Her Majesty the Queen - v. -, 2013 SKPC 56

IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT Citation: 2013 SKPC 056 Date: March 21, 2013 Information: Y379568 & Y379569 Location: La Ronge _____________________________________________________________________________ Between: Her Majesty the Queen - and - B. L.

Appearing: Brent Slobodian For the Crown Susan Ryan For the Accused Note: Sections 110 and 111 of the Youth Criminal Justice Act contain prohibitions against publication of a name or other information that would identify someone as either a young person being dealt with under the Act , or as a child or young person who is a victim or a witness in relation to an offence alleged under the Act. JUDGMENT R. J. LANE , J [ 1 ] B. L. was convicted after a trial held in La Ronge on February 21, 2013, of:

Information Y379568: Possess a substance included in

Schedule I, to wit, cocaine for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act , as well as, Information Y379569: Count 1- While bound by a youth probation order made by the Honourable Judge W. K. Tucker, of Saskatchewan Youth Court on the 20 th day of August, 2012, did wilfully fail to comply with such order, to wit, keep the peace and be of good behaviour, contrary to s. 137 of the Youth Criminal Justice Act, and Count 2- While bound by a youth probation order made by the Honourable Judge W. K.

Tucker, of Saskatchewan Youth Court on the 20 th day of August, 2012, did wilfully fail to comply with such order, to wit, not attend within the Province of Saskatchewan unless with the prior permission of the Court, contrary to s. 137 the Youth Criminal Justice Act. [ 2 ] The issue before the Court is whether Mr. L. can be sentenced to a custodial disposition pursuant to s. 39(1)(

d) of the Youth Criminal Justice Act . It has been conceded by the Crown, and I have found that with this not being a violent offence, and with his limited criminal record, Mr. L. is not subject to custody under either sections 39(1)(a), (b), or (c). The Ontario Court of Appeal in R. v. R.E.W. , provided some guiding principles on the use of s. 39(1)(

d) in the following quote: [1] The theme that runs through use of the term “exceptional” in both criminal case law and legislation, is that it is intended to describe the clearest of cases. Such cases include those where applying the normal rules would undermine the purpose of the legislation, where the exercise of the unusual power is necessary or required, and where the exercise of the unusual jurisdiction is capable of explanation. The wording of s. 39(1)(

d) is consistent with this approach. The exceptional power to commit a young person to custody is reserved for those circumstances where, in effect, any other order would undermine the purpose and principles of sentencing set out in s. 38. The analysis of s. 39(1)(

d) must be set against the background of s. 38, which stresses the importance of interfering with a young person’s liberty as little as possible. [ 3 ] That decision went on to summarize that the

section must be narrowly interpreted because sections 39(1)(a), (

b) and (

c) already encompass most cases where custody would be expected. In addition, section 39(1)(

d) is focussed solely on the circumstances of the offence, not the character or history of the offender. The circumstances of the offence must be so aggravating that nothing less than custody will satisfy the principles of sentencing contained in s. 38. The scheme of the YCJA suggests that the circumstances must be so extreme that, “anything less than custody would fail to reflect societal values”. An example would be when circumstances of the offence are shocking to the community. [ 4 ] Also the Supreme Court of Canada in R. v.

B.W.P. , [2] clearly states that general deterrence is not a sentencing factor to be considered by a Court when dealing with a charge under the YJCA . [ 5 ] There are numerous decisions from across Canada that deal with the application of s. 39(1)(

d) of the YCJA , particularly in cases that involve a conviction for possession for the purposes of trafficking or actual trafficking contrary to s. 5(1) of the CDSA , such as the case we have with Mr. L. [ 6 ] R. v. T. (C.S.) , was a case where larger quantities of more dangerous drugs were involved, more money was seized, and evidence existed of a more structured drug trafficking operation than in the present case.

The Court held in that case at paragraph 20 that: [3] While I am obliged to the Crown for calling Officer Novak to provide insight in regard to this particular drug, its derivative and impact on our community, it seems to me that what we are dealing with in this case would equate to ordinary trafficking for lack of a better description. I don’t wish to minimize crack cocaine’s destructive nature and the dangers associated with its presence, use and distribution.

But there is nothing I am able to glean from these facts that would place this particular offence within the category of an exceptional case. [ 7 ] Also, the 2004 decision out of Ontario of R. v. F. (J.) , [4] granted a conditional discharge to a youth who sold 83.32 grams of

cocaine to undercover officers for $4,250.00. [ 8 ] On the other side of the coin we have a number of cases where s. 39(1)(

d) of the YCJA was applied, resulting in custodial dispositions for a youth. [ 9 ] R. v. L. B. , [5] involved a youth convicted of possession for the purposes of trafficking of cocaine. That youth had no prior record. He was part of a “Dial-a-Dope” drug trafficking scheme that was large and well organized. The quantity of the cocaine involved in this case was about 3.8 grams of crack cocaine as well as 0.35 grams of cocaine powder. The street value was approximately $480.00. This youth was sentenced to a six month deferred custody order. This case differs from Mr.

L.’s case in that this case involves a larger, more well organized operation than the evidence that was presented to describe Mr. L.’s operation. [ 10 ] R. v. J. B. , [6] involved a youth trafficking in heroin. He had served nine months pre-trial custody. He had sold in excess of $10,000.00 worth of heroin on 13 different occasions. He had no prior criminal record and was sentenced to a three month deferred custody order. [ 11 ] The decision of R. v. M. Q. , [7] was a case of a youth trafficking in heroin and cocaine. This youth had no record.

The youth concentrated his sales mostly on a geographic area that was frequented by youth. The Court found that the very existence of cocaine and heroin in the trafficking operation was itself an aggravating factor. Of greater significance though, is how strongly the Court viewed trafficking cocaine in areas frequented by youth. Judge K.

Skilnick stated “I am satisfied that the trafficking in hard drugs in this community in a location frequented by so many vulnerable youth, ought never be considered to be routine or usual.” This youth was sentenced to a six month deferred custody order followed by 12 months probation. [ 12 ] It seems then that the following are factors the courts look at when considering a sentence on s. 5(1) of the CDSA : 1) Quantity - in this case Mr. L. had 76 grams of cocaine. According to Cst.

Cam Graves, who was qualified as an expert to testify on the characteristics of a drug operation as well as street values, the value of this much cocaine would depend on the quantities sold at a particular time. He indicated that if it was sold by the ounce, the value would be between $3,800.00 and $5,050.00. He indicated that if it was sold at the 3.5 gram level, the street value would be between $5,500.00 and $6,600.00. He indicated that if the cocaine was sold by the gram, the street value would be between $6,080.00 and $7,600.00. Suffice to say that the amount of cocaine that Mr.

L. had possession of was significant. 2) The role of the accused in the trafficking operation - in this case the evidence would seem to indicate that Mr. L. was the one and only person involved, although one would certainly suspect the driver of the motor vehicle knew what was going on. 3) Sophistication and size of the operation - the evidence seemed to indicate a fairly unsophisticated operation being conducted out of the back seat of a vehicle. 4) The impact on the community - cocaine has a huge impact on small northern communities.

Over my 34 years as a defence lawyer, Crown prosecutor and judge, the most violent crimes I ever saw almost always involved ingestion of cocaine together with alcohol. 5) Type of drug involved - this was cocaine, and as indicated in the decision of R. v. M.Q. , the fact that cocaine is the drug being trafficked, is in itself an aggravating factor. 6) The presence of weapons - there were no weapons in this case.

7) Previous criminal record - in this situation the accused had one prior conviction of possession for the purpose of trafficking in cocaine, although under s. 39(1)(

d) the criminal record of the accused is in general, not to be considered. 8) Is the area of the drug trafficking activity frequented by young people - in my years of living in the Town of La Ronge, Saskatchewan, I easily conclude that Kikinaahk Friendship Centre is the most popular gathering place for older children and adolescents in the district.

It is here that the accused was cruising around in his vehicle with the cocaine in the back seat. 9) Was the accused motivated by financial gain or the need to feed an addiction - while the accused was found with one package of cocaine on his person, he also had $660.00 cash. There was no evidence that this activity of the accused was designed in order to feed an addiction to cocaine.

That being said, I am convinced beyond a reasonable doubt that the prime motivation behind the drug trafficking was financial gain. [ 13 ] So, the issue here is whether there is something about the circumstances of this offence, as opposed to the character or the history of the offender, that are so aggravating that nothing less than custody will satisfy the principles of sentencing set out in s. 38 of the YCJA .

In other words, is this a case where anything less than custody would fail to reflect societal values, or would a non-custodial disposition shock the community of La Ronge and district in particular, and the people of Saskatchewan in general. [ 14 ] Section 38(1) sets out the purpose of sentencing options under s. 42 as follows: 38.

(1) The purpose of sentencing under

section 42 (youth sentences) is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public. [ 15 ] Sections 38(2)(

a) to (

d) give general guidance to a sentencing Court as follows:

(2) A youth justice court that imposes a youth sentence on a young person shall determine the sentence in accordance with the principles set out in

section 3 and the following principles: (

a) the sentence must not result in a punishment that is greater than the punishment that would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances; (

b) the sentence must be similar to the sentences imposed in the region on similar young persons found guilty of the same offence committed in similar circumstances; (

c) the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence; (

d) all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons, with particular attention to the circumstances of aboriginal young persons. [ 16 ] Then s. 38(2)(

e) sets out what a sentence MUST be: (

e) subject to paragraph (c), the sentence must

(

i) be the least restrictive sentence that is capable of achieving the purpose set out in subsection (1), (ii) be the one that is most likely to rehabilitate the young person and reintegrate him or her into society, and (iii) promote a sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community. [ 17 ] Section 38(3) sets out just what a youth justice court shall take into account:

(3) In determining a youth sentence, the youth justice court shall take into account (

a) the degree of participation by the young person in the commission of the offence; (in this case it looks like Mr. L. is the only player, other than perhaps the involvement of his driver.) (

b) the harm done to victims and whether it was intentional or reasonably foreseeable; (as previously indicated in this decision I have practiced criminal defence work in northern Saskatchewan for over 33 years and substances such as cocaine have inflicted upon users, their families and others, a devastating effect. Mr. L. should have been able to foresee that effect.) (

c) any reparation made by the young person to the victim or the community; (the accused was on a probation order for a conviction for possession for the purposes of trafficking in cocaine that said conviction having been entered only a month before this particular incident. Rather than reparation, the accused has re-offended in the same way.) (

d) the time spent in detention by the young person as a result of the offence; (Mr. L. has been in remand for approximately one month.) (

e) the previous findings of guilt of the young person; (in my opinion this is not relevant to a sentencing under s. 39(1)(d)); and (

f) any other aggravating and mitigating circumstances related to the young person or the offence that are relevant to the purpose and principles set out in this section: 1. Northern Saskatchewan communities are generally small communities and are plagued with drug problems resulting in much property damage, loss and violent crime. 2. This is cocaine as referred to in the case previously referred to as R. v. M.Q ., cocaine itself is an aggravating factor. 3. Mr. L. was cruising around Kikinaahk Friendship Centre which is the main gathering place for older children and adolescents in La Ronge. 4.

There is little to no evidence that the motivation behind the drug trafficking operation for Mr. L. was anything but for financial gain. [ 18 ] To me however, the most aggravating factor that has the potential to move this offence into the exceptional case category is the fact that Mr. L. was only one month into a probation order after having been convicted of possession for the purposes of trafficking cocaine on August 20, 2012. One of the terms of that probation order was that he was to stay out of the Province of Saskatchewan unless

he had the permission of the Court. I assume Provincial Court Judge Tucker did not want this Alberta resident coming back to La Ronge in particular and Saskatchewan in general to sell narcotics. Not only did Mr. L. return to La Ronge, Saskatchewan, but he did so to continue selling cocaine. How could I conclude that this probation order has in any way achieved the goal set out in s. 38(2)(e)(i), that is, be the sentence that is most likely to rehabilitate Mr. L. and reintegrate him into society. Further, how could I possibly conclude that this probation order has promoted a sense of responsibility in Mr.

L. and how do we see his acknowledgment of the harm done to the community of La Ronge by his actions, when, within one month, he is back in La Ronge, Saskatchewan, selling cocaine. [ 19 ] As referred to in R. v.

R.E.W. , [8] I cannot imagine the citizens of La Ronge and district, in particular, and the citizens of Saskatchewan in general experiencing anything but shock at this turn of events - a shock that threatens widely shared community values. [ 20 ] Clearly, his previous sentence of probation as imposed by Judge Tucker on August 20, 2012, based on a conviction of possession for the purposes of trafficking in cocaine, has failed to promote his rehabilitation or his reintegration into society. [ 21 ] In

summary the aggravating factors that, in my view, trigger the application of s. 39(1)(

d) are as follows: 1) The fact that northern Saskatchewan is plagued by drug problems resulting in significant property damage, loss and violent crime; 2) The drug being possessed for the purpose of trafficking in this case is cocaine - an aggravating factor in and of itself. Cocaine is highly addictive and very often results in horrifying violence; 3) Mr. L. was cruising around Kikinaahk Friendship Centre which is the main gathering place for older children and adolescents in La Ronge; 4) There is little to no evidence that the motivation behind the drug trafficking operation for Mr.

L. was anything but for financial gain; and 5) The fact that Mr. L. was only one month into a probation order after having been convicted of possession for the purposes of trafficking in cocaine, one of the terms of which was to stay out of the Province of Saskatchewan. Notwithstanding that probation order, the accused is back in La Ronge, Saskatchewan, possessing cocaine for the purposes of trafficking. [ 22 ] Thus I find Mr. L. is subject to custody. What sentence is appropriate? He has served approximately thirty days in remand. I don’t feel he would benefit by any more time in actual custody.

I do feel that a deferred custody and supervision order is appropriate. I therefore place the accused on a six month deferred custody and supervision order on all three counts that he has been convicted on. The terms are the following:

a) Keep the peace and be of good behaviour;

b) Appear before the Youth Justice Court when required by the Court to do so;

c) Report to the Youth Worker at La Ronge Youth Workers immediately upon release and thereafter be under the supervision of the Youth Court Worker, or a person designated by the Youth Justice Court;

d) Inform the Court Worker immediately upon being arrested by the police;

e) Report to the police or any named individual as instructed by the Youth Worker;

f) Inform the clerk of the Youth Justice Court or the Youth Worker of your residential address on release, and after release, report immediately to the Youth Worker any:

i) Change in that address; ii) Change in your normal occupation, including employment, vocational or educational training and volunteer work; iii) Change in your family and financial situation; iv) Change that may reasonably be expected to affect your ability to comply with the conditions of the Order;

g) Must not own, possess, or have the control of any weapon, ammunition, prohibited ammunition, prohibited device, or explosive substance;

h) Comply with such reasonable instructions as the Youth Worker considers necessary in respect of any condition of the conditionalsupervision order to prevent a breach of that condition or order, protect society and in addition:

i) Report to the Youth Worker forthwith and be under the supervision of the Youth Worker; ii) Reside at a residence specified of and in writing by the Youth Worker and do not change that residence without the prior writtenpermission of the Youth Worker or the Court; iii) Not possess or consume any controlled substances as defined by the Controlled Drugs and Substances Act, except as prescribedby a medical doctor; and iv) Not possess a cell phone during the period of your deferred custody. [23] In addition, I authorize the taking of a bodily substance for forensic DNA analysis pursuant to s. 487.051(3) of the CriminalCode.

In addition, I make a mandatory prohibition order under s. 51(1) of the Youth Criminal Justice Act where the offender isprohibited from having in his possession any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition,prohibited ammunition, or explosive substance, for a period of two years from the date of this order, pursuant to s. 51(1) of the YouthCriminal Justice Act. [24] Dated at La Ronge in the Province of Saskatchewan, this 21st day of March, A.D. 2013. ___________________________________ R. J. Lane, J [1] R. v. R.E.W., (ONCA), para. 31. [2] R. v.

B.W.P., 2006 SCC 27 , [2006] 1 S.C.R. 941. [3] R. v. T. (C.S.), 2008 ONCJ 157, para. 20. [4] R. v. F. (J.), 2004 ONCJ 142. [5] R. v. L. B., 2007 BCPC 457. [6] R. v. J. B., [2003] O. J. No. 2339. [7] R. v. M. Q., 2009 BCPC 211. [8] R. v. W. (R.E.), supra.