R. v. Turner, 2021 MBPC 61

CITATION: R. v. Turner, 2021 MBPC 61 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) J. Kim ) ) for the Crown - and – ) ) ) Vernon Lee Turner ) ) J. Gindin for the Accused ) ) ) Judgment delivered: ) December 8, 2021 HARVIE, P.J. INTRODUCTION [ 1 ] The accused has entered a guilty plea to the charge of possession for the purpose of trafficking contrary to the Controlled Drugs and Substances Act s. 5(2) stemming from his arrest on January 9, 2019. Crown counsel seeks a custodial sentence of three years.

Defence counsel argues that there are exceptional circumstances respecting both the offence and the offender’s background which allow the Court to consider a suspended sentence. Alternatively, if the Court concludes that a community based disposition is not appropriate, he urges the Court to consider a sentence lower than that which is recommended by the Crown.

THE FACTS OF THE OFFENCE [ 2 ] In January, 2019, during an investigation into the trafficking of cocaine in the community of Grand Rapids, Manitoba, RCMP D Division Enforcement Team (DDET) received information that the accused would be transporting cocaine to that community. On the morning of January 9, 2019 they began surveillance on a vehicle being used by the accused and his wife, eventually confronting and arresting the accused while the vehicle was stopped for fuel at a gas station on Highway 6.

A search of the vehicle revealed approximately five ounces of cocaine concealed in a tomato can located inside the vehicle. The accused also had $790 in cash in his wallet. POSITION OF THE CROWN [ 3 ] Crown counsel argues that although the facts are relatively straight forward, there are a number of aggravating features to this offence. Of primary concern is that the accused was transporting a highly addictive and dangerous drug into a small northern community.

Further aggravating is the quantity and value of drugs and that the accused admitted that he was paid to transport the drugs, and was not doing so to feed a personal addiction. She points to the authorities which suggest a mid-level courier should receive a sentence in the range of three to six years (see R. v. Rocha, 2009 MBCA 26 ). Because of his personal circumstances, she agrees that the low end of that range is appropriate. POSITION OF THE DEFENCE [ 4 ] Defence counsel argues that there are exceptional circumstances which warrant a departure from the usual sentencing range.

He argues for a community-based disposition by way of a suspended sentence with a lengthy period of probation. In the alternative, he suggests that if the Court is considering a more signficiant sentence, that one of two years would be appropriate, although the Court can consider a lower sentence. PERSONAL CIRCUMSTANCES OF THE OFFENDER [ 5 ] A Pre-Sentence Report (PSR) was prepared outlining the background of the accused. He is presently thirty-nine years old. At the time of the offence he was the father of three children. Since his involvement, a fourth child was born.

He has been in a relationship with his wife for approximately fourteen years and they have been married for ten. Their relationship is described as a positive one and the report indicates that they “are providing a positive home for their children”. Sadly, their home was recently lost to a house fire and they have been forced to move in with the accused’s mother-in-law while they attempt to re-establish themselves.

[6] There is no doubt that the accused had a difficult upbringing and that there are some significant Gladue factors which theCourt must consider. The report describes the accused growing up in a “dysfunctional family environment due to his parents’ excessiveuse of drugs, alcohol and gambling”. As the oldest of three siblings, the accused often acted as “the head of the household” during hisfather’s frequent work-related absences. The report indicates that although it was not diagnosed until much later, his mother likelysuffered from schizophrenia, as does one of his brothers.

The accused left home at the age of 16, moving in with his grandmother toescape the responsibility of raising his siblings while his parents were intoxicated.

Presently, he maintains contact with his sisters butavoids his larger family due to issues with addictions and their criminal involvement. [7] The accused had issues with drugs during his teenage years, but reports that he no longer “parties” and asserts that he nolonger uses cocaine which was, for a time, a serious problem for him. [8] As indicated, a significant factor motivating the accused to become involved in this offence was the financial difficulties hisfamily was experiencing due to the limited employment in the community. The most significant change is Mr.

Turner’s employment atthe community gas station and his active involvement as a community firefighter. The report indicates that his “current status as acontributor within the community has provided him new focus and purpose as a provider for his family”. The letters of reference filed inhis support confirm his work as a firefighter and as the positive role he plays as father to his children.

EXCEPTIONAL CIRCUMSTANCES [9] Although the Manitoba Court of Appeal has established a range of three to six years for a mid-level courier, sentencing“ranges” are not “rigid tariffs that fetter the discretion of a sentencing judge to impose and individualized sentence” (See R. v. Burnett,2017 MBCA 122 at para. 10) and “there is no such thing as a uniform sentence for a particular crime” (See R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500. There are instances when it is appropriate for a sentencing judge to deviate from an identifiedsentencing range.

When a non-incarceratory sentence is recommended, it is often the case that counsel argue the presence of“exceptional circumstances”. The authorities recognize that such circumstances are often difficult to define, that the concept is one thatis “nebulous and devoid of precise definition” but is one that “invariably involve(

s) multiple mitigating factors” (See R. v. Tran, 2015MBCA 120 at para. 24). At the end of the day “there must be something that would lead a sentencing judge to conclude that the offenderhas truly turned his or her life around” and that the protection of the public is “better served by a non-custodial sentence.” (See R. v.Voong (DM) et al, 2015 BCCA 285 at para. 59) [10] Defence counsel argues that there are exceptional aspects to the manner in which this offence was committed, particularly thatthe accused had the drugs for a very brief period of time.

He advises that his client succumbed to temptation brought on by severefinancial hardship when some old acquaintances offered to pay him to make a delivery to Grand Rapids. He did not inquire as to thespecific nature of the item, but indicated at sentencing that he believed it to be marijuana. Further, as a result of his arrest, his car wasimpounded and not recovered, resulting in further significant financial loss. [11] Even accepting that the accused was in possession of the drugs for a relatively short period of time, I do not find thecircumstances of this offence to be particularly exceptional.

It is well recognized in the authorities that individuals who transport drugsplay an important role in the chain of supply, and that those who participate in such activity, even for a brief period of time, must be heldto account for their behaviour.

It is of little benefit to the accused that he was unaware that the drugs he was transporting was cocaine.An accused cannot be wilfully blind to the actual nature of the illegal item he has agreed to transport and then expect leniency for hislack of knowledge. [12] I recognize that the accused’s involvement was motivated by financial gain, and his personal circumstances will be the subjectof comment shortly.

Suffice it to say that the manner in which this offence was committed does not give rise to a finding of exceptionalcircumstances. [13] The steps taken by the accused since his arrest for this offence must be assessed to determine if they are sufficientlyexceptional so as to give rise to the conclusion that they justify a non-incarceratory sentence. For an Indigenous offender, they must beassessed in the context of the Gladue/Ipeellee factors discussed in the PSR and in the case law. [14] In the recent decision of R. v.

Harper, 2021 MBPC 47, Devine PCJ conducted a very thorough review of the principlesunderlying the Criminal Code provisions which mandate sentencing judges to undertake the process of sentencing Aboriginal offendersdifferently, in order to endeavour to achieve a truly fit and proper sentence in the particular case: (See R. v. Gladue, (SCC), [1999] 1 S.C.R. 688 at para. 33). As was so clearly articulated in Harper (at para. 39): …sentencing Indigenous people represents a shift in methodology.

The circumstances of being Indigenous, sometimes referred to as“Gladue circumstances” are not to be considered merely “mitigating factors” under s. 718.2(a), which reduces or increases a sentence toaccount for any aggravating or mitigating circumstances relating to the offence or the offender. The reality of being Indigenous isfundamental and is to be taken into account in assessing the moral culpability of the offender in the fundamental sentencing principle ofproportionality. [15] It is important, therefore, to assess the positive steps taken by the accused within this framework.

That is not to say that theCriminal Code sentencing provisions of denunciation and deterrence are to be forgotten, for they continue to play a vital role in thesentencing of any offender. But the overarching principle of proportionality- that the sentence must be proportionate to the offencecommented and the degree of responsibility of the offender- must be assessed in light of the particular Gladue/Ipeellee factors, if any,identified respecting the accused before the Court.

[16] And so to that end, I note that the offence was motivated, at least in part, by financial gain brought on by economic hardship.The PSR comments on the “limited resources” available in the accused’s home community, particularly relating to education andemployment. This is often a systemic issue and was the subject of comment in Harper, where Devine noted (at para 70): Sentencing of Indigenous peoples always requires an analysis that takes into account their unique circumstances as Indigenous people.

For example, the Supreme Court recognized that “unemployment” is different for an Indigenous person from a reserve where there areno job opportunities (Ipeelee at paras. 78-79). The unique type of deprivation experienced by an Indigenous person by reason of theirIndigeneity must always be brought into the parity analysis. [17] Mr. Turner’s Gladue factors must be balanced against some of the more concerning aspects of this offence. Smallercommunities in northern Manitoba have struggled with the devastating effects of cocaine and other drugs.

The accused has seen firsthand the impact of drugs on his family and on himself, given his prior criminal record which includes two drug-related convictions. OnDecember 3, 2012 was a $1500 fine for the offence of simple possession. On March 6, 2017 he was sentenced to one day plus a $100fine (taking into account forty days of pre-sentence custody) for simple possession of a

Schedule II drug as well as for three counts offailure to comply with a recognizance. [18] I am mindful of the fact that it has taken almost three years from the time of the offence to the finalization of the sentencing. Crown counsel agrees that at least some of the delay can be attributed to the COVID-19 pandemic, although asserts that other portions ofthe delay related to the accused’s requests for adjournments.

All in all, I am entitled to consider that the accused has remained out oftrouble during the nearly three years that he has been out on bail for these offences. [19] Overall, while the accused is to be commended for the steps he has taken to secure employment, make a positive contributionto his community and act a positive role model for his family, I am not satisfied that the totality of the facts support a finding ofexceptional circumstances such as to warrant a community-based disposition. [20] I am aware that the sentencing “range” of three to six years suggested by the authorities is a very broad one, allowing asentencing judge to factor in the particular circumstances of the offence when crafting an appropriate sentence.

I am also aware that it isnot necessary for the Court to conclude that exceptional circumstances are present in order to find that a sentence that is outside therange articulated in the case law is otherwise appropriate. In R. v. Burnett, 2017 MBCA 122 Mainella JA made the followingcomments: The role played by the principle of exceptional circumstances is separate and apart from a sentencing judge’s general discretion to departdownward or upward from a starting point or sentencing range to impose an individualized sentence based on the circumstances of theparticular case.

As LeBel J noted in R v Nasogaluak, 2010 SCC 6, “[a] judge can order a sentence outside that range as long as it is inaccordance with the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences isnot necessarily unfit” (at para 44). See also Lacasse at paras 57-61. [21] Denunciation and deterrence requires the imposition of a sentence that reflects the serious nature of this drug, the fact that theoffence was committed for profit, and the impact of such a serious drug in a small northern community.

Having said that, I am satisfiedthat the totality of the circumstances, including the Gladue factors already reviewed and the steps Mr. Turner has taken towards hisrehabilitation, are such that the Court can consider a sentence below that which is recommended by the Crown.

As noted in Harper, thereality of being Indigenous goes beyond being merely a mitigating factor but is one which is fundamental in assessing moral culpability.In this case, that extends to an assessment of the motivation for the accused to become involved in this offence, and his recentemployment and other positive community-related activities. [22] Taking into account all of the foregoing, I am satisfied that a sentence of one year is appropriate. Crown counsel has notrecommended a period of probation. [23] Ancillary orders include a 10 year Weapons Prohibition pursuant to Criminal Code s. 109.

I am ordering forfeiture of the itemsseized. I am ordering that the accused provide a sample suitable for DNA analysis. [24] I am waiving any costs or surcharge. “Original signed by” Harvie, P.J.