R v Peters, 2015 MBCA 119

Citation: R v Peters, 2015 MBCA 119 Date: 20151217 Docket: AR14-30-08279 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Freda M. Steel Mr. Justice William J. Burnett BETWEEN: ) R. H. Smith andHER MAJESTY THE QUEEN ) J. S. Kliewer ) for the Appellant Appellant ) ) B. F.

Bonney- and - ) for the Respondent ) RYAN NATHAN PETERS ) Appeal heard: ) June 19, 2015 (Accused) Respondent ) ) Judgment delivered: ) December 17, 2015 MONNIN JA [1] The Crown seeks leave to appeal and appeals a suspended sentence along with three years of supervised probationwith 200 hours of community service, imposed following a guilty plea to a charge of possession of cocaine for the purpose of traffickingalong with two breaches of the accused’s terms of release. [2] This is one of three sentence appeals by the Crown, all heard at the same time, and all dealing with sentencesimposed on charges of possession of cocaine for the purpose of trafficking, in which conditional sentences or a suspended sentence wereimposed by the sentencing judges. [3] On first impression, the common issue raised in these appeals is whether there were “exceptional circumstances”warranting a departure from the established sentencing range.

However, in this particular appeal, the issue is not restricted to theconsideration of the existence of “exceptional circumstances”. In my view, this appeal turns mainly on the applicability of what arecommonly referred to as the Gladue-Ipeelee principles, as the accused is of Aboriginal descent (R v Gladue, (SCC),[1999] 1 SCR 688; and R v Ipeelee, 2012 SCC 13, [2012] 1 SCR 433). [4] The accused was arrested on March 5, 2013, after having sold cocaine to an undercover police officer. At the time ofhis arrest, he was found in possession of $405.

A search of his partner, who was pregnant and due to give birth within weeks, revealedthat she was holding 62 one-quarter grams of cocaine in her vagina, which the accused later admitted possessing. [5] At the time of sentencing on October 29, 2014, the accused was a 31-year-old Aboriginal. He had the support of hisfamily. On June 9, 2014, he had been granted sole custody of twin children born shortly after his arrest, as well as a third child, who wastwo months old at the time of sentencing. [6] The accused grew up in the City of Winnipeg where he lived most of his life.

Shortly after his arrest, in April of2013, he had relocated to Long Plains First Nation, where he was caring for the children in his custody while living on social assistance. [7] The accused has a total of 54 prior convictions dating back to youth offences in 1998. His latest conviction prior tothe ones being dealt with in this appeal was in September 2004, also for possession for the purpose of trafficking, for which he receivedan effective sentence of 26 months, plus two years’ probation.

The pre-sentence report prepared in preparation of this sentencingassessed the accused as a very high risk to re-offend. [8] In addition to the pre-sentence report and a Gladue report, the accused filed materials evidencing that in April 2014,he completed a 30-day residential treatment program, which included components in domestic violence, anger management andparenting. He also participated in AA and NA meetings. [9] The Crown sought a sentence of three years’ imprisonment.

By oversight, the Crown had not provided notice tocounsel for the accused of its intention to seek greater punishment due to his prior trafficking conviction, and therefore a mandatory

minimum sentence was not available. [ 10 ] Counsel for the accused submitted that he would have been a good candidate for a conditional sentence, but as this was no longer available due to recent amendments to the Criminal Code , he invited the sentencing judge to impose a suspended sentence, in which she eventually acquiesced. [ 11 ] In imposing sentence, the sentencing judge placed much weight on what are now known as the Gladue-Ipeelee principles, applicable in sentencing people of Aboriginal descent, and the extent to which the accused laboured to change his life and lifestyle between the time of his arrest and the time of his sentencing.

In her reasons she noted the following: So you took that program. And most surprisingly, and I say surprisingly, because I can tell you I have not seen a single-parent man in front of me before who is looking after twins and a new baby. Twins who are a year and a half old and a new baby who is two months old, with the support of the state, Child and Family Services. Because this was a matter where Child and Family Services were involved, there was a contested matter.

And you with a criminal record, a gang past, a drug past, come and open yourself and your home and your family up to the magnifying glass of Child and Family Services who does a parental capacity assessment, a home assessment, and determines that this former drug dealer is not just an adequate parent, but is a good parent and should have sole custody of his little baby twin girls and now a two month old. That speaks volumes. It speaks volumes that Child and Family Services has no concerns about your abstinence and has no concerns about your risk to become a criminal. It speaks volumes. . . .

This is a situation where I see there are no safety concerns. There are no public safety concerns. There are no safety concerns with respect to the children. I see a person who has changed considerably. I take into account much of what the Supreme Court has said in Gladue and one of the things they said, I want to quote this, it’s from the Ipeelee decision at paragraph 67 .

And Justice LeBel of the Supreme Court quoted two professors and they with support and in favour: “… if an innovative sentence can serve to actually assist a person in taking responsibility for his or her actions and lead to a reduction in the probability of subsequent re-offending, why should such a sentence be precluded just because other people who commit the same offence go to jail?” [ 12 ] And further, after quoting extensively from what the Supreme Court of Canada stated in both Gladue and Ipeelee , she said: In all of the circumstances, I don’t think that sending you to jail, whether that’s provincial jail or a penitentiary, would serve to deter you, would serve to deter other aboriginal offenders or would denounce this crime in a way that would be meaningful to the Long Plains First Nation, which is your community.

I think a more restorative sentence would gain relevance in your case for the prevention of crime, as well as individual and social healing. I am faced with a young father who has three young children, very young children, that he is raising in a very good way. Sending him to prison at this point would be, I think, the opposite of everything the Supreme Court of Canada has instructed us to do in Ipeelee and Gladue . On the sentencing of trafficking in crack cocaine, March 5th, 2013, I’m going to impose a suspended sentence with a period of probation for three years.

On the failure to comply with a recognizance and the abstain there will be a suspended sentence and it will be just concurrent on all three charges. The probation order is lengthy. It’s three years in length.

That gives you a long time to continue to be responsible towards the larger community, not just your community and your family, but the larger community, and to continue to prove to yourself and your family and your community that you are prosocial and that you will not turn back in any way on drug use and substance abuse, on gangs and any kind of crime. [ 13 ] The Crown argues that in imposing the sentence that she did, the sentencing judge erred in principle, by failing to recognize that paramount principles in sentencing cocaine traffickers must be deterrence and denunciation, and placed too much emphasis on the Gladue factors.

It argues that the accused’s background has no effect on the circumstances of this offence and that although of Aboriginal descent, the accused has not demonstrated that he has been impacted by the usual Gladue factors.

[14] Further, the Crown, although conceding that the sentence imposed was not illegal, argues that by imposing a suspendedsentence, the sentencing judge erred by avoiding Parliament’s direction that cocaine traffickers are no longer eligible for community-based sentences.

The Crown submits that a probation order is insufficient to act as a proper deterrent. [15] In the alternative, if the sentencing judge did not commit any error in imposing the sentence that she did, the Crownargues that the sentence imposed was demonstrably unfit. [16] The Crown refers to and relies on a decision of the British Columbia Court of Appeal in R v Oates (KAL), 2015 BCCA259, 373 BCAC 123, in which it set aside a suspended sentence along with 36 months’ probation imposed on one count of traffickingcocaine.

In finding that the sentencing judge had made an error in principle, Saunders JA wrote (at para 16): In my view the reasons for judgment do demonstrate errors in principle. I would start with the judge’s

summary of two cases, Saunders[(1993), (BC CA), 39 BCAC 157] and Tran [2007 BCCA 613, 250 BCAC 38], neither of which in my view say quitewhat the judge say they said. The judge referred to Saunders as holding that “suspended sentences meet the deterrent objectives” of theCriminal Code. (I assume in this discussion that the judge was referring to general deterrence.) With respect, to the extent this suggeststhat all suspended sentences meet the deterrent objective this reference overstates the conclusion of Madam Justice Southin replicatedabove.

The point of that case is not that suspended sentences do meet the deterrent objectives, but rather that they might do so. What isalways required in a sentencing analysis on the issue of deterrence where deterrence is a main or important principle, is an appreciationand consideration of all the circumstances before the court, including the nature of the offence and circumstances of the offender. As toTran the judge described that case as referring to “a sophisticated dial-a-dope trafficking operation”.

More accurately Tran says at para.12: …This Court has often said that “dial-a-dope” operations are a sophisticated form of trafficking, and thus are more serious than thegeneral trafficking case, giving more weight to the principle of general deterrence”. [17] The accused argues that the sentencing judge committed no error in principle, but, even if she did, the principles set outin Gladue-Ipeelee are sufficient in the circumstances of this case to override the considerations of deterrence and denunciation or thereliance on the range that has previously been set for this type of offence.

The accused submits that in imposing the sentence that shedid, the judge clearly followed the principles set out in Gladue and re-emphasized in Ipeelee. [18] The standard of review to be applied by an appellate court on an appeal from sentence is well established. It is one ofdeference to the decision of the sentencing judge. An appellate court will only interfere if the sentence was demonstrably unfit or wasthe result of an error of principle.

An error of principle includes failing to consider a relevant factor, taking into account an irrelevantfactor, failing to give weight to a relevant factor or overemphasizing an appropriate factor. See R v Shropshire, (SCC),[1995] 4 SCR 227; R v M (CA), (SCC), [1996] 1 SCR 500; and R v Ruizfuentes (HS), 2010 MBCA 90 at para 7, 258ManR (2d) 220. [19] Following the hearing of this appeal, the Crown, with consent of accused’s counsel, provided us with a further decisionof the British Columbia Court of Appeal.

R v Voong (DM) et al, 2015 BCCA 285, 374 BCAC 166, was released on June 25, 2015,following the hearing of this appeal. Voong is one of four appeals heard at the same time. In each of the appeals, the Crown wasappealing the imposition of suspended sentences and probation orders imposed on four accused who had pleaded guilty to dial-a-dopedrug trafficking offences.

Although none of these appeals specifically dealt with the Gladue-Ipeelee principles, I found what Bennett JAsaid with respect to the imposition of suspended sentences useful for my consideration of the disposition of this appeal. [20] In Voong and the other three appeals, the Crown appealed on the basis that the sentences imposed did not sufficientlyaddress the principles of deterrence and denunciation.

In three of the appeals, the Crown argued that the sentencing judges used thesuspended sentences as an unlawful substitute for a conditional sentence order. [21] After having reviewed the nature of a suspended sentence and a conditional sentence order as well as the deterrenteffect of probation and the applicable range of sentence applicable to the offences before her, she comes to the following conclusion (atparas 59-62): In

summary, absent exceptional circumstances, the sentence for a first offence or with a minimal criminal record, dial-a-dope drug sellerwill be in the range of six to eighteen months imprisonment, depending on the aggravating circumstances. Exceptional circumstancesmay 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 offences, as opposed to harm done tothe offender as a result of being caught.

This is a non-exhaustive list, but at the end of the day, there must be circumstances that areabove and beyond the norm to justify a non-custodial sentence. There must be something that would lead a sentencing judge to concludethat 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. However, Parliament, while not removing a non-custodial sentence for this type of offence, has concluded that CSO[conditional sentence order] sentences are not available.

Thus, it will be the rare case where the standard of exceptional circumstances ismet. A CSO was considered a sentence of imprisonment because of the strict and punitive conditions that could be imposed. As we have seenabove, a suspended sentence can attract similar strict conditions, but only if they are aimed at protection of the public and reintegrationof the offender into society. Rehabilitation clearly plays a significant role in both of those conditions. [emphasis original]

A suspended sentence can achieve a deterrent effect, as noted above, as well as a denunciatory effect. And, as Esson J.A. stated in Chang [2002 BCCA 644 , 179 BCAC 72 ] , the fact of being arrested, tried and convicted, can also address these principles. In other words, the stigma of being a convicted drug trafficker and the consequences of that conviction – for example, restricted ability to travel outside of Canada and exclusion from many forms of employment – may also play a deterrent effect.

Thus, while it is an error to simply substitute a suspended sentence for a CSO, as they are not governed by the same principles, that does not end the inquiry into whether these non-custodial sentences are fit. [emphasis added] [ 22 ] However, in addition to considering the existence of “exceptional circumstances” to warrant the imposition of a suspended sentence, because of the accused’s Aboriginal background, the sentence imposed on this offender must be considered in light of what LeBel J stated in Ipeelee . He wrote (at paras 59-60): The Court held, therefore, that s. 718.2(

e) of the [ Criminal ] Code is a remedial provision designed to ameliorate the serious problem of overrepresentation of Aboriginal people in Canadian prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing ( Gladue , at para. 93 ). It does more than affirm existing principles of sentencing; it calls upon judges to use a different method of analysis in determining a fit sentence for Aboriginal offenders.

Section 718.2(

e) directs sentencing judges to pay particular attention to the circumstances of Aboriginal offenders because those circumstances are unique and different from those of non- Aboriginal offenders ( Gladue , at para. 37 ). When sentencing an Aboriginal offender, a judge must consider: (

a) the unique systemic or background factors which may have played a

part in bringing the particular Aboriginal offender before the courts; and (

b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection ( Gladue , at para. 66 ). Judges may take judicial notice of the broad systemic and background factors affecting Aboriginal people generally, but additional case-specific information will have to come from counsel and from the pre-sentence report ( Gladue , at paras. 83-84 ).

Courts have, at times, been hesitant to take judicial notice of the systemic and background factors affecting Aboriginal people in Canadian society (see, e.g., R. v. Laliberte , 2000 SKCA 27 , 189 Sask. R. 190 (Sask. C.A.) ). To be clear, courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples.

These matters, on their own, do not necessarily justify a different sentence for Aboriginal offenders. Rather, they provide the necessary context for understanding and evaluating the case-specific information presented by counsel. Counsel have a duty to bring that individualized information before the court in every case, unless the offender expressly waives his right to have it considered. In current practice, it appears that case-specific information is often brought before the court by way of a Gladue report, which is a form of pre-sentence report tailored to the specific circumstances of Aboriginal offenders.

Bringing such information to the attention of the judge in a comprehensive and timely manner is helpful to all parties at a sentencing hearing for an Aboriginal offender, as it is indispensable to a judge in fulfilling his duties under s. 718.2 (

e) of the Criminal Code . [ 23 ] And further (at para 75):

Section 718.2(

e) does not create a race-based discount on sentencing. The provision does not ask courts to remedy the overrepresentation of Aboriginal people in prisons by artificially reducing incarceration rates. Rather, sentencing judges are required to pay particular attention to the circumstances of Aboriginal offenders in order to endeavour to achieve a truly fit and proper sentence in any particular case. This has, and continues to be, the fundamental duty of a sentencing judge.

Gladue is entirely consistent with the requirement that sentencing judges engage in an individualized assessment of all of the relevant factors and circumstances, including the status and life experiences, of the person standing before them. Gladue affirms this requirement and recognizes that, up to this point, Canadian courts have failed to take into account the unique circumstances of Aboriginal offenders that bear on the sentencing process.

Section 718.2 (

e) is intended to remedy this failure by directing judges to craft sentences in a manner that is meaningful to Aboriginal peoples. Neglecting this duty would not be faithful to the core requirement of the sentencing process. [ 24 ] And finally (at para 87): The sentencing judge has a statutory duty, imposed by s. 718.2 (

e) of the Criminal Code , to consider the unique circumstances of Aboriginal offenders. Failure to apply Gladue in any case involving an Aboriginal offender runs afoul of this statutory obligation. As these reasons have explained, such a failure would also result in a sentence that was not fit and was not consistent with the fundamental principle of proportionality. Therefore, application of the Gladue principles is required in every case involving an Aboriginal offender, including breach of an LTSO, and a failure to do so constitutes an error justifying appellate intervention.

[ 25 ] It is clear from what the sentencing judge said in imposing sentence, that she followed, and eventually applied what the Supreme Court of Canada directed judges to do in sentencing Aboriginal offenders. For this she cannot be faulted. Because of what I would define as a major turn-around in the accused’s life following his arrest, the sentencing judge crafted a sentence that was appropriate and recognized the very substantial change that has occurred in this accused’ s way of living.

He appears to have achieved what is an important objective of the sentencing process, namely rehabilitation. [ 26 ] In my view, because of the changes that the accused brought into his life following his arrest, he would have been a good candidate for a conditional sentence. However, because that option has been taken away from judges, the sentencing judge had to consider what other options were available to her, short of incarceration. She was dealing with an exceptional set of circumstances and, in my view, dealt with them in a manner that was open to her.

In addition, in crafting her sentence she properly considered what the Supreme Court of Canada has said with respect to sentencing Aboriginal offenders. [ 27 ] Based on the passages that I have referred to from Voong and Ipeelee , I am satisfied that the sentencing judge committed no error in principle in imposing the sentence that she did.

Furthermore, in the circumstances of this case and this particular accused, I have not been convinced that the sentence imposed was unfit. [ 28 ] There was evidence that could lead the sentencing judge to conclude that this accused had turned his life around since the time of his arrest and that in the circumstances of this case, the long-term protection of the public, was better served by the non- custodial sentence that she imposed. [ 29 ] Furthermore, the sentencing judge paid particular attention to the circumstances of this particular accused and what he had achieved, both for himself and his children, since the time of his arrest.

This accused’s conduct, since the time of his arrest, justifies the sentencing judge’s recourse to a restorative approach to sentencing. It is an unusual sentence, but it is not an unfit one. [ 30 ] Accordingly, I would dismiss the appeal . JA I agree: JA I agree: JA