R. v. Sawatzky, 2021 MBPC 25

CITATION: R. v. Sawatzky, 2021 MBPC 25 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) ) ) D. Manning for the Crown - and - ) ) ) Willy Sawatzky ) ) B. Gladstone for the Accused ) Reasons for Decision ) Delivered: June 2, 2021 MARTIN, P.J. Introduction [ 1 ] Time and again, courts remark that sentencing is more of an art than a science. This is because there is such a delicate balancing act required to respect the fundamental principle of proportionality.

Determining a proportionate and therefore fit sentence becomes arduous in the case of an offender who has trafficked in methamphetamine, an offence for which denunciation and deterrence are paramount sentencing principles but who presents with reduced moral blameworthiness and substantial rehabilitative success without fitting into the category of exceptional circumstances. This is the task for this Court.

The Offence [ 2 ] Willy Sawatzky (Sawatzky) has pleaded guilty to trafficking methamphetamine between March 3 to 7, 2019, contrary to s. 5(1) of the Controlled Drugs and Substances Act ( CDSA ) , as well as to two breaches of his undertaking on May 11, 2019 and June 4, 2019, by having contact with an intimate partner who was also his co-accused, and by possessing a cellphone. [ 3 ] Sawatzky was charged with the trafficking offences after the Morden Police Service began an investigation in November, 2018 upon receiving information that Sawatzky and his co-accused were selling drugs from their shared residence.

It was in the context of this investigation that on March 3, 2019 an undercover officer texted Sawatzky looking to purchase one gram of methamphetamine for $80. A second transaction occurred on March 7, 2019. This time, Sawatzky contacted the undercover officer offering to sell 1.5 grams of methamphetamine for $120. That same day, police executed a search warrant at Sawatzky’s shared residence, locating four grams of methamphetamine and drug paraphernalia. Sawatzky admitted that he was a methamphetamine user and sold when he had a bit extra and needed to make a few dollars.

The Offender [ 4 ] Sawatzky is currently 27 years old. At the time of the offences, he was 25 years old without a criminal record.

He has since pleaded guilty and been sentenced on April 6, 2021, to a suspended sentence with one year of supervised probation for assaulting a police officer on May 22, 2020, and, on March 22, 2021 to a suspended sentence with one year of supervised probation for possession of methamphetamine and two counts of failing to comply with his release order. [ 5 ] Several reports were prepared for this sentencing: a pre-sentence report dated September 15, 2020 (PSR), a psychological assessment (Assessment) dated November 3, 2020, which was requested after the PSR writer raised concerns about Sawatzky’s cognitive abilities based on his slowness of speech and limited understanding during the interview, and two reports from the Behavioural Health Foundation (BHF) dated December 1, 2020 and March 2, 2021 which were authored as a result of Sawatzky’s judicial interim release to this program. [ 6 ] All of the reports reference Sawatzky’s difficult background.

His father was an alcoholic, a generational issue in the family, and there was domestic violence in the home growing up. The family lived in Mexico in a Mennonite community until they ultimately moved to Canada when Sawatzky was 13 years old. His parents have long since separated and his father has returned to Mexico. [ 7 ] At the age of 13, Sawatzky suffered a crushed skull as a result of a quad accident which impacted his functioning. He was in other such accidents that resulted in amputation to an ear and thumb.

Though Sawatzky reportedly always found school difficult, after his first quad accident he stopped attending all together. His full scale IQ places him at the borderline range, meaning that although he does not meet the criteria for a diagnosis of intellectual disability, he has several intellectual deficits including his working memory index

and verbal comprehension index which fall within the extremely low range. This means that Sawatzky’s ability to make reasoned decisions is impacted as he is impaired in his ability to pass information to higher orders of cognitive processes and measure knowledge acquired from his environment. [ 8 ] Sawatzky is also addicted to substances. In his teen years, he began smoking marijuana, developing an addiction between the ages of 20 to 22. He attended treatment in Mexico, then in Winkler. At the age of 24, he developed an addiction to methamphetamine.

This addiction appears to correspond with the time Sawatzky was with his co-accused. Sawatzky’s mother and sister both feel that the co-accused has had a negative influence on Sawatzky, believing that she was and continues to be heavily involved in the drug scene. However, this was also around the time that Sawatzky had a workplace accident that cost him the ends of two fingers and required him to be on workers compensation for a period of time.

Though Sawatzky has generally always been employed as a labourer, he has not returned to work since his workplace accident due to depression and post-traumatic sequelae. [ 9 ] After Sawatzky was re-arrested for his latest breach offence, he was released to BHF where he has resided since July 14, 2020, now close to 11 months. [ 10 ] Two reports from BHF speak to Sawatzky’s addictions and rehabilitation. A report dated December 1, 2020 indicates a generational pattern of alcoholism.

His substance use was established as a result of problems in the home and at school during early childhood and continued as a means of coping with bullying, isolation and lack of social connections. [ 11 ] Sawatzky has done exceedingly well at BHF. The December 1, 2020 report notes that Sawatzky occasionally succumbed to peer pressure and had a tendency to minimize both his responsibility for criminal involvement and the negative outcomes related to drug use, though the report writer indicates that each of these issues was likely associated with cognitive and comprehension challenges.

A more recent report dated March 2, 2021 notes that Sawatzky’s outlook on rehabilitation has drastically improved, having put a sincere effort into addressing his addiction issues and his criminal thinking and having found confidence, community, assertiveness and personal growth. [ 12 ] Sawatzky acknowledged in court that his time at BHF has been very beneficial and has helped him understand the wrong that his actions have caused the community and the importance of choosing better peers and coping mechanisms. [ 13 ] On September 15, 2020, the PSR writer assessed Sawatzky to be a high risk for re-involvement in criminal behavior based on the risk factors of education/employment, leisure/recreation and companions.

Other factors that were identified as potentially affecting supervision were mental health, financial problems, physical disability and engagement in denial/minimization. A subsequent report was not requested to re-assess Sawatzky’s risk. However, Sawatzky appears to have addressed issues related to companions and his minimization. His financial problems, education and leisure can be addressed through planning. Even without considering Sawatzky’s rehabilitative efforts, the PSR writer still found that Sawatzky would be a suitable candidate for community supervision.

The Position of the Parties [ 14 ] The Crown submits that the Court should sentence Sawatzky to a period of 12 months of custody, noting that while Sawatzky’s case is a sympathetic one, it is not an exceptional circumstance case. [ 15 ] Defence counsel disagrees, submitting that in all of the circumstances, an appropriate sentence is one that would see Sawatzky sentenced to one day, noting the 69 days of enhanced credit he has served before being released to BHF.

He says that this is either an exceptional case, or one that merits a short period of custody given the very low end trafficking and Sawatzky’s substantial rehabilitation. Sentencing Principles [ 16 ]

Section 718 of the Criminal Code sets out the objectives of sentencing. While Section 10(1) of the CDSA indicates that rehabilitation should be encouraged, in appropriate circumstances, the law is clear that when dealing with trafficking cases, the objectives of denunciation and deterrence are paramount, meaning that the sentencing judge should focus more on the offence committed rather than on the offender. (See R. v. Johnson , 2020 MBCA 10 , para 13 ) That is not to say, however, that the personal factors of the accused are ignored.

Section 718.1 of the Code requires a sentence to be proportionate to the gravity of the offence and the moral blameworthiness of the offender. Proportionality is the cardinal principle in any sentence. ( R. v.

Lacasse , 2015 SCC 64 para 12 ) To assess the extent of moral culpability in a particular case, due regard must be given not only to the normative character of the offender’s conduct, but also to the intentional risk taking of the offender and to the consequential harm caused by the offender. ( Johnson , para 16 ) Practically however, in cases in which general or specific deterrence and denunciation must be emphasized, the courts have very few options other than imprisonment for meeting these objectives. ( Lacasse , para 6 ) [ 17 ] Trafficking in methamphetamine, a

Schedule 1 drug, is very serious. Methamphetamine is a drug that has wreaked havoc in our communities and has lead to devastating consequences. It must be strongly denounced and deterred. [ 18 ] Street level trafficking of a

Schedule 1 drug typically falls within the range of 12 months to four years of incarceration. ( R. v. Gilchrist, 2004 MBCA 21 ) Though Lacasse is clear that sentencing ranges are not straitjackets ( Lacasse , para 57 ), incarceratory sentences tend to be the result unless there are exceptional circumstances present that call for a focus on rehabilitation rather than denunciation and deterrence. There are however, some cases where more lenient sentences, outside of the range, are imposed when exceptional circumstances do not exist.

Exceptional Circumstances and Lenient Sentences [ 19 ] Defence counsel provided several cases where either exceptional circumstances were found or the sentence imposed was significantly below the range (see in particular, R. v Burnett, 2017 MBCA 122 , for principles underlying exceptional circumstances; R. v. Dzinic, 2018 MBQB 143 , where exceptional circumstances were found to exist; R. v. McKnight, 2018 MBPC 42 , where exceptional circumstances did not exist but a lenient sentence was imposed).

[20] Exceptional circumstances have been the subject of much judicial commentary particularly since Parliament reduced theavailability of conditional sentence orders. Courts that previously found jail sentences were required to respect the principles ofdenunciation and deterrence but that the circumstances of the offender militated in favour of a non incarceratory sentence, are nowdeprived of such a sentencing tool.

Given many of the sentencing ranges which pre-dated the legislative amendments to conditionalsentence order regime, some courts have re-visited the almost reflexive imposition of a jail sentence, or a jail sentence within theestablished ranges. Exceptional circumstances have been an avenue revisited by many jurists to avoid a purely punitive sentence. However, exceptional circumstances is a legal concept that should not be distorted to achieve a desired result.

As noted in Burnett para28: While there are an infinite variety of offenders, as well as ways in which offences can be committed, such that the application of theexceptional-circumstances principle cannot easily be predicted, there are a few core features to it. Exceptional circumstances can arisefrom the way in which an offence is committed or from the circumstances of the offender or a combination thereof (see R v Gutoski, (MB CA), 1990 CarswellMan 1 at para 12 (CA); and Scanlon at para 13).

A sentencing judge’s assessment ofwhether there are exceptional circumstances is a holistic exercise based on an evaluation of the totality of the circumstances and all ofthe relevant sentencing objectives and principles (see Tran at para 20)…. [21] As noted in Johnson para 23, the exceptional circumstances threshold is very high and findings of exceptional circumstancesonly occur in the clearest of cases where there are multiple mitigating factors of significance or when an accused’s motive forcommitting the offence is highly unusual.

That said, the law does not require a sentencing judge to find exceptional circumstances tojustify imposing a sentence that is outside a judicially created starting point or sentencing range. (Johnson para 23 in reference to Burnettpara 25) [22] To use the words in Lacasse para 58: There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself adesirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot bedisregarded.

The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purelymathematical calculation. It involves a variety of factors that are difficult to define with precision. This is why it may happen that asentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is notdemonstrably unfit. Once again, everything depends on the gravity of the offence, the offender’s degree of responsibility and the specificcircumstances of each case.

LeBel J. commented as follows on this subject: A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing. Thus, asentence falling outside the regular range of appropriate sentences is not necessarily unfit.

Regard must be had to all the circumstances ofthe offence and the offender, and to the needs of the community in which the offence occurred. [23] The tension between the sentencing principles was commented on in Clayton, Ruby et al., Sentencing, 10th ed. (Markham:LexisNexis Canada Inc., 2020) para 2.46: The principle of parity is not absolute, and must not divert the judge’s attention from the sentencing criteria, such as the nature andseriousness of the offence and the individual characteristics of the offender… Moral blameworthiness [24] Moral blameworthiness encompasses the normative character of an accused’s conduct as well as the accused’s intentional risk-taking and consequential harm. (See Johnson, para 16) In assessing moral blameworthiness, the court must take into consideration anymental and cognitive limitations that played a role in the offender’s criminal conduct. [25] In R. v.

JMO, 2017 MBCA 59 at para 73, the Manitoba Court of Appeal suggested that when sentencing offenders with amental illness or some other form of cognitive limitation, sentencing judges keep separate and properly assess the following questions:

(1) Is there cogent evidence that the offender suffers from a recognized mental illness or some other cognitive limitation;

(2) Is there evidence as to the nature and severity of the offender’s mental circumstances such that an informed decision can be made asto relationship, if any, between those circumstances and the criminal conduct?

(3) Assuming the record is adequate the sentencing judge must decide the offender’s degree of responsibility for the offence taking intoaccount whether and, if so to what degree his or her mental illness or cognitive limitation played a role in the criminal conduct. Application of the Legal Principles to the Case at Hand [26] The trafficking in this case was in a very serious drug albeit at a very low level and sporadically over a period of time.

Theoffence was committed to support a methamphetamine addiction and respond to Sawatzky’s financial needs. [27] However, intertwined with his offending are Sawatzky’s cognitive limitations that impact his moral blameworthiness. Sawatzky is not a sophisticated individual. His cognitive limitations impact his mental control, reasoning and knowledge acquisition. All of this evidence demonstrates a nexus between the cognitive limitations and Sawatzky’s criminal conduct.

[ 28 ] I have considered the fact that Sawatzky had relatively long standing addictions issues and that addictions contributed to Sawatzky’s criminal conduct. However, despite Sawatzky’s long-standing addiction issues, his first foray into the criminal world is more recent and coincides with his association with the co-accused which supports the evidence that Sawatzky is susceptible to peer pressure. [ 29 ] As for Sawatzky’s rehabilitative process, it is important to note that this is not his first attempt. Sawatzky has gone for counselling in the past for his marijuana addiction.

Not only did he re-engage in marijuana consumption, he gravitated to methamphetamine. There was no evidence about the nature of treatment Sawatzky received in the past. By all accounts, he has done very well at BHF which is a renowned treatment facility.

However, as previously noted, Sawatzky’s static risk factors are such that the Court is mindful that further programming and support will be required to ensure Sawatzky has a well-structured, pro-social life. [ 30 ] Indeed while there have been no further breaches or substantive allegations since Sawatzky has been at BHF, some of the risk factors identified by the PSR writer, namely his education/employment, leisure/recreation and financial problems remain.

As for his poor choice in companions, Sawatzky assured the Court at the sentencing hearing that he has since come to realize that his co-accused is not a positive person in his life such that he has cut all ties with her and has decided to never reconnect with her. Though this may be true, in my view, Sawatzky will need further external support to ground his newfound understanding of the factors that were behind his criminal offending. [ 31 ] In all of the circumstances, the Court finds that Sawatzky’s case is not one of exceptional circumstances.

There is nothing unique or exceptional in the commission of the offence or the offender. All too often, offenders present with underlying substance abuse issues and difficult backgrounds. Through there are several mitigating circumstances in this case, once again, Sawatzky’s personal circumstances are not exceptional. That said, the balancing of the circumstances of the offence and the offender needs to be properly nuanced to arrive at a proportionate sentence. [ 32 ] A two month sentence suggested by defence counsel would be unfit as it would place too little emphasis on general denunciation and deterrence.

Conversely, a 12 month sentence as suggested by the Crown would overemphasize these principles. In my view, a sentence which appropriately balances denunciation and deterrence while acknowledging the many mitigating factors and reduced moral blameworthiness while continuing Sawatzky’s rehabilitative path is a five month custodial sentence followed by one year of supervised probation. As Sawatzky has already served the equivalent of 69 days, 81 days remain on a go forward basis for the trafficking offence.

I will authorize Sawatzky to serve this sentence intermittently such that he will be bound by a supervised probation order for the duration of the intermittent sentence which is approximately seven months. [ 33 ] As noted in Sentencing para 13.44: One should not underestimate the impact of a weekend sentence as punishment. Forty-five weekends in prison, the court noted in Dickey , involves nearly all the weekends in an entire year and satisfies much of the need for exemplary sentences even in extremely serious cases. R. v. Dickey , [1979] Q.J.

No. 214 , 7 C.R. (3d) S-13 (Que.C.A.) [ 34 ] The intermittent sentence will begin this Friday, June 4, 2021 until Sunday June 6, 2021 until the expiration of the 81 day sentence. During the period of his intermittent sentence, Sawatzky will be ordered to live at or as directed by the Behavioral Health Foundation. The Court is cognizant that this impacts Sawatzky’s liberty while at the same time furthering his rehabilitation. In my view, it achieves the delicate balancing required in these circumstances.

The conditions of the probation order while Sawatzky is on his intermittent sentence are as follows: • Keep the peace and be of good behaviour; • You must appear before the Court when required to do so; • Tell the Court or your Probation Officer before you change your name or address and promptly advise of any change to your employment or occupation; • You are to report to Probation Services by no later than Thursday, June 3, 2021 at 4 p.m. and thereafter as directed; • Remain under the supervision of Probation Services for the duration of your intermittent sentence; • You are to reside at the Behavioral Health Foundation or as otherwise directed by the Behavioral Health Foundation; • You are to attend, participate and complete all programing at the Behavioral Health Foundation and follow all of the rules and regulations as directed; • You are to attend, participate and complete all assessments, counselling and programming as directed by your Probation Officer; • You are to have no contact or communication with Melanie Ramirez; • You are to abstain from the consumption of alcohol, marijuana and illegal drugs; • You are to attend job skills/employability programs as directed by your Probation Officer. [ 35 ] The intermittent sentence is to be followed by a period of one year of Supervised Probation.

The terms of the Probation Order are as follows:

• Keep the peace and be of good behaviour; • You must appear before the Court when required to do so; • Tell the Court or your Probation Officer before you change your name or address and promptly advise of any change to your employment or occupation; • You are to report to your Probation Officer within 48 hours of the end of your intermittent sentence and thereafter as directed; • You are to attend, participate and complete all assessments, counselling and programing as directed; and • You are to have no contact or communication with Melanie Ramirez. [ 36 ] I will waive all costs and surcharges given Sawatzky’s circumstances. [ 37 ] I am also imposing the mandatory s. 109 Criminal Code Weapons Prohibition for a period of 10 years. “original signed by:” Martin, P.J.