress in that context. [ 6 ] This offender is now 52 years old. His father abused alcohol and, according to the pre-sentence report, was physically violent towards both his wife and his children, including the offender.

At times his father’s alcoholism left the offender and his family without food and they had to rely on relatives and neighbours to eat.

[ 7 ] This offender quit school in grade 6 in order to assist his father in the logging business. As indicated in Ms. Douglas’ submissions and in the pre-sentence report, his lack of literacy skills have contributed to his inability to find and maintain employment. [ 8 ] Significantly, the pre-sentence report indicates that this offender began abusing alcohol as a teenager.

According to the report he was able to reduce his use of alcohol, unfortunately this addiction was replaced by an abuse of cocaine, particularly over the past four years. [ 9 ] Although neither this offender nor his parents attended residential school he believes that the colour of his skin has affected his employment opportunities and closed the door on him finding suitable housing. [ 10 ] Despite these recognizable disadvantages this offender has made remarkable progress, particularly while on judicial interim release.

One of the conditions that this offender was initially released on banned him from attendance in Prince Albert. This resulted in him being homeless and forced to live in a van in the yard of his spouse’s relatives on the Mistawasis First Nation. Ms. Douglas applied to the Court and the condition was changed to allow him to live in Prince Albert. [ 11 ] Prior to the sentencing hearing he had spent four months at the Nesbitt Apartments. Ms. Douglas, in her submissions, refers to this residence as a “sea of temptation”, where there is open drug use in the hallways.

Despite residing in this environment this offender has been able to abide by restrictive conditions. [ 12 ] Ms. Douglas indicates that these conditions have been regularly checked by the police and these checks have not resulted in this offender being charged with any breach of his release conditions.

The pre-sentence report concurs in its view of his compliance with his release conditions: …Since being placed on bail he appears to be complying with all of his conditions and has made progress in addressing his criminal risk factors. …The subject is currently residing in a high drug trafficking area in Prince Albert and has daily involvement with family members entrenched in the drug lifestyles.

The subject has shown insight towards substance abuse and lack of employment but is continuing to have difficulty in the criminogenic risk factors of residence and peers… [ 13 ] In addition to not breaching his release conditions, this offender has regularly attended one on one counselling and at least one AA meeting per week since December 2011, when he moved to Prince Albert. [ 14 ] He has also completed the Bridges to Employment Program in Prince Albert where, according to his instructor, his attendance was excellent and he did very well. [ 15 ] The offender’s performance while on release persuaded Theresa Carriere, an experienced probation officer and the author of the pre-sentence report, to conclude that his risk can be managed in the community (page 8): Based on the subject’s extensive criminal history, a previous related conviction for trafficking cocaine, and the seriousness of the current charge a period of incarceration may be warranted.

However as Allan has begun to address his targeted risk factors and has complied with his bail community supervision order since March of 2011 his risk can continue to be managed in the community by placing him on a Conditional Sentence Order with residence and curfew conditions should the Court deem this an appropriate sanction. III. THE LAW

a) Proportionality

[16] Inherent in any sentencing, particularly where no minimum sentence has been proscribed by Parliament, is respect for theindividual circumstances of the offender, the circumstances of the offence, and the statutory provisions of sections 718, 718.1 and 718.2of the Criminal Code. [17] In 2004 Justice Doherty, writing for the Ontario Court of Appeal, in R. v. Hamilton, described sentencing in the following manner:[3] [87] Sentencing is a very human process. Most attempts to describe the proper judicial approach to sentencing are as close to the actualprocess as a paint-by-numbers landscape is to the real thing.

I begin by recognizing, as did the trial judge, that the fixing of a fit sentenceis the product of the combined effects of the circumstances of the specific offence with the unique attributes of the specific offender: R.v. Currie (1997), (SCC), 115 C.C.C. (3d) 205 at 219 (S.C.C.); R. v. Gladue, (SCC), [1999] 1 S.C.R.688 at para. 80; R. v. Proulx, supra, at 485-86; R. v. Borde (2003), (ON CA), 172 C.C.C. (3d) 225 at 238 (Ont.

C.A.). [88] The case-specific nature of the sentencing inquiry is reflected in the proportionality requirement, described as the fundamentalprinciple of sentencing in s. 718.1 of the Criminal Code: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [89] The proportionality requirement, long a touchstone of Canadian sentencing law (see R. v. Wilmott, (ON CA),[1967] 1 C.C.C. 171 at 178-79 (Ont. C.A.)), accepts the “just deserts” [sic] rationale for state-imposed punishment.

Whatever other endsa sentence may hope to achieve, it must first and foremost fit the specific crime and the specific offender: Andrew Ashworth, Sentencingand Criminal Justice, 2nd ed., (London: Butterworths, 1995) at 70. [90] The “gravity of the offence” refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposedby Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harmto the community occasioned by the offence.

For example, in drug importation cases, the nature and quantity of the drug involved willimpact on the gravity of the offence. Some of the factors which increase the gravity of the offence are set out in s. 718.2(a). [91] The “degree of responsibility of the offender” refers to the offender’s culpability as reflected in the essential substantive elements ofthe offence – especially the fault component – and any specific aspects of the offender’s conduct or background that tend to increase ordecrease the offender’s personal responsibility for the crime.

In drug importation cases, the offender’s role in the importation schemewill be an important consideration in assessing the offender’s personal responsibility. [18] Justice LeBel in R. v. Ipeelee, emphasized the fundamental importance of proportionality in sentencing describing it as a fundamental principle of justice under s. 7 of the Charter:[4] [36] The Criminal Code goes on to list a number of principles to guide sentencing judges. The fundamental principle of sentencing isthat the sentence must be proportionate to both the gravity of the offence and the degree of responsibility of the offender.

As this Courthas previously indicated, this principle was not borne out of the 1996 amendments to the Code but, instead, has long been a central tenetof the sentencing process (see, e.g., R. v. Wilmott (1966), (ON CA), 58 D.L.R. (2d) 33 (Ont. C.A.), and, more recently,R. v. Solowan, 2008 SCC 62 , 2008 SCC 62, [2008] 3 S.C.R. 309, at para. 12, and R. v. Nasogaluak, 2010 SCC 6 ,2010 SCC 6, [2010] 1 S.C.R. 206, at paras. 40-42).

It also has a constitutional dimension, in that s. 12 of the Canadian Charter of Rightsand Freedoms forbids the imposition of a grossly disproportionate sentence that would outrage society’s standards of decency. In asimilar vein, proportionality in sentencing could aptly be described as a principle of fundamental justice under s. 7 of the Charter. [Emphasis added]

b) The Importance of Sentencing Ranges/Guidelines [19] Of importance to sentencing Courts is the acknowledgment and respect for sentencing ranges/guidelines established by Courtsof Appeal. While respect for guidelines is essential, this respect does not mandate that sentencing, in the words of Justice Berger of the

Alberta Court of Appeal in R. v. Lee, “follow a predetermined path prescribed by appellate controllers”.[5] Rather, Justice Berger relies upon R. v. Nasogaluak for the appropriate approach to sentencing ranges:[6] [59] In Nasogaluak, LeBel J., speaking for a unanimous Court, made clear that while courts should pay heed to sentencing ranges,they are guidelines rather than hard and fast rules. He emphasized that: “... A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing.

Thus, asentence falling outside the regular range of appropriate sentences is not necessarily unfit. Regard must be had to all the circumstances ofthe offence and the offender, and to the needs of the community in which the offence occurred.” (at para. 44) [20] The use of sentencing ranges is concisely defined by the Ontario Court of Appeal in an appeal book endorsement as follows:[7] Ranges exist to promote parity. Parity is premised on treating “like” offenders in a comparable manner.

To the extent that thecircumstances distinguish an offender, be they mitigating or aggravating from the typical offence, ranges will have less significance. Sentencing is an individualized process.

c) The Saskatchewan Court of Appeal [21] The Saskatchewan Court of Appeal has repeatedly and consistently prescribed a sentencing range of 18 months to four yearsimprisonment for offenders convicted of cocaine trafficking. The Court has stated that deterrence, denunciation and protection of thepublic must be paramount in the sentencing of cocaine traffickers. Justice Herauf in R. v. Shawile states the sentencing range as follows:[8] [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 thepersonal circumstances of an accused, while not to be ignored, are secondary considerations to the issues of deterrence and denunciation.It is an error in principle to over-emphasize the personal circumstances of the offender to the exclusion of an examination of othersentencing factors. See R. v. Patryluk, 2002 SKCA 33, and especially paragraphs 21-23.

This decision, in particular, where thecircumstances were much less serious, cannot be reconciled with the sentences imposed in the instant case. See also R. v. Goy (1992), (SK CA), 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. [22] Notably, in R. v. Von Hagen, the Saskatchewan Court of Appeal did acknowledge the appropriateness of deviating from thisrange in appropriate cases such as where duress motivated the trafficking.

The Court reversed a custodial sentence in Von Hagen and imposed a conditional sentence for cocaine trafficking into a federal penitentiary. Justice Lane states:[9] [5] We are all of the view the sentence imposed was not a fit sentence. We share the sentencing judge’s concerns about drugs in a penalinstitution and this Court has ruled that bringing drugs into a correctional facility is an important aggravating factor. In this case theappellant was a first time offender and 18 years of age. We take particular note she was under duress because of threats.

The appellanthas done well since the offence, has moved to another city to avoid peer pressure, has ended her relationship with her boyfriend, hastaken training, and is now working full time. She has the full support of her family and is rated as a low risk to reoffend in a very positivepre-sentence report. We note further her employer, along with her family, attended the appeal in support of the appellant who has been incustody since the sentence was imposed. In our view the personal circumstances of the appellant and the principle of rehabilitation werenot adequately addressed.

We are also of the view the sentencing judge inappropriately discounted the fact the appellant was underduress from the threats which were made – in our view a very significant consideration in this case. His reliance on Pankewich in thecircumstances failed to reflect the different circumstances in the case before us. Pankewich was part of a sophisticated cocaine traffickingarrangement involving a considerable greater amount of drugs which were being moved interprovincially.

[23] In R. v. Laliberte, Justice Vancise upheld a conditional sentence for trafficking in a small quantity of hard drugs, noting:[10] [33] In my opinion, a conditional sentence of imprisonment should not be restricted to minor offences or property offences. The sentenceshould be used in appropriate circumstances for all offences including drug offences and offences against the person. This is alwayssubject to the qualification that the statutory prerequisites have been satisfied and that ordering the offender to serve the sentence in thecommunity will not put the collectivity at risk and in danger.

The type of offence or the gravity of the offence should not determinewhether a conditional sentence of imprisonment is available. Rather, the sentence should be tailored to the offender, having regard to theprinciples and purposes of sentencing, the moral blameworthiness of the offender, the circumstances of the offence, the current needs ofthe community and the interests of public security in the same way a sentencing judge would decide any sentence of imprisonment.

Aconditional sentence of imprisonment is appropriate for any prison sentence of less than two years (subject to the above qualifications)and the goals of deterrence and denunciation can be met by serving the sentence in the community. Chief Justice Lamer put it this way inProulx: 81 In my view, while the gravity of such offences is clearly relevant to determining whether a conditional sentence is appropriate in thecircumstances, it would be both unwise and unnecessary to establish judicially created presumptions that conditional sentences areinappropriate for specific offences.

Offence-specific presumptions introduce unwarranted rigidity in the determination of whether aconditional sentence is a just and appropriate sanction. Such presumptions do not accord with the principle of proportionality set out in s.718.1 and the value of individualization in sentencing, nor are they necessary to achieve the important objectives of uniformity andconsistency in the use of conditional sentences. [24] Madam Justice Jackson, in a detailed decision, carefully reviews the imposition of a conditional sentence on cocaine courierswho were transporting a pound of the drug.

In that circumstance, Justice Jackson imposed a jail sentence. However, Justice Jackson did acknowledge the availability of a conditional sentence, and outlined six factors to be considered:[11] [49] But the fact that conditional sentences have been imposed for street level trafficking on more than a minimal scale is notdeterminative of this appeal. As has already been indicated by this Court in R. v. Laliberte (2000), 2000 SKCA 27 , 189 Sask. R.190 and R. v. Keepness (2000), 2000 SKCA 28 , 189 Sask. R. 173, conditional sentences are available for those who traffic inhard drugs.

Fitness of sentence in such cases will depend on a wide variety of factors including: 1. the sophistication and significance of the offence and the accused's place in it; 2. the type and quantity of drug; 3. the motivation for the offence: those who traffic to support their own habit may be more likely to receive a restorative dispositionthan those who traffic for other reasons; 4. the need for and the utility of the deterrence which will be provided by the sentence imposed; 5. the factors relating to the community like the significance of the problem; and, 6. the age, lack of record and other personal circumstances of the accused.

d) Aboriginal Offenders [25]

Section 718.2(

e) of the Criminal Code requires that, “…all available sanctions other than imprisonment that are reasonable inthe circumstances should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.” [26] As stated in R. v. Gladue,[12] by Justice Cory, the statutory enactment of this

section was a watershed in Canadian sentencing. However, the watershed has not had the desired impact, as observed by Justice LeBel in Ipeelee:[13]

[63] Over a decade has passed since this Court issued its judgment in Gladue . As the statistics indicate, s. 718.2 (

e) of the Criminal Code has not had a discernible impact on the overrepresentation of Aboriginal people in the criminal justice system. Granted, the Gladue principles were never expected to provide a panacea. There is some indication, however, from both the academic commentary and the jurisprudence, that the failure can be attributed to some extent to a fundamental misunderstanding and misapplication of both s. 718.2(

e) and this Court’s decision in Gladue . The following is an attempt to resolve these misunderstandings, clarify certain ambiguities, and provide additional guidance so that courts can properly implement this sentencing provision. IV. ANALYSIS [ 27 ] Any analysis in a cocaine trafficking sentencing must begin with an acknowledgment of the Saskatchewan Court of Appeal’s sentencing range of 18 months to four years.

The Court of Appeal has stressed that this range is in order to achieve deterrence, denunciation and public protection. [ 28 ] Acknowledging this range as a starting point I must then examine the circumstances of the offence and the offender to determine whether a sentence outside of this range is permissible. As stated, this offender is a Métis individual who sold $80.00 worth of cocaine to an undercover operator. He has a record which is significant and includes a 14 year old cocaine trafficking conviction. He has made progress while on bail despite difficult circumstances.

Two of his co-accused were sentenced to conditional sentences, including his common-law spouse, who is his main support in the community. [ 29 ] Given the offender’s Métis ancestry this sentencing must consider s. 718.2 (

e) of the Criminal Code . The rationale behind s. 718.2 (

e) was confirmed in Ipeelee , where Justice LeBel noted the reality of Aboriginal incarceration which is particularly acute in Saskatchewan: [14] [57] Aboriginal persons were sadly overrepresented indeed. Government figures from 1988 indicated that Aboriginal persons accounted for 10 percent of federal prison inmates, while making up only 2 percent of the national population. The figures were even more stark in the Prairie provinces, where Aboriginal persons accounted for 32 percent of prison inmates compared to 5 percent of the population. The situation was generally worse in provincial institutions.

For example, Aboriginal persons accounted for fully 60 percent of the inmates detained in provincial jails in Saskatchewan… [ 30 ] Justice LeBel in Ipeelee suggests an approach to be used in considering Aboriginal heritage in sentencing: [15]

Section 718.2(

e) directs sentencing judges to pay particular attention to the circumstances of Aboriginal offenders because those circumstances are unique and different from those of non-Aboriginal offenders ( Gladue , at para. 37 ). When sentencing an Aboriginal offender, a judge must consider: (

a) the unique systemic or background factors which may have played a

part in bringing the particular Aboriginal offender before the courts; and (

b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection ( Gladue , at para. 66 ). Judges may take judicial notice of the broad systemic and background factors affecting Aboriginal people generally, but additional case-specific information will have to come from counsel and from the pre-sentence report ( Gladue , at paras. 83-84 ). [ 31 ] Importantly, as noted in Ipeelee , s. 718.2(

e) should not be taken, “as requiring an automatic reduction of a sentence, or a remission of a warranted period of incarceration, simply because the offender is Aboriginal”. [16] [ 32 ] Having read the pre-sentence report and the update which was ordered, specifically to consider the Gladue factors, and considering this offender’s criminal record, I find that the offender’s background is significant.

This offender’s childhood, including domestic abuse and alcoholism, his own abuse of alcohol starting as a teenager, and his use of drugs, combined with the resulting socio economic disadvantages arising primarily because of his low level of education, provide essential context in determining an appropriate sentence. This context is critical to the sentencing of an Aboriginal offender. [17] [ 33 ] Notably the first entry on this offender’s criminal record is in 1976. He received a suspended sentence, with six months probation, for theft of an auto and theft under $200.00.

The next entry on his criminal record is in 1977. At that time he received a sentence of 30 days for his first offence of driving while disqualified. His record does not disclose why he was disqualified at that time.

He was 17 years old. Again in 1978 and in 1979 he received 21 days and 45 days respectively for driving while disqualified. Between 1977 and 1998 he was jailed 17 times. His longest sentence was in 1998, when he received 18 months for trafficking cocaine, possession of a scheduled substance for the purposes of trafficking, and possession of property obtained by crime. This is the only drug conviction on his record. Since this sentence his criminal record is limited as follows: 2004-02-20 Prince Albert Sask Assault Sec 266 CC (2 chgs) (Prince Albert PS 03-2526) Time served (4 days) & probation 14 mos on each chg conc 2005-02-04 Prince Albert Sask Theft under $5000 Sec 334(

b) cc (Prince Albert PS 05-1160) $300 2008-11-19 Prince Albert Sask Theft under $5000 Sec 334(

b) CC (Prince Albert PS 2008-35662) Susp sent & probation 1 mo 2009-07-06 Adult Court Fail to comply (breach) Probation Order Sec 733.1(1) CC 7 day(s) (*S) [ 34 ] His criminal record, his background and his future motivations are put into context under the heading of “Health” in the pre- sentence report: Allan has several health problems. He reported he has diabetes and it is affecting his toes. Allan stated this past summer while working underneath a vehicle it fell on him and this resulted in a broken leg and a back injury. He informed he has staples in his leg and 3 screws.

Allan stated he has back problems and this has prevented him from being able to work. Allan does not receive a disability allowance for his health problems however he is deemed only partially employable by the Department of Social Services. Allan stated he began abusing alcohol as a teenager. He admitted his use of alcohol was severe and did not slow down until 4 years ago. However once his alcohol use slowed down the abuse of narcotics increased specifically, “rock” cocaine. Allan stated he has been addicted to smoking cocaine for the past 4 years but during the past year was “weaning” himself off.

Allan’s use of drugs has resulted in homelessness, family problems, legal problems and a decreased interest in finding work or improving his employment prospects by attending courses or work related programs. In regards to previous addictions counseling/treatment Allan has not had intensive programming. The last documented treatment plan Allan participated in was monthly one to one substance abuse counseling sessions at Addiction Services in Prince Albert in 2004 for a period of 6 months. Allan is currently attending one to one counseling at the Prince Albert Métis Addiction Council of Saskatchewan Inc.

He is also attending at least 1 AA meeting a week and has been doing so since he moved to Prince Albert in December 2011. Allan stated he is serious about changing and wants to completely abstain from alcohol and drugs in his life. The writer received confirmation from MACSI centre that Allan is attending counseling sessions and AA meetings at the Centre. [ 35 ] An indication of this offender’s commitment is demonstrated by his adherence to onerous release conditions.

He was released on April 29, 2011, before a Justice of the Peace, and ordered to comply with 12 conditions, including: reporting to a bail officer; a travel restriction of 40 kilometres; a 9:00 p.m. until 7:00 a.m. curfew; alcohol and drug abstinence clause; a random search clause which permitted the police to arbitrarily search his person, any vehicle he controls, or any residence he is in. In addition he was ordered not to attend at the City of Prince Albert except for the purposes of Court.

This condition, until it was deleted by the Court of Queen’s Bench on October 1, 2011, resulted in him being homeless and being forced to sleep in a van. As previously indicated, despite this homeless status, and the challenging conditions of his release he has not been charged with a breach of his conditions.

[ 36 ] The Alberta Court of Appeal in Liparoti , [18] dismissed a Crown appeal of an 18 month conditional sentence order which had been imposed in relation to three counts of trafficking in cocaine. The facts, in Liparoti , are in some respects, more aggravated than this case. Liparoti had a criminal record which included six previous convictions under the CDSA as well as convictions for robbery and possession of a concealed weapon. In July 2009, he and a co-accused on two occasions sold small quantities of crack cocaine to three undercover operators.

His co-accused pled guilty and received a sentence of two and a half years imprisonment. The Crown position at Liparoti’s sentencing was that he should receive a sentence of three years imprisonment. Significantly, to this decision, is the fact that Liparoti had complied with strict bail conditions which the Court recognized as a factor in sentencing. He had also served 69 days in pre- sentence custody.

The Alberta Court of Appeal affirmed its starting point sentence of three years imprisonment, but dismissed the appeal, saying the sentence was not so unreasonable, given the exceptional circumstances of the guilty plea and the compliance with bail conditions over a 14 month period. [ 37 ] In R. v. Bernier , [19] the Quebec Court of Appeal dismissed an appeal of a conditional sentence for an offender who had pled guilty to acting as a drug courier to transport drugs in exchange for the payment of $1,500.00. In that case the Crown had requested a sentence of 42 months imprisonment.

The trial judge found that the offender was on the “road to rehabilitation” and imposed a conditional sentence.

Justice Cournoyer, in detailed reasons, dismissed the Crown appeal and in so doing, emphasized the individual nature of sentencing: [20] [35] Without saying so openly, the appellant is asking the Court to set a starting point and to exclude conditional sentences in cases like the one before us. [36] First, this Court has always refused to establish starting points in the sentencing process. [37] Second, this Court has heard cases where conditional sentences were imposed in similar situations and where there was no intervention. Case law from the Court of Quebec also provides several examples. [38] R. v.

Prokos sets out the principles for granting a conditional sentence in such a situation. In that case, the Court noted that the principle of the individualization of sentences can in some circumstances justify favouring the rehabilitation of the offender. [ 38 ] In this case defence counsel is suggesting that a conditional sentence is appropriate. Applying s. 742.1 [21] I find that a sentence of imprisonment of less than two years is appropriate, and I also find that given the factors I have outlined that a conditional sentence would not endanger the safety of the community.

Given the importance of deterrence and denunciation emphasized by the Saskatchewan Court of Appeal in sentencing cocaine traffickers any conditional sentence imposed must be carefully crafted to ensure that its conditions restrict the liberty of the offender and deter and denounce cocaine trafficking. I am satisfied, given the totality of the circumstances, that a conditional sentence order containing such conditions would be consistent with the fundamental principles of sentencing contained in sections 718 , 718.1 and 718.2.

Both the Supreme Court of Canada in Proulx and the Saskatchewan Court of Appeal in Laliberte , have stated that appropriately crafted conditional sentences can achieve deterrence and denunciation. [22] V.

APPLICATION TO THIS CASE [ 39 ] I am satisfied, given this offender’s guilty plea, his criminal record, his background, the small amount of cocaine in issue, the sentences of his two co-accused, and his performance on bail, combined with his rehabilitative efforts, that a conditional sentence is appropriate and can strike the balance required between deterrence, denunciation and restorative justice. [ 40 ] The offender is sentenced to a conditional sentence order of two years less a day in relation to both counts to be served concurrently.

During the term of the conditional sentence order the offender will be required to comply with the statutory conditions found in s. 742.3(1) of the Code , as listed below: 742.3

(1) The Court shall prescribe, as conditions of a conditional sentence order, that the offender do all of the following: (

a) keep the peace and be of good behaviour; (

b) appear before the Court when required to do so by the court; (

c) report to a supervisor (

i) within two working days, or such longer period as the Court directs, after the making of the conditional sentence order, and (ii) thereafter, when required by the supervisor and in the manner directed by the supervisor;

(

d) remain within the jurisdiction of the Court unless written permission to go outside that jurisdiction is obtained from the Court or the supervisor; and (

e) notify the Court or the supervisor in advance of any change of name or address, and promptly notify the Court or the supervisor of any change of employment or occupation. [ 41 ] Specifically I wish to address s. 742.3(1)(b), which empowers the Court to require the offender to appear before it. I have found that this offender has responded positively to the conditions of his judicial interim release. He has taken his conditions seriously and is making a sincere effort to rehabilitate himself. In the circumstances of this offence and this offender I am of the view that requiring him to appear before the Court pursuant to s. 742.3(1)(

b) of the Code would assist him in his rehabilitation and also permit the Court to monitor his progress while serving the conditional sentence order. The effect of s. 742.3(1)(

b) in this case is similar, as I understand it, to the way in which a Drug Court functions, such as the one in Regina Provincial Court, however, importantly it is within the context of a conditional sentence order and permitted by the provisions of the Criminal Code . [23] [ 42 ] I have had the benefit of reading the decision of the Saskatchewan Court of Appeal in R. v. Ermine , [24] particularly, paragraph 18. Ermine does not comment on s. 742.3(1)(

b) and as such I am bound by the statutory language found in this provision. I am also requesting, not ordering, that the offender’s supervisor provide me with a post-sentence report regarding the offender’s behaviour, including his treatment progress and his progress in performing the community service hours, both of which will be ordered as part of the additional conditions of this order. I set Friday, March 8, 2013, at 9:30 a.m. in courtroom #5 as the date the offender is required to appear before this Court.

I would appreciate if his supervisor could provide the offender and the Court with the post-sentence report at least seven days in advance of this date. [ 43 ] The offender will also be required to comply with the following additional conditions pursuant to s. 742.3(2) during the term of the conditional sentence order: 1. Reside as directed by his supervisor; 2.

That he shall be confined to his residence for the first 12 months of his conditional sentence order, except with the permission of the Court, or the written permission of his supervisor, or for the purposes of employment, attendance at an educational facility, for the purposes of attending counselling or treatment, or completion of his community service hours as directed by his supervisor; 3.

That after the first 12 months of his conditional sentence order he shall be bound by a curfew from 11:00 p.m. until 7:00 a.m., except with the permission of the Court or the written permission of his supervisor, and come to the door of his approved residence when asked to do so by a police officer/supervisor or designate who may be checking the residence and curfew conditions of this order; 4. Participate in an assessment and complete programming for addictions, which may include in-patient and out-patient treatment, as directed by his supervisor; 5. Participate in an assessment(

s) and complete programming for personal counselling as directed by his supervisor; 6. Not possess or consume alcohol or drugs that have not been prescribed for you by a medical doctor and not enter or be in any place where the main purpose is the sale of alcohol, such as bars or liquor stores; 7. Complete 200 hours of community service work by January 18, 2014, as directed by his supervisor; 8.

That he seek such employment or attend at such educational facility. [ 44 ] In addition to this conditional sentence order the offender shall be prohibited from possessing any firearm for a period of 10 years, pursuant to s. 109 of the Criminal Code . He will also be ordered to provide a sample of his DNA in accordance with s. 487 of the Criminal Code. Finally he will be surcharged $100.00 on each count for a total of $200.00. This surcharge shall be paid by April 1, 2013. [ 45 ] Dated at the City of Prince Albert, in the Province of Saskatchewan this 18 th day of October, A.D. 2012. ________________________ H.

M. Harradence, J

[7] Moreover, although the sentencing judge acknowledged the appellant’s participation in SURCH, in my view it was an error onhis part to fail to consider that the appellant met the program’s expectations and successfully completed it. In so doing, the appellantdemonstrated a genuine effort and progress toward his rehabilitation.

Furthermore, his steps towards rehabilitation will be encouragedby a conditional sentence, given the likelihood of incarceration in the event of a breach. [8] A joint submission should not be departed from unless it is contrary to the public interest and would bring the administration ofjustice into disrepute: see R. v. Cerasuolo (ONCA), (2001), 151 C.C.C. (3d) 445 (Ont. C.A.), at para. 8, this is a highthreshold. Successful treatment of addiction is the best means of addressing drug crime.

The public interest is served by divertingindividuals in the appellant’s situation into drug treatment programs that address the addictions which fuel their criminal activity.