) ) HER MAJESTY THE QUEEN ) C. Cheater ) for the Crown - v. -, 2017 MBPC 48

2017 MBPC 48 THE PROVINCIAL COURT OF MANITOBA DAUPHIN CENTRE BETWEEN: ) ) HER MAJESTY THE QUEEN ) C. Cheater ) for the Crown - and - ) ) BRENDON MCLAUCHLAN-PEELER ) R. Wolson Q.C. and C. MacDonald Accused. ) for the Accused ) ) Judgment Delivered: November 2, 2017 SLOUGH, P.J.

INTRODUCTION [ 1 ] Unless I conclude that exceptional circumstances exist in this case decisions of the Manitoba Court of Appeal require that I impose a custodial sentence on a young man with no prior record, a strong work history, who is a member of the Indigenous community, three years after the commission of the offence of trafficking in cocaine. [ 2 ] The reason that a sentence emphasizing denunciation and deterrence must be imposed for trafficking in cocaine is because of the devastation that hard drugs bring not only to those people who consume the drugs, but their families and the community. [ 3 ] The impact of the use of cocaine and other illegal drugs is multigenerational.

In Dauphin, Provincial Court judges sit on child protection dockets and very often the parents who are fighting to keep their children are addicts and because of their addiction have been unable to perform the duties required of parents. The result is that their children suffer and are taken out of their homes and away from the parents. Some children are even born with addictions and start life with problems that no child should have to endure. FACTS [ 4 ] On October 10, 2014 the RCMP ran an undercover operation in the St. Rose du Lac Hotel.

At approximately 1 a.m. on that date an undercover officer purchased 3 grams of cocaine from the offender. A second transaction took place a short time later involving 1 gram of cocaine, which was sold for $80. There was some question as to whether or not Brendon McLauchlan-Peeler’s explanation and description of the trafficking as set out in the pre-sentence report is consistent with the information provided by the police.

On the date of sentencing, I asked counsel about this apparent discrepancy and after hearing from counsel, it was my understanding that the Crown accepts that the offender sold the RCMP officers cocaine, which he had intended for his own personal use. These facts place the offender on the lowest rung of drug traffickers. [ 5 ] Brendon McLauchlan-Peeler was subsequently arrested and spent a few nights in Dauphin Correctional Centre before being granted bail on strict conditions. He has remained on those conditions without any breach or re-involvement in criminal activity.

This is the only criminal offence on his record. PRE-SENTENCE REPORT [ 6 ] I have had the benefit of a very thorough pre-sentence report. That report indicates that the offender had a relatively stable upbringing and has significant connections with the Indigenous community as his mother’s family are from Sandy Bay First Nation. Brendon McLauchlan-Peeler has completed his grade 12, has worked either part-time or full-time since the age of 15 and is described by his current employer as being a very valuable employee who is dedicated to his job.

In the pre-sentence report Brendon McLauchlan- Peeler indicates that for a period of time he was a regular consumer of alcohol and illegal drugs. However, since this offence the offender’s lifestyle has undergone a significant change. On his own initiative, he started to attend the Addictions Foundation of Manitoba and continues to attend on a monthly basis. At the same time, as indicated in the numerous letters of reference provided on behalf of Brendon McLauchlan-Peeler, he has performed community work in various locations in the St. Rose du Lac area.

[ 7 ] In the assessment portion of the pre-sentence report, the probation officer states that the offender acknowledged his choice in becoming involved in the offence before the court and recognizes the seriousness of his crime.

The probation officer’s assessment of the offender is that he is at “very low risk” for re-involvement in criminal behaviour. [ 8 ] The probation officer concludes: “given the subject’s willingness to comply with any court ordered conditions he would be a suitable candidate for community disposition.” ANALYSIS [ 9 ] As I indicated in the introduction, trafficking in cocaine is an extremely serious offence.

So much so, that unless I conclude there are exceptional factors in this case, I must incarcerate Brendon McLauchlin-Peeler notwithstanding the progress that he has made since this offence occurred and the conclusions of the probation officer that he is a good candidate for community supervision. My task is made significantly more difficult as a result of amendments to the CDSA and Criminal Code which eliminate the possibility of a conditional sentence order being imposed for this offence.

A conditional sentence order provides the court with a sentencing option that allows for significant restrictions on the offender’s liberty, typically house arrest, while still permitting the offender to remain in the community and in appropriate cases maintain employment and involve himself in other activities geared towards rehabilitation. Because a conditional sentence order is not available, my choice of sentence is stark: incarceration or a fine and probation or a suspended sentence. [ 10 ] I have had the benefit of very helpful submissions by both Ms. Cheater and Mr. Wolson.

They both provided casebooks with a good cross-section of cases dealing with similar offences. The Crown relies on a case R. v Sacrey (unreported decision January 30, 2017 Provincial Court of Manitoba) a decision of my colleague Judge Killeen, where in similar circumstances, Judge Killeen felt compelled to send an offender to jail based on the case law and the lack of availability of a conditional sentence order.

While these cases are very similar I do note that the offender in the Sacrey case was involved in a dial-a-dope operation which is somewhat more serious than the facts in this case and in addition it appears that his involvement in the drug trade was more firmly entrenched than Brendon McLauchlan- Peeler. In addition, Mr. Sacrey was re-involved in a criminal offence subsequent to being charged with drug trafficking. While Mr.

Sacrey shared many of the positive factors that are present in this case, nevertheless, he received a custodial sentence. [ 11 ] Having reviewed the other cases provided by counsel, it is my view that R. v Peters 2015 MBCA 119 is the most helpful. In that case Justice Monnin, at paragraph 21, references a recent decision of the British Columbia Court of Appeal: R. v Voong 2015 BCCA 285 where Justice Bennett, at paragraphs 59 to 62, describes what is meant by exceptional circumstances: “In

summary, absent exceptional circumstances, the sentence for a first offence or with a minimal criminal record, dial-a-dope drug seller will be in the range of 6-18 months imprisonment depending on the aggravating circumstances. Exceptional circumstances may include a combination of no criminal record, significant and objectively identifiable steps towards rehabilitation for the drug addict, gainful employment, remorse and acknowledgement of the harm done to society as a result of the events, as opposed to harm done to the offender as a result of being caught....

There must be something that would lead a sentencing judge to conclude that the offender had truly turned his or her life around, and that the protection of the public was subsequently better served by a non-custodial sentence.” [ 12 ] When I apply Justice Bennett’s analysis to the facts in this case and to the description of the accused as set out in the pre- sentence report and the letters of reference, I am satisfied that this is an accused who has truly turned his life around and that the protection of the public would be better served by a non-custodial sentence.

In light of this finding, while I considered the Gladue factors that are present in this case, those factors are not determinative of the result as I would impose the same sentence on any person, of any background, who has made the progress towards complete rehabilitation present in this case. [ 13 ] Accordingly, I am suspending the passage of sentence and placing the accused on 18 months supervised probation. [ 14 ] He is to report to probation within three working days and thereafter as directed. [ 15 ] He is to complete programming as directed by probation services. [ 16 ] He is to maintain contact with the Addictions Foundation of Manitoba on at least a once a month basis. [ 17 ] I recognize that probation is primarily directed towards rehabilitation but I can impose restrictive conditions in order to ensure that the hard-won gains the accused has achieved since the commission of this offence are maintained.

Therefore, I am ordering that for the duration of the probation order he not attend any licensed premise other than a restaurant that serves alcohol. In other words, he cannot attend bars such as the St. Rose du Lac Hotel where he committed this offence. [ 18 ] In reaching this decision, I struggled with whether or not to impose a monetary penalty or community work. I recognize that the accused has done substantial community work while awaiting sentencing. Given the gravity of the offence I considered imposing the maximum amount of community work: 240 hours as part of the sentence.

My reason for imposing a lengthy period of community work is to have the accused make some reparations for the harm that results from trafficking in drugs. Taking into account the work that he has already done, I am ordering that he perform 150 hours of community work. That work is to be completed within the first 15 months of this order. [ 19 ] I must impose $202. in costs and surcharge and I am giving the accused until March 20, 2018 to pay this amount. [ 20 ] I am ordering confiscation and forfeiture of all items seized. [ 21 ] There is a mandatory firearms prohibition with respect to this offence.

Therefore, in accordance with s. 109 of the Criminal Code the accused will be prohibited from possessing weapons as described in s. 109(1) for a period of ten years. [ 22 ] The offender is to provide a DNA sample within 60 days.

____________________ Judge D. Slough