Her Majesty the Queen - v. -, 2013 SKPC 215

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 215 Date: December 16, 2013 Information: 24297427 Location: Estevan ________________________________________________________________________ Between: Her Majesty the Queen - and - Raven Engel Appearing: Eric Neufeld, Q.C. For the Crown Robert Grimsrud For the Accused SENTENCING DECISION K. BAZIN , J [ 1 ] On December 16, 2013, I gave an oral decision advising that written reasons were to follow.

These are those reasons. [ 2 ] In this matter Raven Engel plead guilty to charges that on May 11, 2011 he trafficked in marijuana not exceeding 3 kg contrary to s. 5 (1) of The Controlled Drugs and Substances Act , possession of currency not exceeding $5000 knowing that the property was obtained by the commission of an offence and on May 20, 2011 trafficking in cocaine country to s. 5(1) of The Controlled Drugs and Substances Act. [ 3 ] The issue in this matter is whether or not incarceration or a jail term served in the community under a conditional sentence would be an appropriate sentence in a matter involving trafficking in cocaine.

Circumstances of the Offence [ 4 ] The offences occur on May 11, 2011as to the marijuana charge and May 20, 2011 as to the cocaine charge, in Estevan, Saskatchewan. Facts [ 5 ] Raven Engel at the time of the offence was 19 years old. He is an aboriginal from the First Nations community of Skidgate in Haida Gwaii , Queen Charlotte Islands, British Columbia. [ 6 ] Mr. Engel, along with his common-law partner of four years, moved to Estevan to work in his trade as a welder. He did not come to Estevan to sell drugs. He had been in Estevan 3 to 4 months prior to the offence.

The parties separate shortly before the offences occur and his partner moves back to British Columbia. It is around this time that things spiral downward for Mr. Engel. He is given cocaine by a female co-worker. He starts to use cocaine for the first time a month before his arrest. [ 7 ] In March 2011, a short time before the offences, Mr. Engel’s family in BC were concerned about Mr. Engel’s mental health to the point that they contacted the Estevan Police to check on him as they are concerned he was unstable because of his breakup. Mr.

Engel was found and held overnight by the police and taken to see a mental health worker. [ 8 ] The month ahead of the offence Mr. Engel becomes addicted to cocaine in a very short time. He is with a female co-worker that introduced him to cocaine and he's craving for the cocaine but the female withholds the cocaine so he does what she wants. [ 9 ] Mr. Engel is in the Taphouse Bar, which is being targeted by undercover officers. Mr. Engel was not the target of the undercover officers. The officers ask for an eighth of marijuana and ask if Mr. Engel can get it for them.

He suggests he only has one gram to sell for $20.00. He gets it and sells it to them for $10 as he said he liked them. He said he would have more later that week. On May 20 th , from the Taphouse Bar, the officers phone Mr. Engel and ask for marijuana and are told he does not have marijuana but has 2 grams of hard cocaine. When Mr. Engel arrives he tells the officers that he is high at that point, and that he had just smoked crack cocaine for the first time. He is asked for one gram each for $180 total. He told them the female was a supplier but they would have to buy from him. [ 10 ] Mr.

Engel did not want to make the exchange near the Taphouse Bar so the exchanges are made in a residential area and the officers are charged $190.00, and they are given powder cocaine and not crack cocaine as first told. Later that night Mr. Engel sent repeated text messages to one of the officers that he has 2 grams of cocaine for $150.00 and then sells it for $160.00. The total sales of cocaine and marijuana amount to $360.00. Circumstances of the Offender [ 11 ] The personal circumstances of Mr.

Engel are set out in detail in the Pre-sentence Report as well as the Psychiatric Pre-sentence Report. [ 12 ] This matter is Mr. Engel’s first encounter with the criminal justice system. [ 13 ] The Pre-sentence Report states that Mr. Engle continues to rely heavily upon his parents for support particularly as it relates to Mr. Engle’s diagnosis with Asperger Syndrome. The report states that Mr. Engel while in a supportive family had difficulty in school, particularly as to making friends and was bullied in school. [ 14 ] The report outlines that Mr.

Engel’s scholastic activities were hampered due to the diagnosis of Asperger Syndrome. He received a diagnosis in elementary school after having a very difficult time with reading comprehension. The Pre-sentence Report states that he attended the learning center for assistance with his schoolwork. It is unclear in the reports what grade Mr. Engel was able to obtain.

[ 15 ] Mr. Engel was able to be successful in working and taking training in the welding trade, and is working towards his class A ticket. He continues to work in British Columbia to obtain his journeyman status. [ 16 ] The Pre-sentence Report indicates that Mr. Engel is sincerely remorseful and is extremely anxious about his behavior as he believes it has cost him his dignity, and he was reluctant to return to his First Nation home because his actions have disgraced his family and friends and community Elders. [ 17 ] Is also noted that since the offence, Mr.

Engel, due to his anxiousness related to the potential consequences of his actions, had attempted suicide which required psychological intervention from the local mental health authority. This appears also to be related to a final break up from his long term common-law partner in the fall of 2012. [ 18 ] The report outlines that Mr. Engel’s relationship with Christine Oakley was for four years, commencing when he was 15, when they began living together. She was his first and only significant relationship prior to moving to Estevan.

It is this break-up of the relationship that sets him into emotional turmoil in Estevan. [ 19 ] Mr. Engel does not have a history of drug use with the Pre-sentence Report indicating that he experimented with marijuana use and with alcohol around 16 years of age, and has not had an issue with alcohol consumption. [ 20 ] The Pre-sentence Report outlines that the work related associates that Mr. Engel was with in Estevan, were a negative group and to a large extent he finds himself with this group, as he does not know anyone else in Estevan. In particular, there is a female in this group that Mr.

Engel is attached to. The report outlines that at the present time Mr. Engel no longer associates himself with negative peers and he does not associate with the group from Estevan, as he had moved back to his home in the Haida Gwaii, Community of Skidgate, almost immediately after the offences. [ 21 ] Since returning back to his First Nation community, Mr. Engel and his common law partner had a child in early 2012, but they have since separated in the fall of 2012. Mr. Engel continues to live with his parents in a cottage in their back yard. This is where he has lived since grade 8.

The report states that he does not belong to any peer group and it is difficult for him to make friends and has led a relatively semi-hermetic lifestyle since school. [ 22 ] The report outlines the Gladue factors relating to the Haida Gwaii First Nation. The report indicates that Mr. Engel’s family was not directly involved in residential schools.

The report does outline that despite not being directly involved, the greater Haida Gwaii community and many members of that community find themselves in situations of social and economic depravation with a lack of opportunities and limited options for positive development. The Haida Gwaii Restorative Justice Program is available to assist Mr. Engel in developing an individualized healing plan that incorporates a treatment component and restorative justice principles. [ 23 ] The report also states that in the two and half years since the offences and Mr.

Engel’s return to his home community, he has complied with all his conditions, and has had a positive and maturing lifestyle. [ 24 ] The defence filed many supportive letters from the community attesting to Mr. Engel’s positive accomplishments since returning to the community. There is included a letter of support by the Skidgate Band Council. [ 25 ] All the letters attest to Mr. Engel’s positive lifestyle. [ 26 ] The report, in its recommendations indicates that in a Correctional Centre, Mr. Engel would be highly susceptible to victimization given his apparent cognitive limitations related to Asperger Syndrome.

The report also goes on to suggest that it might be necessary to treat Mr. Engel as one who has the maturity, reasoning, judgment and functional capacity evident of an individual who is in his early teens. [ 27 ] The Pre-sentence Report also suggested that a psychological assessment of Mr. Engel be done, as to concerns raised as to his

early diagnosis of Asperger Syndrome. [28] The Psychiatric Pre-sentence Report is prepared by Dr. David Morgan, Consulting Psychiatrist. [29] In the report, it is the doctor’s opinion that Mr. Engel does not suffer from an Autistic Spectrum Disorder. This is from his oneinterview with Mr. Engel in that he did not observe any features typically seen with Autistic Spectrum Disorder, such as lack of eyecontact, idiosyncratic use of language and anxiety. He also states that the fact Mr.

Engel has managed to maintain age appropriatefriendships goes against a diagnosis of Autistic Spectrum Disorder. [30] He states that in his opinion Mr. Engel is a man who suffered long-standing psychological difficulties as a result of his early lifeexperiences. Also being teased and bullied at school resulting in chronic feelings of low self-worth and insecurity. He does conclude thatin his opinion Mr. Engel’s offending behavior is not related to his mental state. [31] In addition, there was a letter filed by Dr. Tracy Morton. The letter is a letter of support, however it does outline that she has beenMr.

Engel’s family physician since 2001, which would commence around when Mr. Raven was nine years old. She continues to be hisfamily physician. She states that she has known Mr. Engel and seen him grow and develop through his teen and young adult years. Shealso states he has had well-documented challenges with learning and attention. She states she had always known Mr. Engel to be a verykind person though somewhat naïve and vulnerable to the influences of others.

She indicates that he has an innocent nature, one whowants to please and one who needs more supervision and guidance than his peer group. [32] A letter was filed from Ruth Stelljes, RPC, Mr. Engel’s Mental Health and Addictions Clinician, from Northern Health MentalHealth and Addictions Services. The letter refers to Mr. Engel’s intellectual assessments from his school years and that he has a deficitin his cognitive processes, and he is easily taken in or persuaded to go along with what others want him to do. [33] There is an issue as to whether Mr.

Engel suffers from an Autistic Spectrum Disorder, or a disorder formally officially labeled asAsperger Syndrome. [34] What is clear is that Dr. Morton, Mr. Engel’s family doctor since he was of a young age, describes him as having a welldocumented past of challenges in learning and attention. His Mental Health Clinician refers to documented assessments from his schoolyears that he has a deficit in cognitive processes. The Pre-sentence author states he had been diagnosed with Asperger Syndrome. Fromthis, as well as Mr.

Engel’s history as outlined in the Pre-sentence Report, he suffers from some deficits that display themselves asAsperger Syndrome or some cognitive deficiencies. [35] I do not accept Dr. Morgan’s Pre-sentence Psychiatric Report to state that there is nothing wrong with Mr. Engel’s mental health,but rather to the contrary he does state that his opinion is that “Mr. Engel is a man who suffers long standing psychological difficulties asa result of his early life experiences” and that he may have suffered from a specific learning disorder as a child, but was not able tocomment further. [36] Dr.

Morgan’s opinion is also based on an understanding that Mr. Engel has maintained age appropriate friendships and this is notsupported by the commentary of the Pre-sentence Report describing him as living a semi hermetic life in a cottage in his parents’ backyard since grade eight. As well Mr. Engel’s family doctor and clinician indicates that he does not associate with many people. The Pre-sentence Report also details Mr. Engel’s anxiety over his break up of a long term common-law relationship as well as his anxiety overthe present charges. This is in contradiction to Dr.

Morgan’s observation that he does not suffer from anxiety. As such, I give theopinion of Dr. Morgan as to Mr. Engel not suffering from an Autistic Spectrum Disorder, lesser weight. Analysis [37] The case law filed by both the Crown and defence support the defence’s position that conditional sentences are available forthose who traffic in hard drugs. [38] In R. v. Pankewich, 2002 SKCA 7 , the

Saskatchewan Court of Appeal, Justice Jackson, paragraph 49sets out that determination of a conditional sentence is based ona wide variety of factors and she includes the following: [49] But the fact that conditional sentences have been imposed for street level trafficking on more than a minimal scale is not determinative of this appeal. As has already been indicated by this Court in R. v. Laliberte2000 SKCA 27 , (2000), 189 Sask. R. 190 and R. v. Keepness2000 SKCA 28 , (2000), 2000 SKCA 28 , 189 Sask. R. 173, conditional sentences are available for those who traffic in hard drugs.

Fitness of sentence in such cases will depend on a wide variety of 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. [39] The sentencing provisions of the Criminal Code are set out in detail in the cases reviewed and in particular sections 718 to 718.2of the Code sets out the fundamental purposes of sentencing.

The objectives are also set out in the sections and are well known. Section742 covers Conditional Sentence Orders. [40] The cases comment that the fundamental principle in sentencing,

section 718.1 of the Criminal Code, is that a sentence must beproportionate to the gravity of the offence and the degree of responsibility of the offender. [41] In this matter the Crown is asking for 18 months incarceration and the defence is putting forward that a Conditional SentenceOrder is appropriate for a term of 12 to 18 months. [42] Both parties are in agreement that a jail term is required, however, the defence takes the position that it can be served in thecommunity. Consideration of a Conditional Sentence

[43] As to the prerequisite factor that a jail term would have to be less than 2 years, I find that a jail term is appropriate and would be less than 24 months. [44] As to the determination whether the service of the sentence would not endanger the community, it is clear from the Pre-sentence Report, that a community-based sentence would not endanger the community. Mr.

Engel has been living in the community for two and a half years since the offence, and nothing in the Pre-sentence Report, or facts alleged by the Crown indicates that he is in any way a danger to the community. [45] The more difficult question and the real issue in this matter is whether or not a sentence served in the community would be consistent with the fundamental purpose and principles of sentencing as set out in s. 718 to s.718.2 of the Criminal Code . [46] The Crown filed the recent case of R. v. McIntyre, 2012 SKCA as support for their position as to incarceration.

A reading of the case shows that the offender is involved in a more sophisticated dial-a-dope operation. He continued to use drugs after being charged with the cocaine trafficking offence.

The Court of Appeal found that the 14 month sentence of incarceration was too harsh and reduced it to 10 months. [47] The case is important as one of the grounds of the appeal was that the trial judge focused on the idea that in hard drug trafficking cases the Court of Appeal has said that “unique circumstances” must exist before a person found guilty of trafficking in cocaine can be allowed to serve a sentence in the community.

The Court of Appeal, in its review, finds that the trial judge did not err by using the terminology that “unique circumstances” must exist, but rather the trial judge was relying on the Court of Appeal’s various decisions on cocaine trafficking. [48] The Court in McIntyre , while affirming the importance of deterrence and denunciation in crafting sentences for drug trafficking, states the appropriate manner to arrive at a suitable sentence is through the application of the sentencing principles. [49] In paragraph 36 the Court cautions that at least in cases where the offender traffics solely for profit, courts are cautioned against over-emphasizing the personal circumstances of an offender in crafting a sentence.

Aggravating factors - Cocaine is a hard drug - Mr. Engel contacts the officers as to the second sale of cocaine on the same night, whereas the other purchases were by contact by the officers looking to buy drugs. Mitigating factors - Mr. Engel has no prior involvement with the criminal system and no criminal record. - Mr. Engel was a young adult being 19 years old at the time of the offence - Early acceptance of guilt and remorse. The time to sentencing is tied to the obtaining of the necessary Pre-sentence and

Psychiatric Reports from British Columbia - Restrictions were placed on Mr. Engel at the time of his release and no breaches or new offences occur in over two and half years. - Mr. Engel is approached by the undercover police for drugs; he is not actively looking for the police as buyers in the first instance,as to the marijuana charge, and the first cocaine sale. - Mr.

Engel had just taken crack cocaine for the first time when he is asked to sell cocaine to the officers, and was high at the timeof the cocaine sales. - The client’s role in the offences is not sophisticated, noted in him providing the wrong drug asked for, different price and as wellvariation in price in the same day transactions. - Motivation is that he is selling the drugs to support a recent addiction and to a large extent being done to appease a female peer sothat she will supply him drugs for his use. - Mr.

Engel is in emotional instability at the time of the offence, due to his recent breakup of a long term common-law relationship. - Documented mental health concerns of Mr. Engel immediately prior to the offence - Documented learning challenges and difficulties as a youth in the school system, and continues to have issues related to AspergerSyndrome type behavior. - Diagnosis of Asperger Syndrome in the school system from an early age - Positive Pre-sentence Report - Substantial community and family support - Resources are available in Mr.

Engel’s First Nation Haida Gwaii community as set out in the Pre-sentence Report - Aboriginal heritage and Gladue factors as set out in the Pre-sentence Report Case Law [50] I have reviewed the following cases in this matter: R. v.Proulx, 2000 SCC 5, [2000] 1 SCR 61. R. v. Laliberte, 2000 SKCA 27 R. v. McIntyre, 2012 SKCA 111 R.v.Balon, 2009 Sask QB 233,

R.v. Hashem, 2008 SKQB 220 R.v. Chaves, 2002 SKQB 4 R.v. Williamson, 2011 SKPC 37 R.v. Klyne, 2003 SKPC 95 R. v. Pechawis, 2005 SKPC 25, 260 Sask. R. 73 R. v. Shawile, 2012 SKCA 51 R. v. Dexter, 2013 SKQB 18 R.v. Patryluk, 2002 SKCA 33 R.v. Pankewich, 2002 SKCA 7 Cases as to Parity [51] R. v Balon,2009 Sask QB 233, Balon is an Estevan case whereas in this case undercover officers are not targeting any particular person. They are targeting a bar that isknown to have drug transactions take place in it. The transaction in Balon the officer approaches Mr.

Balon for cocaine, making onepurchase for $100 and then asking for a second purchase for $360 for total payment for the two offences of $460. Mr. Balon was 18years old. The circumstances of the offence and personal circumstances are very similar to the present case. Mr. Balon had a previousover.08 conviction. In comparison Mr. Engel has no prior criminal involvement, is of aboriginal ancestry and there is an issue as tomental health issues with Mr. Engel. Mr. Balon receives a 12 month Conditional Sentence Order. [52] R. v.

Hashem, 2008 SKQB 220 By way of contrast the defence filed a further decision of Justice Zarzeczny being R.v. Hashem, 2008 SKQB 220 where a conditionalsentence was not granted. The Pre-sentence Report does not recommend Mr. Hashem for electronic monitoring and indicated that on thewhole the circumstances strongly suggested that Mr. Hashem continued to pose a danger to the community and a risk to reoffend. Mr.Hashem was trafficking cocaine from his parents’ home. He was found with 30 grams of cocaine, $1000 cash and traffickingparaphernalia. Mr. Hashem was sentenced to eight months incarceration. [53] R. v.

Chaves, 2002 SKQB 4 Mr. Chaves was 22 years old, selling 10 ounces and 1 pound of cocaine which earned him $1000 profit. He had no criminal record,showed genuine remorse by his actions and his conduct over the past three years since the offence was commendable. He entered into acommon-law relationship and had a child. He made efforts to avoid old associates. The Pre-sentence Report concluded he was suitablefor community supervision. Justice McLellan does a detailed review of the appropriateness of a conditional sentence order, covering thecase law and factors to be considered. He sentences Mr.

Chaves to a conditional sentence of two years less one day. The highlights of theconditions are house arrest or electronic monitoring if available for nine months, curfew 9 p.m. to 6 a.m. for the balance of theconditional sentence. [54] R. v. Williamson, 2011 SKPC 37 Ms. Williamson had no previous record in Canada but had a previous drug possession in the United States. Ms. Williamson is foundwith 120 grams of marijuana, 7.5 grams of rock cocaine and 1 gram of powder cocaine along with $2000 cash and drug paraphernalia. She receives an 18 month community sentence. [55] R. v.

Klyne, 2003 SKPC 95, is a decision of now Chief Judge Snell. Mr. Klyne pled guilty to cocaine trafficking, marijuanapossession and proceeds of crime. Mr. Klyne was a 27-year-old aboriginal. He provided cocaine to an undercover officer on eightseparate occasions, selling 5 ounces with an approximate value of $10,000. Purpose was to purchase drugs for his own use. Judge Snellgoes through a detailed analysis of reviewing the law and considerations for a conditional sentence. Mr. Klyne received a two year less a

day conditional sentence. [56] R. v. Pechawis, 2005 SKPC 25, 260 Sask. R. 73 In Pechawis, the accused plead guilty to two counts of trafficking in cocaine and one in ritalin. She had a record of property offences andone possession offence. Ms. Pechawis was of aboriginal ancestry, and continued to suffer from cocaine addiction. Significant Gladuefactors came into play. A sentence of 18 months conditional sentence was imposed. [57] R. v. Shawile, 2012 SKCA 51 Shawile is a decision where a 22 month Conditional Sentence Order was overturned and replaced with an 18 month imprisonment term.Mr.

Shawile is transporting 53 grams of cocaine valued between, $2400- $9500. He was 23 years of age, good physical and mentalhealth, completed his grade 12 and was accepted for post-secondary education. He had received two previous conditional discharges forpossession of cocaine and failure to comply. He also had four recent convictions for breaches while on bail as well as one of evading thepolice. Motivation was entirely money and no suggestion he was addicted to drugs, under dire financial circumstances, or committed theoffence under duress. He simply was transporting cocaine for a substantial amount of money.

Mr. Engel’s circumstances are in starkcontrast to Mr. Shawile’s. [58] R. v. Dexter, 2013 SKQB 18 Dexter was put forward by the defence to indicate an example where an accused of significantly more serious facts, particularly that Mr.Dexter had three previous convictions for trafficking in hard drugs, received 13 months jail. This was to offset the Crown’s request inthis matter of 18 months jail. [59] R. v. Patryluk, 2002 SKCA 33 Patryluk is put forward by the defence again to demonstrate that a person of significantly more culpability than Mr.

Engel received whatcould be interpreted as about 18 months custody, as the Court of Appeal ordered 11months custody after Mr. Patryluk had served 6months of his conditional sentence and had done 150 hours of community service. Mr. Patryluk had in his possession $6,000 to $12,800of marijuana and $5,700 to $8,400 of cocaine. He participated in the commercial drug trade, had contacts in the trade and dealt inrelatively larger amounts. The defence argues that the Crown’s position in Mr. Engel’s matter on actual jail is not in keeping with similaroffenders. [60] R. v.

Pankewich, 2002 SKCA 7 Pankewich is also put forward by the defence to rebut the Crown’s position of 18 months jail. Mr. Pankewich is a courier solely forprofit, and involved a large amount of cocaine, being one pound valued at $19,200 in bulk. The Court of Appeal overturned a conditionalsentence and sentenced Mr. Pankewich to two years less a day jail. [61] The case is also an extensive review of the availability of conditional sentences in hard drug trafficking cases, and applies thestep by step process of reviewing conditional sentences as set out in R. v.

Proulx, 2000 SCC 5, [2000] 1 SCR 61. [62] As for the objectives set out under

section 718, denunciation and deterrence are primary considerations when looking at sentencing of trafficking in hard drugs. In this matter, and as set out in Proulx, and R. v. Laliberte, 2000 SKCA 27,C.R. (5th) 1,conditional sentences have to have a punitive aspect to them, so they do not simply resemble probation. The cases outlined that whereoffences are on the lower end, denunciation and deterrence generally, and specifically for the offender individually can be accomplishedby proper restrictions set in a Conditional Sentence Order. [63] Particularly in Mr.

Engel’s case, whose home is on the Queen Charlotte Islands in the Community of Skid Gate, the communityalready is fully aware of Mr. Engel’s offence, and aware that he will be suffering consequences for the offence. This is noted by theletter from the Skidgate Band Counsel that they are aware of the matter. As far as individual deterrence is concerned Mr. Engel hastaken the matter very seriously, and in the Pre-sentence Report he suffers from anxiety related to his anticipated penalty. In addition hehas lived a positive life in his community after returning to his traditional aboriginal community.

All reports indicate that he has learnedthat severe consequences occur from his brush with the selling of cocaine, being under the state control by conditions for two and a halfyears, and eventual additional consequences. [64] Proulx, and Laliberte outline that conditional sentences can address denunciation and deterrence. In paragraph 37 of Laliberte

the Court states that the Supreme Court notes that the stigma of house arrest cannot be underestimated. In Mr. Engel’s case this is exacerbated by him living in his small aboriginal community of Skidgate. [65] The objective of separation and reparations are not significant in this matter. A Conditional Sentence Order could address the issue of rehabilitating Mr. Engel, while at the same time punishing him in a public manner.

He would be able to continue with his trade qualifications and continue working, to support himself as well as his child. [66] As to the issue of parity, the cases that have been put forward by the defence to support a Conditional Sentence Order, demonstrate that other parties with similar, and many cases greater culpable involvement in street-level trafficking of cocaine have received Conditional Sentence Orders. Of particular note is the case of Balon, which is an Estevan case. [67] The principle of parity does not support that Mr.

Engel, who has historical cognitive, learning and attention issues and adding in specific mental health issues arising out of his break up with his common-law partner of four years should not be able to serve his sentence in the community. [68] As to the considerations discussed by the Saskatchewan Court of Appeal in R. v. Pankewich , firstly, the sophistication of the offence and the offender’s role, place Mr. Engel on the low-end. The first sale is for marijuana of which he sold $20 which he only charges $10.00 because he liked the officers. This is more along the lines of a friend giving a friend marijuana.

It is also in line with his family doctor’s comments that Mr. Engel has an innocent nature and wants to please. [69] The significant charges are the selling of the cocaine, and for the contacts Mr. Engel made as to selling the second sale of cocaine, the same night. [70] This transaction puts Mr.

Engel in line with the cases which appeared to be a “one off” selling of cocaine, which it is in this situation. [71] The motivation for the offence appears to be as far as the marijuana to appease some new friends, and the trafficking in the cocaine sale appears to be to appease a female friend and by doing this have the female friend supply him with cocaine for his own very recent addiction. [72] The need for and the utility of the deterrence which will be provided by the sentence imposed, has been previously discussed in this judgment.

The factors relating to the community and the significance of the problem [73] Estevan does have many cocaine related offences as seen in court. Nothing was put forward by the Crown or defence that the situation now in Estevan is any different than when the Balon decision was given. [74] The age, lack of record and other personal circumstances of the accused have been discussed previously.

Conclusion [75] I find that a Conditional Sentence Order with appropriate restrictions would satisfy the primary considerations of deterrence and denunciation in this case, and such a conditional sentence is appropriate considering the sentencing principles as a whole. A conditional sentence, in this matter can demonstrate that harsh consequences follow the trafficking in cocaine, even in a one night event of small quantities, and where the offender has significant mitigating personal circumstances.

[76] In conclusion, taking into consideration all the sentencing factors, as well as those specifically highlighted for street-level trafficking in Pankewich , I have determined that a fit sentence would be a 14 month jail term served in the community by way of a Conditional Sentence Order. The conditions are as follows: 1. Keep the peace and be of good behavior. 2. Appear before the Court when required to do so by the Court. 3. Report to the supervisor within two working days of today’s date and after that when required and in the manner directed by the supervisor or his designate. 4.

Remain within the jurisdiction of the court (Saskatchewan) unless written permission to go outside that jurisdiction is obtained from the court or supervisor. 5. Notify the supervisor in advance of any changes in the offender’s name or address and promptly notify the supervisor of any change of the offender’s employment or occupation. 6. Report to a supervisor at 1302 – 3 rd Street, Estevan, Saskatchewan, Ph. (306) 637-4538 in person immediately and then transfer to British Columbia to report to the supervisor there as required. 7. Immediately give the court your current address and phone number if available 8.

For the term of this order, live at a residence approved by your supervisor and not change that residence without the prior written permission of your supervisor or designate or the court. 9. For the first 6 months of this order, stay inside your approved residence 24 hours a day unless you have prior written permission of your supervisor or designate or the court to be elsewhere, which may include permission for work and come to the door of your approved residence when asked to do so by a police officer or supervisor who may be checking the residence and curfew conditions of this order. 10.

For the next 6 months of this order stay inside your approved residence from 10:00 p.m. to 7:00 a.m. the next morning unless have the prior written permission of your supervisor or designate or the court to be elsewhere and come to the door of your approved residence when asked to do so by a supervisor or designate or police officer who may be checking the residence and curfew conditions of this order. 11. Enrol in the Electronic Monitoring Program and comply with the Electronic Monitoring Program rules as told to do so by your supervisor for the first 6 months of this order. (if available). 12.

Not possess or consume alcohol or drugs that have not been prescribed for you by a medical doctor and not enter or be in any place in which the main purpose is the sale of alcohol, such as bars or liquor stores. 13. Provide suitable samples of your breath for testing upon the request of a police officer who has reasonable grounds to suspect that you are in breach of a condition of this order regarding the consumption of alcohol. 14. Participate in an assessment and complete programming for addictions, which may include in-patient and out-patient treatment, as told to do so by your supervisor. 15.

Participate in assessment(

s) and complete programming for: personal counselling, mental health concerns or cognitive challenges.

16. Complete 120 hours of community service work within the term of this order as told to do so by your supervisor. 17. Seek and maintain employment or educational programming as directed by your supervisor. 18. When outside your residence, carry with you a copy of this order and any permission for an exception to this order, and produce it when asked to do so by a police officer. 19.

Submit to a search without warrant or reasonable grounds of your person and any vehicle or residence that your own, operate, control or possess by any police officer. [77] It is also ordered that there will be the mandatory s. 109 Criminal Code order of Prohibition of firearms and weapons, for 10 years. [78] In addition there will be a DNA order pursuant to s. 487.051(3), Form 5.04 of the Criminal Code . __________________________ K. Bazin, J