Her Majesty the Queen - v. -, 2020 SKPC 19

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2020 SKPC 19 Date: April 23, 2020 Information: 90194552 Location: Melfort _____________________________________________________________________________ Between: Her Majesty the Queen - and - Randy Norman Hamilton Appearing: Trent Forsyth For the Crown Randy Hamilton Unrepresented SENTENCING DECISION L.W. S TANG , J Introduction [ 1 ] The accused, Mr. Hamilton, was arrested by members of the Nipawin RCMP detachment on June 3, 2019, as a result of an assault complaint that was being investigated by them.

When he was searched incidental to arrest, the police located on his person a large amount of cash. The total amount of the bills of various denominations was $5,260.00. The police relied upon this fact and on other information gained during their continuing investigation into the assault allegation, to obtain a search warrant for Mr. Hamilton’s apartment.

[ 2 ] The police searched Mr. Hamilton’s apartment on June 4, 2019. They located a pan and a bank card that appeared to have methamphetamine residue on them. They also located a canister in a cupboard. Inside the canister were 30 bags, each containing approximately one ounce of methamphetamine. The total weight of all the methamphetamine located in the canister, including the packaging of each ounce, was 846 grams. Methamphetamine is of course a controlled substance included in

Schedule I of the Controlled Drugs and Substances Act , SC 1996, c 19 [ CDSA ]. [ 3 ] The police investigation resulted in the charges set out on Information 90194552. Mr. Hamilton enter pleas of guilty to count 1, being a charge contrary to section 354(1) (

a) of the Criminal Code , which charge pertains to the $5,260.00 located on him, and to count 3, being a charge contrary to section 5(2) of the CDSA , which charge pertains to the methamphetamine found in his apartment. The prosecutor advises that the police investigation into the initial assault allegation also resulted in a charge but his ‘provincial’ counterpart stayed that charge well in advance of the guilty pleas on the two charges for which Mr. Hamilton is now being sentenced.

Procedural History [ 4 ] The procedural history of this matter has some less common features, some of which are relevant to sentencing. Consequently, I find it is appropriate to carefully review some of the procedural history of these charges. As indicated above, Mr. Hamilton was arrested on June 3, 2019. At that time, he was on statutory release for a two-year jail sentence that was imposed by a court in Winnipeg, Manitoba on September 25, 2017. Because of his arrest, Mr.

Hamilton’s statutory release was revoked and the police delivered him to the Saskatchewan Penitentiary at Prince Albert to continue serving his sentence. [ 5 ] Information 90194552 was sworn on June 5, 2019 and Mr. Hamilton made his first appearance, via CCTV from the penitentiary, on June 12, 2019. At this first appearance, he appeared without counsel and the charges were read to him. He was then remanded to his next court date. Notably, the remand warrant specifically provided for Mr. Hamilton to be remanded to the Saskatchewan Penitentiary.

Presumably, this occurred because he was at that time still serving the two-year sentence referred to above. [ 6 ] Furthermore, I note that following every subsequent court appearance, Mr. Hamilton continued to be remanded to the Saskatchewan Penitentiary. This was done notwithstanding the fact that his two-year sentence expired on September 24, 2019. [ 7 ] At Mr. Hamilton’s second court appearance on June 26, 2019, he was assisted by a lawyer from Legal Aid Saskatchewan, Melfort Area Office. Thereafter until January 28, 2020, other lawyers engaged by Legal Aid Saskatchewan assisted him. At Mr.

Hamilton’s eighth appearance on October 9, 2019, he elected to have his trial in this Court and entered pleas of not guilty. His trial was scheduled for February 3, 2020. Additionally, the Court also adjourned his charges to October 15, 2019 for the purpose of holding a judicial interim release hearing. This was obviously done at that time because Mr. Hamilton’s two-year jail sentence had recently expired. [ 8 ] On October 15, 2019, the Court held Mr. Hamilton’s judicial interim release hearing and he was denied bail.

The Court confirmed his previously scheduled trial date of February 3, 2020. [ 9 ] The trial did not proceed on February 3, 2020. Mr. Hamilton’s charges were brought forward by his lawyer to be spoken to on January 28, 2020. At that time, his lawyer applied for leave to withdraw from the case. I was the presiding judge that day and I granted that application. In light of the timing of this development, I vacated the previously scheduled trial date and adjourned the charges to February 5, 2020, for the purpose of speaking to the issue of whether or not Mr.

Hamilton would have legal representation going forward. [ 10 ] On February 5, 2020, Mr. Hamilton appeared without counsel and indicated to the Court that he wished to change his plea from not guilty to guilty on counts 1 and 3 of the Information. The presiding judge conducted a plea comprehension inquiry pursuant to section 606(1.1) of the Criminal Code and accepted his change of plea on those two counts. The presiding judge also directed that a pre- sentence report (PSR) be prepared and adjourned the matter for a sentencing hearing on April 1, 2020. [ 11 ] On April 1, 2020, I confirmed the guilty pleas with Mr.

Hamilton and discussed some preliminary matters with him and the prosecutor. An adjournment of a few hours was necessary so that Mr. Hamilton could receive and review a copy of the PSR. After that, Mr. Hamilton confirmed he was ready to proceed with the sentencing hearing. After hearing comprehensive submissions from both the prosecutor and Mr. Hamilton, I reserved my sentencing decision until today.

Issue [ 12 ] The only issue being determined in this decision is the appropriate sentence to be imposed on Mr. Hamilton for his commission of the two offences for which he has entered guilty pleas. Circumstances of the Offences [ 13 ] In addition to some of the basic core facts set out in the Introduction, the circumstances of the offences are set out below. During the sentencing hearing, Mr. Hamilton agreed to all the essential circumstances as presented by the prosecutor.

He also agreed to the content of an Expert Report, dated January 14, 2020, and to a copy of his criminal record, both filed by the prosecutor. He also generally agreed with the content of the PSR but provided some clarifications of its content. [ 14 ] Additionally, Mr. Hamilton was very forthright in his submissions to the Court and provided a considerable amount of information about his involvement in these offences. This candor on his

part is a clear indicator that he is fully accepting responsibility for these offences. I will say more on this subject later in this decision. [ 15 ] When the police searched Mr. Hamilton’s apartment on June 4, 2019, in addition to the methamphetamine, they also located and seized three Samsung cellular phones, a knife, and a 225 gram can of bear repellent spray (bear spray). The expert report confirms that drug traffickers often have multiple cellular phones. Commonly they will have one personal phone and one or more other phones used for drug trafficking.

It also confirms that drug traffickers often possess weapons such as the knife and bear spay found in Mr. Hamilton’s apartment. This is because of their need to protect their drugs, their proceeds from sales, and themselves. In his submissions, Mr. Hamilton confirmed that he did have the bear spray to give himself some protection while trafficking, but he also clarified that he had never actually used the bear spray. [ 16 ] One of the cellular phones was analyzed by the police. That analysis revealed a considerable number of text messages and chat logs, which clearly showed the following: - Mr.

Hamilton purchased a kilogram of methamphetamine on or about May 13, 2019; - His plan was to sell it in and around Nipawin, by the ounce, at a price of $600.00 per ounce; - During the latter part of May 2019 and the first few days of June 2019, he completed several “one ounce” sales of methamphetamine; - On at least one occasion, on May 24, 2019, he sold a smaller quantity of methamphetamine for $200.00; - He had at least two other people working for him and taking his instructions in order to sell methamphetamine. [ 17 ] The expert report also provided the author’s opinion as to the “street value” of methamphetamine as follows: Methamphetamine is frequently sold at the following levels: “Point” or .1 of a gram - $3 to $10 One gram - $30 to $40 Half ounce - $200 to $250 Ounce - $300 to $500 Kilogram - $8000 to $12,000.

The potential for significant profit at multiple levels is obvious, but more importantly in my view is that the expert also explains: “A heavy user of methamphetamine would use 1 gram a day, while the average user would use much less than this.” The amount or weight of methamphetamine seized, including packaging, was 846 grams. Thus enough to feed the addictions of many users for several months.

[ 18 ] Lastly, the expert report confirmed that the methamphetamine seized from Mr. Hamilton’s apartment was in crystalline form “…which are chunks of clear methamphetamine resembling glass or ice known as “crystal meth” ”. In this decision, I will continue to simply refer to it as methamphetamine. [ 19 ] In his submissions to the Court, Mr. Hamilton confirmed that he had purchased a kilogram of methamphetamine, but he had not yet paid for it. His plan was to pay for it from the proceeds of his sales.

He also confirmed that he was selling it by the ounce for a price of $600.00 per ounce, and his plan was to sell the remaining 30 ounces for the same price. Mr. Hamilton did not specify exactly how many ounces he had already sold from the kilogram. It is however not difficult, using simple math and appropriate metric to imperial conversions to deduce that he had already sold five ounces from this kilogram. Had Mr. Hamilton succeeded in selling all 35 ounces at $600.00 per ounce the total proceeds would have been $21,000.00. From that, $13,500.00 would have gone to his supplier.

The resulting profit would have been $7,500.00. [ 20 ] In addition to the information he provided directly to the Court, Mr. Hamilton also provided a lot of information to the writer of the PSR. Notably, he confirmed to her that all of the money seized by the police was from drug sales. He further clarified this in court by explaining that prior to his receipt of the kilogram, he had received some smaller quantities of methamphetamine and had sold them. This had started near the beginning of April 2019. [ 21 ] Mr.

Hamilton has no prior convictions for trafficking controlled substances or possession of them for the purpose of trafficking. He took a significant amount of time to explain to me how he “got into this” situation. He indicated that when he was released from custody in January 2019, his plan was to move to Nipawin to reconnect with his father and get his life back on track. He initially had some success. He found work for several months doing home renovations and after living with his father for a couple of months, he was able to get his own apartment.

Not long after that, some people that he became acquainted with during his recent time in custody contacted him. These people wanted and encouraged him to get involved in trafficking methamphetamine in Nipawin. Mr. Hamilton’s point was, as I understand it, that he had no pre-existing plans to traffic drugs, but rather it was an opportunity that was presented to him. Unfortunately, he did not have the fortitude and willpower to say no. [ 22 ] Mr.

Hamilton also confirmed that he was not selling drugs as a means to feed an addiction, and that ultimately his motive was profit, although he planned to use the money to start a proper business. He also clarified that some of the text messages were between him and persons not in Saskatchewan and those messages were not related to his activities in Nipawin, and that some of the messages contained a lot of exaggeration and bravado on his part. Mr. Hamilton was also adamant that except for the couple of months prior to his arrest he had never before sold drugs.

I accept this and I accept his explanation as to how he got into the trafficking that preceded his arrest in Nipawin. I do so firstly because the prosecution does not dispute these matters, but also, and perhaps more importantly, I accept these things because I believe Mr. Hamilton. He was open and candid with the writer of the PSR and he was very open and candid when making his submissions to the Court. [ 23 ] During his submissions to the Court, Mr. Hamilton provided information that could theoretically be considered as an aggravating factor.

In particular, he confirmed that he had been selling some smaller quantities of methamphetamine prior to his receipt of the kilogram mentioned in his text messages. During the sentencing hearing, I permitted the prosecutor a reply to Mr. Hamilton’s lengthy submissions. To his credit, the prosecutor did not try to augment the aggravating factors based on anything Mr. Hamilton said. This is as it should be. If not, offenders might be discouraged from candor and a full acceptance of responsibility for fear of saying something that could be held against them.

In my view, an offender’s candor and full explanation of his or her offences is often an essential part of full acceptance of their personal responsibility for the offending acts. Such full acceptance of responsibility is often an important factor in eventual rehabilitation of the offender and in his or her successful reinsertion into the community following a custody sentence. Consequently, I wish to confirm to Mr. Hamilton that I will not be considering any of the additional facts or information provided by him in court as aggravating factors.

For the purposes of this decision, the facts and circumstances I will take into account are those that were described by the prosecutor and which are supported by the evidence that was available to the prosecutor. My

summary of these facts and circumstances are set out in paragraphs 13 to 19. Personal Circumstances [ 24 ] Mr. Hamilton’s personal circumstances are set out in detail in the PSR, and he provided some additional information during his submissions to the Court. For the purposes of this written decision, I will summarize some of his personal circumstances. However, I note that for the purposes of making my decision I have taken into account all of his personal circumstances known to me and not just what is summarized here. [ 25 ] Mr. Hamilton is 42 years old, and was 41 years old in June 2019. He is by heritage and by self-identification Metis. Both of

Mr. Hamilton’s parents were very young when he was born and they did not stay together after his birth. Mr. Hamilton stayed in the care of his mother. When he was still quite young, his mother started a new relationship, and together they had a daughter. Mr. Hamilton also has several paternal siblings, of which he has developed relationships with two brothers. [ 26 ] When Mr. Hamilton was about five years old, he and the rest of his mother’s family unit moved to Winnipeg, Manitoba. He lived there until he was 15 years old at which time he moved to Edmonton, Alberta to live with his father.

After residing with his father for approximately two months his father left, essentially leaving Mr. Hamilton to fend for himself in Edmonton. He did just that and finished his transition from adolescent to adult without the benefit of any real guidance or support from his parents. [ 27 ] As detailed in the PSR, Mr. Hamilton has had a number of personal partners during his life, and at the time of his arrest, he was in a relationship with one of the persons who were assisting him with selling methamphetamine. [ 28 ] Also, as detailed in the PSR, while growing up in Winnipeg, Mr.

Hamilton suffered from abuse from his stepfather and was exposed to his mother being abused by his stepfather. He was also exposed to a lot of drug and alcohol use by his stepfather and mother. This exposure likely contributed to his own use of alcohol, which started at the age of 12. By the age of 15, he was smoking marijuana and using a variety of hard drugs. [ 29 ] Not surprisingly, also at the age of 15 Mr. Hamilton dropped out of school. He did however return to school at the age of 19. He studied at Red River College in Edmonton for several years.

While there, he was able to complete high school and one year of post- secondary studies in electrical engineering. [ 30 ] Mr. Hamilton has a solid record of employment. For a period of time, he was employed by an engineering firm in Alberta. He then worked in the Alberta oil fields for 13 years. Following that, he returned to Winnipeg where he found employment with a landscaping company and then he opened up his own landscaping business. This ended when he was arrested and detained in 2017, and subsequently sentenced to custody on September 25, 2017. When Mr.

Hamilton was released on statutory release he was able to find and maintain employment in the area of home renovations for several months, and he had plans to eventually start up his own business in this same field of work. This ended when he was arrested on the charges presently before the Court. [ 31 ] Mr. Hamilton’s life has been significantly impacted by drug use and addiction. In addition to his early exposure and use of drugs, Mr. Hamilton has several convictions on his criminal record for drug related offences.

In 2013, he was convicted for possessing a scheduled substance, and in 2016, he was convicted for possessing a scheduled substance and for producing a scheduled substance. Additionally, on September 25, 2017, he was convicted for six offences related to fraud and other property crimes. Mr. Hamilton explained to the Court that he committed all of those particular offences in order to get money to purchase methamphetamine for his own personal consumption. For many months preceding his arrest in 2017, he was a heavy user and was actively addicted to methamphetamine. This addiction had a devastating effect on Mr.

Hamilton and directly led to him committing multiple offences at that time. This resulted in the lengthy sentence noted on his record. Position of the Crown [ 32 ] In this case the Crown submits that the appropriate total sentence for Mr. Hamilton for these two offences is one of imprisonment for five and one half years, which total sentence would be reduced for credit to be given for pre-sentence custody. With respect to such credit, the prosecutor takes the position that credit should only be given for the time Mr.

Hamilton has been in custody since his most recent sentence of imprisonment ended, on September 24, 2019. The prosecutor also submits that a firearms prohibition order is mandatory, that a DNA order is appropriate, and that a forfeiture order is appropriate. [ 33 ] In making this submission, the prosecutor emphasizes that Mr. Hamilton was operating as a mid-level trafficker of a pernicious substance, and that the quantity involved was very large.

Moreover, the prosecutor submits that the primary importance must be given to the principles of denunciation and deterrence from among the various sentencing principles that the Court must consider and apply. Position of the Accused, Mr. Hamilton [ 34 ] With respect to the issue of the appropriate sentence to be imposed, Mr. Hamilton opined that the prosecutor’s position was

excessive. He indicated to the Court his understanding that the sentence was not just about him, but that it was also about protection of the public. He also indicated that he planned to serve his sentence and when released “get back to work”. I understood this as an affirmation of his wish to be reinserted into the community as soon as practical and it is consistent with his expressed desire to eventually be rehabilitated and live a normal life. In making his submissions, Mr.

Hamilton essentially recognized that a substantial sentence of custody would be an appropriate sentence; however, he asked the Court not to impose more than two years in addition to the credit he should receive for pre-sentence custody. [ 35 ] Mr. Hamilton did not take issue with any of the ancillary orders being requested by the prosecution; however, he did disagree with the prosecutor regarding the amount of pre-sentence custody for which he should receive credit. He submitted that he should be given credit for the time he has spent in custody since mid-August 2019. Specifically, Mr.

Hamilton submitted that with respect to the sentence he was serving he would have again been granted statutory release on or about August 17, 2019. Consequently, from that date onward, the only thing keeping him in custody was his remand status on these charges; and that is why he should also be given credit for the period of time mentioned by the prosecutor and for the period of time from August 17, 2019 to September 24, 2019. Sentencing Provisions of the Criminal Code and the CDSA [ 36 ] The law generally applicable for the imposition of sentences for criminal offences is set out in

Part XXIII of the Criminal Code . Given the seriousness of the charges, I find it appropriate to specifically review some of the most important and applicable sections found in

Part XXIII. [ 37 ] Additionally, since count 3 on the Information is a “designated substance offence” as defined in section 2(1) of the CDSA I must also consider the purpose of sentencing as set out in section 10(1) of the CDSA and, where applicable, the factors to take into consideration as set out in section 10(2) of the CDSA . [ 38 ]

Section 718 of the Criminal Code sets out the fundamental purpose and objectives of sentencing and it reads as follows: The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

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 in offenders, and acknowledgment of the harm done to victims or to the community. [ 39 ] Proportionality is a fundamental principle of sentencing as set out in

section 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.” [ 40 ] Other sentencing principles are set out in

section 718.2 of the Criminal Code , which reads, in part, as follows: A court that imposes a sentence shall also take into consideration the following principles: (

a) sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, … (vi) evidence that the offence was committed while the offender was subject to a conditional sentence order made under

section 742.1 or released on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act ; shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [ 41 ] With respect to the purpose of sentencing and factors to consider pursuant to provisions of the CDSA , the relevant subsections are as follows: 10

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

Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community.

(2) If a person is convicted of a designated substance offence for which the court is not required to impose a minimum punishment, the court imposing sentence on the person shall consider any relevant aggravating factors including that the person (

a) in relation to the commission of the offence, (

i) carried, used or threatened to use a weapon, (ii) used or threatened to use violence, (iii) trafficked in a substance included in

Schedule I, II, III, IV or V, or possessed such a substance for the purpose of trafficking, in or near a school, on or near school grounds or in or near any other public place usually frequented by persons under the age of 18 years, or (iv) trafficked in a substance included in

Schedule I, II, III, IV or V, or possessed such a substance for the purpose of trafficking, to a person under the age of 18 years; (

b) was previously convicted of a “designated substance offence”, as defined in subsection 2(1) of this Act, or a “designated offence”, as defined in subsection 2(1) of the Cannabis Act ; (

c) used the services of a person under the age of eighteen years to commit, or involved such a person in the commission of, the offence. 718.2(e) / Gladue Factors [ 42 ]

Section 718.2 (

e) of the Criminal Code reads as follows: “all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.” Mr. Hamilton’s mother is Metis and his father is also of Aboriginal heritage. Mr. Hamilton self-identifies with his mother’s heritage and considers himself to be Metis. Detailed information about potential Gladue factors is set out in the PSR and some aspects of this were also discussed during Mr.

Hamilton’s submissions to the Court. [ 43 ] I note that during his submissions to the Court, Mr. Hamilton did not in any way try to link his status as a Metis person, or his experiences growing up, to his actions that resulted in the current charges. Rather, he simply wanted to “own” the big mistake he made in deciding to sell methamphetamine, and to take responsibility for his actions and decisions. This however, does not alter the Court’s obligation to properly consider potential Gladue factors.

As such, I have done so and I do consider that there are Gladue factors in this case and they do result in some mitigation to be factored in to my decision. [ 44 ] While growing up, Mr. Hamilton was exposed to considerable drug and alcohol use by his parents, and his stepfather, and he suffered physical abuse from his stepfather. When he tried, at the age of 15, to reconnect with and live with his father in Edmonton he was essentially abandoned and left to fend for himself. These factors led to an early start of Mr. Hamilton’s own use and abuse of alcohol and drugs. Mr.

Hamilton was also affected by poverty and racism. His mother and other family members felt ashamed to be Indigenous and this led to his own sentiments of shame. This also resulted in family members ‘losing’ their culture. It also resulted in Mr. Hamilton learning how to ‘hide’ his ethnic heritage when interacting with others in the community by falsely claiming a different heritage. It is also noted in the PSR that Mr. Hamilton’s paternal grandparents did attend residential school and suffered sexual abuse there. [ 45 ] I also observe that Mr.

Hamilton’s criminal record clearly shows a cycle of re-offending with a variety of offences, resulting in a variety of sentences including multiple jail sentences being imposed. This type of record is entirely consistent with the records of other offenders with similar backgrounds to Mr. Hamilton’s. This is no coincidence. Additionally, as an Aboriginal person Mr. Hamilton’s multiple jail sentences have contributed to the over representation of Aboriginal people in custody in Canada. In my view, it is also relevant that the people who supplied the methamphetamine to Mr.

Hamilton were people he had met and got to know while he was serving his most recent jail sentence. They approached him because of this connection. He agreed to sell methamphetamine, at least in

part, because of this connection. [ 46 ] As indicated by the Saskatchewan Court of Appeal in R v Chanalquay , [1] one of things I must consider is whether or not there are systemic or background factors which played a

part in bringing Mr. Hamilton to court. If so, this could be a factor that reduces his moral culpability of the offences committed. [ 47 ] The second thing I would normally consider pursuant to Chanalquay , is the types of sentencing procedures and sanctions that may be appropriate for Mr. Hamilton in light of his Aboriginal heritage. In its decision R v Whitehead [2] the Saskatchewan Court of Appeal clarified that in Chanalquay it was addressing: … how a court may give effect to the restorative justice approach to sentencing an offender, as contemplated by s. 718.2 (

e) of the Criminal Code , in circumstances where imprisonment of two years or less would be a proportionate response to the gravity of the offence and the offender’s moral culpability for its commission. For all of the reason’s set out in this decision it is clear that the appropriate and required sentence for Mr. Hamilton will not be one of imprisonment for two years or less.

Rather, it will be a sentence of imprisonment in excess of two years. [ 48 ] In Whitehead , the Saskatchewan Court of Appeal recognized the reality that the second branch of consideration from Chanalquay is muted when the custodial sentence will exceed two years. Consequently, it provided explicit directions on how a sentencing court: …is to give effect to s. 718.2(

e) in circumstances where the gravity of the offence and the offender’s moral culpability call for the imposition of a sentence in excess of two years of imprisonment . The restorative justice themes of R v Gladue , R v Ipeelee and R v Chanalquay are always present, but where the court has assessed the gravity of the offence and the offender’s moral culpability for its commission as requiring a penitentiary sentence, the restorative justice principles that underpin s. 718.2 (

e) can only be given effect, when and if appropriate, through the term of imprisonment imposed on the offender. [3] [ 49 ] The issue of reduced moral culpability, if applicable, can always be actualized because it will be considered as mitigating as against an otherwise high level of moral culpability, or as a mitigating factor in its own right.

Additionally, notwithstanding the fact that a sentence may be one of imprisonment for more than two years, if there are reasonable prospects for rehabilitation, that too, must be actualized by factoring it into the overall assessment of an appropriate term of imprisonment. [ 50 ] In Whitehead , the Saskatchewan Court of Appeal also observed: It is not possible to draw direct relationships between Mr. Whitehead’s circumstances and the offence in this case. Nevertheless, systemic and background factors are present in his life experiences and general background. [4] This is equally applicable to Mr.

Hamilton. [ 51 ] As I will discuss later in more detail, Mr. Hamilton’s moral culpability for these offences is generally very high. However, I also find that his personal circumstances as well as the systemic and background factors present in his life did contribute to the factual matrix of the situation he was in when he was presented with the opportunity to sell methamphetamine. Likewise, these factors would have contributed to his decision to get involved. This does not mean that his high level of moral culpability is magically converted to a low level.

Rather, it means that I consider his moral culpability to be somewhat reduced or attenuated. In other words, his level of moral culpability is still an aggravating factor, but it is not as aggravating as it would be otherwise. [ 52 ] I also find that there are reasonable prospects for Mr. Hamilton’s rehabilitation. Mr. Hamilton has a good employment history, and as is noted in the PSR he has never found it difficult to find employment when he is in the community. In the PSR, Mr. Hamilton is assessed as being at a medium risk to re-offend, but more importantly it identifies a number of risk factors that Mr.

Hamilton should be able address in order to reduce his risk to re-offend. Some of these he should be able to address to some degree by taking programs that will be available to him while he is in custody. Mr. Hamilton believes that rehabilitation is important and he is willing to work towards that goal. Last, but certainly not least, Mr. Hamilton has fully accepted responsibility for his actions and he understands and accepts that it is his decisions that have resulted in him now being sentenced.

[ 53 ] In order to give effect to the principles of restorative justice and rehabilitation, I consider Mr. Hamilton’s reasonable prospects for rehabilitation as a mitigating factor and I have factored it into my final decision as to the appropriate sentence to impose on Mr. Hamilton for these offences.

Summary of Aggravating and Mitigating Factors [ 54 ] In the circumstances of this case, I find the following to be aggravating factors: (

a) The large quantity of methamphetamine, including the fact that Mr. Hamilton had received a kilogram and was still in possession of 846 grams when he was arrested; (

b) The impact that the illegal drugs, and in particular

Schedule I substances such as methamphetamine, has on drug users and other members of the community; (

c) The fact that Mr. Hamilton was, at the time of his arrest, a “mid-level” trafficker; although this factor is tempered by the fact that this was the first time Mr. Hamilton was trafficking at this level; (

d) Mr. Hamilton’s prior criminal record, which includes convictions for other CDSA offences; (

e) The fact that Mr. Hamilton had a prohibited weapon, bear spray; (

f) The fact that when these offences were committed Mr. Hamilton was still serving the latter part of his most recent sentence in the community while on statutory release; and, (

g) Mr. Hamilton’s high level of moral culpability for these offences; although this factor is tempered by giving effect to factors relevant to

section 718.2 (

e) of the Criminal Code ( Gladue factors). [ 55 ] Additionally, in the circumstances of this case, I find the following to be mitigating factors: (

a) Mr. Hamilton’s guilty pleas and complete acceptance of responsibility; (

b) Mr. Hamilton’s background and personal circumstances; (

c) The applicability of

section 718.2 (

e) of the Criminal Code ( Gladue factors), as they apply in order to give effect to the goal and purpose of restorative justice, including Mr. Hamilton’s reasonable prospects for rehabilitation; Discussion of the Aggravating Factors The large quantity of methamphetamine and the impact to users and the community [ 56 ] I will address these first two aggravating factors together as they are in many ways related. If a person traffics a very small quantity of methamphetamine the resulting direct impact on users and the community in general is minimal.

The more one actually traffics, such as the first five ounces from his kilogram that Mr. Hamilton had already sold, the greater the impact to the end users and the community at large.

[ 57 ] In Mr. Hamilton’s case, in addition to the significant quantity that he had already sold, he was still in possession of 846 grams (including the packaging), or approximately 30 ounces, of methamphetamine. This is an extraordinarily large quantity of methamphetamine in a small town like Nipawin. As such, the plan to sell this much methamphetamine in and around Nipawin had the potential to cause an extraordinary amount of harm to the end users and to the community at large. [ 58 ] Although there are no specific victims identified in this case, there can be no doubt that Mr.

Hamilton was indirectly contributing to the addictions of users, and to the harm that comes to the community from such things as crime committed by users to acquire money to purchase drugs. With the problem of drug addiction comes the associated increased costs and resources needed for health care and addictions treatment, as well as various associated human costs such as broken families and uncared for children. When the drug in question is methamphetamine, I agree with the prosecutor’s comment that this is a pernicious drug.

In this regard, I would adopt the following comments of Justice Suche of the Manitoba Court of Queen’s Bench in the decision R v Hidalgo : Although an everyday occurrence within the court, it should never be forgotten that drugs such as methamphetamine truly wreak devastation in our community: to those who are addicted, whose lives are ruined and sometimes ended; to relationships destroyed and children neglected or worse. A wide variety of crimes are committed and the public is required to fund police, child and family services agencies and hospitals to deal with the fallout.

All of this to satisfy the greed involved in a very lucrative business. [5] Mr. Hamilton was a mid-level drug trafficker [ 59 ] Being a mid-level drug trafficker is an aggravating factor, as compared to being a street level trafficker for a number of reasons. It generally involves buying and selling larger quantities of the drug in question. It also involves an increased level of organization and trust vis-à-vis the high-level traffickers who supply the large quantities to the mid-level traffickers. It also often involves other people, as it did in Mr.

Hamilton’s case, to make the actual sales and collect the proceeds. Mr. Hamilton made the decisions regarding his activities and he had at least two other people doing the “leg work”. Additionally, the potential for significant profits per transaction is considerably greater than it is for a street level trafficker. Prior Criminal Record [ 60 ] Mr. Hamilton has a lengthy criminal record. As an adult, he has already been sentenced nine different times for 31 separate offences. His record is varied.

He has been convicted for offences of violence, weapons offences, property offences, and offences against the administration of justice. Additionally, and most importantly for the purposes of this decision, his record includes prior convictions for CDSA offences. On May 14, 2013, he was sentenced, along with other charges, for a charge of possession of a scheduled substance contrary to section 4(1) of the CDSA .

Then on January 25, 2016, he was sentenced for a charge of possession of a scheduled substance contrary to section 4(1) of the CDSA and for a charge of producing a scheduled substance contrary to section 7(1) of the CDSA . [ 61 ] The conviction for the offence contrary to section 7(1) of the CDSA is the most aggravating single item on Mr. Hamilton’s criminal record. This is because it is a “designated substance offence” as defined in section 2(1) of the CDSA and therefore pursuant to section 10(2) (

b) of the CDSA , it is a statutorily recognized aggravating factor that I must consider. Possession of bear spray [ 62 ] In his submissions to the Court, Mr. Hamilton acknowledged the obvious fact that his possession of the bear spray was related to his trafficking of methamphetamine. This is an aggravating factor because bear spray is a prohibited weapon [6] . Moreover, Mr. Hamilton’s record shows that he has received a 10 year discretionary weapons prohibition order under

section 110 of the Criminal Code and two further weapons prohibition orders under

section 109 of the Criminal Code . He has not been charged with breaching any of these orders but having received these orders (two of which would have been in force in June of 2019) he ought to be keenly aware of the importance of not possessing prohibited weapons. Additionally, and perhaps more importantly, the presence of a readily available weapon in the context of drug trafficking significantly increases the risk of harm to other persons and to Mr. Hamilton himself. [ 63 ] To his credit, Mr. Hamilton never used the bear spray on anyone.

This is not a mitigating factor but it does tend to remind me not to “read in” or assume anything about the weapon other than the simple fact that he had it in his apartment. I also note that Mr. Hamilton’s possession of the bear spray is far less aggravating than the possession of firearms or imitation firearms that the Court often sees as a factor related to drug trafficking charges. This is because the possession of firearms in such circumstances creates a much greater risk of harm, including deadly harm, than the possession of bear spray.

Mr. Hamilton was on statutory release [ 64 ] As previously mentioned in this decision, on September 25, 2017, Mr. Hamilton was sentenced to serve a period of two years in custody. As confirmed by Mr. Hamilton, in relation to that sentence he was released from custody, on statutory release, on or about January 24, 2019. At that time, he still had eight months of his sentence remaining to be served. As such in May and early June 2019, he was still serving this sentence. Following his arrest on June 3, 2019, his statutory release was revoked and he served the remainder of his sentence in custody. I note that pursuant to

section 718.2 (a)(vi) of the Criminal Code , this is a statutorily recognized aggravating factor that I must consider. [ 65 ] The first aspect of this factor is the fact that an offender has re-offended so quickly after being released from custody and that he or she has not yet even finished their most recent sentence. It speaks to the willingness of the offender to re-engage in criminal behavior. The second aspect of this factor is the negative effect it has on the public’s perception of the administration of justice.

Measures such as parole and statutory release are designed to assist offenders with their reintegration and rehabilitation. This is generally a good thing as successful reintegration and rehabilitation are good for the offender and for the community. However, when offenders re-offend while they are on parole, statutory release, or probation, this causes distress among some members of the public who then question the appropriateness and efficacy of these measures. This in turn negatively affects their perception of the administration of the criminal justice system in Canada. Of course, Mr.

Hamilton is not responsible for all the reasons why some people have negative opinions about the administration of the criminal justice system, but his decision to re-offend while still on statutory release contributes to these sentiments. Moral culpability [ 66 ] In my view, Mr. Hamilton’s moral culpability for these offences is very high. This is for a number of reasons. Firstly, drug trafficking takes a lot of organization and planning. It requires many smaller actions and decisions that contribute to the general enterprise.

Consider the multiple cellular phones that he had; the many conversations he would have had with his suppliers and the two people he had working for him; the numerous text messages related to drug trafficking; the decision to acquire the bear spray; and the many sales contemplated in order to sell the entire kilogram of methamphetamine. These are all purposeful actions and decisions taken. At each step of the way Mr. Hamilton knew what he was doing was illegal. Furthermore, he was making these decisions while “clean” or not using drugs. He was not selling in order to feed an addiction.

His motivation was profit. [ 67 ] Additionally, in Mr. Hamilton’s case, he had personal knowledge of the direct and indirect harm that results from addictions to methamphetamine. This is because, as mentioned in the

summary of his personal circumstances, he had lived through it. Specifically, he had experienced a long-term addiction to methamphetamine, which contributed to his decisions to commit multiple fraud and property offences. This then resulted in a two-year jail sentence in addition to the time he spent in pre-sentence custody prior to that sentence being imposed. Mr.

Hamilton is an intelligent man and he knew very well that his trafficking of methamphetamine could have and likely would have contributed to the devastation of lives of others, just like his dealers in 2016 and 2017 contributed to the devastation of his life. [ 68 ] Notwithstanding Mr. Hamilton’s de facto high level of moral culpability, in this case I am attenuating this aggravating factor and will consider Mr. Hamilton to have had only a moderate level of morale culpability. I find it appropriate to do this in light of the applicable Gladue factors in this case.

This was explained in detail in the part of this decision that specifically addresses Gladue factors and giving effect to

section 718.2 (

e) of the Criminal Code . Discussion of the Mitigating Factors Mr. Hamilton’s guilty pleas and complete acceptance of responsibility [ 69 ] Mr. Hamilton’s guilty pleas were not made early. The charges had been set for trial but as noted earlier the trial date was vacated when his lawyer was granted leave to withdraw. However, it should be noted that he changed his pleas from not guilty to guilty quite promptly after that and there was no need to

schedule a new trial date. [ 70 ] Notwithstanding the timing of the guilty pleas, they are still to be recognized as a mitigating factor. Moreover, in this case I consider the guilty pleas to be an important mitigating factor because they are accompanied by Mr. Hamilton’s complete and unreserved acceptance of responsibility. He fully recognizes what he did was illegal and morally wrong. As noted earlier, Mr. Hamilton was candid

and open about his involvement in these offences with the Court and with the writer of the PSR. Mr. Hamilton clearly wanted the Court to know how he became involved in trafficking methamphetamine in Nipawin and at no time during his lengthy submissions did I detect any effort on his part to blame other people or to minimize his own role or participation. He knows he made bad decisions and mistakes, and he “owns” them; he knows this is why he is now here being sentenced for these offences. Mr. Hamilton’s background and personal circumstances [ 71 ] As detailed in the PSR, Mr.

Hamilton has suffered in his life, in particular, when he was young. Notwithstanding the considerable obstacles and barriers he experienced, he was able to return to school as an adult. He finished high school and a year of post-secondary studies. He also has a good employment history and is generally employed when he is not in custody. This shows that, again notwithstanding the obstacles and barriers he has experienced, he has often been a contributing member of society.

Section 718.2 (

e) of the Criminal Code ( Gladue factors) [ 72 ]

Section 718.2 (

e) of the Criminal Code is a significant factor in this case. Given its importance, I have explained the applicability and the way I have given effect to

section 718.2 (

e) in a separate part of this decision. As I noted when discussing the aggravating factors, the Gladue factors temper Mr. Hamilton’s level of morale culpability. However, in order to also give effect to the principles of restorative justice and rehabilitation, I find that there also needs to be some further attenuation of the custodial sentence to be imposed. Consequently, in these circumstances, for this offender, I also consider the application of

section 718.2 (

e) as a mitigating factor. Proportionality [ 73 ]

Section 718.1 of the Criminal Code sets out a fundamental principle of sentencing and it reads: “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” This principle generally operates as described by the Supreme Court of Canada in R v Lacasse : The more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier the sentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime’s consequences, but also on the moral blameworthiness of the offender.

Determining a proportionate sentence is a delicate task. [7] [ 74 ] In this case, the gravity of the offence is quite high. The maximum sentence available for count 3 is imprisonment for life. However, it must be recognized that the scope or range of offending behavior captured by section 5(2) of the CDSA is extremely large. At the lower end of this continuum would be a street level trafficker who is found to be in possession of several grams of cocaine and the upper end could include a very high-level trafficker of multiple substances. In Mr.

Hamilton’s case, the gravity of the offence is quite high because of the large quantity of methamphetamine, the fact that he was a mid-level trafficker, and the high potential for harm in a small town. Additionally, Mr. Hamilton’s degree of responsibility is very high. Parity [ 75 ] The principle of parity is specifically set out in paragraph 718.2 (

b) of the Criminal Code . The prosecutor submitted a number of cases, [8] to assist the Court in assessing this principle. Although I will not comment on all of them, I have reviewed them all along with other jurisprudence mentioned in this decision. [ 76 ] All cases are unique with offences committed in different circumstances and committed by different offenders. This includes drug trafficking cases which are often very difficult to compare.

There are inevitably differences in a wide variety of factors: the type of substance, the quantity of substance, the level at which the accused was trafficking, the duration of the trafficking, the profits or potential profits, whether or not there were firearms or other weapons associated with the trafficking, whether or not organized crime was a factor, to name but a few.

The personal circumstances of traffickers also vary widely. [ 77 ] The principle of parity is important and must be considered, however, given the many factual differences in each case the relevant jurisprudence rarely points to a precise sentence. In Whitehead , the Saskatchewan Court of Appeal specifically considered the

principle of parity and how it should be applied by sentencing courts: Given that s. 718.2 (

b) uses the words should and similar , the codified principle does not bind a court to impose exactly the same sentence on an accused as was imposed on a co-accused. As the Criminal Code suggests — and as courts have consistently held —sentencing is an inherently individualised process where the gravity of the offence and the role the offender played in its commission must be considered alongside the degree of responsibility of the offender, having had regard to the offender’s unique individual circumstances.

Differences in these considerations may well account for variations in sentence even as between co-accused provided the predominant goal of sentence proportionality is achieved. [9] [ 78 ] I agree with the prosecutor’s submission that in Saskatchewan there is no established standard range of sentence for trafficking, or possession for the purpose of trafficking, of methamphetamine. There is however, a general range of sentence for such offences when the substance is cocaine. This range, recently confirmed by the Saskatchewan Court of Appeal in R v Smith [10] , continues to be 18 months to four years imprisonment.

While this range is not directly applicable when the substance is methamphetamine it is nonetheless influential and provides guidance as both cocaine and methamphetamine are

Schedule I substances. [ 79 ] Moreover, in Smith the Saskatchewan Court of Appeal also confirmed the general range of sentence is not a barrier to the imposition of sentences below the range where appropriate or to the imposition of sentences above the range when the aggravating factors make it appropriate. [11] [ 80 ] The sentence imposed in R v Kahn [12] was 42 months incarceration. The drugs seized included 136 grams of cocaine and 45.8 grams of methamphetamine. Mr. Khan was involved in a “dial-a-dope” type of operation. [ 81 ] The sentence imposed in R v Ahmed [13] was 32 months incarceration.

The total quantities of the drugs was less than 12 grams of cocaine and less than a gram of methamphetamine. [ 82 ] The sentence imposed in R v A.K.A.D . [14] was four years for possession for the purpose of trafficking of 109 grams of methamphetamine. The offender was also sentenced to three years consecutive for firearms offences. [ 83 ] In R v Favreau [15] the accused was sentenced for several CDSA offences. The total amount of methamphetamine seized in the investigation was 172.38 grams.

Justice Allbright considered the charge of possession for the purpose of trafficking of the methamphetamine to be the most serious of the various charges. [16] For that charge, he imposed a sentence of six and one half years imprisonment. [ 84 ] In R v Bellerose [17] the accused was found in possession of 39 grams of crystal methamphetamine. She had a limited criminal record with no prior convictions for offences under the CDSA . Gladue factors were applicable and considered as a mitigating factor.

She was sentenced to 27 months imprisonment. [ 85 ] The preceding few paragraphs provide only minimal information about those cases but they do serve to demonstrate that lengthy terms of imprisonment are common for CDSA offences where the substance is methamphetamine. These cases also serve to confirm that, by comparison, Mr. Hamilton had in his possession a very large amount of methamphetamine. Appropriate Sentence [ 86 ] In Smith , the Saskatchewan Court of Appeal reviewed the fundamental guiding principle of proportionality as set out in

section 718.1 of the Criminal Code and the fundamental purpose of sentencing as set out in

section 718.2 , including the list of objectives set out therein. The Court then said: “From this list, denunciation and deterrence are the predominant factors when sentencing in relation to trafficking a

Schedule I drug.” [18] This dictum is binding on this Court. However, it does not prevent me from still considering potential rehabilitation as a subordinate factor, which I have done in this case, in particular as I considered Gladue factors.

[ 87 ] Given the gravity of the offences, together with the many serious aggravating factors in this case, the prosecutor’s submission for a five and one half year term of imprisonment is not unreasonable. However, in determining the appropriate sentence I must also consider the mitigating factors, including the applicability of

section 718.2 (

e) of the Criminal Code . Considering all of the relevant factors pertaining to these offences, Mr. Hamilton’s personal circumstances, and applying the principle of proportionality, the appropriate sentence for the offence of possession of a methamphetamine for the purpose of trafficking, is imprisonment for 56 months. The appropriate sentence for the offence of possession of proceeds of crime is imprisonment for 12 months, concurrent. Credit for Pre-Sentence Custody [ 88 ] Mr.

Hamilton has been in custody since he was arrested on June 3, 2019; however, until September 24, 2019 he was serving the balance of his previous sentence of imprisonment. The prosecutor takes no issue with giving Mr. Hamilton enhanced credit at a rate of 1.5 to 1, from September 24, 2019 until today. This period of time is exactly seven months, and I agree that it is appropriate to give Mr. Hamilton credit for 10 and one half months for this period of pre-sentence custody. [ 89 ] Mr.

Hamilton points out that but for the charges currently before the Court he would have been entitled to statutory release on or about August 17, 2019. Consequently, he submits that the 38 days from August 17, 2019 to September 24, 2019 should also count as pre-sentence custody for which he should be credited an additional 57 days. I do accept that Mr. Hamilton would have been granted statutory release on or about August 17, 2019, however, I do not know if this would have been with or without restrictive conditions. It is also a factor that he was indeed still serving his sentence during this 38-day period.

As such, I am prepared to consider this 38-day period as pre-sentence custody for which some credit should be given. However, in my discretion I decline to give credit at the maximum rate of 1.5 to 1. Rather, I will simply give him credit of one and one half months. [ 90 ] The end result is that in consideration of the total pre-sentence custody of eight months and eight days I will grant credit for 12 months. Sentence [ 91 ] The appropriate sentence for count 3 without credit for pre-sentence custody is 56 months.

After granting credit of 12 months the resulting sentence imposed today is imprisonment for 44 months. On count 1, I impose a sentence of imprisonment for 12 months, to be served concurrently with the sentence imposed on count 3. [ 92 ] I make an order under

section 109 of the Criminal Code for life. I also order the forfeiture of the bear spray, the $5,260.00 cash, and all the other items listed in the draft order that has been filed by the prosecutor. Given the circumstances of these offences and Mr. Hamilton’s prior criminal record, I make an order requiring Mr. Hamilton to provide a sample of a bodily substance for analysis for inclusion in the national DNA data bank. I make this order, which will be in form 5.04, pursuant to

section 487.051(3) of the Criminal Code . These ancillary orders all flow from the conviction on count 3. Lastly, these offences occurred prior to parliament’s re- instatement of victim fine surcharges on July 22, 2019 and as such there will be no victim fine surcharges imposed. ________________________ L.W. Stang, J