R. v. Palmer, 2019 NLSC 175

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Palmer , 2019 NLSC 175 Date : October 7, 2019 Docket : 201705G0142 Her Majesty The Queen v. dan-el palmer Before: Justice Vikas Khaladkar Place of Hearing: Gander, Newfoundland and Labrador Date of Hearing: September 25, 2019 Date of Oral Judgment: October 7, 2019

Summary: The Offender, Mr. Dan-el Palmer, was found guilty, after a trial, of possession for the purposes of trafficking in Cocaine, Oxycodone and Morphine and trafficking in Cocaine and Oxycodone. The Offender’s involvement in the enterprise was as a driver for a drug dealer. On three occasions the Offender drove a half-ton truck from Glenwood to St. John’s accompanied by the drug dealer. He was present when the drug dealer purchased drugs from his supplier and knew, or was willfully blind, to the illicit transactions occurring in the cab of the half-ton truck in his presence.

The Offender is 56 years of age, has a dated, unrelated record that was not relied upon by the Crown. At the time of arrest, the Offender cooperated with the Police. The street value of the Cocaine was $77,500. The street value of the Oxycodone was $12,480. The Offender is sentenced to a term of incarceration of 24 months. In addition, ancillary orders are made for the provision of DNA samples

and a 10-year ban is imposed in relation to firearms and restricted weapons. Appearances: Adam B. Joyce Appearing on behalf of the Crown Jeffrey Slade Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Palmer, 2019 NLSC 139; R. v. Nasogaluak, 2010 SCC 6; R. v. Ipeelee, 2012 SCC 13; R. v. Kane, 2012NLCA 53; R. v. Silveira, (SCC), [1995] 2 S.C.R. 297; R. v. Oates (1992), (NL CA), 100 Nfld. &P.E.I.R. 289, 318 A.P.R. 289 (Nfld. C.A.); R. v. Snow, 2006 NLTD 3; R. v. Klassen, 2011 NLTD(G) 100; R. v. Brake, [2017] N.J. No.300, 139 W.C.B. (2d) 605 (N.L. Prov. Ct.); R. v.

Pittman, 2018 NLSC 135; R. v. Parsons, 2015 NLTD(G) 180; R. v. Hepditch, 2018 NLSC 55; R. v. Ivey, 2018 NLSC 58; R. v. Kienapple, (SCC), [1975] 1 S.C.R. 729 STATUTES CONSIDERED: Controlled Drugs and Substances Act, S.C. 1996, c. 19; Criminal Code, R.S.C. 1985, c. C-46 REASONS FOR JUDGMENT Khaladkar, J.: INTRODUCTION [1] The Offender was found guilty of the following offences: Count No. 1 On or about the 28th day of April, A.D. 2016, at the Town of Gander, in the Province of Newfoundland and Labrador, didpossess a substance included in

Schedule I to wit: Cocaine, for the purpose of trafficking, contrary to section 5(2) of the ControlledDrugs and Substances Act. Count No. 2 On or about the 28th day of April, A.D. 2016, at the Town of Gander, in the Province of Newfoundland and Labrador, did possess asubstance included in

Schedule I to wit: Oxycodone, for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs andSubstances Act. Count No. 3 On or about the 28th day of April, A.D. 2016, at the Town of Gander, in the Province of Newfoundland and Labrador, did possess asubstance included in

Schedule I to wit: Morphine, for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs andSubstances Act. Count No. 4 On or about the 28th day of April, A.D. 2016, at the Town of Gander, in the Province of Newfoundland and Labrador, did traffic in asubstance included in

Schedule I to wit: Cocaine, for the purpose of trafficking, contrary to section 5(1) of the Controlled Drugs andSubstances Act.

Count No. 5 On or about the 28th day of April, A.D. 2016, at the Town of Gander, in the Province of Newfoundland and Labrador, did traffic in a substance included in

Schedule I to wit: Oxycodone, for the purpose of trafficking, contrary to section 5(1) of the Controlled Drugs and Substances Act . [ 2 ] The facts were canvassed by me in a written decision reported as R. v. Palmer , 2019 NLSC 139 . Briefly, Mr. Palmer drove a half-ton truck owned by his co-accused, Daina Eric Cuff, from Glenwood to St. John’s, in Newfoundland and Labrador, on three occasions. On each of those occasions Mr. Cuff concluded drug purchase transactions with his supplier in Mr. Palmer’s presence. Although the Offender was not directly involved in the buying and selling of drugs, he was involved in the transportation of

Schedule I drugs – hence his conviction for trafficking as well as possession for the purposes of trafficking. [ 3 ] On April 28, 2016, the Offender was observed by the Police in St. John’s meeting with a known drug dealer from whom his co-accused obtained a brick of Cocaine and 208 Oxycodone pills. The pair were followed to Gander by members of the Royal Newfoundland Constabulary. When they were stopped and arrested by the Royal Canadian Mounted Police (“RCMP”), the Offender was driving Mr. Cuff’s half-ton truck. [ 4 ] The Offender was given his rights to counsel and the standard Police warning.

He was cooperative with the Police at the time of his arrest, but denied any involvement in the trafficking of drugs. [ 5 ] The Offender is 56 years of age. He has been in a common-law relationship for 23 years. He has two biological children from his first marriage and two step-children from his current relationship. [ 6 ] The Offender was born in New Brunswick, but lived in Ontario for a number of years before moving back to New Brunswick nine years ago to assist his aging, adoptive mother. When she passed away, five years ago, the family moved back to Ontario.

They remained in Ontario until deciding to relocate to Lewisporte, Newfoundland and Labrador, which was the Offender’s partner’s hometown, in 2015. [ 7 ] The Offender was offered a job by his co-accused in a driveway sealing enterprise – which he accepted. The Palmers lived with the Cuffs for a time until they found a place to rent in Lewisporte. [ 8 ] The Offender has completed Grade 7 and some adult basic education courses.

He has taken no post-secondary training outside of what was required to obtain a forklift operator’s license. [ 9 ] The Offender has strained relationships with his biological children and virtually no contact with either of them. He has a positive relationship with his step-children – who reside in Ontario. He wishes to relocate to Ontario when he is able. [ 10 ] According to the writer of the Pre-Sentence Report in this matter, the Offender has not accepted any responsibility for the offences, nor has he expressed any remorse.

He took the position with the Probation Officer that he was in the wrong place at the wrong time and is being punished for his friend’s trafficking. Crown’s Position on Sentencing [ 11 ] The Crown stated the maximum period of incarceration for these offences is life. There is no minimum sentence. The Crown indicated that the range for this type of offence is between six to 36 months, and requested a period of incarceration of 27 months. The Crown is also seeking a 10-year firearms prohibition and a DNA order.

Defence’s Position on Sentencing [ 12 ] The Defence felt that based on his client’s age and the fact that he has been on bail with reporting and curfew conditions for the past three and a half years without any breaches, that a sentence of 24 months would be appropriate. [ 13 ] The Defence did not take issue with the Crown’s request for a firearms prohibition or DNA Order. Analysis [ 14 ] A “controlled substance” is defined in

section 2 of the Controlled Drugs and Substances Act , S.C. 1996, c. 19 (the “ Act ”) as meaning a “substance included in

Schedule I, II, III, IV or V”. [ 15 ] Qualitative analysis confirmed the nature of the drugs. The Cocaine was found to be 72% pure. The amount of each commodity (775 grams of Cocaine and 208 Oxycodone pills) in themselves is sufficient to engage a presumption that the drugs were not intended for personal use. [ 16 ] Some of the sentencing precedents presented by the Crown were cases that involved joint submissions. As such, they are of limited value. [ 17 ] In reaching my decision on the appropriate sentence in this case, I have been guided by the objectives and principles of sentencing as set out in

section 10 of the Act as well as sections 718 , 718.1 and 718.2 of the Criminal Code , R.S.C. 1985, c. C-46 . [ 18 ]

Section 10 of the Act requires me to consider aggravating the fact that the Offender was driving a truck in which weapons were present. In this case a can of bear spray, an extendable baton, a bat and a pellet handgun were found in the vehicle driven by the Offender. [ 19 ]

Section 718 of the Criminal Code outlines that the fundamental purpose of sentencing is to foster respect for the law and the maintenance of a just, peaceful society. In order to reach this goal the Court must impose a sentence that meets one or more of the

following objectives: a. Denunciation; b. Deterrence of the offender and other persons; c. Separation of offenders from society, where necessary; d. Rehabilitation; e. Reparations for harm done to victims or to the community; and f. The promotion of a sense of responsibility in offenders and an acknowledgment of the harm done to victims and to the community. [20] The Supreme Court of Canada has instructed, in R. v. Nasogaluak, 2010 SCC 6, that none of the sentencing objectives takepriority over any of the others.

Weight must be accorded to each of the objectives with a view to the unique circumstances of the casebefore the Court. [21] In R. v. Ipeelee, 2012 SCC 13, the Supreme Court of Canada stated that the fundamental principle of sentencing is that thesentence must be proportionate to both the gravity of the offence and the degree of responsibility of the offender. The sentence must befit. In this sense, the sentence is both a sword and a shield. On the one hand the Public must be satisfied that the offender received thepunishment he deserved. On the other hand, the sentence cannot exceed what is appropriate.

A just sentence strikes a balance betweenthese two, sometimes competing, interests. [22] Courts are mandated to consider the sentencing principles outlined in

section 718.2 of the Criminal Code. As a result the Courtmust: a. Take into account any relevant aggravating or mitigating circumstances; b. Be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; c. Refrain from depriving liberty if less restrictive sanctions may be appropriate; and d. Consider all available sanctions other than imprisonment if those sanctions are reasonable. [23] The Court of Appeal, in R. v.

Kane, 2012 NLCA 53, stated at paragraph 13 that general deterrence and protection of the Publicare the paramount considerations in sentencing those engaged in Cocaine trafficking. [24] Drug trafficking is a scourge. Drug addictions cause untold misery – to the addicted, their families and, of course, victims ofdrug related crimes. Drugs are responsible for death and debilitation. Nothing good can be said about illicit drugs or the trade in illicitdrugs. Aggravating Factors [25] The aggravating factors in this case include the type, the amount and the value of the drugs seized. In R. v.

Silveira, (SCC), [1995] 2 S.C.R. 297, the Supreme Court of Canada referred to Cocaine trafficking as a “blight on society and everyeffort must be taken to eradicate it”. The same can be said of the possession of Oxycodone for the purposes of trafficking. Bothsubstances are highly addictive and cause untold misery for those persons who develop a dependency upon them.

The ripple effects ofthose addictions are felt daily by all of society – whether in the form of drug overdoses, robberies, break and enters, thefts and so on. [26] The Offender was assisting in the transportation of a large amount of Cocaine and Oxycodone with a street value of almost$90,000. I am mindful of the fact that the Offender was involved, at least three times, in keeping his co-accused company and drivingthe truck. I am also mindful of the aggravating factor relating to the imputed possession of weapons in the co-accused’s vehicle. [27] In R. v.

Oates (1992), (NL CA), 100 Nfld. & P.E.I.R. 289, 318 A.P.R. 289 (Nfld. C.A.) a sentence of twoyears less a day was held by the Court of Appeal to be too lenient in light of the amount of drugs (412 grams of Cocaine) worth about$24,000. Goodridge, C.J.N. wrote that three and one-half to four years would have been more in keeping with the offence. The offenderin that case was 27 years of age and had no previous convictions. The case is distinguishable on the basis that the Offender here was notin the business of buying and selling drugs. He was providing a driving service.

His involvement, therefore, is slightly less culpablethan that of his co-accused – who was involved in buying and selling, and profited from these transactions. [28] In R. v. Snow, 2006 NLTD 3, a 25-year old offender convicted for conspiracy to traffic in Cocaine and possession of 279 gramswith a value of $32,000 was sentenced to three and one-half years. Again, Mr. Snow was a key player in the conspiracy, whereas Mr.Palmer occupied a position more on the periphery. [29] The quantity of drugs involved in this case is almost twice as much as in Oates and almost three times as much as Snow.

Inaddition, we have Oxycodone involvement in this case – which was not a factor present in either Oates or Snow. [30] There does not appear to be any prescriptive range of sentence in relation to possession for the purposes of trafficking Cocaine.

Incarceration appears to be dependent, to some large extent, on the amount of drugs involved. The amount, and value, of the drugs inthis case do not fall at the low end of the range. [31] Mr. Joyce, on behalf of the Crown, referred a number of cases for the Court’s consideration. These included: • R. v. Klassen, 2011 NLTD(G) 100, a case in which the offender was a courier and there was no evidence of his involvement in thecommercialization of the drugs. The offender was sentenced, after a joint submission, to two years’ incarceration and two years’probation. • R. v. Brake, [2017] N.J.

No. 300, 139 W.C.B. (2d) 605 (N.L. Prov. Ct) in which Judge Porter imposed a sentence of two years lessa day. The case is distinguishable on the basis that there was no evidence before the Court that the offence alleged was anything otherthan a one-time transaction. • In R. v. Snow, the offender was convicted of both conspiracy to traffic and possession for the purposes of trafficking. He wassentenced to three and one-half years on each count. As noted earlier, there was 279.5 grams of Cocaine involved in Mr. Snow’s case,whereas there was 775 grams of Cocaine in the case of Mr. Cuff.

A distinguishing factor is that Mr. Snow was convicted of conspiracyto traffic as well as possession for the purposes of trafficking. The case can be distinguished on the basis that Mr. Snow was a principaland not a courier or driver. • In R. v. Pittman, 2018 NLSC 135, the offender was sentenced to two and one-half years. He was a co-accused of the accused in R.v. Brake and was the leader in the transaction. • In R. v. Parsons, 2015 NLTD(G) 180, a case of conspiracy to traffic in Cocaine, a sentence of 25 months was ordered.

Goodridge,J. noted that the offender’s role was limited and that they were involved in a single transaction. The single transaction related to a 305.4gram package of Cocaine. The Cocaine was of high purity, as is the case here, with a concentration level of 73%. [32] The Defence referred me to two cases of this Court. These included: • In R. v. Hepditch, 2018 NLSC 55, the offender was sentenced by Chaytor, J. to 16 months incarceration for each of two counts oftrafficking in Oxycodone. Mr. Hepditch had, in his possession, 42 Oxycodone tablets – about 20% of the number that were seized in theinstant case. Mr.

Hepditch was not in possession of any Cocaine. The case is distinguishable on that basis. • In R. v. Ivey, 2018 NLSC 58, the accused was convicted of trafficking in 25 Oxycodone pills. On that charge, he was sentenced byStack, J. to a term of incarceration of 16 months. There were over eight times as many pills in Mr. Palmer’s vehicle. This case, too, isdistinguishable. CONCLUSION [33] Under

section 487.051(3) of the Criminal Code, a DNA order is discretionary for this offence. However, given the amount ofdrugs involved and the fact that the Offender was involved in three transactions, I am inclined to exercise my discretion and make anOrder for the provision of DNA samples. It is in the interests of the administration of justice that I do so. [34] Counts numbered 1 and 2, possession of Cocaine and Oxycodone for the purposes of trafficking relate to the same drugs, on thesame date, as counts 4 and 5. Accordingly, R. v.

Kienapple, (SCC), [1975] 1 S.C.R. 729, applies and it would not beappropriate to enter multiple convictions in relation to, essentially, the same transactions. I have entered convictions on what I considerto be the more serious of the multiplicitous charges. [35] Mr. Palmer, please rise. [36] Taking all of these factors into consideration I sentence you as follows: a. For Count No. 3 – possession of Morphine for the purposes of trafficking – 24 months incarceration; b. For Count No. 4 – trafficking in Cocaine - 24 months incarceration, concurrent to Count No. 3; c.

For Count No. 5 – trafficking in Oxycodone – 24 months incarceration, concurrent to Count No. 3; d. Counts No. 1 and 2 are conditionally stayed. e. A firearm prohibition is mandatory for offences relating to section 5(1) of the Act. An Order will be issued under section 109(1)(a)of the Criminal Code prohibiting the Offender from having possession of any firearm, ammunition or other items referred to in section109. The prohibition is effective immediately and shall continue for a period of 10 years after your release from imprisonment.

Youmust immediately arrange surrender of any weapons or ammunition referenced in the Order and you must surrender any relatedauthorizations, licenses and registration certificates.

f. The offence is a secondary designated offence and there shall be a DNA Order pursuant to

section 487.051(3) of the Criminal Code requiring you to provide the number of bodily substances that are reasonably required by the RCMP for the purpose of forensic DNA analysis. _____________________________ Vikas Khaladkar Justice