R. v. Ducharme, 2012 MBCA 35

Citation: R. v. Ducharme, 2012 MBCA 35 Date: 20120405 Docket: AR 11-30-07635 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Martin H. Freedman Mr. Justice Richard J. Chartier Madam Justice Holly C. Beard BETWEEN : ) HER MAJESTY THE QUEEN ) T. E. Bourcier ) for the Appellant Respondent ) ) R. L. Rankin and - and - ) K. R. Hawkins ) for the Respondent ) WESTLEY WAYNE DUCHARME ) Appeal heard and ) Decision pronounced: (Accused) Appellant ) April 5, 2012 ) CHARTIER J.A. (for the Court): 1 The accused appeals his five-year sentence for trafficking one kilogram of cocaine.

The cocaine was sold to an undercover officer for $29,000 and was packaged in 36 separate one-ounce units. While the Crown sought a sentence comparable to the co-accused’s seven and one-half year sentence, the accused had requested a sentence in the range of two to three years. 2 The sole issue on this appeal is whether the sentencing judge erred when she found that the accused’s role in the transaction was more than a “mere courier.” 3 A person’s role or level of involvement in any drug transaction is an important sentencing consideration. Equally important are the type and the amount of drugs involved.

In this case, it was agreed that because the cocaine trafficking was at the multi-ounce level, the appropriate ranges were those set by this court in R. v.

Rocha (S.) , 2009 MBCA 26 at paras. 61–64 , 236 Man.R. (2d) 213 , of three to six years for the “mere courier,” or five to eight years for a trafficker who is higher up in the drug hierarchy because of the added decision-making responsibility and trust accorded to that person. 4 In this case, the accused argued that there were two equally plausible inferences to be drawn from the agreed facts: one being that the accused’s role in the drug transaction was closer to a mere courier and the other that he was involved in the deal proper and had decision-making authority.

The accused argued that in such a situation the court must draw the inference most favourable to the accused. 5 Absent a dispute on the facts, a judge can rely, without further proof, upon any information given during the sentencing hearing (see s. 724 of the Criminal Code ). While judges cannot infer without evidence, we readily conclude that the sentencing judge, in this case, was entitled to infer from the proven or undisputed evidence that the accused’s role in this drug transaction was more significant than that of a mere courier.

In this case, the sentencing judge correctly concluded that the only plausible inference to be drawn was that the accused’s involvement in the drug transaction was more than that of a mere courier. She said: …. No, you did not actually broker or make the phone call to set up the deal, but it is clear to me that you were able to effect how the drug transaction in fact transpired, including being able to call the drug deal off. No mere courier is that involved or that trusted at that level of trafficking.

6 We all agree that it was most certainly open for the sentencing judge to draw this inference. From the record, it is clear that the accused had the discretionary authority to determine whether to allow the drug sale to occur or not. The accused was the one who questioned the undercover officer to ascertain whether he was a police officer. He was the one giving direction to the others involved in the transaction. Moreover, he admitted to the police that his role in the drug trade was that of a seller, saying that he had received a call from the co-accused, who said he needed a kilo. He was clearly a supplier.

Contrary to what he now argues, the accused never described himself as a courier or a delivery man for someone else. Even the co-accused described him as his “back-end,” not his courier. In the end, we are all of the view the evidentiary foundation justified the sentencing judge’s conclusion that the accused was more than a mere courier. 7 In the result, while leave to appeal is granted, the appeal is dismissed. J.A. J.A. J.A.