Her Majesty the Queen - v. -, 2020 SKPC 24

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2020 SKPC 24 Date: June 22, 2020 Information: 991075031 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Britney Marie McKay Appearing: Brent Slobodian For the Crown Gordon Kirkby For the Accused SENTENCING DECISION F. M. DAUNT , J [ 1 ] Britney Marie McKay entered a guilty plea to a charge that she did, on December 13, 2019, have in her possession cocaine, a

Schedule I substance, for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act , SC 1996, c 19 [ CDSA ]. She was originally charged with this and other offences jointly with Victor Quan, but the Information was severed in June of 2019. On December 10, 2019, I sentenced Victor Quan after a joint submission to five years less remand time for this and related offences, a sentence fully justified by his principal role and his extensive and related criminal record. Crown counsel seeks a sentence of 18 months in jail followed by 18 months on probation for Ms.

McKay’s role in the offence. Defence takes no specific position on sentence but asks the court to impose a more restorative sentence. POSITIONS OF CROWN AND DEFENCE

[ 2 ] Due to a convoluted procedural history, sentencing proceedings commenced before the global pandemic directly affected our province. Nevertheless, both counsel maintain their pre-pandemic sentencing positions. Relying on R v Pankewich [1] , Crown counsel submits a sentence of 18 months in jail followed by 18 months’ probation would be proportionate to the seriousness of the offence and the degree of responsibility of the offender, adequately denounce the crime, foster rehabilitation, and otherwise meet the objectives of sentencing, including

section 718.2(e), or Gladue considerations. Crown counsel submits denunciation and deterrence are the primary sentencing objectives for crimes of this nature and that Gladue [2] considerations can be addressed through probation following incarceration. Crown submits the amount of cocaine seized clearly establishes a profit motive and questions whether addictions played any

part in Ms. McKay’s offence, given she was able to abstain without formal treatment. The gravity of the offence requires a significant period of incarceration. Crown also requests the mandatory firearms prohibition but leaves a DNA order to the court’s discretion. [ 3 ] Defence relies on R v Felix [3] to support his position for a more lenient sentence, in that Ms. McKay, like Mr. Felix, committed the crime for love, not for money. Furthermore, Mr. Quan exploited her youth and cocaine dependency to enrich himself. Counsel submits Ms.

McKay was a young woman who made a mistake by getting romantically involved with a drug trafficker for a short period of time. She did not profit from the offence. Her degree of participation was minor and her moral blameworthiness low. PRELIMINARY ISSUES [ 4 ] On July 22, 2019, Ms. McKay entered a guilty plea to Count 1 of the 7-count Information, with the Crown undertaking to withdraw the remaining counts at the conclusion of sentencing. Sentencing was adjourned from time to time until January 28, 2020, when the case proceeded by way of submissions from counsel.

Crown counsel recited the facts of the investigation and the evidence seized, then stated his position on sentence and the arguments for that position. Defence counsel outlined which facts his client was willing to admit and provided extensive background information about Ms. McKay and her family. Crown counsel then took exception to the limited factual admissions from the defence. The matter was stood down. Later in the day, submissions resumed with Crown and defence agreeing on certain facts, which were read into the record. I reserved my decision and sentencing was adjourned for that purpose.

On review, I brought the matter back to court and ordered a pre-sentence report to assist in this difficult sentencing decision. Sentencing was then adjourned to April 9, 2020. [ 5 ] In the meantime, the Province of Saskatchewan declared a Public Health Emergency due to the COVID-19 global pandemic and implemented a number of Public Health Orders, which shuttered businesses and severely restricted institutional operations. [ 6 ] Nonetheless, the pre-sentence report was prepared and filed with the court. Among other information, it included statements by the accused regarding the circumstances of the offence.

On April 9, counsel were not prepared to proceed, and the matter was adjourned to April 23, 2020. On that date, Crown counsel took the position that statements in the pre-sentence report conflicted with submissions made by defence counsel. He requested the Court order defence to call evidence to prove these facts, citing section 724(3) (

b) of the Criminal Code . Defence submitted that any statements about the offence itself were improperly included in the Pre- Sentence Report. Any other alleged inconsistencies would be explained through further submissions by counsel.

Unwilling to put his client on the stand, he submitted the court has no power to compel the accused to testify or to order defence to call evidence on a sentencing hearing. [ 7 ] On April 23, I found that the statements in the pre-sentence report containing admissions about the offence itself were improper and should not have been included. [4] I further held that a guilty plea is an admission of the essential elements of the offence only. I found that if the Crown wanted to rely on a higher level of involvement than Ms. McKay was willing to admit through her counsel, the Crown bore the burden of proving it.

Even in sentencing proceedings, the accused cannot be compelled to testify. Subsection 724(3) must be read alongside

section 723, which gives both Crown and defence the right to make submissions with respect to any facts relevant to the sentence to be imposed and specifically allows for hearsay evidence. The

section also allows a court, in certain circumstances, to require the production of evidence. Subsection 723(5) authorizes the court to compel a person to testify only where that person is a compellable witness. As the accused in these proceedings, including counts not yet stayed, Ms. McKay is not a compellable witness and cannot be subject to subpoena. Furthermore, subsection 724(3)(

a) allows the court to “request” evidence to be adduced. The court cannot order a party to adduce evidence. Subsection 724(3)(

b) does not confer authority the court would not otherwise possess to compel an accused person to testify. Ms. McKay continues to be in legal jeopardy on counts 2-7 on the same Information and retains her right to silence. Furthermore,

section 726.1 specifically allows relevant information to be placed before the court through submissions of counsel. I find the Criminal Code allows for factual determinations to be made on sentencing without necessarily requiring viva voce evidence. [ 8 ] On April 23, I further found that, apart from the circumstances surrounding the commission of the offence, other alleged

inconsistencies regarding Ms. McKay’s motivation to commit the crime, or whether she was addicted to cocaine, or other issues, were minor, immaterial, or could be addressed through submissions of counsel. [ 9 ] The matter was adjourned again for the Crown to decide whether to call evidence on a sentencing hearing as to Ms. McKay’s degree of participation in the offence. Defence counsel admitted the whole of the Crown’s evidence as read into the record. On the return date, however, Crown counsel declined the opportunity to call viva voce evidence, although I note Mr.

Quan would be a compellable witness with personal knowledge of the facts. The matter was again adjourned to arrange for Ms. McKay to appear by telephone for submissions on the pre-sentence report. This occurred on May 11, 2020. The matter was then adjourned for decision. CIRCUMSTANCES OF THE OFFENCE [ 10 ] In August of 2018, Britney McKay, a young woman from Cumberland House, met Victor Quan, a Prince Albert man 10 years her senior. In September of that year, he began living with her in her apartment. By late October 2018, she and Mr. Quan were under surveillance in a drug trafficking investigation.

On October 25, 2018, police verified source information that these activities were connected to a black SUV and the address 2601 6 th Avenue East in Prince Albert. That building is an apartment block. Later investigation revealed Ms. McKay to be the tenant at Apartment #4. Police observed a black Hyundai Tucson registered to Ms. McKay parked at that location. On October 28, 2018, police observed a blue Ford Escape parked in the same spot as the Hyundai had been previously. During surveillance the next day, Ms.

McKay was observed outside that location making two “short-duration meets consistent with trafficking.” Police observed Ms. McKay and Mr. Quan coming and going from a second location, 575 21 st Street East. Victor Quan had the keys to that residence, and later investigation revealed him to be the legal tenant. Both Victor Quan and Britney McKay were observed driving the vehicle. Police observed three more short-duration meets on that date. [ 11 ] On December 5, 2018, police observed Mr. Quan alone, driving the blue Ford Escape. He was seen using keys to enter 2601 6 th Avenue East, Ms. McKay’s apartment block.

Police also observed him in a short-duration meet with a red Pontiac Sunfire. [ 12 ] On December 13, 2018, after receiving information from a confidential source, police obtained a CDSA search warrant for #4- 2601 6 th Avenue East (Ms. McKay’s apartment), for 575 21 st Street East (Mr. Quan’s house), and for the blue Ford Escape. [ 13 ] They entered Ms. McKay’s apartment first, where they arrested both her and Mr. Quan. Mr. Quan was wearing blue latex gloves with cocaine residue on them.

Police seized, from various locations throughout the apartment, a total of 283.87 grams of cocaine, or just over 10 ounces, with an estimated street value of between $10,800 and $28,000. They also seized $110 and two scales from the kitchen counter and $110 from a wallet in the living room. A further $820 was found on Victor Quan’s person. [ 14 ] Using a lanyard with keys found at Ms. McKay’s apartment, police entered Mr. Quan’s house. No one was present during the search.

Although they found only about 1.84 grams of cocaine, police seized a bill counter and cash totaling $25,800, which they found in bundles and piles of $20, $50, and $100 bills. [ 15 ] While Ms. McKay acknowledges being physically present in that residence on a few occasions, she denies having any knowledge or control over the contents of that location. I note she did not plead guilty to possessing the proceeds of crime found at that location. She was not observed entering Mr. Quan’s house alone or using keys to it. Mr. Quan was observed using keys to that residence and to Ms. McKay’s residence.

The only evidence connecting Ms. McKay to that residence was a library card, found under the coffee table along with a $10 bill and a plate containing 0.1 gram of cocaine. This suggests personal use of cocaine in that residence. A SaskPower bill for the 6 th Avenue apartment in Ms. McKay’s name was also found on the kitchen counter. On the other hand, police found a tenancy agreement in Mr. Quan’s name, clearly establishing his connection to the house. Furthermore, Mr.

Quan, in his own proceedings, filed an affidavit with the court to support an application to have $20,000 of the money seized be returned to his counsel to aid in his defence. He attested that the money belonged to him, earned legitimately, including through commissions from his father’s business, Quan’s Automotive. (In this document, he also attested to the fact that he did not own the Ford Escape. It was one of several vehicles at Quan’s Automotive for repair.) The money paid from the seized funds went directly to Mr. Quan’s lawyer to pay for his defence. None of that money went to Ms. McKay’s defence.

In that same affidavit, Mr. Quan states that he was the only resident at 575 21 st Street East. When I sentenced Mr. Quan, he consented to the forfeiture of $6,850, which was the amount left over after the payout of seized funds to his lawyer. When Mr. Quan was sentenced, neither Crown nor defence submitted anyone else might have a claim to that money. Based on these facts, I am satisfied Mr. Quan was the sole possessor of the money, the bill counter, and the other relevant items seized from 575 21 st Street East.

I am satisfied Britney McKay had no independent access to that residence or control over the contents.

[ 16 ] Ms. McKay’s guilty plea to the single count of possession of cocaine on December 13, 2018 for the purpose of trafficking is premised on her liability as a party to Mr. Quan’s offence. She says although she had no personal control over the drugs seized, she was aware of them and provided her apartment to Mr. Quan for their storage. To be guilty of possession, a person must have knowledge of the thing and control over it. Ms. McKay admits she had knowledge of the cocaine, but no control over it. However, she concedes liability as a party to Mr. Quan’s offence because she aided him in its commission, pursuant to section 21(1) (

b) of the Criminal Code , by allowing him to store the cocaine in her apartment, knowing he intended to sell it. Ms. McKay further admitted that she was aware Victor Quan was a mid-level trafficker and that he possessed multiple ounces of cocaine at a time. Specifically, she was aware that the cocaine Mr. Quan brought to her apartment, the cocaine seized on December 13, 2018, was a large amount in multiple-ounce quantities. She admitted that, between September and December 2018, she “assisted Mr. Quan in selling cocaine at the street level,” but does not admit selling it herself.

If I understand her admissions correctly, she denies personally receiving money from Mr. Quan’s customers, but acknowledges handing off one gram or less of cocaine two times,

an act that meets the definition of trafficking in the CDSA . Absent these admissions, the Crown could not prove any discrete incident of trafficking. Hearsay statements from an informant are not admissible to prove the truth of the statements. A “short-duration meet” may be consistent with trafficking, but it is also consistent with any number of lawful activities. It falls far short of proof of trafficking.

Such statements and observations may help bolster an application for a search warrant, where the standard of proof is “reasonable grounds to believe.” Without more, however, they do not prove a drug transaction either on a balance of probabilities or beyond a reasonable doubt. [ 17 ] Although Ms. McKay denies she received direct monetary compensation for assisting Mr. Quan, she acknowledges Mr. Quan paid her a partial month’s rent when she lost her job, although that does not seem directly tied to her assistance of his criminal activity. She also acknowledges she received a coat from Mr.

Quan and that he supplied her with cocaine. While Mr. Quan ran a profitable enterprise, Ms. McKay did not participate in the proceeds. [ 18 ] No weapons were found or seized. No evidence of violence or coercion toward customers was presented. Neither was there evidence either Ms. McKay or Mr. Quan were involved with a gang or other criminal organization. CIRCUMSTANCES OF THE OFFENDER [ 19 ] Ms. McKay is a member of the Cumberland House Cree Nation. By all accounts, she was a person of good character before she met Victor Quan in August 2018, and after they parted on December 13, 2018.

She grew up in the community of Cumberland House, the third of four children born to her parents. Her mother and two of her uncles attended residential schools. Although Ms. McKay reports no drinking or fighting in the home, her mother says there was alcoholism and domestic violence in Britney’s childhood. Ms. McKay’s main source of trauma, however, stems from her father leaving the family home to cohabit with another woman, and her mother leaving the community while Britney stayed behind. This happened when she was 15 or 16 years of age.

She did eventually join her mother and younger sister in Saskatoon, but this period in her life has left her struggling with feelings of abandonment, especially by her father, from whom she was estranged until his new partner passed away. At around this same time, at the age of 16, she first tried alcohol “to fit in.” [ 20 ] She earned her grade 11 and partial grade 12, then moved to Prince Albert at the age of 18 to attend Saskatchewan Polytechnic. She became gainfully employed and rented an apartment.

She was introduced to cocaine at the age of 19, which she agreed to try, again, “to fit in.” When she was 19 or 20, she attempted suicide in response to a failed relationship. She “took a bunch of pills” and landed in the emergency room. Apart from that incident, she was a productive member of the community, working and volunteering regularly. [ 21 ] In August 2018, now 22 years old, Ms. McKay met Mr. Quan, who was 33 at the time. Unaware at the time of his criminal history, she fell in love with him. He sold her cocaine. In September, he offered to rent a room in her apartment, and she let him live with her.

Wanting to be loved by him, she allowed him to use her apartment to store his drugs and assisted him in distributing them. Friends, family, and now Britney herself describe the relationship as manipulative. Those who know Britney call it abusive, or a “using” relationship and noticed her downward spiral in her time with Mr. Quan. Her cocaine use became a daily problem. She lost her job. [ 22 ] Although Britney herself does not believe Mr. Quan manipulated her into participating in the offence, I am satisfied an element of exploitation or manipulation contributed to her commission of this offence. Mr.

Quan was a seasoned criminal when they met. His criminal record begins in 2001 as a youth, when he was sentenced for theft and flight from police. His first trafficking offence occurred, also as a youth, in 2004. He continued to offend into adulthood, including another drug offence in 2005. In 2006 he received four years in addition to nine months of remand time for firearms offences and possession of a

Schedule I substance for the purpose of trafficking. In 2012, he was again sentenced to over five years for conspiracy, trafficking, and other offences. In March of 2019, while on remand for the current offence, he received 10 months in jail for a robbery charge. [ 23 ] Ms. McKay, on the other hand, had never been in trouble with the law but had developed a dependency on cocaine. In the

expert report filed by the Crown, Constable Stroet says that, while cash transactions are by far the most common in the drug trade, some dealers will exchange drugs for sexual acts. I am familiar with other cases that have come before this Court where unscrupulous drug dealers take advantage of vulnerable, often Indigenous, women by providing them drugs. Often in these cases where two accused are in a domestic relationship, the party most involved in the crime will take responsibility but make their guilty plea conditional on the Crown staying proceedings against their partner. Mr.

Quan did not do that in this case. While it does not help Ms. McKay that other women in her situation may have their charges dropped, it does speak to the nature of the relationship. [ 24 ] The evidence supports a finding that the relationship was one of exploitation. Characteristic of the nature of the relationship, as defence counsel put it, Mr. Quan kept “the good stuff” (money) at his place, and “the bad stuff” (drugs) at her place. Mr. Quan had the sophistication to prefer that large quantities of cocaine, were they to be discovered, would not be found in a residence with his name on the lease. Ms.

McKay was not a partner in the enterprise. Neither was her assistance a significant contributing factor to the commission of the offence. Given his extensive experience in the drug trade, I find it highly unlikely Mr. Quan would have refrained from selling cocaine had Ms. McKay refused to accommodate him. This diminishes her degree of responsibility for the offence, directly impacting proportionality. [ 25 ] This relationship lasted only four months, until Ms. McKay’s arrest for the current offence. Mr.

Quan was not released on bail for this offence and is now incarcerated in a federal penitentiary. [ 26 ] After her arrest on December 13, 2018, Ms. McKay was held in custody until December 17, 2018, when she was released on a recognizance with conditions and her mother acting as surety. Ms. McKay returned to Cumberland House and has stayed out of trouble and abstained from alcohol and drugs, despite struggling with anxiety due to her legal situation. Since her release, Ms. McKay has taken courses, upgraded her employment skills, and volunteered extensively in the community, working with youth.

She completed a Basic Construction and Renovations course, worked at Pine Bluffs camp, and continues to babysit and to perform odd jobs. Ms. McKay supports herself without resort to Social Assistance. She enjoys hunting but has been restricted from this because of her recognizance. Since the COVID-19 pandemic Public Health Orders were imposed, Ms. McKay has been volunteering on the bridge at Cumberland House, helping to enforce Northern travel restrictions and to keep illicit drugs out of the community. [ 27 ] Defence filed several support letters, all of which paint a positive picture of Ms.

McKay and her contribution to her community. Before the pandemic restrictions, she volunteered with Nechapanuk Centre Child and Family Services.

The supervisor there described her as “a very hard worker and committed to helping out wherever she is needed.” The Recreation Director for the Village says, “In a Community that lacks volunteerism, she is truly an asset to the Community.” Valendie Lathlin-Buck, BSW, Life Skills Coach, and family friend, who has known Britney since she was a child, says, “She has a lot of potential and know she will prove herself and others in our society.” Her former teacher, who has known the family for 20 years, says “Do I feel threatened by the presence of Britney in our small isolated community?

If we started incarcerating people from the community based on my sense of how much they are a threat to the well being of the community, there would be busloads … gone before Britney’s name would be in sight. Britney MAY have done some foolish things – most of us have – but nothing I know of her, makes her presence have me feeling insecure or threatened.” PRE-SENTENCE REPORT [ 28 ] The pre-sentence report reveals that Britney takes responsibility for the offence. She has no criminal history and does not exhibit anti-social patterns. She has a pro-social and non-criminal attitude. She does not blame Mr.

Quan for her troubles. Rather, she blames herself for her actions, resulting in a criminal record that will hinder future opportunities. The writer of the report conducted a Saskatchewan Primary Risk Assessment, which provides a probability of general criminal recidivism. Her overall risk to re-offend, without intervention, is Low. She is in the 5 th percentile, meaning 95% of offenders have more risk factors than she. Of the hundreds of these reports I have read, I have never seen someone score so low. The writer of the report opines that Ms.

McKay’s employment status at the time of the offence was not a contributing factor. Nevertheless, she lists Ms. McKay’s risk factors as age, employment, and self- management awareness. The risk presented by her young age will diminish naturally over time. She is capable of gainful employment and seems to have no trouble finding work when needed. Self-Management Awareness can be improved with education and counselling. The writer of the report does not address addiction issues, but clearly Ms. McKay’s cocaine use was a contributing factor.

Though free of drug use for over a year, she might benefit from an addictions assessment and follow-up counselling, if recommended. [ 29 ] The community of Cumberland House offers counselling and treatment for substance abuse. Both the probation officer and the NNADAP worker can assist with self-management issues using Core Correctional Practices of Cognitive Restructuring.

Relevant programming at Pine Grove includes Addictions Education, Basics and Lifestyles/Addictions, Offender Employment Program – Employment Essentials, and Courage to Change (in Units 2 and 3 only). [ 30 ] Because of the pandemic, electronic monitoring is unavailable. However, Community Corrections will supervise a House

Arrest Program by completing written schedules and compliance checks by telephone. For this reason, clients must have a suitable SaskTel landline with call forwarding restriction and a suitable residence. The writer of the report has deemed Britney’s residence appropriate, and Britney has agreed to install a personal line with the appropriate restrictions. [ 31 ] An intermittent sentence is not available in the community of Cumberland House due to a guard shortage.

I would add that an intermittent sentence is likely inadvisable in any event, due to the increased risk of transmission of coronavirus from repeatedly admitting and discharging a prisoner. Although I would prefer as many tools in the sentencing toolkit as possible, an intermittent sentence is simply not practicable at this time. SOCIETAL CIRCUMSTANCES [ 32 ] We are living in unusual times. In March of this year, the Government of Saskatchewan shut down much of society to slow the spread of the novel coronavirus threatening the world. Institutions have scrambled to adapt.

While restrictions are slowly being lifted, Public Health measures of some form or another are going to be with us for some time. Recognizing the unique danger to inmate populations, justice system participants have engaged in a concerted effort to reduce the number of inmates in our institutions, including releasing remanded prisoners pending trial or even pending sentencing. Some circles have called for the release of low-risk, non-violent offenders currently serving sentences. [ 33 ] New prisoners entering provincial correctional centres must be isolated for two weeks.

Practically speaking, this means any custodial sentence now includes a solitary confinement component, albeit for health, not punitive reasons. [ 34 ] Currently, Saskatchewan has clusters of infection in the northwest. Cumberland House, being closer to Manitoba, is at relatively low risk for the time being. A custodial sentence would send Ms. McKay to Pine Grove Correctional Centre, which houses female inmates from all over the province. ANALYSIS [ 35 ] Sentencing is an individualized process.

Each case is unique. “Tariff sentencing” inevitably leads to injustice; therefore, the Canadian approach, recently confirmed in R v Lacasse [5] , generally allows for broad discretion in assessing a fair punishment in any particular situation.

Section 718.3(1) of the Criminal Code states: Where an enactment prescribes different degrees or kinds of punishment in respect of an offence, the punishment to be imposed is, subject to the limitations prescribed in the enactment, in the discretion of the court that convicts a person who commits the offence. The CDSA and the Criminal Code direct sentencing judges to consider a variety of purposes, principles, and objectives, sometimes conflicting, in determining a fit sentence. Provincial Courts of Appeal provide guidance by establishing ranges of sentence for specific crimes.

The purpose of these ranges is to limit disparity in sentencing. Parity, however, is but one of many principles to be considered. When sentencing Aboriginal offenders, giving too much weight to the parity principle can be a mistake, considering no two offenders and no two offences are exactly alike. [6] [ 36 ] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [7] That is the fundamental principle. All other purposes, objectives, and principles of sentencing must be achieved within a proportionate sentence.

Under the Criminal Code , the fundamental purpose of sentencing is to protect society and to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions. [8] In addition, under the CDSA , the fundamental purpose of any sentence is to encourage the rehabilitation and treatment, if appropriate, of offenders and acknowledgement of the harm done to victims and to the community. [9] Under the Criminal Code , rehabilitation and acknowledgement of harm done are objectives of sentencing.

Under the CDSA , however, those two items are elevated from objective to fundamental purpose. [ 37 ] Other objectives under the Criminal Code are to denounce unlawful conduct, to deter the offender and others from committing offences, and to separate offenders from society “where necessary.” The Criminal Code does not define when it might be necessary to separate an offender from society, but clearly that would be the case where public safety is threatened or where the crime is so heinous nothing but incarceration is reasonable. When

section 718 of the Criminal Code and

section 10 of the CDSA are read alongside the doctrine of restraint in sections 718.2(

d) and (e), Parliament’s intention to limit incarceration to the most serious cases

becomes clear. Under the CDSA , where statutorily aggravating factors are present, but the Court decides not to sentence the offender to prison, the Court shall give reasons for that decision. [10] None of those factors are present in this case. [ 38 ] Incarceration is not the only way to denounce crime. Corporations, for example, are routinely denounced through high fines.

For regular people, community-based sentences may achieve this objective by, in effect, shaming the offender in the community, or imposing conditions designed to show the community the offender is being punished. [11] Specific deterrence is often achieved before sentencing, through the process of charging the person, bringing them to court in a public forum, and causing anxiety about future freedom. No evidence exists that harsh sentences deter the general pubic from committing crimes. This province has a long history of imprisoning those who traffic in hard and soft drugs.

Those punishments certainly did not deter Britney McKay from participating in the crime before the Court. People not involved in the criminal justice system are mostly unaware of the range of sentences for particular offences. The certainty of apprehension is more likely to deter this type of crime than harsh punishment after the fact. Conversely, community-based sanctions may have a more deterrent effect by bringing the punishment into the glare of the public eye, rather than hidden behind prison walls.

Making amends and acknowledging harm done to the community is better achieved in the community than in a custodial setting. [ 39 ] Subsections 718.2(

d) and (

e) both direct the court not to deprive an offender of liberty if less restrictive sanctions or alternatives to imprisonment are “reasonable in the circumstances.” The “circumstances” now include a global pandemic. Residential institutions such as prisons are particularly susceptible to the spread of disease: alcohol-based hand sanitizer is contraband; conditions may be crowded; little opportunity for physical distancing exists, short of solitary confinement.

While COVID-19 is not a “Get-out-of- jail-free card,” it is one of the factors favouring a non-custodial sentence in the case of low-risk, non-violent offenders like Britney McKay. [ 40 ] Our Court of Appeal set a range of 18 months to four years in prison for trafficking in cocaine in a quantity of between 10 and 16 ounces, [12] although the Court has sanctioned sentences outside that range in appropriate circumstances. [13] In Pankewich , Jackson, J.A. says at paragraph 34: In my opinion, the sentencing objectives which figure most prominently, for drug traffickers acting for profit where the trafficker is not addicted, are denunciation and personal and general deterrence.

The reason for this is the nature of the offence which lacks immediate victims and is often the product of much previous thought. In such circumstances, it is not unreasonable to conclude that deterrence and denunciation will have greater effect in preventing these crimes than they might be in preventing others. Ms. McKay does not fit into the category of “drug traffickers acting for profit where the trafficker is not addicted.” She received no financial benefit for her participation in the offence.

Furthermore, when dealing with youthful first offenders in general, courts have long recognized specific deterrence and rehabilitative sanctions as promoting a safer society in the long term, as opposed to the short-term protection a carceral sentence might provide. [14] GLADUE [ 41 ] The offence of possession of a

Schedule I substance for the purpose of trafficking is a serious one. As Jackson, J.A. said in Pankewich at paragraph 40 , “This court, and many others, have long since taken judicial notice of the fact that cocaine is a pernicious drug with an insidious effect on society.

Those who permit the drug to circulate in our communities cause untold hardships.” Nevertheless, the Supreme Court of Canada has ruled it an error in principle to ignore broad systemic and background factors leading to the overincarceration of indigenous peoples. [15] Crown counsel submits that Gladue and restorative justice principles do not trump denunciation and deterrence in drug crimes. Denunciation and deterrence are objectives of sentencing. The fundamental principle, however, is proportionality.

The Court cannot arrive at a proportionate sentence without considering the history of colonialism, displacement, and residential schools leading to higher rates of substance abuse and suicide, and the specific factors that bring a particular offender before the court. Replying to a similar argument, Wilkinson J.A. stated in R v Delorme [16] : Accordingly, and contrary to the Crown’s perspective, applying restraint principles and honoring the “altered ‘method of analysis’” prescribed by Chanalquay does not serve to create any measure of confusion.

It does no disservice to the fundamental principle of proportionality. There is, instead, a subtle and nuanced interplay between the principles of restraint and the proportionality principle. The restraint principles, when appropriately implemented, are not being used to “trump” the fundamental principle of sentencing. Adopting the Crown’s glossary, the better description might be a “meld” – a hand of compatible cards that requires close examination, given its potential influence on the final outcome. Furthermore, the Court in Ipeelee made it clear that, even for long-term violent offenders like Messrs.

Ladue and Ipeelee, what is required is a different methodology, not necessarily a different result. That different methodology, however, may well result in a sentence unlike those within the typical range.

[ 42 ] It is necessary, therefore, to put this offence and this offender within a historical and social context. Ms. McKay comes from the community of Cumberland House, the oldest continuous settlement in Saskatchewan. Born of the fur trade, it was founded in 1774 by Samuel Hearne when he installed an inland trading post for the Hudson Bay Company. [17] In 1781-2, fuelled by the expanding fur trade, the North American Smallpox Epidemic ravaged the Indigenous population in the region.

In epidemiological terms, Indigenous people were “virgin soil,” resulting in an extremely high mortality rate compared to the European fur traders. William Tomison, in charge of the trading post, understood contagion, practiced isolation and disinfection, and showed compassion. The men of the Hudson Bay Company took in the sick and dying and buried the dead. [18] Despite their best efforts, the disease effectively wiped out the local Basquia, who spoke the th -dialect of Cree.

The Swampy Cree took over the region in the aftermath, and the n -dialect became the local language. [19] [ 43 ] Over the years, a Métis community emerged from the HBC workers and the local Indigenous population, as well as through immigration from other Métis communities. After the Red River Rebellion of 1869-70, Métis from that region also came to the Cumberland area. In 1876, the Cumberland House Cree Nation signed an adhesion to Treaty 5 at The Pas, Manitoba.

Their present-day reserve is located just to the south of the Village of Cumberland House. [20] Today, the two communities are separate but interconnected, with Cree spoken both on reserve and in the village. Although it has produced many notable citizens, including a provincial cabinet minister and two provincial court judges, Cumberland House today suffers from many of the same problems as other remote northern communities, such as poverty, addictions, and lack of adequate housing. [ 44 ] Ms.

McKay is but one generation removed from the residential school experience, which devastated Indigenous families and communities. Her mother grew up around alcohol and violence. Her father was raised by an alcoholic single mother and had to parent his siblings. Both Britney’s parents survived traumatic childhoods yet provided a relatively stable home life for her and her siblings, until that relationship broke down, causing trauma and feelings of abandonment in Britney.

This led her to become more susceptible to peer pressure, taking up alcohol and, later, cocaine, “to fit in.” [ 45 ] Although she is from a remote northern community, she moved to Prince Albert as a young woman, still a teenager. Prince Albert is home to people from many First Nations throughout the North. Many come here for work or for education at the local campuses of Saskatchewan Polytechnic or First Nations University of Canada. It is also a prison town, housing the Saskatchewan Penitentiary, Prince Albert Correctional Centre, Pine Grove Correctional Centre for women, and Prince Albert Youth Residence.

Prince Albert also has a serious problem with gangs, guns, and drugs. It is difficult for any Indigenous person in this city to avoid bad influences. Prince Albert is where Ms. McKay was first introduced to cocaine, at the age of 19. Her background contributed to substance abuse and a suicide attempt. The breakdown of her family caused feelings of abandonment. In these circumstances, it is not surprising that Britney would be vulnerable to the advances of an older man, especially one willing to feed her burgeoning cocaine dependency.

Unfortunately, this man was a sophisticated career criminal who used her naivete to enrich himself. [ 46 ] Ms. McKay’s background made her vulnerable to commit this crime in just this way. While the link between Gladue factors and the offence need not be causal, it must be comprehensible. [21] Here, there is a “comprehensible link” between her background and her offending, a link which reduces her moral blameworthiness.

CONCLUSION [ 47 ] One of the objectives of sentencing is to separate the offender from society, “where necessary.” In these circumstances, given her limited involvement in the crime and low risk to re-offend, I find it is not “necessary” to separate Ms. McKay from society. While Prince Albert was bad for Ms. McKay, Ms. McKay poses no danger to the City of Prince Albert. Neither is she a threat to the community of Cumberland House. Her only real risk factor is “Self-Management Awareness.” While Mr. Quan’s crime was serious, I find Ms. McKay’s degree of responsibility in assisting him to commit that crime is low.

She did not do this for profit. She has successfully abided by conditions in the community for 18 months. The objectives of denunciation and deterrence can be achieved by imposing a financial penalty and appropriate conditions in the community. [ 48 ] Although there is no direct victim to her crime, there is a societal victim. Ms. McKay was not a predator but she needs some education so she can understand the social harms such activities cause. That, too, can be achieved in the community.

She needs to learn skills regarding choosing romantic partners and resisting peer pressure, so something like this does not happen again. [ 49 ] I find a sentence of incarceration would not protect society. The social sciences tell us that incarceration elevates the risk of future offending, especially for low-risk offenders. [22] Thus, a carceral sentence would likely increase the risk Ms. McKay poses to

society. Furthermore, incarceration will expose her to other, more sophisticated inmates who might exploit her or influence her into choosing a negative path in her life. Further, I find a sentence of imprisonment would not contribute to respect for the law and the maintenance of a just, peaceful, and safe society. Incarceration in this case would undermine those values. This conviction will result in a criminal record, which will impact Ms. McKay’s prospects for many years to come. She will be in her mid-30’s before she can apply for a record suspension.

In other words, collateral consequences will flow beyond the probationary period. [ 50 ] There is maxim in the medical profession, “First, do no harm.” During this global pandemic, we may consider importing that philosophy into the criminal justice system. Since her release from custody 18 months ago, Ms. McKay has abided by all conditions imposed upon her. She has contributed to her community, abstained from drugs and alcohol, and co-operated with the court process in every way. Even with no intervention by this Court, she is unlikely to commit another offence.

As Jackson J.A. stated at paragraph 40 in Felix : As has been said by other appellate judges in similar circumstances where someone has, over a period of time after committing an offence, become a fully rehabilitated, productive member of society, sending that person to jail can be counterproductive. This is one of those cases. [citations omitted] SENTENCE [ 51 ] Regarding the ancillary orders, the DNA order is discretionary, and, under these circumstances, I decline to impose it. Ms. McKay has no prior criminal record.

The offence is possession of about 10 ounces of cocaine for the purpose of trafficking on December 13, 2018. She was a party to that offence by allowing Mr. Quan to store his drugs at her residence. She herself had no control over the items seized by police on that day. Requiring her to provide a DNA sample under these circumstances would have a disproportionate impact on her privacy and security of the person. [ 52 ] Regarding the firearms prohibition,

section 109 makes it mandatory for this offence, and I do make that order. She is prohibited from possessing any firearm, cross-bow, restricted weapon, ammunition and explosive substance for a period of 10 years. She is prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. She has been restricted from possessing firearms since December of 2018, under the terms of her recognizance. This has affected her liberty and enjoyment of life. As a First Nations person, hunting may play a

part in her rehabilitation and reintegration into the community by allowing her a culturally-appropriate means of providing sustenance for herself and her family. The offence did not involve violence or weapons. Ms. McKay has no criminal record and poses no danger to herself or the public. I therefore allow an exemption on the prohibition for sustenance or employment, pursuant to

section 113 of the Criminal Code . I make an order authorizing the Chief Firearms officer or the Registrar to issue an authorization, licence or registration certificate to Ms. McKay for sustenance or employment purposes. [ 53 ] As for the sentence proper, I have considered a suspended sentence and find it does not adequately denounce the crime. I have also considered an intermittent sentence. While it would better denounce the crime, it is not practicable at this time. Further, it would not be proportionate to her degree of responsibility for the offence. I find it is not necessary to separate Ms.

McKay from society. In this case, I find there is an alternative to custody that is reasonable in the circumstances. I have therefore decided to impose a fine of $2000 and a surcharge of $600 in addition to 18 months on probation with the following terms: 1. Keep the peace and be of good behaviour. 2. Appear before the Court when required to do so by the court. 3. Notify the court or probation officer in advance of any change to your name or address, and promptly notify the court or probation officer of any change in your employment or occupation. 4.

Report by telephone to a probation officer at 210 1 st Street East Nipawin, Saskatchewan, ph. (306) 862-1855 (toll-free 1- 877-862-1850) within two working days and after that as told to do so by your probation officer or designate. 5. Enroll immediately in the House Arrest Program and abide by the rules of that Program.

6. Live at a residence approved by your probation officer and not change that residence without the prior written permission of your probation officer or designate or the Court. 7. For the first three months of this order, stay inside your approved residence 24 hours a day unless you have the prior written permission of your probation officer or designate or the court to be elsewhere. 8. For the remainder of the order, stay inside your residence between the hours of 11:00 p.m. to 7:00 a.m. unless you have the prior written permission of the probation officer or the Court. 9.

Notify your probation officer as soon as possible after any contact with police. 10. Not possess or consume alcohol or drugs that have not been prescribed for you by a medical doctor. 11. Participate in assessments and complete programming for addictions, which may include out-patient treatment, as told to do so by your probation officer. 12. Take counselling for self-management awareness as directed by your probation officer. 13. Perform 120 hours of community service work. 14.

When Public Health Orders allow, and at the direction of your probation officer, make a speech at a local school or youth group about this offence. Tell them what happened to you, what choices you made, and what you would do differently today. 15. Have no contact, direct or indirect, with Victor Quan. [ 54 ] Because the Fine Option Program is on hold during the pandemic, I give her to June 1, 2022 to pay the fine and surcharge.

If necessary, she can apply to the Court for an extension. [ 55 ] Although it may appear lenient, this order, following the 18 months she has already been subject to court conditions, amounts to an effectual sentence of three years of curtailed liberty – no small price to pay for a four-month relationship with a drug dealer. It is said that “good judgment comes from experience and experience comes from bad judgment.” [23] I hope Ms. McKay uses this experience to develop better judgment in the future.

Dated this 22nd day of June, A.D. 2020, at the City of Prince Albert, in the Province of Saskatchewan. ______________________ F.M. Daunt, J