2017 MBPC 26, 2017 MBPC 26

Citation: 2017 MBPC 26 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Christina Cheater ) for the Crown - and – ) ) Jon Robbins MATTHEW KYLE OST ) for the Accused ) ) Judgment delivered: ) April 18 th , 2017 M. McDonald, PJ Introduction [ 1 ] Mr. Ost has pled guilty to two charges of Trafficking (Cocaine) from October 30 and 31 st , 2013, one count of simple possession of a narcotic (Marijuana) and one count of breaching his recognizance from September 8 th , 2016. He spent a total of 8 days in custody after his arrest in May of 2014 and his arrest on September 8 th of 2016.

After his release in May of 2014 he was bound by significant restrictions contained in his recognizance including a 6 PM to 7 AM curfew. Other than the September 8 th , 2016 incident there were no additional breaches in almost three years between arrest and sentencing. [ 2 ] It should be noted the Pre-sentence addressed the circumstances of charges arising from an incident on August 18 th , 2016. No pleas of guilt where ever entered to those charges and, in fact, on the day of sentencing the Crown stayed proceedings concerning those charges.

I have disregarded that portion of the Pre-sentence report that deals with those matters. Facts [ 3 ] The circumstances of the possession for the purposes of trafficking charges are that the RCMP were conducting a undercover operation at one of the local bars known to be frequented by persons trafficking in narcotics. During the operation the undercover office made contact with the accused, the officer asked the accused if he would sell him cocaine, the accused agreed and sold him a “flap” of cocaine weighing 0.4 grams for 40 dollars.

The accused then gave the undercover officer his phone number in case he wanted to buy more. Not surprisingly the undercover officer took advantage of the offer and attended the Kikiwak Inn, in The Pas, where the accused was staying and purchased an additional eight (8) flaps for $300. He was arrested in May of 2014 after the conclusion of the undercover operation. [ 4 ] As to the breach of recognizance the accused was living in Winnipeg and was at 7-7A Morrow Street on September 8 th , 2016 when police attended on an unrelated incident and discovered Mr. Ost intoxicated and out past his curfew.

When he was searched he was found to have 15 grams of marijuana in his possession. [ 5 ] A Pre-sentence report including a Gladue assessment respecting the Trafficking charges was initially prepared for the court on May 5 th , 2016. A supplementary report was prepared after he became re-involved on September 8 th , 2016. Sentencing submissions were heard on April 3 rd , 2017. Background of the Accused

[ 6 ] Mr. Ost is 24 years old. He is of aboriginal ancestry. He has no prior criminal record. In the initial Pre-sentence report he expresses frustration with his arrest saying that the police entrapped him and that he is unjustifiably seen now as a drug dealer. He claimed that he was selling the drugs to get back the money he spent on them for his personal use as he was quitting the habit. Further he says he was high when he sold it to the officer. This explanation runs counter to the reality of the second transaction at the Kikiwak hotel.

At the time of his interview for the first Pre-sentence report he seemed to show little insight as to the dangers of cocaine and was concentrated on the impact of his arrest and prosecution on himself. [ 7 ] That being said it is notable that there is no indication in the Prosecutor’s Information sheet that is attached to the Pre-sentence report, and composes the Crown’s statement of facts, that the accused was the target of the operation at the time of the original sale.

Indeed it does seem there is some credence to the notion he was a target of opportunity on the first sale. [ 8 ] Gladue factors are at play in Mr. Ost’s case. Mr. Ost was brought up in a family where physical discipline by his father was common place. He admits when he got older and stronger he fought back at his father. He confided that he continues to harbour resentment for the beatings he received. His father is a survivor of the residential school system. Mr. Ost admitted he has problems with his anger and he battles to deal with that.

He shows signs of impulsivity having been suspended from school for fighting and having fractious relations with co-workers. He recalls being told by his father when he was young that his mother drank when she was pregnant with him and he told him he was a “retard” and that he should “go get his FAS card”. There is no indication there has ever been a formal FASD diagnosis. [ 9 ] The accused has also struggled with substance abuse. He began drinking and using drugs as a teenager.

When he moved to The Pas to work, shortly before the trafficking offence, he was drinking daily and using cocaine as frequently as his resources would allow. He says after he was arrested in May of 2014 he kicked his cocaine habit. Despite this at the time of the May 2016 PSR he was separated from his common law partner and was unemployed. Additionally, the writer of the report, who was the author of the supplementary report as well, expressed her concern that the “subject did not take full responsibility for his crime.

He expressed many negative feelings toward the Court.” He was assessed as a High Risk to reoffend. [ 10 ] After his arrest in September of 2016 Mr. Ost seems to have made a change in his life. He began attending Alcoholics Anonymous and Cocaine Anonymous and completed the twelve (12) step program. He attended and completed the Pritchard House eight (8) week outreach program. He received enthusiastic reviews from his outreach workers for his progress in the Pritchard House program.

He and his common law spouse resumed co-habitation and in the summer of 2016 he resumed and has maintained full time work. [ 11 ] Most significantly he accepted responsibility for his offending behaviour to the point that the preparer of the supplementary PSR noted, at page 12, “....the subject’s attitudes towards his convictions seem to have shifted positively since the last Pre-Sentence Report interview”. Indeed the risk assessment concerning the accused was downgraded from “high”, in the initial report, to “medium” risk to reoffend. The writer of the report goes onto suggest Mr.

Ost would be a suitable candidate for a community based disposition. Position of the Crown and Defence [ 12 ] The Crown takes the position that despite the accused lack of prior record, trafficking in cocaine requires the court to pronounce a sentence that emphasizes deterrence. It points to the fact there was not just one isolated transaction but two transactions and that, despite Mr. Ost’s initial explanations, he appeared to be an eager seller. The Crown also argued that the undercover operation in the bars of The Pas points to a real problem that exists in the community that must be denounced and deterred.

The Crown concedes there are Gladue considerations at play but takes the position those considerations not as pronounced for this accused as the case R. v. Peters [1] or R. v. Owen [2] , which have been cited by the defendant in support of a non custodial sentence.

At the end of the day the Crown proposes an 18 month term of jail is appropriate. [ 13 ] Counsel for Defendant submits that the Court is bound to seriously consider the background of the accused including the Gladue factors enumerated in the Pre-sentence report, in conjunction with the circumstances of the offence, and then to carefully consider whether jail is the only alternative that complies with the principles of sentencing and in particular s. 718.2 (

e) of the Criminal Code . The defendant relies on the decision of R. v. Peters [3] , R. v. Owens [4] and R. v. De Jong [5] in support of its argument. The defence says a suspended sentence on its own or in combination with an intermittent sentence of jail is appropriate. Analysis

[ 14 ] For many years the practice of trial courts sentencing offenders in this Province who have been convicted of trafficking in

Schedule I drugs was to sentence accused persons to significant jail terms. This practice persisted even in the face of the Supreme Court’s decision in R. v. Gladue [6] and R. v. Ipeelee [7] . Recently, however, our Court of Appeal has instructed us, in R. v. Peters [8] , that despite the seriousness of trafficking in such drugs it is not an error in principle to consider innovative and responsive sentencing alternatives, including community based dispositions where it is appropriate. [ 15 ] What I must decide is whether such as sentence is appropriate in this case. [ 16 ] In R. v.

Peters [9] the accused was a person of aboriginal ancestry with a lengthy record including a drug related conviction and a history of gang involvement. There is little information about his early upbringing set out in the decision other than he spent his early years in Winnipeg. The offence involved a sale of cocaine to an undercover officer.

On arrest he was found in possession of $405.00 and a search of his pregnant partner revealed 62 flaps of cocaine hidden in her vagina which the accused admitted was his stash. [ 17 ] His Pre-sentence report and Gladue assessment, along with material submitted by his counsel, established that after his arrest he made a significant turnaround in his life including taking sole custody of his three children after receiving a favourable parental capacity assessment and home assessment from Child and Family Services.

He also completed a 30 day residential treatment program which included component for domestic violence, anger management and parenting. He also participated in AA and NA meetings. Of note, and despite these positive developments, the writer of his Pre-sentence report assessed him as a “very high” risk to reoffend. The sentencing Judge imposed a three year suspended sentence with supervised probation. [ 18 ] In assessing the fitness of the sentence Monnin JA considered the British Columbia Court of Appeal’s decision in R. v.

Voong [10] that dealt with what constitutes “exceptional circumstances” that would warrant a departure from a jail sentence for a drug trafficker: “Exceptional circumstances may include a combination of no criminal record, significant and objectively identifiable steps toward rehabilitation for the drug addict, gainful employment, remorse and acknowledgment of the harm done to society as a result of the offences, as opposed to harm done to the offender as a result of being caught. ....

There must be something that would lead a sentencing Judge to conclude that the offender has truly turned his life around, and the protection of the public was subsequently better served by a non custodial sentence .” [11] [ 19 ] It bears noting that this same passage from Voong was quoted by Burnett JA in the companion decision of R. v. Tran [12] . [ 20 ] Monnin JA went onto consider not only the exceptional circumstances criteria but the proper sentence to be imposed in light of the principles set out in R. v. Ipeelee quoting the decision of LeBel J. “Section 718.2(

e) directs sentencing judges to pay particular attention to the circumstances of Aboriginal offenders because those circumstances are unique and different from those of non –Aboriginal offenders ( Gladue , at para. 37 ). When sentencing an Aboriginal offender, a judge must consider: (

a) the unique systemic or background factors which may have played a

part in bringing the particular Aboriginal offender before the courts; and (

b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection” [13] [ 21 ] LeBel J then went on to explain the importance of systemic factors in the Gladue analysis: “To be clear, courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and that history continues to translate in to lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide and of course higher levels of incarceration for aboriginal peoples.

These matters on their own, do not necessarily justify a different sentence for Aboriginal offenders. Rather, they provide the necessary context for understanding and evaluating the case specific information presented by counsel . ”

[ 22 ] Monnin JA then observed: “Because of what I would define as a major turn-around in the accused’s life following his arrest, the sentencing judge crafted a sentence that was appropriate and recognized the very substantial change that has occurred in the accused’s way of living. ...She was dealing with an exceptional set of circumstances and, in my view, dealt with them in a manner that was open to her.

In addition, in crafting her sentence she properly considered what the Supreme Court of Canada has said with respect to sentencing Aboriginal offenders. ” (Emphasis is mine) [ 23 ] Although the circumstances of Mr. Peters did not comfortably fit each of the usual criteria set out in Voong for exceptional circumstances the primary indicia, the clear evidence of a bona fide turn- around in the life of the accused and a turning away from addiction and crime, was present. This reality combined with the sentencing principles of s. 718.2(

e) and of Gladue and Ipeelee caused the court to conclude there was no error in principle committed by the sentencing Judge and the appeal of the Crown was denied. [ 24 ] In R. v. Owen [14] Killen PJ sentenced a young man in a considerably different circumstance than existed in Peters . [ 25 ] Mr. Owen was a confederate of an individual operating a dial-a-dope operation. He was driven to a location where he sold four rocks of crack cocaine to an undercover officer for $80.00.

When arrested and searched, the $80.00 and a further $40.00 were found on the accused, the female driver, and suspected facilitator of the dial-a-dope deal, was found in possession of $415.00.Two rocks of crack and a cellular phone were located in the car. [ 26 ] Mr. Owen was aboriginal and spent much of his life in foster homes due to his mother’s substance abuse and his father physical abuse. After becoming a teenager he spent much of his time in custody at the Manitoba Youth Centre. He demonstrated emotional and behavioural issues and was eventually diagnosed as suffering from FASD.

He also had a history of substance abuse. [ 27 ] Given his FASD diagnosis he was placed on Social Assistance through the Province’s Special Needs Program. At one point he was cut off the assistance and during this time he resorted to selling cocaine at the behest of gang members who used him for this purpose. [ 28 ] In conducting his analysis Killeen PJ could not conclude that exceptional circumstances such as those enumerated in R. v. Tran [15] existed and that the turn-around evident in Peters also did not exist in Mr. Owens case so as to justify a purely community based disposition.

The court noted the circumstances of the offence where less blame worthy than in Peters , and the application of the Gladue and Ipeelee systemic and individual considerations did not support the imposition of lengthy period of imprisonment. On balance he concluded a sentence of 90 days imprisonment and supervised probation for 3 years would operate to deter Mr. Owen while not jeopardizing the supports that offered the only reasonable likelihood of diverting him from a life of criminality. [ 29 ] In assessing the circumstances of Mr.

Ost’s involvement I do not conclude that he was involved in a commercial trafficking operation. I cannot be satisfied beyond a reasonable doubt that his explanation that he was selling to defray the cost of the cocaine he purchased for personal use is not true, however I am doubtful he gave up the habit of cocaine use until after his arrest some seven months after the sale of the cocaine to the undercover officer. [ 30 ] As to the background of Mr. Ost, I cannot conclude that his circumstances are ones that are exceptional.

Although he has no prior record, and he has taken significant steps towards rehabilitation and has obtained and retained gainful employment – I am also satisfied he was slow to recognize the wrongfulness of his actions and express remorse although I believe that has now occurred. All that being said I feel that his circumstances come very close to being exceptional. [ 31 ] There is also the reality that the Ipeelee considerations interplay with the near exceptional circumstances of Mr. Ost’s turnaround since his arrest in September of 2016.

When I consider the shortcomings in his acceptance of responsibility and his addictions I have to consider the systemic Gladue issues at play along with the individual reality that he was raised a father who was a product of the residential school system and who beat him frequently and that he lived in communities where substance abuse is endemic. Should it be a surprise he succumbed to substance abuse and that he may resent authority, be it in the form of the police in the techniques they employ in undercover operations or the court in the sentences they traditionally impose?

Is it unrealistic to give some leeway for an offender who has come to the realization of his wrong doing more slowly than someone who has not had the misfortunes of such an

upbringing or a history of racial discrimination? I think not. [ 32 ] I have concluded that the appropriate sentence for the two counts of trafficking are 45 days consecutive on each count for a total of 90 days less the 8 days of pre-sentence custody he has served leaving 82 days jail going forward.

The sentence is to be served intermittently commencing April 21 st at 6:30 PM and until April 23 rd at 6:30 PM and each consecutive weekend thereafter until the sentence is served while not in custody and for the next 3 years you will be bound by a supervised probation order, the conditions are as follows: - Keep the peace and be of good behaviour; - Appear before the Court when required to do so by the Court; - Notify your Probation Officer of the Court before you change your name or address, and promptly tell you Probation Officer of the Court if you change your job or occupation; - Report to the Provincial Director or designate by calling 1-800-334-8792 within 7 days after today’s date and continue to report and be supervised by your Probation Officer when and how you are told to by your Probation Officer; - Must abstain absolutely from the consumption or possession of any illegal drugs; - Must attend, participate in and complete substance abuse counseling or in-residence addictions treatment as directed and supervised by your Probation Officer; - Must not attend at the Allouette Hotel in The Pas, Manitoba; - Must seek and maintain regular employment or vocational training or academic upgrading as directed and supervised by your Probation Officer [ 33 ] On the count of simple possession of marijuana there will be a fine of $300.00, $90 victim surcharge, $2 costs – total $392.00.

Concerning the count of breach of recognizance there will be a further fine of $200, surcharge of $60 and cost $2 – total $262.00. The total fines, surcharges and costs are $654.00. [ 34 ] There will be an order of forfeiture of the drugs seized and an order under s. 109 for 10 years and lifetime for prohibited weapons. “ORIGINAL SIGNED BY:” M. McDonald, PJ