Her Majesty the Queen - v. -, 2018 SKPC 051

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2018 SKPC 051 Date: September 25, 2018 Information: 1928935 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Trevor Marcel McKay Appearing: Mr. Brent P. Slobodian For the Crown Mr. Patrick M. McDougall For the Offender SENTENCING DECISION S.D.

SCHIEFNER, J INTRODUCTION [ 1 ] The offender, Trevor McKay, has pled guilty to three very serious offences; namely, possession of a controlled substance for the purpose of trafficking, possession of property obtained by crime and laundering proceeds of crime. These charges arose out of the discovery of 11.26 kilograms of cocaine in an apartment in Prince Albert, Saskatchewan. The issue I must decide is the appropriate sentence to be imposed on Mr. McKay for these offences in light of all the relevant circumstances. [ 2 ] A sentencing hearing was held on March 27, 2018, and June 1, 2018.

In arriving at my decision, I have had the benefit of a pre-sentence report prepared by Mr. Patrick Ince of the Saskatchewan Ministry of Justice; a Gladue report prepared by Ms. Christine

Goodwin; expert evidence from Constable Scott Bellefontaine with respect to the methods of packaging and pricing of cocaine; methods and patterns of the distribution and usage of cocaine; the use of cell phones and currency in the trafficking of cocaine; and language and paraphernalia associate with the distribution and use of cocaine; and helpful and thoughtful submissions of experienced counsel. [ 3 ] For the reasons that follow, I have determined that a just and fit sentence for these offences, committed by this particular offender, in the circumstances described below, is a total sentence of nine years in custody less time spent on remand.

POSITIONS ON SENTENCING [ 4 ] The Crown submits that the appropriate sentence for the charge of possession of cocaine for the purpose of trafficking is in the range of 10 to 12 years. With respect to the proceeds and money laundering charges, the Crown submits sentences in the range of 2 to 3 years would be appropriate. Ultimately, the Crown submits that a global sentence of 12 years is appropriate and necessary to reflect the sophistication and scale of the trafficking operation, the quantity and nature of the drugs involved, and Mr.

McKay’s involvement in that operation, together with his continued involvement in trafficking in drugs after the police closed down his stash house in Prince Albert. The Crown also asks this court to note the negative impact on the communities affected by Mr. McKay’s large-scale drug trafficking operation. [ 5 ] Defence counsel argues that the Crown has overestimated Mr. McKay’s role in the illegal activities taking place at the stash house and not given sufficient consideration to Mr. McKay’s personal circumstances in recommending an appropriate sentence to this Court.

Counsel askes this court to use restraint in sentencing Mr. McKay cautioning that long term incarceration will only perpetuate the negative influences that have dominated his life throughout his childhood. Counsel reminds this Court that throughout most of Mr. McKay’s life he has been trapped in and the victim of a very dysfunctional life. Counsel suggests that a global sentence in the range of seven years would be proportionate to the gravity of these offences, Mr. McKay’s role and the Gladue factors that have been operative in his life.

PRINCIPLES OF SENTENCING [ 6 ] I am governed by the principles of sentencing which are set out in sections 718 to 718.2 of the Criminal Code and section 10(1) of the Controlled Drugs and Substances Act . The purposes and objectives of sentencing are set out in

section 718 of the Criminal Code . They include: denunciation, deterrence, separation of offenders from society where necessary, rehabilitation, reparation to victims, promotion of a sense of responsibility and acknowledgement of harm done. Section 10(1) of the Controlled Drugs and Substances Act encourages a sentencing judge to promote respect for the law and the maintenance of a just, peaceful and safe society through sentencing.

Section 718.1 of the Criminal Code directs that a sentence must be proportionate to the gravity of the offence and the degree of the responsibility of the offender (the principle of proportionality). Finally,

section 718.2 sets forth a list of additional factors that must be taken into consideration during the sentencing process, including the principles of parity, totality, and restraint. This is a holistic approached directed at finding the appropriate sanction for an offender in light of a matrix of important considerations including any relevant aggravating and mitigating factors. [ 7 ] Sentencing is a highly individualized process. In this case, there are certain features that require careful analysis before I can determine a fit and just sentence. First, the scale, size and impact of this illegal operation.

Second, Mr. McKay’s role in that operation. Third, the extent to which Mr. McKay’s personal circumstances as an Aboriginal offender affect the sentence that ought to be imposed. SIZE, SCALE AND IMPACT OF THE ILLEGAL OPERATION :

i) Relevant Facts : [ 8 ] In July of 2016, three individuals rented an apartment in Prince Albert, Saskatchewan for the purpose of storing, cutting, cooking, and repackaging large volumes of cocaine (the “apartment”). These three individuals include the offender, Mr. McKay; his girlfriend, Kelsey Bear; and an accomplice, Darci Stene. The cocaine was moved in and out of the apartment in large boxes of powdered drywall mix. The cocaine coming into the apartment was in a nearly pure form. It was cut and prepared for sale through a network of dealers.

The cocaine was sold in Prince Albert and various communities in Northern Saskatchewan. [ 9 ] On July 28, 2016, Ms. Stene (and two others) brought a number of items to the apartment, including large containers, a large

box (later confirmed to contain a safe) and two 25 kg drums (later confirmed to contained Phenacetin ). Over the next few days, various individuals came and went from the apartment and in doing so brought numerous additional items to the apartment. Of interest, eight boxes of drywall mud were brought to the apartment and two boxes were seen leaving. [ 10 ] The activities of Mr. McKay and his accomplices came to the attention of police when the manager of apartment complex entered the premises for an annual smoke detector inspection and observed, in plain sight, drugs and numerous suspicious items.

Police were contacted and entered the apartment on August 18, 2016. They secured the scene, obtained a warrant, searched the apartment, and seized evidence consistent with a large scale, sophisticated drug trafficking operation.

This evidence include, among other things: • A safe containing: • Two bricks of nearly pure cocaine (86%) each weighing approximately a kilogram each. • A number of bags of cut and repackaged cocaine, with purity ranging from 26% to 40%. • A number of bags containing crack cocaine, with purity ranging from 25% to 26%. • A large volume of agents commonly used for “cutting” pure cocaine for resale at a street level, including: • Two 25 kg drum of Phenacetin - Officer Bellefontaine testified that pharmacologically Phenacetin is drug used for reducing fever and for pain relief. • A container containing 12.6 kg of Procaine – Officer Bellefontaine testified that pharmacologically Procaine is a local anesthetic and generally known as “novacaine”. • Equipment and agents commonly used for “cooking” cocaine to make crack cocaine, including metal pots and acetone. • Equipment for repackaging large volumes of cocaine, including a steel press, rolling pin, and a hydraulic jack. • Materials for repackaging small volumes of cocaine, including a scale, vacuum bags, and vacuum sealer. • The means to covertly transport the cocaine in the form of multiple boxes of drywall mud, two of which were found to contain multiple bricks of cocaine. [ 11 ] In total, 11.25 kg of cocaine was found in the apartment.

Of this total, approximately 8.29 kg was in a nearly pure form (ie. 82% to 88%). Officer Bellefontaine testified that this level of purity would tend to indicate that it had recently been imported into Canada from a source country. The balance of the cocaine (approximately 2.96 kg in total) had been cut and repackaged for sale as either powder or crack cocaine. The powder cocaine was in concentrations ranging between 26% and 40%.

Officer Bellefontaine testified that, in his opinion, the nearly pure cocaine would likely be cut – diluted with other agents, such as Procaine and Phenacetin – before being sold to dealers. He further testified that pure cocaine needed to be cut before being sold to users because it would be very unusual – arguably dangerous - for cocaine to be consumed in a nearly pure form. [ 12 ] The powdered cocaine that was found in the apartment had been cut with the same agents that were present in the apartment - namely Procaine and Phenacetin.

In Constable Bellefontaine’s opinion the nearly pure cocaine coming into the apartment was being both cut and cooked for sale on the street through a network of dealers. If all of the cocaine had been cut, the total quantity of cocaine would increase to at least 19.55 kg depending on the level of concentration. It is further noted that sufficient cutting agent was present in the apartment to cut an additional 54 kilograms of pure cocaine for sale on the street. [ 13 ] Constable Bellefontaine calculated the total estimated value of the cocaine found in the apartment using three different assumptions.

Firstly, the officer estimated that if the cocaine was sold by the kilogram to a midlevel dealer, its total value would be approximately $780,000.00. On the other hand, if the cocaine was sold by the ounce to street level dealers, the value would increase to approximately $977,000.00. Finally, the officer estimated the street value of all the cocaine found in the apartment would be approximately $1.5 million assuming that it was cut to a 40% concentration and sold by the gram on the street. [ 14 ] Constable Bellefontaine referred to the apartment as a “stash house”. There was no furniture found in the apartment.

While

multiple grams of cocaine were discovered in the form of loose powder on the floor and on the countertops, no evidence of drug use was found at the apartment. There was no evidence that the apartment was used for anything other than storing, cutting, repackaging and distributing the cocaine. Certainly, there was no evidence that anyone lived in the apartment and no evidence that anyone was using drugs in the apartment. [ 15 ] Cell phones were recovered from Mr. McKay, Ms. Stene, Ms. Heimbecker and Ms. Hunter. Search warrants were obtained and the data was analyzed where possible. Ms.

Stene’s cell phone showed text messages between herself and Ms. Bear (Mr. McKay’s girlfriend) regarding the apartment. On July 6, 2016, Ms. Stene informed Ms. Bear that the landlord wanted a deposit. She sought confirmation from Ms. Bear whether or not Ms. Stene should rent the apartment. [ 16 ] Mr. McKay’s phone contained text messages to and from and number of indivuduals including “Aaron”, “Dall”, “Dame”, “Emma”, “Game”, “Kato”, “Ken”, “Nada” and “Souji”.

While many of the messages used coded language, Constable Bellefontaine testified that the expressions used in these messages are commonly used in drug trafficking. From a review of these recovered messages – and there were many of them, it is obvious that in 2016 Mr. McKay was supplying large volumes of cocaine to a number of dealers, who were in turn selling that cocaine to street level dealers who were selling the drugs directly to users.

These drugs were being sold in Prince Albert, as well as a number of northern communities, including the communities of Lac La Ronge, Il La Crosse, and Pinehouse, as well as the Muskoday, Green Lake and Flying Dust First Nations, and the City of Meadow Lake. Mr. McKay was supplying both powdered and crack cocaine and he was doing so based on the requests he was receiving from his dealers who were basing their requests on the demand they were seeing in these communities. Mr.

McKay’s dealers were competing with other individuals who were also selling drugs into these communities. [ 17 ] Violence associated with drug trafficking was indicated in only a few messages. On October 21, 2016, a contact by the name of “Candy” informed Mr. McKay of trouble on the street which his/her dealers where experiencing with individuals associated with the Terror Squad. Candy informed Mr. McKay that she was trying to avoid one but may have to go to “war”. On October 25, 2016, Mr. McKay reminded Candy that he/she owed him $10,000.00.

Then he sent these messages: “Man your making up excuses do you have that money or not tell me now” “Well obviously you been spending” “Gotta stop that shit” “Or soe.thing goin to happen to you. Ppl get out in the hospital over 5 k. A hit is 10k. You ducking owe me” [ sic ] [ 18 ] Not only were large volumes of drugs being supplied through a network of dealers but also a large volume of money was being received by Mr. McKay from these individuals. For example, in an exchange dated May 15, 2016, Mr. McKay communicates with an unnamed individual who wants more drugs and Mr.

McKay informs him that he can’t “reload” until he pays $65,000.00, plus $39,800.00. The individual indicates that he should have it all by Thursday. In another exchange between Mr. McKay and “Dame” on November 5, 2016, they agree that Dame still owes him $72,000.00 for the cocaine that Mr. McKay has supplied. In another exchange dated November 23, 2016, McKay communicates with an unnamed individual and informs him/her that he has a large supply of cocaine for him (approximately 46 ounces) and that he owes $65,500.00 him for those drugs.

In another exchange with a phone number identified as “Kato” on November 26, 2016, Mr. McKay reminds Kato that he owes him $11,000.00 for drugs previously supplied, as well as another $100,000.00 for a “new pack”, meaning a new supply of cocaine. [ 19 ] The large quantity of money involved can also be observed in a note found on Mr. McKay’s phone. The note includes a list of names and numbers. Officer Bellefontaine testified that the numbers represent how much money each individual owed Mr. McKay and how much they have paid toward their outstanding indebtedness to him. The note on Mr.

McKay’s phone was last modified on December 10, 2016 and reads as follows: June 306000-32500-37000 Dall 45000-1300 Dame 14400-4000-8000 Winnie 65500-3000-2500 Kato 100000-1400-10000

Crage 12800+5000+900 ii) Community Victim Impact Statements: [ 20 ] Various community leaders in Northern Saskatchewan were asked to provide victim impact statements regarding the harm and loss experienced by these communities as a result of the drug trafficking.

Statements were received from the Mayor of the City of Prince Albert, the Chief of the Muskoday First Nation, the Mayor of the Northern Village of Pinehouse, the Chief of the Flying Dust First Nation, the Mayor of the City of Meadow Lake, and the Chief of the Lac La Ronge Indian Band. [ 21 ] In some respects, these statements included inappropriate material because the author expressed his/her opinion or views with respect to sentencing. Counsel on behalf of Mr. McKay objected to this Court receiving these statements because they contained inappropriate material.

Having reviewed the statements provided, I am satisfied that they are admissible as Community Impact Statements within the meaning of s.722.2 of the Criminal Code . However, in accepting these statements, I have disregarded any statements providing a recommendation as to the sentence I ought to impose or that would tend to stereotype or denigrate individuals involved in drug trafficking.

In accordance with s.722(8) of the Criminal Code , I have only taken into account those portions of the statements that I consider to be relevant – namely, the economic loss and emotional and physical harm experienced by members of northern communities as a result of the sale of illicit drugs, such as cocaine. [ 22 ] Of particular significance, I believe the following quotes are helpful in understanding the community impact associated with Mr. McKay’s conduct: Community Impact Statement - Muskoday First Nation The use of illegal drugs has a huge impact on our community.

In the past few years, the number of community members using intravenous drugs has increased as has the use of other street drugs such as cocaine and crystal meth. This is a major cause for concern for a number of reasons. Where it has never been an issue in our community, we find that homelessness is now a factor for some of our addicted community members. Their families have had no choice but to turn their loved ones out due to the theft and/or dangerous disposal of needles in the family unit. The psychosis experienced by many addicts leaves family members feeling unsafe to be around them.

This has led to more family breakdown and the addicted persons becoming isolated and alienated. Fear for ones safety in their own homes and on the streets in the community has become a huge issue. Violence is on the increase, bullying, threats and intimidation is common. People have been physically violated. There have been incidents of drive-by shootings. Our young people particularly from single parent families, are targets for gangs who groom them to become part of them. Our public buildings have had to implement policies and procedures for lock downs due to the increase in weapons in the community.

Children in the school particularly and Elders should not have to live in fear for their safety. This has resulted in many people suffering from trauma, anxiety and depression. [Material removed from statement] Witnessing a mother sign over her child tax credit cheque to the drug dealer for payment of her drugs is hurtful, when her children have no food in the fridge and the youngest is without pampers. The rates of children in care is rising significantly because parents can no longer provide the proper love and nurturing that their children deserve.

Children are growing up with bonding and attachment issues and becoming adults who are full of anger. The repercussions of the foster care system are well known. [Material removed from statement] Chief Austin Bear On Behalf of the Muskoday First Nation Members, Elders and Youth

Community Impact Statement – Flying Dust First Nation The Flying Dust First Nation is one of many communities heavily impacted by the drug trade and the many participants in trafficking. Over the past several years we have seen a marked increase in property crime, assaults and drug offences.

We have had Elders suffer from home invasions and assaults, children who are being abused and neglected, families suffering from financial burden, broken families, chronic illness and death. [Material removed from statement] Sincerely, Chief Jeremy Norman Community Impact Statement – City of Meadow Lake I am writing to you on behalf of the Council and citizens of Meadow Lake to address the negative impact that drug trafficking has on our community.

Meadow Lake has seen an increased crime rate which we believe can be directly and indirectly tied to the drug trade, both with petty theft by those looking to fund their addictions, and more violent crime such as home invasions and gang activity. Our community was recently deeply impacted by the murder of a young person which is believed to have been drug related. Many residents are altering their use of public places, such as park and playgrounds, in order to avoid exposing themselves to the real or perceived risk of victimization.

Residents have also expressed fear for their families and businesses, and a reluctance to invest long term in the community due to these concerns. We are also seeing the strain that both the use and illegal trade of drugs are placing on our emergency services and health care facilities. Resources become stretched thin with the increase demand on these public services, which lower the quality of life and ability to access to key services for all residents.

The youth of our community are especially vulnerable, as both their own drug addiction or that of family members can place them behind their peers, limit their options, and create barriers to success that will impact them for the rest of their lives.

We believe it is important that the court consider the ways in which the drug trade is restricting the growth of our community, limiting our ability to attract and retain businesses, and negatively impacting the health and safety of our residents. [Material removed from statement] The entire community suffers the consequences of a culture where crime and violence related to drug abuse become normalized.

Mayor Gary Vidal City of Meadow Lake iii) Conclusions Based on these Facts: [ 23 ] I am satisfied beyond any doubt that the subject operation was both highly sophisticated and intended for the commercial distribution of large volumes of cocaine in Northern Saskatchewan. The police seized over 11 kilograms of cocaine from the subject apartment (the majority of which was in a nearly pure form) together with all the supplies and equipment necessary for the preparation,

cutting repackaging and sale of cocaine to dealers at the street level. If all of the cocaine was cut and prepared, the quantity wouldincrease to 20 kilograms. Furthermore, enough cutting agent was present in the apartment to prepare 54 more kilograms of cocaine forsale. Police value all of the cocaine found in the apartment at between $780,000.00 and $1.5 million, depending on how it was sold. [24] To maintain security, only a small group of accomplices went to the apartment and no drugs were used at or sold from thatlocation. Simply put, the operation was designed to be hidden in plain sight.

It was covertly located in ordinary apartment with a rationalcover story for the movement of product in and out of the building – namely, the outward appearance of a drywall operation. [25] The drugs prepared and sold by Mr. McKay’s group were distributed within Prince Albert as well as to a number of northerncommunities, including Meadow Lake, Lac La Ronge, Ile La Crosse, and Pinehouse, along with the Muskoday, Green Lake, and FlyingDust First Nations. The terrible effects of drugs on these communities are well-documented in the victim impact statements.

LAW RESPECTING LARGE SCALE DRUG TRAFFICKING OPERATIONS [26] I have reviewed the following cases from Saskatchewan: R v Kasakan, 2005 SKPC 94 [Kasakan], R v Shawile, 2012 SKCA51 [Shawile], R v McIntyre, 2012 SKCA 111 [McIntrye], R v Palfrey, 2014 SKCA 1 [Palfrey], R v Rahimi, 2015 SKCA 85 [Rahimi], 465Sask R 70, R v Chu, (2015 unreported) See: Saskatchewan (Public Prosecutions, Director) v Chu, [2014] SJ No 766 [Chu]. [27] I have also reviewed the following cases from other jurisdictions: R v Lau, 2004 ABCA 408, 357 AR 312 [Lau], R v Epp,2006 BCCA 570, 215 CCC (3d) 570 [Epp], R v Rocha (S.), 2009 MBCA 26 , 236 ManR (2d) 213, R v Oddleifson, 2010MBCA 44, 256 CCC (3d) 317 [Oddleifson] [28] From the foregoing, I conclude the following when dealing with large scale, sophisticated illicit drug operations: • The current approach in Saskatchewan when dealing with the drug-related offences involving cocaine is to emphasize theprinciples of deterrence and denunciation in sentencing given the high potential for individual and community harm associated theseoffences.

See: Shawile. • The terrible effects of drugs on northern communities, especially First Nations, have been repeatedly recognized by this Court.See: R v Kasakan. • The sophistication of the enterprise and the quantity of cocaine involved are factors to be considered in sentencing. See: McIntyre. • Large scale or “wholesale commercial” operations attracted a sentencing range in excess of the 18 month to 4 year rangesuggested by the Saskatchewan Court of Appeal in McIntyre – potentially well in excess of that range. See: Palfrey, Chu, Oddleifson,Epp, and Lau.

The most severe sentences are reserved for offenders who import large quantities of cocaine with the intention ofdistributing it for a profit. See: Oddleifson. Operations involving kilogram quantities of cocaine may be considered large scale or“wholesale commercial” operations. See: Lau. • When tens of kilograms are involved, sentences continue to rise but courts are cautioned not to over-emphasize the quantity ofdrugs involved. See: Epp. • The sentencing range for involvement in large scale, sophisticated cocaine trafficking operations is 3 to 16 years. MR. MCKAY’S ROLE IN THE ILLEGAL OPERATION

i) Relevant Facts: [29] Mr. McKay was at the apartment August 1, 2, 3, 11, and 12, 2016, carrying various items into and out of the apartment,including boxes of drywall mud. After the police searched the apartment on August 18, 2016, they removed all of the seized items andleft a copy of their search warrant. On August 24, 2016, Mr. McKay is observed on video surveillance entering the apartment andleaving one second later. [30] A warned statement was obtained from Ms. Stene indicating that she had rented the apartment for Mr. McKay, that she gavehim a set of keys for the apartment, and that he paid her for the cost of renting the apartment plus an additional $200.00 per month.

[ 31 ] Two of the accomplices that assisted in the establishment of the stash house provided warned statements to police. These individuals included Shaid Heimbecker and Rose Hunter. Of significance, Ms. Heimbecker told police that Mr. McKay was in charge of the apartment and on top of the hierarchy; that Mr. McKay cut and mixed the cocaine in the apartment; that Mr. McKay told Ms. Heimbecker to tell police that a third party was in charge if she was ever arrested by police; and that Mr. McKay contacted her through a third party following his arrest. When he contacted her, Mr. McKay told Ms.

Heimbecker to take responsibility for the drugs and told her that she would be paid if she did so. [ 32 ] A fingerprint analysis was conducted of items found in the apartment and Mr. McKay’s fingerprints were found on the hydraulic jack. [ 33 ] The police conducted a forensic analysis of Mr. McKay and Ms. Bear’s finances. A review of Ms. Bear’s banking records reveals that between January 1 and October 24, 2016, there were $73,124.86 in unusual deposits and e-transfers credited to Ms. Bear’s account – deposits not associated with Ms. Bear’s employment at the time – deposits that have been acknowledged by Mr.

McKay to be proceeds from drug trafficking. A review of Mr. McKay’s banking records reveals two facts of significance. First, Mr. McKay did not have any employment income in 2016. Second, there were $15,440.00 in unexplained deposits and e-transfers in the amount to his bank accounts – deposits that have been acknowledged by Mr. McKay to be the proceeds from trafficking. [ 34 ] A review of Mr. McKay’s tax records indicates that he did not file an income tax return in 2015 and no T4 income could be identified. Ms. Bear had employment income in 2014 of $7,924.14, and in 2015 of $7,755.21.

Her last source of income from employment was on April 13, 2016. [ 35 ] In May of 2015, Mr. McKay purchased a 2015 BMW M4 for $40,000.00. Mr. McKay acknowledges that this vehicle was purchased for the purpose of laundering the proceeds from drug trafficking. The vehicle was registered in the name of Ms. Bear’s mother to obfuscate the true ownership of the vehicle. On June 9, 2016, a 2010 Mercedes Benz was financed by Ms. Bear and then transferred to an accomplice, Rose Hunter. Ms. Hunter provided a warned statement to police that the actual owner of the vehicle was always Ms. Bear. On December 12, 2016, Mr.

McKay leased a 2016 Jeep Grand Cherokee and, in doing so, paid $25,000.00 in cash to cover the deposit. [ 36 ] As noted, Mr. McKay was communicating with a number of individuals involved in the trafficking of cocaine. He was supplying large volumes of cocaine to a number of dealers, who were in turn selling that cocaine to street level dealers who were selling the drugs directly to users. Not only were large volumes of drugs being supplied through this network of dealers but also large volumes of money were being handled by Mr. McKay. Finally, these messages also indicate that Mr.

McKay was enforcing collection of debts from delinquent dealers. ii) Position of the Parties : [ 37 ] The Crown argues that Mr. McKay was the lead player and guiding mind behind the drug trafficking operation run out of the stash house. The Crown argues that the sentence imposed on Mr.

McKay must reflect the high level of responsibility he had for this operation. [ 38 ] Defence counsel, on the other hand, argues that it is highly unlikely - arguably irrational to conclude - that a 29 year old from a small northern community could be the lead player and/or guiding mind behind the kind of large-scale drug trafficking operation discovered by police at the stash house. Defence counsel asks this Court to infer that some other individual was the guiding mind behind this operation. Defence counsel argues that Mr.

McKay was merely a dupe. iii) Conclusions Based on the Facts : [ 39 ] The overwhelming preponderance of evidence indicates that Mr. McKay was the guiding mind and lead player in the entire operations. This evidence included banking and other records, the statements obtained from accomplices, the communications obtained from the phone records, the fingerprint evidence, and the surveillance video. There is a compelling inference to be drawn from the evidence that Mr. McKay is not a new entrant into drug trafficking. The evidence from the Canadian Revenue Agency would indicate that Mr.

McKay did not have a lawful source of income in 2016 or any of the two preceding years and yet his banking records are consistent with a person of significant financial means. Both Shaid Heimbecker and Rose Hunter identify Mr. McKay as the lead player, which evidence is corroborated by the communications observed in Mr. McKay’s phone records, together with his direct participation in

the activities at the stash house. [ 40 ] I cannot infer that someone else was the guiding mind behind this operation merely because Mr. McKay is young and has no prior record involving drug trafficking. In the absence of some evidence of another person, it would be purely speculative on my part to infer that such person exists. Furthermore, even if there was someone external to Prince Albert to whom he was reporting or receiving instructions, Mr. McKay was the local lead player. In Oddleifson , the Court used the words “trusted overseer”. [ 41 ] I find that Mr.

McKay was the lead player and guiding mind behind the establishment and operation of the stash house located by police in Prince Albert on August 18, 2016. I am also satisfied that Mr. McKay’s motivation for his involvement in this operation was entirely commercial. There is no other reasonable inference that can be drawn from the whole of the evidence. Simply put, he was in it for the money. [ 42 ] In R v Aden , 2015 SKCA 59 , 460 Sask R 98 [ Aden ], which involved a cocaine trafficking operation involving multiple individuals, the Court of Appeal upheld the trial judge’s sentence for Mr. Aden.

The trial judge had found him to be a “controlling figure” of the enterprise in question and as such Mr. Aden deserved a greater sentence than his associates. A similar analysis and result can be seen in Palfrey . MR. MCKAY’S PERSONAL CIRCUMSTANCES ( GLADUE) FACTORS

i) Relevant Facts: [ 43 ] Mr. McKay is 29 years old. He identifies as Metis. However, he has lineage connecting him to the Waterhen First Nation through his mother’s family and to the Flying Dust and Rocky Boy First Nations through his father’s family. [ 44 ] Alcoholism has been an issue in Mr. McKay’s family for generations. His family has experienced periods of dysfunction, abuse, addictions and loss of culture.

Throughout his life but particularly in his formative years, Trevor was exposed to family breakdown, substance abuse, violence and loss. [ 45 ] His paternal grandfather attended a Catholic residential school. After doing so, he turned his back on his Aboriginal culture and forbade his family from speaking Cree. Until the age of five, Trevor lived primarily with his father and paternal grandparents in Green Lake, Saskatchewan. He recalls having a positive and happy childhood in Green Lake. Trevor’s paternal grandmother provided a structured environment for him and ensured that he had food, clothing and guidance.

On the other hand, his grandparent’s home was very crowded, with many children and grandchildren all living under the same roof. His grandfather was a strict disciplinarian. [ 46 ] At age five or six, Trevor moved to Saskatoon to live with his mother. Unfortunately, she was struggling with addictions and dating an abusive boyfriend at that time. Trevor was exposed to violence and transiency. The family experienced both food and housing insecurity. At age ten, Trevor was placed in foster care for three months because of his mother’s addictions.

Trevor was returned to his mother but they continued to experience poverty and housing instability. His mother continued to use crack cocaine and Trevor witnessed many incidents of family violence between his mom and her partners. She went to drug rehab eight times. [ 47 ] In 2004, Trevor’s grandmother passed away and his father began drinking heavily and using hard drugs. Trevor dropped out of school, did not complete grade 12, and then moved in with his father. His father would regularly binge on alcohol and drugs and was selling drugs to fund his addiction. During this period, Mr.

McKay’s father became very sick from using dirty needles and he sought Trevor’s help to “cook” crack cocaine and to package it for sale. Simply put, Trevor’s father taught him the drug trade. This normalized the sale of drugs as a source of income. Trevor’s father was beaten to death in a bar fight in 2008 (when Trevor was 20). There is some indication that this was a drug deal that went bad. [ 48 ] The author of the Gladue report summarized the following circumstances as being relevant in sentencing Mr.

McKay (page 10): • Parents split up when Trevor was a baby. • Significant addictions and alcohol abuse on both sides of his family.

• Significant physical abuse by grandparents and mom’s partners. • Transient life, attended several different schools. • Mother’s many partners where abusive and alcoholics/addicts.

Trevor was exposed to and suffered abuse alongside his motherwhen he was in her care. • Serious quad accident that resulted in year-long hospital stay for Trevor. • Parent, parent’s partner and grandparent were all known drug dealers. • Loss of his paternal grandmother. • Father murdered as a result of a drug deal gone bad (beaten to death outside a bar). • Sister Larissa died due to brain aneurism in her 20’s. • (Step mother) died from drug related issues.

She had HIV/aids, Hepatitis C and was severely addicted to needles and crack –Trevor witnessed her having sex to get drugs. • Relationship breakdown with mother of two children ages three and five. • Relationship breakdown with mother of one child age three. • Quit good job at the mine due to stress. • Got involved with the wrong people and started selling drugs. [49] Finally, Mr. McKay has a criminal record. In July of 2009, he received 12 months of probation for theft under, mischief under,failure to attend court (x2), and a breach of an undertaking.

In November of 2009, he was fined for a breach of recognizance and a failureto attend court. In January of 2013, Mr. McKay was fined for possession of a controlled substance and for refusal to provide a breathsample. He also received time served (seven days) for breach of an undertaking. In May of 2013, Mr. McKay was fined for driving whiledisqualified and breach of a recognizance. In January of 2014, he received a 12 month conditional sentence order for assault causingbodily harm. Finally, May of 2014, Mr.

McKay received a three month conditional sentence order for driving while disqualified and forbreach of an undertaking. In

summary, Mr. McKay has no previous conviction for drug trafficking and his longest previous period ofincarceration was seven days. THE LAW RESPECTING GLADUE FACTORS AND SENTENCING [50]

Section 718.2(

e) of the Criminal Code directs that I take into consideration all available sentencing options other thanimprisonment that are reasonable in the circumstances and that I pay particular attention to Mr. McKay’s personal circumstances as anAboriginal offender in determining the appropriate sentence. This important provision has been interpreted by the Supreme Court ofCanada in two helpful decisions; namely, R v Gladue, (SCC), [1999] 1 SCR 688 [Gladue] and R v Ipeelee, 2012 SCC13 [Ipeelee]. These decisions are fulsome and dense.

Luckily for me, the Saskatchewan Court of Appeal has reviewed both decisions indetail and in R v Chanalquay, 2015 SKCA 141 [Chanalquay], identified the key points that I must consider at paras. 34 – 38: [34] The proper approach to the application of s. 718.2(

e) was first elaborated by the Supreme Court in Gladue. Some of the keypoints made in that decision are set out below: (

a) The purpose of s. 718.2(

e) is to ameliorate the problem of overrepresentation of Aboriginal people in prisons by encouraging judgesto consider a restorative justice approach to sentencing (para 93). (

b) In appropriate cases, the goals of restorative justice may take on greater weight and traditional sentencing goals will be less relevant(para 77). (

c) The effect of s. 718.2(

e) is to alter the method of analysis sentencing judges are required to use in determining an appropriatesentence for an Aboriginal offender (para 75). (

d) In sentencing an Aboriginal offender, a judge must consider: (

i) the unique systemic or background factors that may have played a

part in bringing the offender before the courts; and (ii) the types of sentencing procedures and sanctions that may be appropriate in the circumstances for the offender because of his or herAboriginal heritage or connection (para 66). (

e) Judges must take judicial notice of the broad systemic and background factors affecting Aboriginal people generally, but case-specific information will have to come through counsel or pre-sentence reports (para 93). (

f) Systemic and background factors, on their own, do not necessarily dictate any particular sentence for Aboriginal offenders. They

provide a context for considering case-specific information (para 88). (

g) The lack of alternative sentencing programs particular to an Aboriginal community does not eliminate the obligation of a sentencing judge to impose a sanction that takes into account principles of restorative justice (paras 74, 93). (

h) If there is no alternative to incarceration available, the length of the jail term imposed on the offender must be carefully considered (para 93). (

i) Section 718.2(

e) does not require an automatic reduction of the sentence imposed on an offender simply because he or she is Aboriginal (para 88). [35] In Ipeelee , the Supreme Court provided further explanation with respect to the operation of s. 718.2 (e). In that case, the Court made three points of particular relevance here: (

a) There is no discretion as to whether s. 718.2 (

e) should be considered in a case involving an Aboriginal offender. The application of the Gladue principles is required in every case (para 86). (

b) An offender is not required to establish a causal link between background Gladue factors and the commission of the offence in issue before a judge is entitled to consider such factors in his or her sentencing decision (paras 81-82). (

c) Unless the unique circumstances of the offender bear on his or her culpability for the offence or indicate which sentencing objectives can or should be actualized, they will not influence the ultimate sentence (para 83). [36] It is important to recognize that Gladue and Ipeelee are not unvarnished calls to impose shorter jail terms on Aboriginal offenders. The Supreme Court’s reasoning is far more nuanced than that. Its approach is very much tied to the concept of restorative justice and the decision in Gladue , in particular, returns repeatedly to that concept in explaining how it is that sanctions other than incarceration might satisfy the sentencing objectives referenced in

Part XXIII of the Criminal Code . It is essential that this basic theme be remembered. In very simplified terms, the fundamental dynamic underlying s. 718.2 (

e) when a trial judge sentences an Aboriginal offender is not merely one of reflexively giving less jail time. Rather, it involves the subtler idea of attempting to limit or minimize jail time by using restorative justice approaches when and if such approaches are appropriate. In the end, s. 718.2 (

e) means what it says: “all available sanctions other than imprisonment that are reasonable in the circumstance should be considered….” [ 51 ] In Chanalquay the Court of Appeal was addressing circumstances where imprisonment of two years or less would be a proportionate response to the gravity of the offence and the offender’s moral culpability for its commission. While I have the greatest sympathy for the circumstances of Mr. McKay’s past and upbringing, his intentional involvement in a very serious trafficking operation necessitates a lengthy prison sentence.

Particularly so in light of the negative impact of his actions on the many communities in northern Saskatchewan. Under the circumstances of this offence there are no alternatives to incarceration. As a consequence, the length of (not alternatives to) that sentence is my primary consideration. See: R v Whitehead, 2016 SKCA 165 [ Whitehead ]. Crafting a proportionate sentence requires consideration of the moral culpability of an offender in a manner that recognizes the unique aspects of that offender’s particular circumstances, as well the systemic effects of colonization, residential schools, and discrimination.

See: Whitehead . [ 52 ] As I have already noted, any proportional sentence for Mr. McKay will involve a lengthy period of incarceration in light of his intentional involvement in a highly serious drug trafficking operation and the negative impact his actions will have had on many people in northern Saskatchewan, as well as the communities in which they live. However, I am satisfied that Mr. McKay is an Aboriginal offender and that Gladue factors have been operative in his life. His relatives attended residential schools.

His childhood was characterized by dysfunction, alcohol and drug abuse, housing insecurity and loss of culture. Of particular significance, drug use by his parents was a common experience during his youth and his father both taught him the drug trade and normalized the sale of drugs as a source of income. While Mr. McKay’s drug trafficking activities dwarfed the kind of street level drug dealing that his father was engaged in, the connection between his experience as an Aboriginal youth and his current offences is obvious.

While there need not be a causal link before a judge may take Gladue factors into consideration in sentencing, in Mr. McKay’s case the connection is hard to miss. CONCLUSION : [ 53 ] Mr. McKay has pled guilty to the charges of possession of a controlled substance (cocaine) for the purpose of trafficking, possession of property obtained by crime and to laundering the proceeds of crime. The fundamental principle is that the sentences that I impose must be proportionate to the gravity of the offences to which Mr.

McKay has pled guilty and the degree of his responsibility for the commission of those offences. [ 54 ] In my view, there are many aggravating factors to consider in the present case. They may be summarized as follows: • The drug operation in question was organized and sophisticated. Mr. McKay and his accomplices used a stash house to store the

cocaine and associated equipment and attempted to pass it off as a storehouse for drywall supplies. The group used code language when communicating amongst themselves to avoid detection by police. There was no evidence of personal use of any drugs at the apartment. Mr. McKay sold the cocaine through a network of dealers who supplied other dealers facilitating distribution of the cocaine throughout northern Saskatchewan. Simply put, the operation was organized, covert and operated in a large geographic area of the province. • The amount of cocaine involved is indicative of a “wholesale” drug trafficking operation.

In total, police seized 11.25 kilograms of cocaine from the apartment in question, the majority of which was nearly pure. The rest had already been cut and repackaged for sale. In addition, enough supplies and the necessary equipment were present to cut and prepare the remaining pure cocaine for sale, which would increase its total quantity to approximately 19.55 kilograms. Finally, the apartment contained enough cutting agent to prepare 54 more kilograms of cocaine for sale on the street. I find that Mr. McKay was a top level dealer in cocaine. • Mr.

McKay was the guiding mind and lead player in the drug operation. • Mr. McKay’s motivation for participation was profit. There is no basis to conclude that he was involved to either finance or satisfy his own addiction. • The drugs prepared and sold by Mr. McKay’s group were distributed within Prince Albert as well as to a number of northern communities, including Meadow Lake, Lac La Ronge, Ile La Crosse, and Pinehouse, along with the Muskoday, Green Lake, and Flying Dust First Nations.

The terrible effects of drugs on northern communities, especially First Nations, have been repeatedly recognized by this Court. • Mr. McKay continued to distribute cocaine to dealers in Prince Albert to be sold on the street after police raided his apartment and seized the cocaine found therein. • Mr. McKay has a criminal record. [ 55 ] There are also mitigating factors to consider: • Mr. McKay is of Aboriginal descent. He had a difficult upbringing and his childhood was characterized by familial dysfunction, abuse, addiction, and loss of culture. Many older members of his family attended residential schools.

Alcoholism has been an issue in his family for generations, and Mr. McKay witnessed violence, loss, drug abuse, and a general lack of consistency in his home life. He moved frequently in his childhood between the custody of his parents and also spent time in foster care when his home arrangements became too unstable. He never experienced the sort of home or family stability conducive to normal growth and development of a young person. Mr. McKay never finished high school, and became involved in the drug trade through his father in his teens.

In fact, his father normalized the sale of drugs as a source of income. • There is no evidence of weapons being involved in this particular drug operation and little evidence of violence either in enforcing debts or in dealing with rival suppliers both of which are unfortunate but common features in drug trafficking operations. • Mr. McKay has pled guilty thus avoiding the need to run a time-consuming and costly trial. During sentencing submissions, Mr.

McKay expressed an acknowledgement of the harm his actions have done to others and remorse for his involvement in trafficking in drugs. [ 56 ] It is my task to consider (as best as I am able) all of these factors together in a holistic manner to arrive at a fit and just sentence for Mr. McKay. The aggravating factors I have listed weigh strongly in favour of a lengthy period of incarceration. I understand - given the gravity of these offences and Mr. McKay’s role in their commission - why Crown counsel has recommended the sentence that he has. However, an appropriate sentence must be proportionate to Mr.

McKay’s moral culpability. I am satisfied that Gladue factors have been operative in Mr.

McKay’s life and his unique personal circumstances bear on his moral blameworthiness. [ 57 ] I conclude that the appropriate global sentence on Information 1928935 is nine years of incarceration, to be apportioned as follows: • nine years on count (1) – possession of a cocaine for the purpose of trafficking, less any remand credit to be determined at the time of sentencing; • two years concurrent on count (2) – possession of property obtained by crime; and • two years concurrent on count (3) – laundering the proceeds of crime. [ 58 ] The sentences for counts (2) and (3) will be served concurrently to each other and concurrently to count (1) for two reasons.

First, a global sentence in excess of nine years would be unduly harsh in all the circumstances. As a result, the totality principle requires that the sentences for counts (2) and (3) be served concurrently. Second, while I was satisfied that Mr. McKay was the lead player in a large-scale, sophisticated cocaine trafficking operation, the quantum of unexplained deposits found in his bank account ($15,440.00) was small relative to the size and scale of the operation, as is the value of the two vehicles that he acquired.

While counts (2) and (3) involve the violation of distinct legally protected interests, I am satisfied that they are derivative from and concomitant to Mr. McKay’s trafficking activities.

[ 59 ] In terms of parity, Mr. McKay’s partner and co-accused in these proceedings, Kelsey Bear, pled guilty to each of these same offences, plus additional charges, on June 1, 2018 and was sentenced to a global sentence of 7 years in prison as part of a joint sentencing submission. As noted, Ms. Bear was sentenced on the basis of a joint submission recommended by the Crown and defence.

In R v MacLeod , 2018 SKCA 1 , the Court of Appeal made clear that a sentence given to a co-accused under a joint submission is not evaluated for its fitness and is therefore of limited value as a comparator when sentencing another co-accused. Nonetheless, I am satisfied that Mr. McKay was a “controlling figure” and thus deserves a greater sentence than his associates. See: Aden and Palfrey . [ 60 ] There will be an order pursuant to s. 109 of the Criminal Code that Mr. McKay is prohibited from possessing any firearms or ammunition for a period of ten years.

In addition, there will be a warrant authorizing the taking of a DNA sample for the National database. [ 61 ] Mr. McKay will pay victim surcharges in the total amount of $600.00. He will have six months following his first release from custody (by warrant expiry or otherwise) to pay the surcharges in full. [ 62 ] I will remain seized with any issues relating to the disposition of items seized by the Crown in these proceedings. Dated this 25 th day of September, A.D. 2018, at the City of Prince Albert, in the Province of Saskatchewan. __________________________ S.D. SCHIEFNER, J