Her Majesty the Queen - v. -, 2019 SKPC 58

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2019 SKPC 58 Date: December 9, 2019 Information: 90182151 Location: Swift Current _____________________________________________________________________________ Between: Her Majesty the Queen - and - Roxanne Marie Gordon Appearing: E. Neufeld, Q.C. For the Crown A. McBride For the Accused SENTENCING DECISION K. BAZIN , J [ 1 ] Ms. Gordon was charged that she trafficked in hydromorphone, a

Schedule 1 drug, on July 7, 2018, contrary to section 5(1) of the Controlled Drugs and Substances Act . On September 19, 2018, she entered a guilty plea. Under

section 742.1(e)(ii) of the Criminal Code , a conditional sentence is no longer available for this offence. Crown and defence joined in asking the court to impose a sentence of 16 months in jail. On August 14, 2019, with brief oral reasons, I rejected the joint submission and imposed a suspended sentence. The following are the reasons for that decision.

Facts [ 2 ] Ms. Gordon and her husband regularly attend the Salvation Army free suppers, as does Ms. Heese. For a long time, Ms. Heese had been telling people, including Ms. Gordon, that she was in pain and asking them for “downers”. One day while “dumpster-diving,” Ms. Gordon found some medication in the garbage. Because she and her husband needed money for food and for “the place they were staying,” she decided to sell three pills to Ms. Heese. [ 3 ] Ms. Gordon went to Ms. Heese’s apartment sold her the three pills. Ms. Gordon then filled her flask with alcohol and left. At 7:00 p.m. Ms.

Heese took some Gabapentin. At midnight, she diluted two of the pills she purchased from Ms. Gordon and injected them. Twelve hours later she was unable to walk and had the sensation of pins and needles in her leg. EMS members attended and took her to the hospital. Ms. Heese was discharged from the hospital and it appears she recovered. The matter was reported to the police, who arrested Ms. Gordon the next day. Ms. Gordon co-operated fully and provided a statement to police. [ 4 ] The pre-sentence report outlines the living conditions of Ms.

Gordon and her husband prior to the offence, providing context to her comments about needing money for the place they were staying and for food. Ms. Gordon and her husband were evicted in March 2018 from their apartment for smoking. They then lived in a camper on someone’s front lawn for three months. After that, they lived in a tent in a back yard for the few weeks preceding the offence. The “place they were staying” was a tent in someone’s yard. After the offence, they moved out of Swift Current to live in a motorhome without power.

They lived there for a month, when they were able to secure an apartment in Swift Current, where she and her husband still reside. This is the level of poverty Ms. Gordon was experiencing when she decided to sell three pills she found in a dumpster to Ms. Heese, who had been pestering them for “downers”. Joint Submission [ 5 ] Both Crown and defence counsel are senior respected members of the criminal bar. They agree the usual range for this offence is between 18 months and four years in jail. They jointly submit 16 months jail is the proper sentence, being lower than the bottom of the range.

This lower sentence takes into consideration Ms. Gordon’s circumstances and the facts of the offence. The defence indicated he would have argued for a conditional sentence were it available. [ 6 ] Ms. Gordon was held in remand for four days and released by consent on July 11, 2018, on onerous conditions, including a 24-hour curfew, or “house arrest.” [ 7 ] On September 19, 2018, Ms. Gordon through her counsel pled guilty to the charge. At the request of defence counsel, the Court reviewed s. 606(1.1) with Ms. Gordon, so she was clear on her guilty plea.

Also at defence request, the Court confirmed that she personally agreed to a 16-month jail sentence. The matter was adjourned several times so she and her partner could get their affairs in order. Ms. Gordon’s husband suffers from schizophrenia, controlled by medication. They needed to arrange for his care while she served her sentence. [ 8 ] The joint submission was presented to the court on February 13, 2019. At this time the Court enquired whether Ms. Gordon has Aboriginal ancestry. Ms. Gordon indicated that she did. She also stated that she had attended residential school herself.

Neither the defence nor the Crown realized Ms. Gordon had Aboriginal ancestry when negotiating her sentence. They candidly admitted Gladue factors were not considered in arriving at the joint submission.

[9] In fairness to both counsel, Ms. Gordon does not physically present as having Aboriginal ancestry. The pre-sentence report describes how Ms. Gordon was teased at residential school because she looked “white.” Only whenher cousin started to attend school did the teasing diminish, when the other students realized she was Indigenous. The Court, whoencountered Ms. Gordon several times, including the s. 606(1.1) review, did not consider that Ms. Gordon had Aboriginal ancestry. [10] The court ordered a pre-sentence report specifically to address Gladue factors. In addition, after discussion with Ms.

Gordon, the court specifically asked that the pre-sentence report cover Ms. Gordon’s cognitive status, learningdisabilities and the correctional system’s ability to address Ms. Gordon’s multiple medical conditions. Upon receipt of the report, theCourt advised counsel it had concerns with the joint submission. Counsel further argued in support of the joint submission on July 17,2019. The matter was then adjourned to August 14, 2019 for decision. Law [11] The law as to joint submissions has been clarified in R v Anthony-Cook, 2016 SCC 43, 2016 SCC 43 , [2016] 2 SCR 204.

The high threshold to reject a joint submission is set out by the Court in paragraphs 33 and34. In Druken, at para. 29, the court held that a joint submission will bring the administration of jus​tice into disrepute or be contrary to thepublic inter​est if, despite the public interest considerations that support imposing it, it is so “markedly out of line with the expectations ofreasonable persons aware of the circumstances of the case that they would view it as a break down in the proper functioning of thecriminal justice system”. And, as stated by the same court in R. v.

B.O.2, 2010 NLCA 19, at para. 56, when assessing a joint submission,trial judges should “avoid rendering a decision that causes an informed and reasonable public to lose confidence in the institution of thecourts” [emphasis added]. In my view, these powerful statements cap​ture the essence of the public interest test developed by the Martin Committee. Theyemphasize that a joint submission should not be rejected lightly, a conclusion with which I agree.

Rejection denotes a submission sounhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, awareof all the relevant circumstances, including the im​portance of promoting certainty in resolution dis​cussions, to believe that the properfunctioning of the justice system had broken down . This is an un​deniably high threshold — and for good reason, as I shall explain. [emphasis added] [12] Paragraphs 51 to 60 of that decision provide guidance to trial judges on the approach they should follow when troubled by a joint submission.

This Court has followed those guidelines. Paragraph 52 is particularly relevant: [T]rial judges should apply the public interest test when they are considering “jumping” or “undercutting” a joint submission (DeSousa,per Doherty J.A.). That is not to say that the analysis will be the same in either case. On the contrary, from the accused’s perspective,“undercutting” does not engage concerns about fair trial rights or undermine confidence in the certainty of plea negotiations.

In addition,in assessing whether the severity of a joint submission would offend the public interest, trial judges should be mindful of the powerimbalance that may exist between the Crown and defence, particularly where the accused is self-represented or in custody at the time ofsentencing. These factors may temper the public interest in certainty and justify “undercutting” in limited circumstances.

At the sametime, where the trial judge is considering “undercutting”, he or she should bear in mind that the community’s confidence in theadministration of justice may suffer if an accused enjoys the benefits of a joint submission without having to serve the agreed-uponsentence (see DeSousa, at paras. 23-24). Can the joint submission stand when counsel did not consider Gladue factors? [13] The issue arising in this case is straightforward: can a joint submission stand if Gladue factors are not considered in arriving at the joint submission?

[ 14 ] Defence filed the case of R v Whitstone , 2018 SKQB 83 [ Whitstone ]. In Whitstone the parties put forward a joint submission which was accepted. The defendant later appealed the matter without counsel. In the process, she learned about Gladue and raised it on appeal. The Court explains the sentencing judge’s obligation at paragraph 29: Where counsel does not adduce the evidence, as in cases where the aboriginal offender is not represented by counsel, it is incumbent on the sentencing judge to obtain information regarding the circumstances of the offender as an aboriginal person. It is clear that the Supreme Court has determined that s. 718.2(

e) places a very significant onus on a sentencing judge to consider the circumstances of an aboriginal offender when sentencing. Absent an aboriginal offender waiving his or her rights to have the circumstances of their being aboriginal considered in the sentencing process, a sentencing judge is mandated to attempt to acquire the information and consider the aboriginal offenders circumstances when sentencing. [ 15 ] The ultimate obligation to ensure that s. 718.2(

e) and Gladue information is considered lies with the sentencing judge, even on a joint submission. Whitstone states in paragraph 43 : Although I am reluctant to set any hard and fast rule where the issue was not specifically raised on appeal nor argued during the course of the appeal, it is my view that any sentencing judge who accepts a joint sentencing submission respecting an aboriginal offender runs a risk of the sentencing decision being open to appellate review where the court fails to address Gladue factors in the course of accepting the joint submission.

Where there is a joint submission respecting an aboriginal offender and the joint submission fails to provide evidence of Gladue factors that enable the sentencing judge to consider the appropriateness of the sentence in light of the offender’s aboriginal circumstances, it may render the sentence open to appellate review on the basis that the sentencing judge failed in his or her statutory duty to conduct the inquiry and analysis required by s. 718.2(e). [ 16 ] While Whitstone discusses the Court’s obligation to raise and gather evidence of Gladue factors, counsel also have an obligation to ensure this information is presented to the court.

The Supreme Court of Canada states at paragraph 60 in R v Ipeelee , 2012 SCC 13 , [2012] 1 SCR 433 [ Ipeelee ] : To be clear, courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into 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. Counsel have a duty to bring that individualized information before the court in every case, unless the offender expressly waives his right to have it considered. In current practice, it appears that case-specific information is often brought before the court by way of a Gladue report, which is a form of pre-sentence report tailored to the specific circumstances of Aboriginal offenders.

Bringing such information to the attention of the judge in a comprehensive and timely manner is helpful to all parties at a sentencing hearing for an Aboriginal offender, as it is indispensable to a judge in fulfilling his duties under s. 718.2 (

e) of the Criminal Code . [ 17 ] The same issue was before Judge Harradence in R v Adam , 2017 SKPC 7 , where it became apparent the parties had presented a joint submission for an Aboriginal offender without having considered any Gladue evidence. In Adams , at paragraph 54, Judge Harradence reiterates this obligation on Crown and defence: Counsel should, of course, provide the court with a full account of the circumstances of the offender, the offence, and the joint submission without waiting for a specific request from the trial judge.

As trial judges are obliged to depart only rarely from joint submissions, there is a "corollary obligation upon counsel" to ensure that they "amply justify their position on the facts of the case as presented in open court" (Martin Committee Report, at p. 329). Sentencing – including sentencing based on a joint submission – cannot be done in the dark.

The Crown and the defence must "provide the trial judge not only with the proposed sentence, but with a full description of the facts relevant to the offender and the offence", in order to give the judge "a proper basis upon which to determine whether [the joint submission] should be accepted" ( DeSousa , at para. 15; see also Sinclair , at para. 14). [ 18 ] In rejecting the joint submission, Judge Harradence finds, at paragraph 21:

Given this offender’s background, I must pay careful attention to s. 718.2(

e) and consider it in the context of the other principles ofsentencing found in ss. 718, 718.1 and 718.2 of the Criminal Code, including deterrence and denunciation. Having listened to counseland read the pre-sentence report, I find, after considerable consideration and deliberation, that there is no evidence before me thatcounsel considered Gladue factors in arriving at the joint submission. I have reached the conclusion that I do not have from counsel theevidence required to provide a full account of this offender and offence.

In the words of Justice Moldaver in Anthony-Cook, at para 54,relying on DeSousa, I do not have “a proper basis on which to determine whether the joint submission should be accepted”. [19] In Ms. Gordon’s case, both counsel candidly admitted they did not consider Gladue factors in arriving at the joint submission. As a result, I find the joint submission cannot stand. Such a fundamental error is fatal to ajoint submission. A reasonable person, aware of the requirement of s. 718.2(

e) and the law as developed in R v Gladue, (SCC), [1999] 1 SCR 688 [Gladue] and Ipeelee would believe that the proper functioning of the justice system had broken down. Equally, I find that an informed and reasonable public would lose confidence in the institution of the courts where, after years ofjurisprudence, counsel simply do not consider Gladue factors, particularly given the high threshold required to reject a joint submission. [20] Although counsel did their best to support the joint submission, I reject it because of its fatal flaw, lacking any consideration of Gladue or Ms. Gordon’s Aboriginal ancestry.

Sentence [21] Having rejected the joint submission, I will address the sentence to be given. R v Laliberte, 2000 SKCA 27, 189 Sask R 190 at paragraph 59 sets out guidelines for applying the Gladue decision to sentencing:

Section 718.2(

e) requires a sentencing judge to conduct a three step inquiry to determine whether an aboriginal offender should beincarcerated. The sentencing judge must: (1) examine the unique systemic or background circumstances common to aboriginaloffenders as a group; (2) consider the particular circumstances of the offender which resulted in him committing the crime for which heis before the court; and, (3) then decide, having regard for the information obtained in steps (1) and (2), whether incarceration isrequired for the particular aboriginal offender before the court.

The Supreme Court described the procedure to be followed in theseterms: As with all sentencing decisions, the sentencing of aboriginal offenders must proceed on an individual (or a case-by-case) basis: For thisoffence, committed by this offender, harming this victim, in this community, what is the appropriate sanction under the Criminal Code? What understanding of criminal sanctions is held by the community? What is the nature of the relationship between the offender and hisor her community?

What combination of systemic or background factors contributed to this particular offender coming before the courtsfor this particular offence? How has the offender who is being sentenced been affected by, for example, substance abuse in thecommunity, or poverty, or overt racism, or family or community breakdown? Would imprisonment effectively serve to deter ordenounce crime in a sense that would be significant to the offender and community, or are crime prevention and other goals betterachieved through healing? What sentencing options present themselves in these circumstances?

The analysis for sentencing aboriginal offenders, as for all offenders, must be holistic and designed to achieve a fit sentence in thecircumstances. There is no single test that a judge can apply in order to determine the sentence. The sentencing judge is required to takeinto account all of the surrounding circumstances regarding the offence, the offender, the victims, and the community, including theunique circumstances of the offender as an aboriginal person.

Sentencing must proceed with sensitivity to and understanding of thedifficulties aboriginal people have faced with both the criminal justice system and society at large. When evaluating these circumstancesin light of the aims and principles of sentencing as set out in

Part XXIII of the Criminal Code and in the jurisprudence, the judge muststrive to arrive at a sentence which is just and appropriate in the circumstances. By means of s. 718.2(e), sentencing judges have beenprovided with a degree of flexibility and discretion to consider in appropriate circumstances alternative sentences to incarceration whichare appropriate for the aboriginal offender and community and yet comply with the mandated principles and purpose of sentencing.

Inthis way, effect may be given to the aboriginal emphasis upon healing and restoration of both the victim and the offender. [22] In support of the joint submission, defence counsel pointed out paragraph 44 of R v Wells, 2000 SCC 10, [2000] 1 SCR 207. In that case, the Supreme Courts finds that, while s. 718.2(

e) requires a different methodology forassessing a fit sentence for an Aboriginal offender, it does not necessarily mandate a different result.

Section 718.2(

e) does not alter the fundamental duty of the sentencing judge to impose a sentence that is fit for the offence and theoffender. Furthermore, in Gladue, as mentioned the Court stressed that the application of s. 718.2(

e) does not mean that aboriginal

offenders must always be sentenced in a manner which gives greatest weight to the principles of restorative justice and less weight to goals such as deterrence, denunciation, and separation (at para. 78). As a result, it will generally be the case, as a practical matter , that particularly violent and serious offences will result in imprisonment for aboriginal offenders as often as for non-aboriginal offenders ( Gladue , at para. 33 ).

Accordingly, I conclude that it was open to the trial judge to give primacy to the principles of denunciation and deterrence in this case on the basis that the crime involved was a serious one. [ 23 ] The Saskatchewan Court of Appeal in R v Pankewich , 2002 SKCA 7 , 217 Sask R 111 , at paragraph 49, gives guidance for sentencing for trafficking in hard drugs. Although conditional sentences are no longer available for Ms. Gordon’s offence the comments are helpful when considering a sentence for hard drug trafficking. Fitness of sentence in such cases will depend on a wide variety of factors including: 1.

The sophistication and significance of the offence and the accused’s place in it; 2. the type and quantity of drug; 3. the motivation for the offence: those who traffic to support their own habit may be more likely to receive a restorative disposition than those who traffic for other reasons; 4. the need for and the utility of the deterrence which will be provided by the sentence imposed; 5. the factors relating to the community like the significance of the problem; and, 6. the age, lack of record and other personal circumstances of the accused. [ 24 ] The Crown stressed that a jail sentence is required in order to follow the Court of Appeal’s approach to people who traffic in hard drugs.

Both the defence and the Crown agreed that the range is 18 months to 4 years. The Crown stressed that the drug Ms. Gordon sold, hydromorphone, is a

Schedule 1 drug under the Controlled Drug and Substances Act . Gladue factors/ Residential School Attendance [ 25 ] Ms. Gordon is 41 years of age and lives with her partner of 14 years in Swift Current, Saskatchewan. She receives social assistance by way of income and her partner receives social assistance through the permanent disability program based on his mental illness, schizophrenia. [ 26 ] As set out previously, Ms. Gordon is of Aboriginal ancestry from her father. Her mother was of German descent. She is a member of Gordon First Nation, a signatory to Treaty 4.

Except for her time at residential school, she has not lived on the Gordon First Nation. She attended Gordon Residential School for six months when she was 14 years of age because she was having a hard time in the school she was attending. She was asked to leave after she stayed up late one night after being bullied by the other students. She also was stealing money and smoking. Ms. Gordon then went to Maryville Residential School but had to leave. She required alternate programming and the school was not able to provide it. [ 27 ] Ms. Gordon reports that she was sexually abused while at residential school. Ms.

Gordon did receive compensation for her attendance at residential school. I understood from her she was compensated for abuse at the school. She states in the pre-sentence report, while she was in residential school, at the age of 14, she realized she could get money or substances in exchange for sex. Her residential school experience combined with her low average cognitive functioning resulted in her becoming a child prostitute. This lifestyle became her career between the ages of 17 and 27 and ended when she met her present partner.

In addition to the many negative influences and circumstances of her family life, the sexual abuse she endured in residential school directly resulted in her joining the sex trade as a young person. [ 28 ] Ms. Gordon reports she does not feel she is impacted by racism other than when she

attended residential school, as the students thought she was white. She said at one school the teasing was relentless and difficult. Mainly three boys teased her every day, and it is still painful for Ms. Gordon when she recalls these memories. [ 29 ] Ms. Gordon states in the report that she did not feel she suffered from poverty except around the time of the offence.

I take this comment with a grain of salt when looking at her overall circumstances and her cognitive level. [ 30 ] As outlined in the report, the Gordon Residential School was the longest running residential school in Canada, commencing in 1876 and closing 120 years later in 1996. Children who attended the school reported suffering various forms of abuse, inflicting severe damage to the Gordon community. The report states that the extent of the damage is still unknown. Ms.

Gordon was born in 1978, and on her father’s side there would have been over 100 years of generational attendance at the Gordon Residential School. Ms. Gordon believes her father’s entire family attended residential school. [ 31 ] Ms. Gordon’s upbringing is from her birth a story of a dysfunctional family. Her parents separated when she was two years old. Her maternal grandparents raised her until she left home at age 17. Ms. Gordon believed her grandmother was her actual mother and only learned this was not the case when she was around seven years old. Ms.

Gordon has no contact with her biological father and rare contact with her biological mother, although they now communicate occasionally when Ms. Gordon has access to a computer, as she does not have a phone. She was barred from these devices pursuant to her release conditions. [ 32 ] Ms. Gordon was subjected to physical discipline from her grandmother when she did not pay attention. This included being hit, slapped, and hit with a broom. On one occasion, when Ms. Gordon was having trouble with math, her grandmother smashed her head into the table three times. [ 33 ] Ms.

Gordon’s grandmother was addicted to alcohol, pills, and gambling and had trouble with shoplifting. Her grandmother involved Ms. Gordon in her shoplifting. When she was 14, her grandmother had her put on multiple layers of pants and leave the store. Ms. Gordon’s grandmother committed suicide when Ms. Gordon was 16 years of age. [ 34 ] The Crown in argument indicated that Ms. Gordon does not have a connection to the Gordon First Nation. I find this indicates her loss of culture and support. She lamented in the report that maybe she would have had a connection to her culture if her father had been in the picture.

She did learn of smudging when she was in addiction treatment and still does smudging when she can collect sweet grass from the ditches. [ 35 ] While it is unclear when this occurred, Ms. Gordon did have a child, Daniel, who was apprehended from her and was not returned to her. It is unclear if she has any contact with her son that was apprehended. Education/ Cognitive Functioning [ 36 ] Ms. Gordon was in the Alternative Education program at Miller Comprehensive High School in Regina after her periods at residential school.

An alternative education program is designed for students who are unable to meet the learning outcomes of a regular education program (including modified programs.). She believed she received a Grade 12 diploma, but the pre-sentence report author discovered she only has a full Grade 9. The author reports Ms. Gordon was genuinely surprised to learn she did not have a grade 12 diploma. [ 37 ] Ms. Gordon in the pre-sentence report indicated that she has dyslexia and attention deficit disorder.

The author of the report was not able to confirm this through school records but acknowledges these records had been destroyed.

[ 38 ] Psychologist Francis Stewart prepared a parenting capacity assessment dated January 8, 2010, in the context of child apprehension proceedings. At that time the psychologist assessed Ms. Gordon to have a General Full-Scale IQ score of 88 (21 st percentile). She was found to be in the low average range for verbal reasoning, comprehension, vocabulary, language development and analytical reasoning. This information supports the Court’s concern as to her cognitive capacity. This concern was the reason for directing the pre-sentence report specifically to canvas her cognitive status.

Her low average cognitive level must be viewed in light of her inability to obtain an education past Grade 9, even with an alternative education program. Employment [ 39 ] Ms. Gordon has a minimal employment history. After leaving high school she began several employment courses but did not complete them due to her addiction. She continued to engage in prostitution from around 17 years of age until 27, when she met her current partner, Mr. Laybourne, 14 years ago. Health [ 40 ] Ms. Gordon has drug and alcohol addictions. She started to drink when she was nine years old to help her sleep.

She began using marijuana when she was 16. From ages 17 to 19 she used alcohol and hash oil whenever she had the money. At 19 years, a fellow escort’s boyfriend injected her with morphine. That same year, she started the methadone treatment program. [ 41 ] Ms. Gordon lived with her father’s family in Maple Creek for about four months. During that time, the family arranged an intervention. Unfortunately, her fiancé at the time was an addict. He came to visit and brought drugs with him. They binged on these drugs, and she returned to Regina. Her fiancé then died of an overdose. After a short period, Ms.

Gordon returned to Swift Current, admitted herself into the hospital to detox and returned to the Methadone program. She has been on the methadone program since then, around 2005. [ 42 ] Prior to the current offence, Ms. Gordon was drinking a mickey of alcohol a day and using marijuana. From the report and lack of breaches, I infer she has not used alcohol or drugs since being charged. According to Dr. Kamel, Ms. Gordon is doing well and complying with urine testing. During argument on sentence on July 17, 2019, about one year after the offence, Ms.

Gordon said she had stopped using alcohol and marijuana and had attended all her appointments, a substantial feat. [ 43 ] In addition to her addictions, Ms. Gordon has been diagnosed with several physical and mental ailments. She suffers from sleep apnea, emphysema, hepatitis C (in remission), vitamin B12 deficiency, scoliosis, neurofibromatosis, depression and opioid disorder. She takes 11 different medications daily. [ 44 ] If sentenced to incarceration, Ms. Gordon will serve her term at Pine Grove Correctional Centre.

The pre-sentence report indicates Pine Grove has its own doctor and would be able to meet her health and medication needs. However, defence counsel has discussed this issue with the Elizabeth Fry Society, who says Pine Grove has been known to forcibly remove inmates from methadone treatment. Ms. Gordon’s personal physician, Dr. Kamel, filed a letter with the Court indicating Ms. Gordon would suffer severe withdrawal symptoms were she to miss any doses of methadone. While the Court may recommend that Pine Grove keep Ms. Gordon on the methadone program, such recommendation is not binding on the facility.

The only sentence that will ensure her continued access to the methadone program is a community disposition.

Sentencing Principles [45] The sentencing principles are set out in sections 718 to 718.2 of the Criminal Code. Because the offence is contrary to the Controlled Drugs and Substances Act,

section 10 of that Act, which refers to treatment inappropriate circumstances, also applies: 10

(1) Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Partis to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, andtreatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community. [46]

Section 718.1 of the Criminal Code sets out the Fundamental Principle of sentencing: 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [47] The Crown argued that the Saskatchewan Court of Appeal sets the range for trafficking in hard drugs between 18 months and four years. This is not disputed and well-known, as mentioned at paragraph 36 in R v McIntyre 2012SKCA 111, 405 Sask R 28 [McIntyre]. The reality is that the Court has stressed the importance of deterrence and denunciation in crafting sentences for drug traffickingoffences.

As a result, it has long taken the position that a conviction for trafficking in a “hard” drug, such as cocaine, should generallyattract a significant jail sentence. See, for example: R. v. Ruda (1992), (SK CA), 100 Sask. R. 159 (Sask. C.A.); R. v.Dubai, 2008 SKCA 49, 310 Sask. R. 85 at para. 5. Several decisions of the Court have identified a sentencing range of 18 months tofour years as being applicable for the offence of trafficking in cocaine. See, for example: R. v. Shawile, supra at para. 13; R. v. Aube,2009 SKCA 53, 324 Sask. R. 303 at para. 19; R. v. McCallum, 2007 SKCA 139, 302 Sask. R. 298 at para. 12.

Moreover, the Court (atleast in the context of offenders who traffic solely for profit) has also cautioned against over-emphasizing the personal circumstances ofan offender in crafting a sentence and indicated that such considerations are secondary to the goals of deterrence and denunciation. Inthis regard, the Court has said that it is in error to “over-emphasize the personal circumstances of the offender to the exclusion of anexamination of other sentencing factors”. See: R. v.

Aube, supra, at para. 19. [48] While McIntyre reminds the sentencing Judge of the priority of deterrence and denunciation over personal circumstances, this applies more to cases where the trafficking is for profit. This comment by the Court ofAppeal relates to the more serious offences and cannot result in rote application whenever the substance is a hard drug.

The nature of thesubstance alone does not automatically require an 18-month to four-year jail term, without consideration of the purposes and principles ofsentencing. [49] In R v Aube, 2009 SKCA 53, 324 Sask R 303, referenced in McIntyre, the offenders received 18 months in jail for trafficking.

This case presents an example of the type of offence and offender that this sentencing rangecontemplates, at paragraph 5: The three respondents all worked as street-level cocaine dealers, selling crack cocaine in ½ gram, gram, and 3 ½ gram (8-ball) amountsfor a criminal gang based in Edmonton known as the “Crazy Dragons.” The Crazy Dragons expanded into Saskatoon in 2005 to set upbusiness in the crack cocaine trade. The respondents were involved in this activity for at least 8 ½ months, from November 15, 2005 toAugust 2, 2006, when they were arrested.

During the last 60 days of that period the police recorded on wiretap in excess of 600 drugdeals made by the respondents. This would have involved a minimum of 300 grams and a maximum of 2.1 kilograms of cocaine forproceeds of between $36,000 and $180,000. During this period the respondents worked 12 hours a day and rotated their shifts so that the“deal” phone and delivery car were being operated twenty four hours per day, seven days per week. [50] Ms. Gordon’s offence is the lowest level of trafficking, except possibly when a person gives drugs to a friend for free.

It was a single transaction, not a continuing offence. Ms. Gordon’s situation is also aggravated by thefact that the purchaser, who consumed the hydromorphone after ingesting Gabapentin, 12 hours later had an adverse reaction that

resembled a stroke. Fortunately, the purchaser recovered without any further ill effects. [ 51 ] The case of R v Papequash , 2014 SKQB 196 [ Papequash ] is more helpful when putting Ms. Gordon’s offence into perspective. Mr. Papequash helped facilitate a $30 transaction. His wife sold half a morphine pill to an undercover officer. Mr. Papequash was 61 years old, Indigenous, attended residential school, and had a Grade 12 education. He was the Chief of his First Nation and had been a youth addiction counselor.

He had a lengthy criminal record of over 50 offences, including a trafficking conviction 26 years earlier. The Court sentenced him to a six-month conditional sentence, with the first six weeks subject to a 24-hour curfew. Analysis [ 52 ] I have considered the following aggravating and mitigating factors: Aggravating Factors 1. The offence was somewhat planned, as Ms. Gordon went to the purchaser’s home to deliver the pills. 2. The purchaser was harmed. She suffered stroke-like symptoms 12 hours after taking the hydromorphone. 3. Drug use and trafficking is a pervasive problem in society. Mitigating Factors 1. Ms.

Gordon entered an early guilty plea and admitted the offence to the police upon her arrest. 2. Ms. Gordon was placed on significant and restrictive release conditions, including a 24-hour curfew. She fully complied for a period of 13 months. 3. She engaged in no further criminal activity. 4. She stopped drinking alcohol and using marijuana. 5. Her criminal record is minor, dated, and unrelated. There is a gap of 15 years . 6. The incident is an isolated occurrence, and not connected to any drug trafficking operation. 7. The offence is driven by poverty.

Her motive was to obtain money to buy food and pay rent so that she and her husband could eat and continue to live in a tent. 8. Ms. Gordon did not search out a purchaser. Rather, she was continually pestered to provide pills. Ms. Gordon sold drugs that she found while dumpster diving. She was not reselling drugs from a drug dealer. She was not in the business of selling drugs. 9. The purchaser fully recovered from her adverse reaction.

10. Ms. Gordon has lower cognitive functioning and low level of education. 11. Ms. Gordon has significant Gladue factors. Consideration of Release conditions in Sentence [ 53 ] Like Papequash , Ms. Gordon was subject to onerous release conditions, with which, to her credit, she fully complied.

Papequash follows the Saskatchewan Court of Appeal decision in R v Lever , 2014 SKCA 58 [ Lever ], which provides guidelines for courts’ consideration of release conditions when fashioning an appropriate sentence. [9] There is a reasonably significant body of appellate level decisions dealing with the effect, if any, that pre-sentence release should have on the determination of an appropriate sentence.

Those cases recognize that the extent to which the terms and duration of pre- sentence release might mitigate a sentence is something which falls to be determined according to the discretionary judgment of the sentencing judge. See, for example: R. v. Nghiem , 2009 BCCA 170 at para. 11 ; R. v. Dragos , 2012 ONCA 538 , 291 C.C.C. (3d) 350 at para. 84 .

That said, the cases also reveal a number of principles which guide the exercise of a trial judge’s discretion in relation to this issue. [10] First, pre-sentence release should not be seen as the necessary equivalent of pre-sentence custody and it obviously does not automatically reduce what would otherwise be a fit sentence. See, for example: R. v. Walsh , 2011 ONCA 325 at para. 10 ; R. v. Voeller , 2008 NBCA 37 , 335 N.B.R. (2d) 143 at para. 21 . [11] Second, pre-sentence release does not generate sentencing “credits” in the same way as pre-sentence custody.

Rather, it is one of many potentially mitigating factors to consider when formulating an appropriate sentence. See: R. v. Irvine , 2008 MBCA 34 , [2008] 6 W.W.R. 438 at para. 27 ; R. v. Knockwood , 2009 NSCA 98 , 283 N.S.R. (2d) 156 at para. 33 ; R. v. Nghiem , supra at para. 16 . [12] Third, the harsher and more burdensome the pre-sentence release conditions, the more likely they are to have a valid mitigating effect.

The factors to be taken into account in this regard include (but are not limited to) the length of time spent on release, the stringency of the release conditions, and the impact of those conditions on the offender’s ability to carry on normal personal relationships, employment and the like. See, for example: R. v. Irvine , supra at para. 29 . [13] Fourth, and speaking generally, time spent on pre-sentence release can reduce an otherwise appropriate sentence only if it involves meaningful hardship or important limitations on the offender’s liberty.

Those kinds of impacts should be clearly explained or demonstrated to the sentencing judge. Scott C.J.M. said this in R. v. Irvine , supra : 30 While the accused's counsel referred on a number of occasions at the sentencing hearing and before this court to the "strict" terms of bail constituting "effectively house arrest," no further details with respect to any alleged undue hardship were provided. For bail conditions to be considered as a mitigating factor they must impose significant custodial and penal attributes . As this court said in R. v. Higgins , 2001 MBCA 177 , 160 Man. R. (2d) 105 (Man.

C.A.), when the terms "merely mimic the conditions of ordinary life for the accused ... [they] do not contain any punitive sanction" (at para. 17), nor do they if the "house arrest required duplicates the hours when most working people are at home in any case" (at para. 20). [emphasis added] [ 54 ] Some of the more restrictive release conditions that were placed on Ms. Gordon are a 24- hour curfew, not to be more than 120 kms from her residence, not to be in the driver’s seat of a motor vehicle, not to have use of any cell phone or computer except for work purposes and to deposit her passport. [ 55 ] Ms.

Gordon did not use any cell phone in selling the pills. She did not travel out of Swift Current to get drugs. The offence did not involve a vehicle, yet she was forbidden to occupy the driver’s seat of any motor vehicle. Considering her circumstances, it is unclear why she was required to surrender her passport, if she even had one. [ 56 ] Upon review of her court appearances, it is safe to say that no one initially anticipated that

Ms. Gordon’s matter would take the time that it did to conclude. The restrictions on her liberty were to be concluded on January 16,2019. The four-month delay between guilty plea and sentence was to put her family and health matters in order and to prepare herhusband to be able to care for himself while she was in jail. The matter was further adjourned to February 13, 2019 to deal withadditional health issues for Ms.

Gordon. [57] After this period, the discovery of Gladue factors, ordering reports, the availability of Court and counsel, time for further argument in support of the joint submission, and time for decision on sentence led to a delay of six monthsbefore sentence was finally passed on August 14, 2019. [58] Ms. Gordon’s release conditions read more like a sentence than a release order. She was ordered to maintain employment or educational programming as directed by her probation officer.

She was subject to a groundless,warrantless search of her person, vehicle, and residence to prove compliance with the recognizance, limited to four times per month. Shewas ordered not to consume alcohol or drugs, and to provide breath and bodily samples. She was banned from places that primarily sellalcohol, yet alcohol is not related to the offence, other than she filled her flask with alcohol when she left the purchaser’s house. Ms.Gordon was ordered to participate in an assessment and complete programming for addictions, including inpatient or outpatienttreatment. While Ms.

Gordon consented to the conditions in order to be released, her recognizance is as strict or stricter than manyconditional sentence orders or probation orders, particularly in relation to the 24-hour curfew. Parity [59] In Papequash, the offender’s moral culpability was considerably greater that Ms. Gordon’s. In that case, the Crown sought a one-year conditional sentence, while defence asked for probation. Mr.

Papequash received asix-month conditional sentence, a penalty much lighter than the 16 months in jail counsel have jointly proposed in this case. [60] Cases cited in Papequash also impose community sentences for trafficking in hard drugs, although for many, conditional sentences were available, an option not open to Ms. Gordon. These are set out in Papequash: [20] In R. v Fiddler, 2010 SKCA (SentDig) 41, the 47 year old offender was convicted of two counts of possession for the purposesof trafficking various pills, including hydromorphone contin and ritalin. Thirty pills were found in total.

The offender had fallen into druguse after the death of his wife. He received an 18 month conditional sentence and one year probation. The appeal was dismissed. . . . . [22] In R. v Von Hagen, 2008 SKCA 123, 314 Sask.R. 77, the 20 year old offender was convicted of possession for the purposes oftrafficking. She was found in possession of $200.00 worth of marihuana and $360.00 worth of crack cocaine. She had attempted tosmuggle the drugs into the Prince Albert Penitentiary because an inmate had threatened her.

Her initial sentence of 18 months wasconverted into a conditional sentence on appeal, with 6 months to be served on electronic monitoring. [23] In R. v Gray, 2006 SKCA (SentDig) 41, the 43 year old offender was convicted of trafficking. She had sold $60.00 worth ofoxycontin to a police officer. She also indicated that she could supply him with marihuana if so desired. This offender had one priorconviction, 14 years dated, for possession for the purposes of trafficking. She had a Grade 10 education and was employed. She sufferedfrom HIV, type 2 diabetes and angina. She was married, and had a 28 year old son.

She received a one year conditional sentence. Theappeal was dismissed. . . . . [26] In R. v Laliberte, 2000 SKCA 27, 189 Sask.R. 190, the accused plead guilty to two counts of trafficking in a controlledsubstances, and two counts of possession of the proceeds of the crime of trafficking. She sold 13 tablets of hydromorphone to anundercover officer for $120.00. She received a conditional sentence of 12 months, including four months of electronically monitoredhouse arrest, two years probation, and a restitution order of $120.00.

The Crown’s appeal was dismissed. [27] In R. v McLeod (1992), (SK CA), 109 Sask.R. 8, 81 C.C.C. (3d) 83 (Sask. C.A.), the 33 year old offenderwas convicted of trafficking. He sold thirty to fifty Xanax tablets to a police agent for $30.00 dollars. He pled guilty. He had priorconvictions for drug-related offences, although they were dated. He was initially sentenced to a two year suspended sentence and wasrequired to serve the first six months of probation on electronic monitoring.

The Crown’s appeal was dismissed. [61] I have also considered the cases of R v Engel 2013 SKPC 215 [Engel] and R v Fowler 2012 SKPC 93 [Fowler]. In Engel, an Aboriginal offender with cognitive issues engaged in low-end trafficking. He received a 14-month

conditional sentence. That case relies on several other cases to establish parity with other low-end trafficking sentences. Fowler involved a single cocaine sale, but it was clearly part of a commercial operation. That offender received an 18-month conditional sentence.

The court in Fowler refers to the Court of Appeal’s comments in R v Shawile , 2012 SKCA 51 , 393 Sask R 211 at paragraph 10 , regarding the effect of a profit motive on sentence, as opposed to an offender motivated by addiction, dire financial circumstances or duress. [ 62 ] There are of course sentences by Saskatchewan courts that involve jail for what might be termed as relatively low-end trafficking in hard drugs.

In R v Felix 2017 SKCA 16 , the Court of Appeal upheld a sentence of 30 days intermittent for a first time Aboriginal offender, largely because of the substantial changes in his life during the two years he spent on conditions prior to sentencing. [ 63 ] In McIntyre , the offender received a 10-month jail term for lower-end trafficking. Although the trafficking was part of a commercial operation, he engaged in the business to support his own habit. [ 64 ] In R v Burke , 2018 SKPC 43 , the offender received a 10-month jail term as a party to the offence.

He assisted his cousin to obtain cocaine in Regina and drove him back to Yorkton to distribute it. The offender was either aware of the cocaine or turned a blind eye to it. However, he knew his cousin was a drug dealer. Sentence [ 65 ] Ms.

Gordon was not a drug dealer, but when she found herself in dire financial circumstances – needing money to buy food and pay rent so that she and her husband could continue to live in their tent – she sold drugs she found by chance to a person who had been actively looking for them. [ 66 ] Taking into consideration all factors, including the potential harm to the purchaser, the direct effect on Ms. Gordon of attending residential school, her lower cognitive capacity and significant health issues, I found that a jail term was not required.

Gladue factors and the effects of residential schools bear directly on her culpability. These factors directly contributed to her inability to take advantage of opportunities in life. This inability contributed to her poverty and addictions. Had she been sentenced immediately, a fit sentence would be a suspended sentence of 18 months, with 12 months to be served under a 24-hour curfew.

The length and conditions, including the curfew, satisfy the need to address denunciation and deterrence in light of the harm done to the purchaser. [ 67 ] The public understands that people in custody receive credit for the time they serve in custody prior to a jail term. Less understood is why a sentence might be shorter or more lenient when an offender has basically served house arrest and restrictive terms for a lengthy period. In this case, it is important the sentence reflect the actual punishment, and not the more lenient punishment after considering onerous release conditions.

For that reason, the Court imposes an 18-month suspended sentence, but grants a 12-month credit for 13 months of house arrest. In this way, it is clear to the public what the sentence actually is, and the offender’s record accurately reflects the gravity of the sentence. This approach is transparent to the public and easily understood, similar to the way credit for remand time works in jail sentences. [ 68 ] Therefore, the sentence is as follows.

I suspend the passing of sentence and place the offender on probation for 18 months with the following conditions: Report to a probation officer and follow the direction of the probation officer. Live at a set address approved by the probation officer

For the first 12 months of the order stay inside of her approved residence 24 hours a day unless she has written permission from her probation officer to be elsewhere. For the last six months of the order, a curfew that she stay inside her residence from 10:00 p.m. to 7:00 a.m. Have no contact directly or indirectly with Ms. Heese and not attend her residence, workplace or place of education. Not be more than 120 kms from her residence. Not possess or consume alcohol or cannabis or other drugs not prescribed by a medical doctor and not enter premises which the main purpose is the sale of alcohol.

Provide suitable samples of her breath and bodily substances for testing. Participate in and complete programing for addictions which may include in-patient and out-patient treatment as told to do so by her probation officer. No possession of weapons. Submit to a search without warrant of her person, vehicle or residence by any police officer for purposes of verifying compliance with the probation order.

Come to the door of her residence and present herself to the probation officer or police checking on her compliance with conditions. [ 69 ] Taking into consideration her previous recognizance dated July 11, 2018, Ms. Gordon is granted a one-year credit to this suspended sentence/probation order. For greater clarity, Ms. Gordon has satisfied the 24-hour curfew portion of this order. She therefore has six months left to serve on her order. [ 70 ] I took into consideration the restrictive nature of Ms.

Gordon’s release conditions, and the fact that a significant delay in reaching her sentence was due to no fault of her own. Rather, the parties did not address Ms. Gordon’s Gladue factors. As a result of this error, she remained on the restrictive terms for an additional six months. Her conditions were a greater restriction on her liberty than those eventually ordered. [ 71 ] The goal of wording the sentence as outlined is to clarify that Ms.

Gordon would only serve six months going forward, but the sentence is actually 18 months, considering her more restrictive release conditions, with which she had successfully complied. If the Court simply imposed six months’ probation without the 24 hours curfew, the sentence is unclear to the public and not properly reflected on her criminal record. It would seem as though Ms.

Gordon received only a six-month suspended sentence, without the punitive portion of a 24-hour curfew, for her offence. [ 72 ] I recognize that this format may not be the usual one, particularly considering the comments in Lever ; pre-sentence release does not generate “credits” like pre-sentence custody. The situation may be infrequent where time on release conditions will be specifically credited to the sentence to reduce its length, rather than simply being a factor in arriving at the length of the sentence. However, in this matter, because of the significant restrictions of Ms.

Gordon’s liberty and the need to ensure the sentence broadcasts to the public the denunciation and deterrence aspects of the sentence, the sentence is so worded.

______________________ Bazin, J