Her Majesty the Queen ) ) Alana Parashin, for the Federal Crown ) ) - v. –, 2021 MBPC 29

Citation: 2021 MBPC 29 THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) ) Alana Parashin, for the Federal Crown ) ) - and – ) ) ) Cortlan Rayne Posner, Accused ) ) ) Jay Prober, for the Accused ) ) ) Sentencing Decision delivered: ) June 15, 2021 Catherine Carlson, P.J. INTRODUCTION [ 1 ] Mr. Cortlan Posner pleaded guilty that on June 28, 2018, he possessed cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act (“CDSA”). [ 2 ] Mr. Posner entered his guilty plea on February 18, 2020.

He was accepted into the Winnipeg Drug Treatment Court program (“WDTC”), and opted in, on April 7, 2020. He participated in the WDTC program until August, 2020, when he was discharged from the program without completing it. [ 3 ] Mr. Posner’s sentencing hearing took place on May 10, 2021. THE ISSUE [ 4 ] The ultimate issue for this Court to decide is what sentence is appropriate for Mr. Posner’s commission of this offence. [ 5 ] This is one of those cases in which the sentencing options now available to the court make it a particular challenge to determine a proportionate sentence.

POSITIONS ON SENTENCE [ 6 ] Defence counsel recommends a suspended sentence with supervised probation, on the basis that there are exceptional circumstances. An alternate position put forward by defence counsel is a jail sentence of not more than 90 days, to be served intermittently. [ 7 ] Crown counsel recommends ten months jail. The Crown says that while there are factors that mitigate sentence, and justify a sentence below the bottom of the accepted sentencing range, the circumstances of neither the offence nor of Mr. Posner are exceptional.

THE FACTS OF THE OFFENCE [ 8 ] On June 28, 2018, and acting on information provided by a confidential informant, police conducted surveillance on Mr. Posner’s residence. Officers observed two apparent hand to hand transactions that they believed were consistent with drug trafficking. They obtained a search warrant for Mr. Posner’s suite. In Mr. Posner’s suite, police located a digital scale with cocaine residue, $855 in

cash, some dime baggies, an empty paint can with a false bottom, a cocaine purity testing kit, and utility bills with Mr. Posner’s name indicated as a joint occupant of the suite. He was arrested on a traffic stop and his vehicle was searched. In the vehicle located were zip lock baggies, 31 flaps of cocaine individually packaged, totalling 17g in weight and with a street value of $1550, a cell phone and $100 cash. CIRCUMSTANCES OF THE OFFENDER [ 9 ] Mr.

Posner is 35 years old. [ 10 ] He graduated high school, and has post secondary education, both a university degree in psychology, and completion of a program at Red River Community College, followed by certification as a pipefitter. Two years ago, he started a business doing in home appliance installations, with a partner. His business is apparently doing well. [ 11 ] Prior to the offence, Mr. Posner broke his wrist at work, and had surgery. Employment Insurance stopped payments and yet he could not work, so he had a lot of time on his hands. He became depressed and started using drugs.

At the time of the offence, he was trafficking to obtain drugs and/or money to buy drugs. He and a co-accused were arrested. Mr. Posner took responsibility for the drugs, and the charge against the co-accused was stayed. [ 12 ] He participated in WDTC from April to August, 2020, when he was discharged. Issues about his participation began in June, 2020. WDTC staff were concerned that he was tampering with his drug screens, was not always forthcoming and exhibited ongoing aggressive behaviour to staff.

His dishonesty at WDTC was related to his ongoing use of alcohol that he declined to admit consuming. [ 13 ] Since his discharge from WDTC, he says, he has attended Alcoholics Anonymous (“AA”) regularly. An AA attendance sheet indicates attendance on a regular basis, and now online, from March 16, 2021 to May 5, 2021. He has been volunteering with community organizations and provided volunteer log sheets from July 16, 2020 (when he was still in the WDTC program) and continuing to December, 2020. [ 14 ] He is an only child and has a good relationship with his parents.

They have health issues, and he assists them. [ 15 ] Defence counsel provided the Court with 12 letters of reference, authored mostly by friends, and one by his current business partner. The letters make it clear that Mr. Posner is someone that people rely on, trust, and who is willing to support and help people in need. His business partner describes how even though current conditions make things uncertain for small businesses, due to Mr. Posner’s dedication, the business has grown, and says that losing Mr. Posner’s leadership in the business could have negative effects.

The business now employs three full time employees, in addition to Mr. Posner and his partner, and several part time employees. The letters speak to the fact that Mr. Posner has learned from his experience of being arrested, and is working to be a productive member of society. SENTENCES FOR S. 5(2) CDSA OFFENCES [ 16 ] The offence of possessing cocaine, a

Schedule 1 substance, for the purpose of trafficking, is an indictable offence punishable by a maximum sentence of life in prison. [ 17 ] The primary sentencing principles for such offence are deterrence and denunciation. This was confirmed by the Manitoba Court of Appeal in R. v. Sass and R. v. Zammitt, 2018 MBCA 46 , and again in R. v. Johnson , 2020 MBCA 10 . Mr.

Justice Mainella, in the Sass and Zammitt case, said at paragraph 2 : “Given the deleterious effects of cocaine and other hard drugs to both users and society, in order to ensure respect for the law, protect the public and acknowledge the harm caused by trafficking, the position of this court is, as is the case in other provinces, that drug traffickers should receive a term of imprisonment, absent “exceptional circumstances”. [ 18 ] A sentence for possessing cocaine for the purpose of trafficking, needs to send the message to the community that trafficking in drugs, especially such an addictive and dangerous drug as cocaine, will not be tolerated.

The sentence must deter both Mr.

Posner from committing the same kind of offence again, and send a message to the general community, and to those who might sell drugs or be considering selling drugs, that having cocaine or a like drug, with the intention to sell it, will be severely sanctioned. [ 19 ] Chief Justice Chartier, in Johnson , stated that when the principles of deterrence and denunciation are paramount, the focus of the sentencing judge is more on the offence committed (that is, the conduct) than on the offender (that is, the personal circumstances of the accused). [ 20 ] Rehabilitation and treatment of an offender in appropriate circumstances must also be considered in determining an appropriate sentence, in accordance with s. 10(1) CDSA . [ 21 ] The sentence must be a proportionate one as to the seriousness of the offence and the moral blameworthiness of the offender.

Circulating a lethal drug like cocaine, an offence for which a life sentence is possible, underscores that the offence is serious in its nature.

As to moral culpability, the court must consider the normative character of the offender’s conduct, but also the intentional risk taking of the offender and the consequential harm caused by the offender ( Johnson , para 16 ) [ 22 ] To ensure parity of sentences for this type of offence, ranges of sentences have been established, accepted, and applied regularly by Manitoba courts. [ 23 ] The caselaw in Manitoba has established a generally accepted sentencing range for the offence of possession for the purpose of commercial trafficking cocaine at the street level, which is what Mr. Posner was doing. The R. v.

Gilchrist decision of the Manitoba Court of Appeal, cited at 2004 MBCA 21 set a range of 12 months to four years, even for first time offenders, and even when the

amounts sold are small. The Sass and Zammit decisions by the Manitoba Court of Appeal in 2018 confirmed this remains the range. DEPARTURE FROM THE ACCEPTED SENTENCING RANGE [ 24 ] The sentencing range is a guideline.

It factors in that deterrence and denunciation are the primary sentencing principles, and then to determine and individual sentence, the court has to adjust the sentence length upward or downward, based on the aggravating and mitigating factors of the offence and the offender. [ 25 ] A fit and proportionate sentence may be lower than the bottom of the accepted range if “exceptional circumstances” are present, or, even if there are not exceptional circumstances, a judge exercises their general discretion and departs downward from the starting point of the sentencing range to impose an individual sentence based on the circumstances of the particular case.

In some cases, a jail sentence that is significantly below the bottom of the accepted range may be a fit and appropriate sentence. [ 26 ] What circumstances amount to “exceptional circumstances”? Mr. Justice Mainella spoke to this in R. v. Burnett , 2017 MBCA 122 , at paragraph 28 . He said that exceptional circumstances can arise from the way an offence is committed, or from the circumstances of the offender, or from a combination of both.

Findings of exceptional circumstances occur only in the clearest of cases, when there are multiple mitigating factors of significance, or the offender’s motive for committing the offence is highly unusual. An assessment of whether there are exceptional circumstances is a holistic exercise based on an evaluation of the totality of the circumstances and all of the relevant sentencing objectives and principles. These comments from Burnett were referenced with approval more recently by the Manitoba Court of Appeal in Johnson . [ 27 ] Mr.

Justice Mainella in Burnett said that two themes are present in exceptional circumstances cases. One is when an accused has shown he has turned his life around since arrest. The other is when the fundamental purpose of sentencing set out in s. 718 Criminal Code would be better served by a non custodial sentence than by a custodial sentence. [ 28 ] At paragraph 41 of Burnett, Mr. Justice Mainella warns sentencing judges not to conflate “sympathetic circumstances” with “exceptional circumstances”. [ 29 ] And at paragraph 25 of Burnett , Mr.

Justice Mainella makes it clear that a sentencing judge does not have to find exceptional circumstances to justify imposing a sentence that is lower than the starting point of a sentencing range. FACTORS TO BE CONSIDERED [ 30 ] In determining a proportionate sentence, a court must consider the mitigating and aggravating circumstances of the offence and of the offender. [ 31 ] There are some mitigating factors: • Mr. Posner entered a guilty plea.

That is an expression of remorse and acceptance of responsibility. • He has no prior criminal record. • He has been on bail conditions for three years, including the very stringent bail conditions while in the WDTC program. He has not been charged with any breaches. • He has had no criminal re-involvement. • He has pro-social values in terms of work and appears to have numerous positive and supportive peers.

He has education, skills and has always worked except when injured and unable to do so. • He was an addict at the time of the offence. • He has taken steps toward his rehabilitation and continues to attend AA. • He has a solid support system – friends, family and colleagues. • He has worked hard to start and manage a small business, which by all accounts, is doing well. • He did complete four months of WDTC which included some treatment and strict conditions. [ 32 ] There are aggravating factors: • The nature of the drug he was selling. Cocaine is a

Schedule 1 substance. It is highly addictive. It is frequently linked to serious and violent crime. It ruins, and often takes, lives. • This was not a one time situation. Mr. Posner was found with 31 separately packaged doses of cocaine, and the items found in his car and suite made it clear that he was running an ongoing operation – a small one it seems, but still, a premediated and planned operation operated for profit. • He was discharged from the WDTC program for dishonesty, primarily around his use of alcohol, which participants in the WDTC program are not permitted to use. THE CASE LAW

[ 33 ] There is a growing number of cases in Manitoba dealing with what are, or are not, exceptional circumstances. The following four Manitoba Court of Appeal cases are of note, two in which exceptional circumstances were found to be present, and two in which there were not exceptional circumstances. [ 34 ] In R. v. Peters, 2015 MBCA 119 the Court of Appeal upheld a finding of exceptional circumstances, and a suspended sentence with three years probation for an offender who pleaded guilty to possession for the purpose of trafficking and two breaches. Mr. Peters had significant Gladue factors.

The sentencing judge relied on the fact the offender had turned his life around since arrest and that long term protection of the public was better served by a non custodial sentence. [ 35 ] In R. v. Tran, 2015 MBCA 120 a conditional sentence order (a legal sentence at the time for possession for the purpose of trafficking cocaine and possess property obtained by crime) was upheld on the basis there were exceptional circumstances. The offender was young with no prior record. He sold drugs to pay university tuition.

The Court of Appeal said a factor in deciding if exceptional circumstances are present is where incarceration, due to substantial rehabilitation, coupled with the length of time since arrest, would be counterproductive. Mr. Justice Monnin said in the group of factors, the most persuasive may be demonstrated rehabilitation over time. In Tran , the time from arrest to sentencing was four years during which the offender had been on strict bail conditions. [ 36 ] In Sass , the offender pleaded guilty to possession for the purpose of trafficking. He was 25 years old, with a minor related record.

He was remorseful, had a challenging upbringing and was an addict. He did not take counselling or treatment before sentencing, but had obtained employment and stopped using cocaine. The Court of Appeal found the circumstances were not exceptional and imposed a 15 month jail sentence. [ 37 ] In Johnson , the Court of Appeal overturned the finding of the sentencing judge, found that exceptional circumstances did not exist and replaced a suspended sentence with probation with a 30 month jail sentence. Mr. Johnson was holding cocaine for traffickers and his actions were consistent with mid level trafficking.

He was an addict and found with a significant amount of cocaine. He had no record and was assessed as a low risk. He had been on bail conditions for four years, had abstained from using drugs, distanced himself from former peers and done a treatment program. He had custody of his four children and was their sole provider. He had full time employment. He had glowing character references from friends. [ 38 ] The Johnson case is a recent reminder from our Court of Appeal that the bar for establishing “exceptional circumstances” is a high one. ANALYSIS [ 39 ] There is nothing about the way in which Mr.

Posner committed the offence that is exceptional. [ 40 ] There are no Gladue factors in Mr. Posner’s case. Gladue factors had a strong presence in the Peters case, in which exceptional circumstances were found. [ 41 ] Mr. Posner is well on track to turning things around. He is on the right path. Although mitigating, Mr. Posner’s steps since arrest, toward rehabilitation, have not, in the my view, been “exceptional”. [ 42 ] As to Ms. Posner’s moral blameworthiness, Mr. Posner was an addict himself, and his lack of financial resources at the time led him to sell drugs to generate drugs for his own use.

The moral blameworthiness of an accused who commits a crime to feed an addiction is lower than one who does it for greed ( Johnson , para 17 ). But, as to intentional risk taking, Mr. Posner did have a drug operation at his residence. And, as to consequential harm, Mr. Posner had 37 doses of cocaine ready to sell. Had he not been arrested, his actions could have resulted in significant circulation of cocaine in the community. As in Johnson , Mr.

Posner’s reduced moral blameworthiness due to his motivation in committing the offence being to feed his addiction, is counterbalanced by his intentional risk taking and consequential harm of his actions. Accordingly, in the Court’s view, the circumstances do not reduce Mr. Posner’s moral blameworthiness to the level of “exceptional”. [ 43 ] Further, Mr. Posner’s exit from the WDTC program due to dishonestly, is, in my view, an impediment to finding exceptional circumstances. A successful WDTC graduate being sentenced with possession for the purpose of trafficking a

Schedule 1 substance typically earns a suspended sentence with probation. Mr. Posner is asking for that same sentence, despite his behaviour with WDTC. Although someone who is discharged from WDTC may have exceptional circumstances, Mr. Posner does not. His circumstances do not meet the high threshold required to be “exceptional”. [ 44 ] A sentence that does not include some incarceration for Mr.

Posner, cannot adequately address the sentencing objectives of deterrence and denunciation, and would not be proportionate to the seriousness of the offence. [ 45 ] How long must that jail sentence be to be proportionate? Must it be within the range set out by Gilchrist , or can it be lower? And if lower, how much? [ 46 ] The combination of mitigating factors in Mr.

Posner’s case, the guilty plea, the demonstrated work toward rehabilitation over time and continued attendance at AA, his significant support system, his return to the mainstream in terms of earning a living from a business he has started and is running, and his compliance with bail conditions for nearly three years, does result in the court finding that a sentence of 90 days is a fit and proportionate sentence. Specific deterrence is likely already addressed, by Mr. Posner’s lengthy contact with the criminal justice system, being on strict conditions and having the prospect of jail hanging over his head.

A reasonable member of the public, knowing of the offence, but also knowing of Mr. Posner’s work done since and compliance with the law and conditions, and how well he is doing now, in my view, would see this as a fit sentence and one sufficient to deter others and to send the message that having cocaine for the purpose of selling it will not be tolerated.

SENTENCE [ 47 ] Mr. Posner is sentenced to 90 days in jail. Given that he is actively involved in the running and working of his business, he will be permitted to serve his sentence intermittently on weekends. This is not a light sentence. It amounts to, or about, 30 weekends in jail, and there is no early release availability. [ 48 ] A period of probation, for the duration of his intermittent sentence, will provide Mr. Posner with supports while he continues his rehabilitation. I find that a longer probationary period is not required given that Mr. Posner is already accessing community resources, and doing well.

The probation while he is serving his intermittent sentence is aimed to support him during that sentence. [ 49 ] Mr. Posner must report on Friday, June 18, 2021 no later than 7 pm to the Winnipeg Remand Centre and serve his sentence from then to Sunday, June 20, 2021, and every consecutive weekend after that from Friday at 7 pm to Sunday, until his sentence is fully served. While serving his sentence, Mr.

Posner will be subject to a supervised probation order, with conditions as follows: • Keep the peace and be of good behaviour; • Appear before the court when required to do so; • Tell the court or probation officer before changing his name or address and promptly advise of any change to his employment or occupation; • Report within 2 working days from today to probation services, and after that, as directed by his probation officer; • Abstain from the possession and consumption of alcohol, and of any illegal drugs or any prescription drugs that he does not have his own prescription for; and • Attend, participate and complete any assessments, counselling or programming he is directed to do by his probation officer. [ 50 ] There are some ancillary orders to be made. [ 51 ] An order is made of forfeiture as to all items seized from Mr.

Posner. [ 52 ] There is a mandatory weapons prohibition ordered in accordance with s. 109 Criminal Code for ten years. [ 53 ] As to a DNA order, the offence is a secondary designated offence. Given the nature of the drug involved, cocaine, and its dangers to the community, in my view Mr. Posner’s privacy and security interests are outweighed, and it is in the best interests of the administration of justice that a DNA order be made. The Court orders that Mr.

Posner attend to police headquarters in Winnipeg within 60 days from today to provide a sample of bodily substances for submission to the DNA data bank. [ 54 ] Costs and surcharge of $202 are imposed, with six months to pay “Original signed by” Catherine Carlson, P.J.