Her Majesty the Queen - v. -, 2015 SKPC 28

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 028 Date: February 24, 2015 Information: 31082371 & 31082373 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Douglas Emerald Arthur McBride Appearing: Suzanne Young For the Crown Estes Fonkalsrud For the Accused SENTENCING DECISION M. GORDON , J [ 1 ] Douglas Emerald Arthur McBride is charged with the following: On or about the 21 st day of August 2012, at or near Moose Jaw, Saskatchewan did unlawfully have in his possession a controlled substance namely cocaine, a substance included in

Schedule I for the purposes of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act ; and On or about the 21 st day of August 2012, at or near Moose Jaw, Saskatchewan did unlawfully have in his possession a controlled substance namely methylenedioxyamphetamine, a substance included in

Schedule III for the purposes of trafficking contrary to s. 5(2) of

the Controlled Drugs and Substances Act . [ 2 ] Both counts are indictable, and originally Mr. McBride elected Queen’s Bench judge without a jury. However, on February 11, 2014, Mr. McBride re-elected, with the Crown consent, to be tried in Provincial Court. [ 3 ] On July 29, 2014, guilty pleas were entered to both charges before the Court.

Sentencing was adjourned from time to time, and a pre-sentence report and electronic monitoring report and update were ordered and both were available to the Court at the time sentencing submissions were made on January 29, 2015. [ 4 ] The Crown submitted that a sentence of incarceration of 14 to 18 months concurrent on each charge is the appropriate sentence. The defence submitted that a sentence pursuant to s. 742.1 of the Criminal Code , a conditional sentence order is in order in the range of 18 months to two years less a day is the appropriate sentence.

There was agreement between counsel that the ancillary orders for DNA sample, forfeiture of proceeds and an order under s. 109 be granted. Therefore the only issue is whether Mr. McBride should be allowed to serve his sentence of incarceration in the community pursuant to a conditional sentence order. In other words, is a conditional sentence order consistent with the purposes and principles of sentencing? [ 5 ] The Crown outlined the circumstances of the offence as follows. On August 21, 2012, the police obtained a search warrant and searched the accused’s residence.

The police found baggies of marihuana and drug paraphernalia and an open bottle of glucosamine tablets. In the accused’s bedroom there was a large bag of cannabis marihuana. On the coffee table there was a 144.3 grams of marihuana, 13 grams of MDMA powder, some other small baggies, blotter paper and LSD. There was cash in the amount of $2,154.10 in the bedroom. In Mr. McBride’s bedroom there was also 16.6 grams of cocaine at a value of roughly $1,600.00 on a night stand by Mr. McBride’s bed. The police estimate the value of the drugs and the cash to be about $6,300.00. [ 6 ] Mr.

McBride has a criminal record which was acknowledged and filed with the Court. In 2009, in Youth Justice Court he was convicted of trafficking in a

Schedule II substance under s. 5(1) of the CDSA and received six months deferred custody and supervision order and a mandatory prohibition order under s. 51(1) of the YCJA . He was also convicted of possession of property obtained by crime and possession of a

Schedule II substance, and failed to comply with an undertaking. He received the same sentence concurrent on all charges. [ 7 ] Mr. McBride has been on a recognizance since August 22, 2012, with stringent conditions. Mr. McBride has complied with these conditions over the course of the past two and a half years.

These conditions include the following: - keep the peace and be of good behaviour; - report forthwith to the bail supervisor and thereafter as required; - refrain from the consumption of alcohol or illegal non-prescription drugs and submit to breath, blood or urine testing on demand of a peace officer or bail supervision officer; - maintain a daily curfew by being in your place of residence from 10:00 p.m. and remaining there until 7:00 a.m. the following morning; - present yourself in person to any bail supervision officer or peace officer checking curfew; - not to possess any illegal, non-prescription drugs, shall not possess more than one cell phone or pager or Blackberry, or any other mobile electronic communication device and to provide the number to the Moose Jaw police; - to permit a search by a peace officer on demand without warrant or reasonable grounds of his person, vehicle, place of residence which he owns, controls or possesses but such search is limited to four times a month; and - to carry a copy of this release document on him at all times. [ 8 ] The Crown recognizes that the pre-sentence report concludes that a community based disposition would be an option and there is an electronic monitoring unit available.

The report indicates Mr. McBride has made some efforts at rehabilitation. However the

Crown is not convinced that Mr. McBride is an addict. The Crown suggests that Mr. McBride was involved in a more sophisticated scheme for profit and the amount of money seized was certainly considerably more than a street level dealer to support his habit. The Crown points out that the types of drugs found, the amount of drugs found, the other paraphernalia such as cutting agents, baggies and scales, all point to a sentence of actual incarceration. The other factors the Crown emphasizes are that Mr.

McBride was not accepted into Drug Treatment Court, that he has a youth record and that there is some question as to the extent of Mr. McBride’s addiction. The Crown suggested that the sentencing range in Saskatchewan for similar offences is between 18 months and four years. The Crown noted and filed the following cases: R v McIntyre , 2012 SKCA 111 ; R v Leitner , 2013 SKQB 1 ; and R v Dexter , 2013 SKQB 18 . [ 9 ] The Crown filed the case of R v McIntyre , 2012 SKCA 111 [ McIntyre ], in support for their position as to incarceration.

In McIntyre the Court of Appeal confirmed the importance of deterrence and denunciation in crafting sentences for drug trafficking. The Court stated the sentencing judge must look at the application of the sentencing principles with respect to the particular circumstances of the offence and personal circumstances. In the McIntyre case the period of incarceration was reduced from 14 months to 10 months.

The Court also stated that in cases involving offenders who traffic solely for profit the personal circumstances of an offender should not be overemphasized and certainly other sentencing factors must be considered. [ 10 ] In considering those decisions the Crown suggests that deterrence and denunciation are the paramount sentencing principles and that the personal circumstances of the accused cannot be overemphasized to the exclusion of other sentencing factors. [ 11 ] The defence did not have any disagreement with the circumstances as presented by the Crown.

However, the defence asked the Court to draw different conclusions from the circumstances. The defence points out that the pre-sentence report notes that Mr. McBride used drugs, has blacked out from drugs and he has had withdrawal symptoms. Mr. McBride gave a statement to the police acknowledging that he made $300.00 to $400.00 per week selling drugs. His mother gave him $1,000.00 a week just prior to the date of this offence to return to British Columbia. Mr. McBride had not worked in 2012 at all. The defence suggests that Mr.

McBride’s prior record under the CDSA and the impaired driving charge, although they were all as a youth, certainly substantiate the fact that Mr. McBride had a substance abuse problem. [ 12 ] The defence also notes that Mr. McBride’s drug use certainly increased when he was in grades 9 and 10 to hard drugs in 2008 and 2009 when he was using ecstasy, oxycontin and cocaine. This escalated in 2010, 2011 and 2012 when he was using cocaine. Again the defence says that Mr. McBride’s record from 2009 was the beginning of the drug use. [ 13 ] At the time of Mr.

McBride’s arrest, he says he had spoken to his family about getting out of Moose Jaw and going to school somewhere else so that he could get away from the drug scene. Since 2012 it appears Mr. McBride has done well and almost completed a business diploma and has been accepted into the University of British Columbia in a degree program in science. Mr. McBride is young and has been on his own as his father has significant health issues and his mother received serious injuries in an airplane accident some years ago. Mr.

McBride has been taking positive steps to turn his life around and has been doing volunteer work as well as recently obtaining some employment. He has been on these release conditions with no problems. He started attending Narcotics Anonymous meetings. Currently Mr. McBride has a stable residence that is suitable for an electronic monitoring device. The defence filed approximately 30 letters of reference from employers, co-workers and friends. All of which state Mr.

McBride is a pleasant, capable young man who has made significant changes in his life the past few years and has made considerable progress separating himself from the illegal drug activities. He is referred to as a good, reliable worker, a good friend, a helpful, considerate person who is willing to help out fellow students when they are having difficulties. [ 14 ] Finally the defence agrees that the Court of Appeal has indicated that the range of sentencing for these type of charges is between 18 months and four years. At the time of the offence, a conditional sentence was still available.

The defence suggests a sentence of 20 months to two years less a day with strict conditions including electronic monitoring for a significant portion of the sentence. The defence points out the serious consequences if the accused breaches any of the conditions and therefore a conditional sentence can satisfy the principles of denunciation and deterrence. [ 15 ] The defence filed a binder of 26 cases for the Court to consider. The Saskatchewan cases are from all levels of Court in this province.

The binder also contains several cases from Alberta and British Columbia Provincial Court and Court of Appeal. [ 16 ] The issue that the Court must decide is what is the appropriate sentence for this accused having regard to the range of sentences for cocaine trafficking in Saskatchewan. Both parties are in agreement that a period of incarceration is required. However, the defence takes the position that a conditional sentence order is in order.

ANALYSIS [17] The Saskatchewan Court of Appeal has clearly stated that for trafficking in cocaine, a “hard drug”, the sentencing range is 18months to four years incarceration except in special circumstances. This is noted and summarised by Judge Baniak in the case of R vDanny Fiddler Jr., 2013 SKPC 103, where at paragraphs 11 to 14, he states as follows: Over the course of the last twenty years, our Court of Appeal, starting with R. v. Goy (1992), (SK CA), 105 Sask. R.131, where Mr.

Justice Cameron remarked that for an offence of this type, “The usual range is in the order of one and a half to fouryears”, to R. v. Shawile, 2012 SKCA 51, has maintained that the starting point should be 18 months. On occasion, the Court of Appeal has departed from this range and imposed lesser sentences - R. v. Faubert (1999), (SK CA), 152 Sask. R. 228; R. v. Larivier, 2006 SKCA 40 and R. v. McIntyre, 2012 SKCA 111, come to mind. On rare occasions, the Court of Appeal has upheld conditional sentences for trafficking: R. v. Laliberte, 2000 SKCA 27; R. v. Keepness,2000 SKCA 28 and in R. v.

Von Hagen, 2008 SKCA 123, it substituted a conditional sentence for a jail sentence. More recently, theCourt of Appeal in R. v. McCallum, CACR 2226, April 10, 2013 and R. v. Martin, CACR 2253, June 4, 2013 (in R. v. Martin theconditional sentence order increased from 20 months to two years less one day), rendered consent judgments where the conditionalsentences were upheld with additional terms and conditions being added. Lower courts in this province have also imposed conditional sentences from time to time. [18] The Crown referred to the case of R v McIntyre, 2012 SKCA 111 in support of its position.

At paragraph 36, Richards J.A.speaking for the Court, states as follows: The reality is that the Court has stressed the importance of deterrence and denunciation in crafting sentences for drug traffickingoffences. As a result, it has long taken the position that a conviction for trafficking in a “hard” drug, such as cocaine, should generallyattract a significant jail sentence. See, for example: R. v. Ruda (1992), (SK CA), 100 Sask. R. 159 (Sask. C.A.); R. v.Dubai, 2008 SKCA 49 , 310 Sask. R. 85 at para. 5.

Several decisions of the Court have identified a sentencing range of 18months to four years as being applicable for the offence of trafficking in cocaine. See, for example: R. v. Shawile, supra at para. 13; R. v.Aube, 2009 SKCA 53 , 324 Sask. R. 303 at para. 19; R. v. McCallum, 2007 SKCA 139 , 302 Sask. R. 298 at para. 12.... [19] At paragraph 37, Richards J.A. states: All of these points having been made, it must also be stressed that determining an appropriate sentence for trafficking (like determiningan appropriate sentencing for any other offence) involves more than the application of a fixed tariff.

As required by s. 718.1 of theCriminal Code, a fit sentence must, at bottom, be proportionate to the gravity of the offence and the degree of responsibility of theoffender. Moreover, a fit sentence must appropriately take account of the relevant sentencing considerations identified in the otherprovisions of the Code and CDSA. Thus, not surprisingly, this Court has itself imposed sentences outside of the 18 month to four year jailterm range in light of the particular circumstances of individual cocaine trafficking offences. See: R. v. Von Hagen, 2008 SKCA 123, 314 Sask. R. 77; R. v. Ruda, supra; R. v.

Sinnott, 2001 SKCA 13 . See also: R. v. Laliberte, 2000 SKCA 27 ,143 C.C.C. (3d) 503. Again, the sentencing judge considered, and was aware of, the key cases in this regard. [20] Of course other cases come to mind as well; such as R v Dubai, 2008 SKCA 49; R v Gaveronski, 2002 SKCA 7 and R vPankewich, 2002 SKCA 7 [Pankewich]. Madam Justice Jackson in Pankewich, where the Court of Appeal overturned a conditionalsentence as being unfit in the circumstances of that case, wrote at paragraph 49: ... conditional sentences are available for those who traffic in hard drugs.

Fitness of sentence in such cases will depend on a wide varietyof factors including: 1. the sophistication and significance of the offence and the accused’s place in it; 2. the type and quantity of drug;

3. the motivation for the offence: those who traffic to support their own habit may be more likely to receive a restorative disposition than those who traffic for other reasons; 4. the need for and the utility of the deterrence which will be provided by the sentence imposed; 5. the factors relating to the community like the significance of the problem; and, 6. the age, lack of record and other personal circumstances of the accused. [ 21 ] A conditional sentence order is an available sentencing option as s. 35 of The Safe Streets and Communities Act does not apply to offences committed before November 6, 2012.

However I conclude from the circumstances of the offences and the review of the relevant sentencing cases that a period of imprisonment is warranted. The defence counsel does not dispute this position. The Crown does not dispute that a sentence of less than two years is in order. After a careful review of the relevant case law, I am satisfied that the appropriate period of imprisonment is indeed less than two years. Therefore as stated previously the only issue is whether it would be appropriate to allow Mr.

McBride to serve his sentence in the community under a conditional sentence order. [ 22 ] Pursuant to s. 742.1 of the Criminal Code , the sentencing judge may allow a person to serve a sentence of imprisonment in the community if the judge is satisfied that: doing so would not endanger the community and doing so would be consistent with the fundamental purposes and principles of sentencing. [ 23 ] The first consideration is whether the community would be endangered if Mr. McBride were allowed to serve a term of imprisonment in the community.

This requires the Court to consider the possibility of re-offending and the seriousness of any potential re-offending. The pre-sentence report indicates that Mr. McBride is assessed as a medium risk to re-offend. He was released on bail with strict conditions over two years ago and there have been no reported breaches of those conditions. The pre-sentence report indicates that Mr. McBride has disassociated himself from his negative peer group in Moose Jaw in the past couple of years, and in fact has been attending college in the Okanagan and has almost completed a business diploma. Finally Mr.

McBride has taken steps to obtain help for his drug addiction and is willing to continue with such efforts. There were approximately 30 letters of character reference filed with the Court. These letters indicate that Mr. McBride is a pleasant, hardworking young man who is trying to get his life in order. [ 24 ] Therefore, all things considered I am satisfied that there is a substantial likelihood that Mr. McBride would comply with the conditions of a conditional sentence order with appropriate conditions.

As a result I am satisfied that allowing him to serve his sentence in the community would not endanger the community. [ 25 ] Of course the more difficult question is whether a conditional sentence would be, in this particular case, consistent with the fundamental purposes and principles of sentencing as set out in s. 718 to 718.2 of the Criminal Code .

Section 10 of the Controlled Drugs and Substances Act also sets out sentencing considerations of a similar nature.

Section 718 of the Criminal Code says the fundamental purpose of sentencing is to contribute to respect for the law and maintenance of a just, peaceful and safe society by imposing sanctions which have one or more of the following objectives: - denouncing unlawful conduct; - deterring both the offender being sentenced and other persons from committing the offence; - separating offenders from society where necessary; - rehabilitating offenders; - providing reparations for harm done to victims and to the community; and - promoting a sense of responsibility in offenders and an acknowledgement of harm done in the community. [ 26 ] The relative emphasis placed on each of these factors varies according to the circumstances of the offence and the offender in each particular case. [ 27 ]

Section 718.1 identifies proportionality as the fundamental principle of sentencing. A sentence must be proportionate to the

gravity of the offence and the degree of responsibility of the offender. [28] I find it useful to identify the aggravating and mitigating factors with respect to Mr. McBride in analysing the type of sentencethat is appropriate. The aggravating circumstances are: - cocaine and MDMA are hard drugs; - the amount of drugs; - the presence of drug paraphernalia; including scales, baggies and a cutting agent; and - the criminal record of the accused including possession and trafficking charges as a youth. [29] The mitigating factors are: - Mr.

McBride is young (22 years of age) and not quite 20 at the time of the offences; - restrictions were placed on Mr. McBride at the time of his release and there have been no reported breaches over the past almost twoand a half years; - he has actively distanced himself from his former associates in Moose Jaw; - he has almost completed a business degree at Okanagan College in British Columbia; - he has future plans to go to the University of British Columbia; - the pre-sentence report assesses him as a medium risk to re-offend and that in the report writer’s opinion, Mr.

McBride is prepared toaddress his risk factors which led to this offence; - at the time of the offence, Mr. McBride was selling to support his own addiction as well as to support himself; - there are other indicators through letters of reference from teachers, friends, co-workers and students that he has in fact made positivechanges to his life, that he is a capable, kind young man and is employable. [30] The pre-sentence report indicates that Mr. McBride disclosed that he consumed alcohol throughout his teenage years to thepoint of intoxication.

However, he stated alcohol was not a problem for him at school and he never missed classes due to a hangover. Itis noted that he has a conviction of driving over .08 in 2008. He says the last time he used alcohol was in April of 2014. [31] Mr. McBride also reports he used cannabis marihuana for many years daily or often several times a day. He stated heexperienced some withdrawal symptoms when he quit such as difficulty sleeping and eating. At the time of this offence in 2012, hestates he was a regular cocaine user. He has struggled to entirely abstain from cocaine use over the past year but has had some slips.

Hesays he was addicted to oxycontin for two years as well. In the spring of 2014, Mr. McBride through his counsel made an application tobe admitted into Drug Treatment Court. He was not accepted and the record indicates he withdrew his application. As stated previouslyMr. McBride has suggested to the Court that his sentence of incarceration be served in the community under a conditional sentenceorder. I thought it useful after reviewing the case law specific to drug sentencing to reread R v Proulx, 2000 SCC 5 [Proulx], and thediscussion in the case concerning conditional sentences.

Lamer C.J. starts out by stating at paragraph 1 as follows: By passing the Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof, S.C. 1995, c. 22 (“Bill C-41”),Parliament has sent a clear message to all Canadian judges that too many people are being sent to prison.

In an attempt to remedy theproblem of over incarceration, Parliament has introduced a new form of sentence, the conditional sentence of imprisonment. [32] Lamer C.J. goes on to refer to the fact that two of Parliament’s principle objectives in enacting the new legislation were toreduce the use of prison as a sanction and extend the use of restorative justice principles in sentencing (R v Gladue, (SCC), [1999] 1 SCR 688). The Court further notes that where there is a need for both a punitive and restorative justice approach inmany instances a conditional sentence order is the better sentence.

The Court further notes that Parliament intended a conditional

sentence to be more punitive than a suspended sentence with probation so that a conditional sentence restricts an offender’s liberty. As well, the Court notes that in general the more serious the offence, the longer and the more onerous a conditional sentence should be. [ 33 ] At paragraph 102 and 107 in Proulx , the Court discusses the meaning of deterrence and denunciation and various ways these objectives can be achieved.

At paragraph 107, Lamer C.J. summarises his thoughts on this and states in part as follows: Incarceration, which is ordinarily a harsher sanction, may provide more deterrence than a conditional sentence. Judges should be wary, however, of placing too much weight on deterrence when choosing between a conditional sentence and incarceration: see Wismayer , supra , at p. 36. The empirical evidence suggests that the deterrent effect of incarceration is uncertain: see generally Sentencing Reform: A Canadian Approach , supra , at pp. 136-37.

Moreover, a conditional sentence can provide significant deterrence if sufficiently punitive conditions are imposed and the public is made aware of the severity of these sentences. There is also the possibility of deterrence through the use of community service orders, including those in which the offender may be obliged to speak to members of the community about the evils of the particular criminal conduct in which he or she engaged, assuming the offender were amenable to such a condition. Nevertheless, there may be circumstances in which the need for deterrence will warrant incarceration.

This will depend in part on whether the offence is one in which the effects of incarceration are likely to have a real deterrent effect, as well as on the circumstances of the community in which the offences were committed. [ 34 ] And, at paragraph 106, Lamer C.J. talks about denunciation as follows: The amount of denunciation provided by a conditional sentence will be heavily dependent on the circumstances of the offender, the nature of the conditions imposed, and the community in which the sentence is to be served.

As a general matter, the more serious the offence and the greater the need for denunciation, the longer and more onerous the conditional sentence should be. However, there may be certain circumstances in which the need for denunciation is so pressing that incarceration will be the only suitable way in which to express society’s condemnation of the offender’s conduct. [ 35 ] At paragraph 127, Lamer C.J. summarises the points that he has been making. Some of these I have already referred to above and will quote only the following points: 7.

Once the prerequisites of s. 742.1 are satisfied, the judge should give serious consideration to the possibility of a conditional sentence in all cases by examining whether a conditional sentence is consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 . This follows from Parliament’s clear message to the judiciary to reduce the use of incarceration as a sanction. 11. A conditional sentence may be imposed even where there are aggravating circumstances, although the need for denunciation and deterrence will increase in these circumstances. 12.

No party is under a burden of proof to establish that a conditional sentence is either appropriate or inappropriate in the circumstances. The judge should consider all relevant evidence, no matter by whom it is adduced. However, it would be in the offender’s best interests to establish elements militating in favour of a conditional sentence. 13. Sentencing judges have a wide discretion in the choice of the appropriate sentence. They are entitled to considerable deference from appellate courts.

As explained in M. (C.A.) , supra , at para. 90: “Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit”. [ 36 ] As I have mentioned, it is clear that our Court of Appeal has sent a clear message that incarceration is the norm for trafficking in hard drugs. However, it is clear that there have been sentences that have used the conditional sentence provisions upheld by the Court of Appeal or Court of Queen’s Bench.

For example in R v Marciszyn , 2013 SKPC 46 , the conditional sentence for one charge of trafficking in cocaine was an 18 month conditional sentence order. The Court of Appeal on September 3, 2013 at CACR 2291, increased this sentence to two years less a day to be served under a conditional sentence order with additional conditions to enhance the Court’s control over the offender. Likewise in an earlier case of R v Wadd , November 8, 2007, from the Court of Appeal, the Court increased a 12 month conditional sentence to one of two years less a day and increased the community service hours from 50 to 150.

There certainly are many trial level decisions indicating that there are still many situations when looking at all the circumstances and applying the sentencing principles that a conditional sentence is in order. I have referred to the circumstances of these offences and summarised what I found to be aggravating and mitigating factors with respect to these matters. I agree that some form of incarceration is necessary and I

also agree that denunciation and deterrence are the principle sentencing objectives. Everywhere we turn drugs such as cocaine and ecstasy are wreaking havoc with people’s lives and their families. Many of the situations we see in this Court are offenders who are also addicted to the drug and have the drug to support their addiction as well as to sell to support themselves. [ 37 ] I am persuaded that this young man has started addressing his addiction problems. He certainly has been honest as opposed to the offender, Mr. Dubai ( R v Dubai , supra ), where Mr.

Dubai did not advise the Court of a conviction for simple possession while he was awaiting sentencing on other more serious drug charges. Mr. McBride has separated himself from negative friends and acquaintances. He did this by leaving Moose Jaw and attending college in British Columbia. His mother and him own a house in the Okanagan. He has almost completed a business diploma at Okanagan College. He has plans to pursue a science degree at the University of British Columbia. Mr. McBride has a record for possession and trafficking in drugs as a youth. In 2009 he would have just been 16.

He was 16 at the time of conviction. In 2008 he was convicted of driving over .08 and received a $500.00 fine and a one year driving prohibition. [ 38 ] I agree with defence counsel that these are indications and confirmation that Mr. McBride has struggled with alcohol and drugs since he was a teenager. Defence counsel told the Court and the pre-sentence report also refers to these facts that Mr. McBride’s father is seriously ill and his mother was injured in an accident some years ago and is on permanent disability. As a result, Mr.

McBride has been on his own, perhaps not financially, but with respect to the lack of guidance and accountability in his late teens. Mr. McBride appears to have some insight into his behaviour. He recognizes he took advantage of people and justified his actions to himself. The PSR says he acknowledged that some of his friends are still in the drug scene and he describes this as “it’s just stupid”. [ 39 ] Mr. McBride was not accepted into the Moose Jaw Drug Treatment Court program. As a result, he withdrew his application.

The Crown suggests that this should indicate that he is not sincere about abstaining and that he was more engaged in a commercial operation. However, I am not prepared to draw any conclusion from that application. He expressed an interest in the Drug Treatment Court program and when he was told he would not be accepted, he withdrew his application. That is all that can be said. [ 40 ] Mr. McBride has been on release conditions since August 22, 2012, which included a curfew, abstinence and search provisions.

The Crown states it is not aware of any problems and there have been no reported breaches. [ 41 ] In R v Chaves , 2002 SKQB 4 , McLellan J. at paragraph 26 notes that the accused facilitated the sale of a significant amount of cocaine and there was a large commercial element to the transaction although the accused only earned $1,000.00. In the accused’s favour was that he had no previous record. He had waived the preliminary inquiry and entered a guilty plea. Over the past three years Mr.

Chaves had made several changes in his life such as obtaining full-time employment, contributing to child support for his daughter and making an effort to avoid old associates. It is noted Mr. Chaves had the full support of his family and friends as evidenced by numerous letters of reference filed on his behalf. The pre-sentence report concluded that he was suitable for community supervision. In paragraphs 27 and 28, McLellan J. refers to the sentencing principles in s. 718.2 of the Code and specifically notes that the Court is required to consider sanctions other than imprisonment under s. 718.1 (

d) and (e). In the result the sentence was a conditional sentence order of two years less a day with several restrictive conditions. [ 42 ] In R v Williamson , 2011 SKPC 37 , Kalmakoff J. sentenced Ms. Williamson to 18 months under a strict conditional sentence order followed by 18 months of probation to assist in her continuing rehabilitation. Ms.

Williamson was being sentenced on charges of simple possession of marihuana in an amount exceeding 30 grams, possession of marihuana in an amount not exceeding 3 kilograms for the purposes of trafficking and possession of cocaine for the purposes of trafficking contrary to s. 5(2) of the CDSA . The case notes that the RCMP executed a search warrant at the residence of Ms. Williamson. There were six people in the residence including Ms. Williamson and three of those people had various quantities of marihuana or cocaine in their possession.

The police also located items suggestive of drug trafficking such as baggies, score sheets, electronic scales and cutting agents for cocaine. Ms. Williamson’s cell phone contained text messages consistent with drug trafficking activities. In total there was 120.2 grams of marihuana located and cocaine which appeared to be packaged for sale, being 7.5 grams of rock cocaine and one gram of loose powder cocaine. The street value of the drugs at the time was between $1,200.00 and $2,400.00. Ms. Williamson had significant amounts of cash in the house in three different locations; being $700.00, $1,040.00 and $500.00.

The score sheets suggested that Ms. Williamson was selling drugs in part to produce cash flow. Ms. Williamson had no previous criminal record in Canada. During sentencing, it was mentioned that she had a previous conviction for possession from the United States but there was no further details. [ 43 ] Judge Kalmakoff, in his usual thorough fashion, reviews the law and the current well known Saskatchewan Court of Appeal decisions. In particular he refers to Madam Justice Jackson’s comments in R v Pankewich , 2002 SKCA 7 .

He also referred to the case of R v Rahime , 2001 ABCA 203 , which upheld conditional sentenced in six different cases of individuals convicted of trafficking in cocaine on a “more than minimal scale”.

[ 44 ] I am of the view that in this case sufficient denunciation and deterrence can be achieved by way of a carefully crafted conditional sentence order with restrictive conditions. This will have the effect of separating Mr.

McBride from society albeit in his own home, his movements will be monitored, he will be required to take addictions programming, he will be required to give back to the community through community service hours, and he will be required and held accountable by having to supply a sample of breath, blood or urine on demand by a peace officer or supervisor without reasonable and probable grounds. [ 45 ] It must be remembered Mr. McBride is just 22 years of age and he is at college and plans to go to university.

This is a time in one’s life where social activities often play an important part and are enjoyed by the young person in their 20s. For a considerable period of time Mr. McBride will not be able to be absent from his home or out at a time when young people of that age go out to a club or party. Once Mr. McBride is allowed to have a less restrictive curfew, he still will not be allowed to drink or use drugs. Of course that is why the programming is so important and an essential part of this order. Mr. McBride has already started attending NA meetings.

For the most part he has voluntarily abstained from drugs and alcohol and he has indicated a willingness and a desire to continue to do so. The stakes are high for Mr. McBride. If he breaches, there are serious consequences and he risks having to serve the balance of the sentence in actual custody.

The sentence is certainly almost twice the length of what the Crown was asking for if he did straight jail time and finally, of course, if he does have to serve a sentence he does not get the benefit of any provisions of the parole scheme. [ 46 ] In the long term, in my view, a sentence such as this is in society’s best interest and ensures the long term safety and protection of society. As a society we want to stop the sale and use of drugs. In my view, this can only be done by people changing and embracing a positive and productive lifestyle.

People need skills, they need education and they need to have the desire to change and feel that it is beneficial to do so. Therefore, for the reasons given above, I sentence Douglas Emerald Arthur McBride to a period of incarceration of two years less one day to be served in the community pursuant to a conditional sentence order under s. 742.1 of the Criminal Code , with the first eight months on electronic monitoring. The conditions are attached in Appendix A. [ 47 ] The sentence will be concurrent for each offence. [ 48 ] The victim surcharge given the date of these offences is discretionary.

There is no evidence to suggest it would constitute undue hardship for Mr. McBride and therefore I order Mr. McBride to pay the victim surcharge pursuant to s. 737 of the Criminal Code of $200.00 by August 31, 2015. [ 49 ] There will also be an order pursuant to s. 487.051 of the Criminal Code authorizing the taking of a DNA sample from Mr. McBride. The defence counsel consented to this and in any event I would have made the order. I have considered the serious nature of the offences, the circumstances and the important role of DNA analysis in law enforcement.

In my view these outweigh any minimal impact that such an order presents to Mr. McBride’s privacy and security of person. For that reason I am satisfied that it is in the best interests of justice to make the order. Mr. McBride is ordered to attend the Moose Jaw Police Station by Wednesday, February 25, 2015 at 4:00 p.m. to provide the said sample of bodily substance in compliance with the Criminal Code provision. Pursuant to s. 109 of the Criminal Code , Mr.

McBride is prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, any ammunition, any prohibited ammunition or explosive substance for a period of ten years from the date of this order. Finally, it is hereby ordered pursuant to the provisions of the Criminal Code , to which Mr. McBride has consented, that all drugs, drug paraphernalia and cash seized from Mr.

McBride’s residence be forfeited to the Crown for disposal at the end of the appeal period as I am satisfied that these items are offence related property within the meaning of the section. _____________________ M. Gordon, J