HIS MAJESTY THE KING, ) Hugh Crawley Colin Gray for the Crown ) ) - v. -, 2023 MBKB 132

Date: 20230912 Docket: CR 22-01-39071 (Winnipeg Centre) Indexed as: R. v. Daley Cited as: 2023 MBKB 132 COURT OF KING’S BENCH OF MANITOBA BETWEEN: HIS MAJESTY THE KING, ) Hugh Crawley Colin Gray for the Crown ) ) - and - ) ) ) BRIAN CHARLES DALEY, ) Kristen Jones accused. ) for the accused ) ) ) ) JUDGMENT DELIVERED ORALLY: ) September 12, 2023 GREENBERG J. [ 1 ] Brian Daley has entered a guilty plea to possession of cocaine for the purpose of trafficking. My task now is to determine the appropriate sentence. Circumstances of the Offence [ 2 ] Mr.

Daley was arrested in November 2020 when police executed a search warrant at his place of employment, a local vape shop. Police had obtained the warrant after conducting surveillance while investigating suspected drug trafficking out of the shop. On searching the shop, police found a backpack containing over 220 grams (7½ ounces) of powdered cocaine, over 115 grams (4 ounces) of crack cocaine and bundles of cash totalling about $18,000. Police also searched Mr. Daley’s residence and found drug paraphernalia. Mr.

Daley admits possession of the drugs and money seized and admits that he was engaged in trafficking cocaine in ounce level quantities. He was not the original target of the investigation and there is no evidence as to his exact role in the trafficking operation. circumstances of the offender [ 3 ] Mr. Daley is 29 years old and a first-time offender. He was born in Jamaica and moved to Canada in 2011, following his father’s move here. While his mother still lives in Jamaica, he remains close to her. He is also close to his four brothers. [ 4 ] Mr.

Daley is not a drug user and acknowledges that he was engaged in the sale of drugs for profit. He says that he wished to pursue a degree in music producing at an Ontario college and was selling drugs in order to finance his education. [ 5 ] After his arrest, Mr. Daley enrolled in an electrician program at a community college and, through that program, has been working as an apprentice electrician five days a week. He also has a part-time job in the evenings with a security company.

His supervisors at both places of employment have provided glowing letters of support describing his excellent work ethic and good nature. The supervisor at the electrical company described Mr. Daley as an asset to the company and his manager at the security company said that he hoped to eventually make Mr. Daley part of management. [ 6 ] Mr. Daley has expressed remorse and acknowledges the negative impact of drugs on his customers. [ 7 ] Mr. Daley has a great deal of support from his family as well as from work associates and friends, as was evidenced by the

large crowd in the gallery for the sentencing hearing. position of crown and defence [ 8 ] The Crown takes the position that the appropriate sentence in this case is a term of incarceration of five years. The Crown relies on the sentencing range of five to eight years set by the Manitoba Court of Appeal for mid-level trafficking in hard drugs ( R. v. Rocha , 2009 MBCA 26 ; confirmed recently in R. v. McLean , 2022 MBCA 60 , at para. 59 ). They say that there are no mitigating factors here that would attenuate Mr.

Daley’s moral culpability or justify divergence from the sentencing range. [ 9 ] Defence counsel argues that a conditional sentence of two years less a day should be imposed. She points to Mr. Daley’s productive and pro-social life since his arrest and to his significant family and community support as a testament to his good character. [ 10 ] Defence counsel does not suggest that there are “exceptional circumstances” here that would justify divergence from the sentencing range but says that there are mitigating circumstances that allow for deviation from the range.

She says that a conditional sentence would serve the objectives of denunciation and deterrence and that Mr. Daley’s pro-social lifestyle in the three years since his arrest shows that he is an excellent candidate for rehabilitation. [ 11 ] Both counsel have pointed to cases that support their respective positions. However, while parity is a principle of sentencing ( Criminal Code , s. 178.2(b)), the question in looking at precedents is always whether the cases relied upon deal with similar offenders and offences committed in similar circumstances.

While conditional sentences have been brought back into play as an option in sentencing for convictions under s. 5(2) of the Controlled Drugs and Substances Act , S.C., 1996, c. 19 , that offence covers a broad range of circumstances. analysis [ 12 ] Denunciation and deterrence are the paramount objectives in sentencing an offender for possessing hard drugs for the purpose of trafficking. While rehabilitation is also an objective, the focus in these cases is more on the offence than the offender ( R. v.

Johnson , 2020 MBCA 10 , at para. 13 ). [ 13 ] As the Crown points out, the sentencing range in Manitoba of five to eight years for this offence is not a rigid tariff. A judge may diverge from the sentencing range if the sentence imposed respects the principles and objectives of sentencing. There is no need to show exceptional circumstances, in the sense that the case is a rare one, to justify a sentence below the starting point in a sentencing range. However, a marked departure from a range may require exceptional circumstances ( R. v. Burnett , 2017 MBCA 122 ).

As I said, defence counsel did not suggest that there are exceptional circumstances here, but she acknowledged that, even if exceptional circumstances are not required, the greater the departure from the normal sentencing range, the greater the need to show mitigating circumstances. [ 14 ] The Crown argued that the circumstances of this case do not justify divergence from the sentencing range. They say this is a typical case with neither a lot of aggravating factors nor a lot of mitigating factors. [ 15 ] In my view, the significant aggravating factor here is the high degree of moral culpability. Mr.

Daley was engaged in drug trafficking for financial gain. He was operating out of his place of employment which shows that he was prepared to take on the risks, both for himself and his employer, that are associated with doing so. He told the probation officer who prepared the pre-sentence report that he was aware of the potential consequences of his actions. And he understood the harm that is caused to users of cocaine. He told the probation officer that his views on the negative impact of the drug were confirmed when he met his customers.

But, while this deterred him from using cocaine, it did not deter him from selling it to others. In my view, Mr. Daley’s conduct attracts a high degree of moral blameworthiness ( R. v. Johnson , 2020 MBCA 10 , at para. 16 ). [ 16 ] Defence counsel argues that there is a difference between selling drugs for financial gain and being motivated by pure greed. She says that Mr. Daley was not using the proceeds of sale to support a lavish lifestyle. He was planning to use the money to finance his post-secondary education, as his minimum wage jobs did not provide the means to do so.

In my view, that motive does not attenuate his moral culpability. Mr. Daley has none of the personal historical factors holding him back from success that we see in many others who end up in the criminal justice system. He could have made other choices, as he has since his arrest. Mr. Daley had a good upbringing, has a supportive family and, according to his current employers, is a person with many talents. Many young people today face financial obstacles, but resolving them through the sale of drugs should not engender sympathy.

Allowing leniency for such motives would completely undermine the objectives of denunciation and deterrence. [ 17 ] That is not to say that there are no mitigating circumstances here. Mr. Daley does get credit for being a first time offender and for accepting responsibility for his actions. I also accept that he is remorseful and that he is a good candidate for rehabilitation. He has been assessed by Probation Services as a very low risk to re-offend. [ 18 ] But, while Mr.

Daley has engaged in a productive and pro-social lifestyle since his arrest, this is not a case where he should get credit for “turning his life around”. Mr. Daley did not have a drug addiction or the effects of a difficult childhood to overcome. Like the accused in Johnson , Mr. Daley’s path since arrest does not demonstrate “remarkable” steps towards rehabilitation (at para. 22). Rather his current lifestyle choices are ones that he could have made before he became involved in the drug trade. [ 19 ] Defence counsel relies on R. v.

Viznaugh , 2010 MBQB 17 , where Kaufman J. imposed a two year conditional sentence for possession of cocaine for the purpose of trafficking. However, as the accused in that case was merely holding drugs for others, the applicable sentencing range was three to six years, not five to eight years. The “overwhelming fact” relied upon by Kaufman J. in determining the appropriate sentence was that the accused had been free on bail for almost five years without any re-involvement. He found that incarcerating the accused in such circumstances would send “an inappropriate message” (para. 10).

[20] In my view, the precedential value of Viznaugh has been diminished by the subsequent decision of the Court of Appeal in R. v.Racca, 2015 MBCA 121. In that case, the Court overturned a conditional sentence where the sentencing judge had placed undueemphasis on the passage of time between the offence and sentencing. Burnett J.A. said, at para. 15; “complying with conditions andobeying the law, even for a lengthy period of time while on judicial interim release, does not constitute rehabilitation; it is expected ofpersons released on their recognizance.” [21] In R. v.

Payette, 2016 MBQB 110, also relied upon by the defence, a conditional sentence was imposed. But as in Viznaugh,the applicable sentencing range was three to six years. Payette was a mere courier and there was no evidence that he knew what he wastransporting. [22] The defence relies on my decision in R. v. Castelein, 2018 MBQB 37. However, that case is not a precedent for imposing anon-custodial sentence. The accused there had allowed her home to be used as a stash house. I found that a period of incarceration wasrequired but sentenced the accused to two years less a day.

A sentence below the range was justified because of the accused’s uniquepersonal circumstances. A penitentiary term would have taken her out of province and impeded her ability to maintain contact with herthree year old child for whom she was the sole custodian. This would have seriously impeded her rehabilitation and negatively affectedthe child’s welfare.

While I found that a custodial sentence was required, the mitigating circumstances allowed the term of incarcerationto be reduced from the starting point in the sentencing range. [23] The cases relied upon by the Crown show that mid-level traffickers should expect to go to prison in the absence of, if notexceptional circumstances, significant mitigating circumstances (Rocha, Johnson, Racca, R. v. Brown, 2012 MBCA 60). The sentenceproposed by the defence here is not simply a lenient one but a significant reduction from the sentencing range. [24] Defence counsel relies upon comments in R. v.

Proulx, 2000 SCC 5 to the effect that a conditional sentence may providedenunciation and deterrence and may be as onerous or, even more onerous, than a jail term. In some cases, that may be so. But theconditional sentence proposed by the defence here would allow so many exemptions from house arrest that one would be hard pressed todescribe the sentence as onerous.

Defence proposes a conditional sentence with exemptions for work (five days a week during the day asan electrician and in the evenings doing security work) plus time for personal needs, medical appointments, and for specialcircumstances approved in advance. Defence counsel also asked for an exemption to allow Mr. Daley to attend the gym, although sherecognized that such an exemption may not be warranted. [25] The first step in deciding whether to impose a conditional sentence is determining whether a sentence of less than two yearsincarceration is justified.

It is only if the answer to that question is yes, that the court can consider whether it is appropriate to allow thesentence to be served in the community. In this case, a sentence of less than two years would be a huge reduction from the starting pointin the sentencing range even if the sentence is served in custody. Such a sentence would require mitigating circumstances not presenthere. In my view, where the starting point in a sentencing range is five years, allowing the sentence to be served in the communitywould require exceptional circumstances.

As stated by Mainella J.A. in Burnett: [27] In a situation of exceptional circumstances, the sentencing judge does something far more dramatic than simply showing leniencyfrom a starting point or sentencing range; usually a non-incarceratory sentence in the form of a suspended sentence is imposed for an offence that commonly results in a lengthy period of incarceration.1 Such a sentence largely foregoes the objectives of denunciation andgeneral deterrence; the overarching goal in such cases is rehabilitation, not punishment (see R v Taylor (1997), (SKCA), 122 CCC (3d) 376 at paras 31-33 (Sask CA); and R v Dunn, 2011 NBCA 19 at para 16).

On first impression, such an approach willappear to be more than what some may call a "soft sentence" given the usual sentences for particular offences; the sentence will appearto be manifestly inadequate without further explanation. [footnote omitted] [26] To be sure, there are mitigating factors here that require recognition and allow for some leniency. Mr. Daley is a first timeoffender who has acknowledged his guilt and is remorseful. He has been maintaining two jobs with rave reviews from his employers. He has a great deal of support from family and friends and is very low risk to re-offend.

There is always a concern that a penitentiaryterm could negatively impact an offender’s progress. But the objectives of denunciation and deterrence, which are paramount, requirethe court to send the message here that engaging in the sale of drugs will have costs.

Again, the comments of Mainella J.A. in Burnettare apt: [33] The personal circumstances that the sentencing judge cited in his reasons to justify the sentence imposed--youth, general law-abiding attitude, strong support from others, employment and possible job loss by a lengthy custodial sentence--are factors that arecommon to many offenders and appropriate factors to take into account to mitigate sentence.

The only observation I make on thesefactors is that loss of employment "does not displace general deterrence and denunciation" (R v JJW, 2012 NSCA 96 at para 40).However, when these factors are considered cumulatively, I see nothing extraordinary as to the accused's personal circumstances. If theaccused's sympathetic circumstances were to amount to exceptional circumstances for a serious pre-meditated profit-motivated crime,the principle would be meaningless; the exception would be the rule as opposed to it being the rare case.

Sentencing courts must takecare not to conflate "sympathetic circumstances" with "exceptional circumstances"; the two ideas are quite distinct in terms of their legaleffect. [27] Taking into account the objectives of sentencing and the aggravating and mitigating factors here, I am imposing a sentence offour years. [28] There will be the following corollary orders, which the Crown seeks and with which the defence takes no issue: 1) a weapons prohibition under s. 109(2) of the Code; 2) an order under s. 487.051 requiring Mr. Daley to submit a bodily sample for DNA analysis; and

3) an order of forfeiture of all items seized. As Mr. Daley will be incarcerated for some time, there will be no victim surcharge. J.