R. v. Owen, 2016 MBPC 12

CITATION: R. v. Owen , 2016 MBPC 12 Date: 2016 02 26 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) Laura Perron ) for the Crown ) and ) ) ) Geno Owen ) Kristen Jones ) for the Accused ) ) ) Reasons for Decision delivered: ) February 26, 2016 KILLEEN P.J. [ 1 ] I intend to provide counsel with a written decision. I am required to explain the sentence being imposed. However, I will start with telling Mr. Owen directly that what you did in selling drugs was very wrong. I have to give you some time in jail. I am doing this to make you understand that drugs are a terrible problem for you.

They make you hang around with the wrong people. You have not taken help for your drug use and unless you do, you are going to continue to get into trouble. I am also putting you on three years of probation to try to get you some help. The jail I am giving you is 90 days and I am going to hear from counsel as to whether that could be on weekends. [ 2 ] The accused, Geno Owen, has entered a guilty plea to a charge of possession of cocaine for the purpose of trafficking.

Crown counsel has suggested that the range of sentence would typically require a sentence of about 22 months incarceration, but that factors related to the background of the accused should reduce that to about 18 months incarceration. His counsel has suggested that the factors in his background make a suspended sentence the appropriate penalty. The Facts [ 3 ] On February 3, 2015, members of the Winnipeg Police Service engaged in an undercover attempt to buy drugs through a dial a dealer line. They set up a meeting and the accused and another person attended.

The other person was female and presumably the person to whom the officer had spoken by telephone. The accused was the passenger. He sold four rocks of crack cocaine to the officer for $80.00. The vehicle was followed and stopped a short while later. The accused had in his possession the $80.00 and another $40.00. The co-accused had $415.00. Two rocks of crack cocaine and a cellular telephone were located in the car. [ 4 ] The accused has a record. As a youth, he received probation in 2008 and in 2012 for serious charges. He later served time as an adult for robbery, theft and breach charges.

He has no drug record. His Background [ 5 ] The accused is 23 years old. He was born in Pauingassi First Nation and lived with his family until the age of three. At that age, he was apprehended by a Child and Family Services agency due to his mother’s alcohol and solvent abuse and physical abuse by his father. He and his siblings were placed in a foster home, although he was returned to live with his mother for about six months at the age of seven. That did not work, so he was sent to live with his father in a different community in Ontario. That placement was marked by “a lot of sniffing”.

When the former foster mother went to visit, the father of the accused asked that she take the accused with her and she made arrangements for that to occur. The foster mother felt that moving around had been hard on the accused. He remained with her until

he was 15 years old. In the interim, his mother had committed suicide and his father had voluntarily surrendered guardianship. [ 6 ] Mr. Owen’s foster mother felt that by the age of 15, she just could not handle him anymore and that he required a more structured setting. He was then placed in a treatment centre for those with emotional and behavioural issues. He then spent two years in a foster placement at Riverton, before being moved to Portage la Prairie and getting into a transitional home for six months before he turned eighteen and transitioned into independent living.

Much of his adolescence was spent in custody at the Manitoba Youth Centre. He is not close to his siblings, in part because of substance use on his brother’s part. He has contact with two cousins, one of whom is reportedly incarcerated for manslaughter. He has had at least one relationship, although it is not clear if it currently exists. [ 7 ] The accused completed grade eight and some other courses. He was tested and scored on a grade three level for reading and arithmetic. He had difficulties while in school which included being “bugged for being quiet”, fighting and carrying knives which led to suspensions.

His behaviour is consistent with a later diagnosis of Fetal Alcohol Spectrum Disorder. That diagnosis has not always been available to agencies working with him, but was provided to Probation Services. The condition has likely limited his opportunities for employment. [ 8 ] His service coordinator through the Special Needs Program provided a letter which is exhibit one. His admission to the program was based on the diagnosis of FASD and the associated behavioural difficulties. Mr. Owen receives support through Opportunities for Independence, Inc. He engages well with the supports.

His primary outreach worker has a positive relationship with him. He also receives psychiatric support through a clinic, although a formal psychiatric diagnosis is not yet available. He is presently receiving medication and it appears that his mental functioning may be more compromised than in the past. He has reported hearing his name called when no one is around and was described generally as someone who needs to have his psychiatric needs addressed. [ 9 ] He has a long history of drug abuse, starting at the age of nine.

He has consumed many drugs, including marijuana, LSD, ketamine, methamphetamines and mushrooms. He appears to be smoking marijuana regularly and his support worker is concerned that his alcohol intake has increased significantly in recent months due to the many stressors in his life. [ 10 ] His current supports are linked to the deficits which he faces. He receives financial support from Employment and Income Assistance Disability benefits. He has case managers through the Provincial Special Needs Program. He was employed until January 2015 with the Genesis Program through New Directions.

This provided training with a view to employment in the construction field. He was asked to leave the program because of the group of friends who were coming by his workplace. The staff felt that gang members were picking him up or dropping him off, potentially creating a problem for his co-workers. Mr. Owen commented on this after submissions had been heard and while he was addressing the court, he pointed out in regard to these people that, “They are all I know.” To some extent, that comment is a fair comment. His background has not left him with support from family or friends.

He does not regard his workers as friends, which is not their role in any event. Like many of us, he goes back to those he knows. Unlike many of us, his associates use him to commit criminal acts. [ 11 ] After his expulsion from the program, there appears to have been a period of about two months during which time he was receiving no income. The reasons are not clear, but it appears to have been due to communication issues with workers not knowing his income status. In the past, documentation concerning his diagnosis had not been provided to his case coordinator with Employment and Income Assistance. Mr.

Owen is one of those individuals who are entitled to assistance, but with different providers being responsible depending on issues like his diagnosis. I would not expect Mr. Owen to be able to easily understand the issues regarding the source of assistance or the basis for it. In the result, although he had been doing well at the program, his contact with gang members led to expulsion and two months without income. [ 12 ] It was during that time that the accused was selling cocaine. Nothing could justify that drug dealing. However, the explanation for why it happened is pretty clear.

His expulsion cut off his income. He turned to those whose actions had resulted in his expulsion in the first place. They used him to sell cocaine. It would be simpler if the blame rested only with the gang members, or if it was solely his fault. But, in his circumstances, it is a combination of both. Most people would clearly understand, at least after the fact, how wrong it was to return to crime. They would understand that there were options available and that it was a reasoned decision to forgo those lawful options to instead sell drugs.

With the limitations he faces, I am far from certain that the availability of other options was something that Mr. Owen considered at the time. An important part of sentencing Mr. Owen is to deter him from committing further crimes. In his case, that has to be closely tied to what will be most effective in rehabilitating him. He needs to understand that selling drugs is wrong and at the same time, needs to be in a position where the financial motivation does not arise. [ 13 ] Counsel on behalf of Mr. Owen relied on a couple of recent cases from The Manitoba Court of Appeal: R. v. Tran , 2015 MBCA 120 and R. v.

Peters , 2015 MBCA 119 . [ 14 ] In Tran there was a thorough review of what could constitute exceptional circumstances in sentencing so as to allow a sentence outside of the normal range of precedents. It is sad to say that I am unable to find exceptional circumstances in the background and circumstances of this accused. Far too many of those who appear before us are suffering from a myriad of deficits, often starting from FASD or a similar diagnosis. The accused are in no way responsible for their mother’s actions, but suffer from them nonetheless.

Courts routinely struggle with the balance of trying to deal with the profoundly disadvantaged accused who, by his actions, causes harm to others. [ 15 ] To a greater extent, I do find the reasons behind the crime to be different than the more common motivations. Many drug dealers are motivated only by greed. Some others become involved to support their own addictions. They end up continuing the vicious cycle by selling to others who then fall into the same trap. Neither of these motivations appears to be at fault here. Although Mr.

Owen sold to support himself, the need to do so had arisen because he had lost his place at the training program. That would never have happened if he could have understood the need to limit contact with the gang members, at least at his workplace. I have to consider his deficits as part of the reason why this occurred. Again, while this does not amount to an exceptional circumstance, it mitigates the sentence which must be imposed. [ 16 ] In Peters the Court of Appeal was dealing with an appeal from a suspended sentence imposed on a drug dealer. In my view, the

record and the crime committed by Mr. Peters are both significantly worse than those before me. What is different in Peters were thesignificant efforts at rehabilitation made by the accused. He had taken programming, a residential treatment program and madesubstantial effort to turn his life around. As a single parent of three young children, he had demonstrated to the sentencing judge howconsiderably he had changed. [17] On appeal, the Court looked at the directions provided by Parliament and as interpreted in cases such as R. v. Gladue, (SCC), [1999] 1 S.C.R. 688 and R. v. Ipeelee, 2012 SCC 13.

Pursuant to section 718(2)(e), alternatives to incarceration mustbe considered and a different method must be applied in analyzing what will be a fit sentence for Aboriginal offenders. As stated inIpeelee, I must consider the unique systemic or background factors which may have played a

part in bringing this particular offenderbefore the court and the types of sentencing procedures and sanctions which may be appropriate in the circumstances for this accusedbecause of his Aboriginal background. His upbringing is an example of why Parliament enacted

section 718.2(

e) of the Criminal Codewhich reads, in part: Other sentencing principles 718.2 A court that imposes a sentence shall also take into consideration the following principles: ... (

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 tovictims or to the community should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. [18] The circumstances of Mr. Owen call for a sentence which makes clear to him that turning to drug dealing will never betolerated.

The factors which I look at as negative are his record, his continuing drug use and related contact with drug dealers, his failureto make substantial changes in his life since his arrest, including his failure or refusal to address the drug use through counsellingprograms and his failure or refusal to participate in other therapy as recommended by his workers. [19] Considering the harm done to others by the actions of those who traffic cocaine, a significant term of incarceration is usuallyrequired.

Although I have not found his case to be exceptional, I do consider the reasons behind his involvement to be more sad thancriminal. In my view, a term of 18 months incarceration would be far too harsh for this offence, even if I were not required to perform theanalysis required by Ipeelee. [20] Many of the difficulties in his life can be traced back to his FASD. Courts are slowly coming to understand the profounddifficulties which this causes.

His cognitive abilities and decision making have been hurt by something over which he had no control.The problems in his family’s life are not out of the ordinary for those from his home community. Solvent abuse and alcohol use areendemic. In many respects, his community is a prime example of why a different analysis is required in sentencing of Aboriginaloffenders from that background. The circumstances of that background can often best be described as hopeless.

It is hard to imaginesomeone growing up with that background and FASD and not suffering from substance abuse. [21] I also note that the previous probation orders appear to have had some success. His support workers all point to the need for astructured environment with appropriate therapy, activities to fill his time, psychiatric care and a need to control his reliance on drugs. [22] If incarceration of a few months alone could effectively send a message to Mr. Owen, then perhaps a few months in jail wouldbe the proper option. It would certainly be consistent with the other provisions in

section 718, including deterrence. It would also allowentry into counselling programs, such as the Winding River Program, referred to in the presentence report. However, it is not clear to methat months of incarceration will have a positive effect or that it is the only option which will get the message through to Mr. Owen.Rather, along term of incarceration may simply put him back into a position from which it will be harder and harder to develop thecoping skills which he will need in this world.

He has in place a support team who are trying to do what they can to make him understandwhat he needs to do to develop a productive, drug free, law abiding life. I am not convinced that an interruption in that support will beother than negative. I do not suggest that programming in an institution is of no benefit. Rather, he now has a team who know him andwith whom he has a good rapport. Sending him to jail for a few months is not sufficient time to allow the institutional staff to fully assesshim and address his needs.

In the meantime, he would lose his housing, possibly his personal property and make the whole process startagain upon release. If it was clear that no other sentence was appropriate or would work, then a sentence in the range of a year might bethe only option. However, considering the analysis required by Ipeelee, I do not find such a lengthy term of incarceration to beappropriate. [23] Nor am I able to conclude that a suspended sentence alone can address the requirements of

section 718 as a whole. Deterrence isstill a factor which has to be considered. I place less weight on general deterrence in his case. An informed member of the public,understanding the facts of this case and the requirements of the law, would understand that a significant departure from the normal rangeis not an indication that drug dealing is to be treated lightly. Rather, they would see that this man, selling drugs for these reasons still wassent to jail. [24] What differentiates Mr. Owen from Mr. Peters are the efforts which were undertaken by Mr. Peters to turn his life around.Unless Mr.

Owen fully understands that drugs are a big part of his problem, he will remain mired in a life in which a return to crime willalways be possible. There is a suspicion reported in the presentence report that he is associating with gang members. I do not haveevidence which would convince me of that, but do have his own comment about gang members being all he knows. Acquiring marijuanaitself puts him into contact with criminals. The temptation of easy money may be too much for him to resist. It was just that temptationwhich brought him here today. While Mr.

Owen has significant support, the report indicates that he has not yet accepted that addictionsprogramming would help him. Until he understand and addresses that problem, the risk of him ending up back in trouble is toosignificant to be addressed by anything other than time in jail. I am left in the difficult position of having to decide how to deter him,while still leaving in place as much support and hope as possible. Mr. Owen needs to know that crime carries a penalty.

[ 25 ] I sentence the accused to a term of incarceration of 90 days. It will be followed by a supervised probation order for a period of 3 years. He is required to keep the peace, be of good behaviour, attend court as required to do so and report to his probation officer any change of his name or address. He must report to a probation officer within 2 working days of today and thereafter at such time and in such manner as they may require. He is to attend, participate in and complete such assessment, counselling, treatment or programming as probation requires.

That will include addictions programming, including any residential programming determined to be appropriate by his probation officer. He is to take any other programming which probation determines to be appropriate. He is to reside as directed by Probation Services. He is to perform 150 hours of community service work within the first 2 years of the order. He is to seek and maintain employment or educational training as arranged by his service providers and confirmed by his probation officer. He is not to be under the influence of any intoxicant unless he is in his home.

I realize that an abstain clause might be so onerous that a breach would be almost inevitable, but I do not want him consuming intoxicants while out in the community. In my mind, that would increase the likelihood of further difficulty. He shall be required to comply with such curfew as is directed by his probation officer. [ 26 ] The accused is prohibited from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance for 10 years. He must provide a sample of his DNA to the correctional authorities within 30 days.

This is a secondary offence, but the circumstances of the offence require it. The victim service surcharge of $200.00 is to be paid by December 31, 2016. Costs are waived. [ 27 ] We will now address the issue of whether the sentence should be served intermittently. “Original signed by:” _________________________ KILLEEN P.J.