2016 MBPC 24, 2016 MBPC 24

Cite: 2016 MBPC 24 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Richard Smith, ) for the Crown - and – ) ) Sara Kasian, Accused ) ) ) James Wood, for the Accused ) ) ) Judgment delivered: May 9, 2016 ) MARY KATE HARVIE, P.J. Introduction and

Schedule of Proceedings [ 1 ] The accused has entered a guilty plea to the charge of possession for the purpose of trafficking contrary to s. 5(2) of The Controlled Drugs and Substances Act arising out of an incident which occurred on January 30, 2014. She has also entered a guilty plea to the charge of Breach of an Undertaking to an Officer in Charge arising out of an incident on September 24, 2014. At issue is the appropriate sentence to be imposed. Crown counsel suggests a sentence of 18 months incarceration.

Defence counsel acknowledges that a custodial disposition is appropriate but suggests a much shorter period. Further, if the Court is prepared to consider a sentence in the range of 90 days, defence counsel also asks that the accused be allowed to serve the sentence on weekends. [ 2 ] The accused entered a guilty plea to the charge on June 8, 2015 at which time a pre-sentence report was requested. Submissions were made on April 11, 2016 after which the matter was adjourned for sentence. Both counsel prepared and filed a Book of Authorities for the Court’s consideration.

The accused also filed a number of letters in support. The Facts [ 3 ] At approximately 3:00 a.m. on January 30, 2014 members of the Winnipeg Police Service conducted a traffic stop on a vehicle being operated by the accused. When speaking to the accused, she appeared very nervous, was shaking and hesitated in answering simple questions. Because police detected an odour of fresh marihuana from the vehicle, the accused was arrested for a drug investigation. After exiting the vehicle, the accused ultimately produced a ziplock bag of cocaine totalling 36 grams with a street value of approximately $1,800.00.

The accused was transferred to the District Three police station where she was processed and ultimately released on an Undertaking to an Officer in Charge with a court date of May 26, 2014. [ 4 ] The accused remained on interim release until September 24, 2014, when she was arrested by members of the Winnipeg Police Service while operating a motor vehicle with two individuals as passengers who were the subject of a police investigation. A search of the vehicle resulted in the seizure of, amongst other things, six cell phones, one of which the accused admitted was in her possession.

The accused had been released on a condition not to possess a cell phone and as a result she was charged with a Breach of an Undertaking to a Police Officer. [ 5 ] The accused advised the author of the Pre-sentence Report that around the time she was arrested for the cocaine charge she was in difficult financial circumstances, her roommate having moved out without notice, leaving her responsible for the rent as well as other bills. The accused had just moved out on her own, came from a family of limited means, and was hesitant to go to family members for help.

Around that time, she met an individual at a party who offered her an opportunity to make “quick easy money”. She took advantage of the offer and attended to a house where she was provided the illegal substance and directions. It was shortly after obtaining the cocaine that she was pulled over by the police. [ 6 ] The accused expressed frustration to the probation officer with her own actions, stating that “she knows she made a mistake”.

She stated that she had “tunnel vision” and thought that the offer “was her only option to come up with funds for her rent in time.” She further indicated at the time she had “a bad gut feeling” and that during the transportation of the drugs that she “changed her mind and

wanted to turn around to return the illegal substances”. Prior to having the opportunity to do so she was stopped by the police. The Position of the Parties [7] Crown counsel submits that the accused was a “courier” of the drugs and as such he argues that the appropriate range ofsentence is one of three to five years. However, taking into account the positive comments contained within the Pre-sentence Report,the remorse expressed by the accused, and the letters of support, he submits that a sentence of 18 months is appropriate.

Crown counselexpresses particular concern regarding the general deterrent element of a sentence in circumstances such as these.

He urges the Court tosend a message to those involved in the drug trade that individuals of otherwise good character, such as the accused, will still receive asignificant jail sentence if they choose to transport drugs. [8] Defence counsel argues that this is a case where the positive reports, the community support and nature of the offence are suchthat the Court can conclude that “exceptional circumstances” exist and that a sentence outside of the normal range is appropriate. [9] It is therefore important to assess the authorities to determine the appropriate range of sentence and further to determinewhether “exceptional circumstances” are present in this case.

The Sentencing Authorities [10] Crown counsel relies on the decision of the Manitoba Court of Appeal in R. v. Rocha, 2009 MBCA 26. In Rocha, the AppellateCourt concluded that the accused was a courier, noting at paragraph 64: . . . Those who are mere couriers involved at the mid-level and whose sole purpose is to transport the drugs for their boss in order toprevent the latter from being detected should expect a sentence in the range of three to six years. See R. v. Lyons and R. v. McRaereferred to in Dew (E.J.).

In Rocha the accused received a four year sentence for trafficking 20 ounces of crack cocaine. [11] Crown counsel also relies upon the decision in R. v. Danilko, 2008 MBQB 294, where an accused who was described as a“courier” was found to be in possession of 286 grams, or just over 10 ounces, of cocaine with an estimated street value of $23,000.00. After considering all the factors, including what the sentencing judge described as a “considerable delay between the time of the offenceand this sentencing” the Court imposed a sentence of 30 months.

The Court identified some of the same concerns that crown counselarticulated in this sentencing: (at paragraph 42) Couriers play an increasingly vital role in the drug trafficking trade, particularly as here where such work as a “mule” serves the interestof a criminal gang. If sentences for couriers are too low, the convictions and sentences will become easy to rationalize and worth therisk.

Sentences for couriers ought to be severe enough so as to prevent such easy rationalizations either by the couriers themselves or bythose involved in the criminal organizations who could invoke the less denunciatory and deterrent sentences in their attempts to attractthe assistance and insulation that couriers provide. [12] The concerns expressed are certainly valid and must be considered when assessing the appropriate sentence for this offender.However, I do note that the offenders in Lyons, Dew, Rocha and Danilko were all in possession of quantities of drugs which weresignificantly greater than this accused.

I also note that the facts of this case involve a single incident of transporting drugs, not anongoing pattern and accompanying level of trust from their suppliers as is seen with some couriers. [13] The sentencing “ranges” identified by appellate courts provide a helpful guideline for both counsel and the courts. But as notedby the Supreme Court of Canada in R. v. Nasogaluak, 2010 SCC 6 , [2010] 1 S.C.R. 206 at paragraph 44: . . . it must be remembered that, while courts should pay heed to these ranges, they are guidelines rather than hard and fast rules.

Ajudge 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. [14] The position put forward by crown counsel presupposes that a range of three to five years is appropriate, adjusted to give creditto this offender for her positive antecedents.

I am concerned about the applicability of the so-called courier cases to a single incident oftransporting a comparatively small amount of drugs. That is not to say that the offence is not a serious one that calls for a denunciatorysentence. Indeed, defence counsel concedes that a custodial sentence is warranted. He suggests that it is appropriate to consider a rangelower than that suggested by crown counsel. He relies on a decision of Killeen, PJ in R. v.

Owen, 2016 MBPC 12, (Man PC) both as anexample of a range of 18- 22 months presented by Crown counsel for the offence of Possession for the Purpose of Trafficking, and as anexample where an intermittent sentence of 90 days was imposed. Are Exceptional Circumstances Present? [15] For many years and in a variety of cases, Courts have been called upon to consider whether “exceptional circumstances” existwhich would allow the Court to consider a sentence outside the normal range. [16] In R. v.

Tran (2015), MBCA 120, the Manitoba Court of Appeal stated that the “overriding factors that apply” to a finding of“exceptional circumstances” invariably involves a multiple of mitigating factors. Those most commonly relied upon include “strict bailconditions, guilty pleas, cooperation with authorities, health issues, personal circumstances, family concerns, Gladue and Ipeeleeconsiderations” as well as a demonstration of rehabilitation having occurred over a period of time.

Other factors which meritconsideration include the age of the offender, a lack of criminal record, the passage of time since the commission of the offence, as wellas a consideration of the public’s perception of the offence and the need for a deterrent sentence. Courts have also considered the mannerin which the offence was committed to determine if there is anything unusual or exceptional about the facts.

[ 17 ] It is clear that in this case the Court is sentencing a young woman who was 18 years of age at the time of her arrest and was described as being in a situation “way over her head.” As a child she witnessed her mother in a “mentally abusive” relationship with her father. Following her father’s bankruptcy when she was 10 years old, the accused described her family going from “everything to nothing”. For a significant period the accused and her family were essentially homeless, staying with friends and family while her mother attempted to support them financially.

Given this background it is not surprising that the accused reacted with panic when her roommate left her with the rent and other bills. Indeed, the accused is an individual who has attended the hospital on more than one occasion in response to panic attacks.

This background and personal history helps to understand why the accused was reticent to seek financial assistance from family members, but instead employed what she described as “tunnel vision” and took advantage of the offer which led to these charges. [ 18 ] As noted, a number of letters of reference were filed in support of the accused, in which she is described as being a “positive role model in the community”; a “great person” who is “kind, and caring”; whose actions are “out of character”.

Her employer describes the volunteer hours that she has provided to the Earl Grey Community Centre as well as her being a “strong community leader and mentor”. But for the lapse of judgment which contributed to her criminal behaviour, she is described as being admired for her “honesty, strength and determination”. She appears determined to rise above the mistake and lapse in judgment which resulted in these offences. [ 19 ] The accused comes before the Court with no previous criminal record. Of concern is her history of associating with negative peers.

Clearly those associations have led to her involvement in drug charges as well as the charge of failing to comply with an undertaking. It is noteworthy and somewhat concerning that with respect to that latter matter she was in the company of individuals who were the subject of a police investigation. Her re-involvement relates to her possessing a cell phone contrary to her release order. It is disappointing and concerning that she failed to follow the terms of the undertaking.

Having said that, the author of the Pre-sentence report notes that the accused has “strong feelings of negativity” towards gang activity and has ended all ties with those associates and mutual friends who contributed to her criminal activity. Family and friends have noted a “significant change” in the accused and now describe her as a “homebody.” [ 20 ] The Pre-sentence report prepared for this matter describes her as “low risk” to reoffend in criminal behaviour.

The author of the report suggests that the accused would benefit from “programming focused on self-worth, healthy relationships and positive choices.” The report suggests that she is a suitable candidate for community supervision. [ 21 ] There is no doubt that this offence is a serious one, but that the facts are tempered somewhat given the amount of the drug involved and the limited contact the accused had with the drugs prior to her detection. While her motive to participate in this offence was financial gain, she is not the kind of offender who had earned the trust of those who were using her.

She presents as a somewhat naive offender who responded very poorly to a financial crisis that was resolvable through the support of friends and family. She has since recognized the error of her anxiety-based misjudgment. It is aggravating that she did not comply with all of the terms of her bail order. [ 22 ] Does an overall assessment of the facts of this offence and this offender lead to the conclusion that “exceptional circumstances” are present? As noted at the outset, defence counsel acknowledges that the totality of the circumstances calls for a custodial sentence.

What he is essentially arguing is that the appropriate sentence is one which falls outside the range suggested by crown counsel. [ 23 ] As noted earlier, I have some reservations accepting that the facts of this case support a sentencing range of three to five years. I would have considered a sentence in upper range of time in a provincial institution to more accurately reflect the principles of sentencing.

But even having said that, the sentence suggested by defence counsel falls far below that range. [ 24 ] Having carefully considered the principles of sentencing set out in both the Criminal Code and in The Controlled Drugs and Substances Act , and the applicable case law, I am satisfied that the circumstances of this offender are sufficiently exceptional so as to allow me to impose a sentence outside of the range normally considered for an offence of this nature.

I am satisfied that a sentence of 90 days is of sufficient length to recognize the offender’s role in this offence, and represents a balancing of deterrence and rehabilitation. [ 25 ] I am also satisfied that allowing this sentence to be served intermittently will address principles of sentencing while at the same time allowing the offender to continue her employment. [ 26 ] This sentence is one which is “outside the norm.” The circumstances of this offence and the circumstances of this offender warrant this finding.

Other offenders should not automatically expect the same result. [ 27 ] The sentence for the charge of failing to comply with an undertaking is one of one day, being her appearance in Court [ 28 ] The accused must report this Friday May 13, 2016 and serve a sentence until Sunday and on each weekend until the sentence is completed.

While serving this sentence the offender will be the subject of a probation order requiring that she keep the peace and be of good behaviour. [ 29 ] Following the completion of the intermittent sentence, the accused will be the subject of a two year probation order with the following conditions:

a) Keep the Peace and be of Good Behaviour;

b) report immediately upon her release to her probation officer and thereafter as directed;

c) attend, participate and complete any assessments, counselling or programming as directed to do so by your probation officer;

d) complete 75 hours of community service work at the time and place as directed to do so by your probation officer. This work is to be completed within the first 12 months of the order [ 30 ] The accused will be the subject of a mandatory weapons prohibition pursuant to Criminal Code s.109 for a period of 10 years.

[ 31 ] There will be an order of forfeiture of all of the items seized. [ 32 ] The accused will be required to provide a sample suitable for DNA analysis within the next 30 days. [ 33 ] Under the circumstances the offender will be required to pay costs of $2 and a total surcharge of $300 and she will be given one year to do so. “Original signed by” MARY KATE HARVIE P.J.