R v Tran (A), 2015 MBCA 120

Citation: R v Tran (A), 2015 MBCA 120 Date: 20151217 Docket: AR14-30-08281 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 and HER MAJESTY THE QUEEN ) J. S. Kliewer ) for the Appellant Appellant ) ) S. A.

Inness - and - ) for the Respondent ) ANTHONY TRAN ) Appeal heard: ) June 19, 2015 (Accused) Respondent ) ) Judgment delivered: ) December 17, 2015 On appeal from 2014 MBPC 44 , 314 ManR (2d) 159 MONNIN JA [ 1 ] The Crown seeks leave to appeal and appeals a sentence of two years less a day to be served conditionally, plus three months concurrent to be followed by one year of probation including 150 hours of community service on charges of possession for the purpose of trafficking in cocaine and for possessing proceeds of crime. [ 2 ] This is one of three sentence appeals by the Crown, all heard at the same time and all dealing with sentences imposed on charges of possession of cocaine for the purpose of trafficking in which a conditional sentence or a suspended sentence was imposed by the sentencing judge.

The common issue raised in these appeals is whether there were “exceptional circumstances” warranting a departure from the established sentencing range. [ 3 ] The accused was found to be in possession of 687 quarter-gram rocks and five one-ounce baggies of cocaine valued at approximately $30,000, along with $1,525 in cash and a digital scale. He was found by the sentencing judge to be a mid-level courier. [ 4 ] At the time of the offence, being July 9, 2010, the accused was a 19-year-old university student with part-time employment. He had no criminal record, no addiction issues and close family ties.

He claimed to be concerned about paying his tuition. The pre-sentence report indicated that the accused was a very low risk to reoffend, and he expressed a great deal of remorse for his involvement.

As well, the accused lived out-of-custody within the community for four and one-half years between the time of the offence and the sentencing. [ 5 ] The Crown sought a sentence of 36 months’ imprisonment while the accused argued for the imposition of a conditional sentence. [ 6 ] The sentencing judge found that the accused was an excellent candidate for rehabilitation, that he was not a danger to the community and that conditions to be attached to a conditional sentence would satisfy the elements of denunciation and deterrence which this Court has stated in the past are important considerations in imposing a sentence for the offences for which the accused pled guilty. [ 7 ] In imposing sentence, the judge stated (at paras 21-25):

I therefore conclude that deterrence of the accused is not a significant matter of concern.

Section 718.2 of the Code states that an offender should not be deprived of his or her liberty if less restrictive sanctions may be appropriate. As mentioned the court is required to consider all available sanctions other than imprisonment. My task is therefore to determine whether a conditional sentence can be designed for this accused such that it will adequately and appropriately address the principles of denunciation and general deterrence. Although numerous cases were referred to by counsel, many others exist.

The best that can be said is that these cases provide guidance to a judge in my position but notwithstanding that I must remember that each case has its own facts and each offender his or her own circumstances. I confirm that I have reviewed and considered all the cases which have been referred to me notwithstanding that I have not made reference to all of them in this decision. As almost always there are both mitigating and aggravating circumstances in this case. The nature and amount of the drugs are definitely an aggravating factor.

On the other hand, his youth, reflecting immature judgment, is a major mitigant. I am satisfied that the goals of denunciation and general deterrence can be met by permitting the accused to serve his sentence in the community subject to appropriate stringent conditions. In so doing, I conclude that a conditional sentence will be fully consistent with the objectives of

section 718.2. Accordingly, I sentence [the accused] to the maximum conditional sentence, 2 years less a day to be served in the community with respect to the trafficking charge, followed by 12 months of unsupervised probation.

In addition to the compulsory conditions set out in s. 742.3(1) of the Code , the accused shall be kept under house arrest for the first 12 months of his sentence. [ 8 ] The Crown argues that in imposing a conditional sentence, the sentencing judge committed an error in principle by failing to impose a sentence proportionate to the gravity of the offence and the degree of responsibility of the accused. The Crown submits that the sentencing judge overemphasized rehabilitation and that the sentence imposed failed to satisfy the paramount sentencing principles of deterrence and denunciation.

Finally, the Crown argues that there exist no “exceptional circumstances” that justify the imposition of a sentence outside of the accepted range for this type of offence. [ 9 ] In the alternative, if no such error exists, the Crown further argues that the sentence was unfit, as the sentence imposed was one that was more appropriate to a street-level trafficker than one to be imposed for a mid-level dealer. [ 10 ] The Crown relies on what Chartier JA (as he then was) wrote in R v Rocha (S) , 2009 MBCA 26 , 236 ManR (2d) 213 (at para 64 ): Those that are trusted beyond a mere courier at the mid-level group should normally expect a sentence in the range of five to eight years. . . .

Those who are mere couriers involved at the mid-level and whose sole purpose is to transport the drugs for their boss in order to prevent the latter from being detected should expect a sentence in the range of three to six years. [ 11 ] In answer to the Crown’s arguments, the accused argues firstly that it is unclear that he was found to be a mid-level courier as opposed to a street-level trafficker.

He further argues that the sentencing judge did not err in principle as the elements of denunciation and deterrence can be and were addressed by the imposition of the conditional sentence and that he correctly balanced those sentencing principles with that of rehabilitation. [ 12 ] The accused relies on the words of Freedman JA in R v Luff (MP) , 2002 MBCA 173 , 170 ManR (2d) 117, where he stated (at para 45): I am satisfied that the goals of deterrence and denunciation can be met by permitting the accused to serve his sentence in the community.

Incarceration is not necessary for that purpose, having regard to the stringency of the conditions that will be imposed on the accused. Manifestly the restorative objectives, and in particular the goal of rehabilitation and promoting a sense of responsibility in the accused will be enhanced and more likely achievable by a conditional sentence.

A conditional sentence for the accused who has over a lengthy time period demonstrated serious commitment to turning his life around would be fully consistent with the objectives of ss. 718 to 718.2. [ 13 ] One of the guiding principles that appellate courts must adhere to in dealing with sentence appeals is that of deference. That principle was restated in clear and concise language by Beveridge JA of the Nova Scotia Court of Appeal in R v Scott (JJ) , 2013 NSCA 28 , 327 NSR (2d) 256, in a case dealing, as in this one, with the issue of “exceptional circumstances”.

He wrote (at paras 7-8): It cannot be gainsaid that appellate courts are required to defer to a lawful sentence imposed by a trial judge. Sentencing a particular offender is a highly individualized process. It requires a judge to be alive to all of the relevant facts, circumstances and, applying the

legislated framework that defines the objectives and principles of sentence, arrive at a disposition that she in the exercise of herdiscretion, considers the best to try to achieve those objectives. The problem is that these are frequently in contraindication. The trialjudge is undoubtedly in the best position to strike the appropriate balance. He hears the case firsthand, and has an opportunity toobserve the offender. He usually presides in the community where the offence occurred and has a better appreciation of the appropriatebalance that must be struck.

These principles are found repeatedly in the pronouncements of the Supreme Court of Canada. In R. v. L.M., 2008 SCC 31 LeBel J., forthe majority (Fish J., in dissent, took no issue with the reasons of LeBel J. on the legal principles) wrote: [15] Owing to the profoundly contextual nature of the sentencing process, in which the trier of fact has broad discretion, the standard ofreview to be applied by an appellate court is one based on deference.

The sentencing judge has “served on the front lines of our criminaljustice system” and possesses unique qualifications in terms of experience and the ability to assess the submissions of the Crown and theoffender (M. (C.A.) (SCC), [1996] 1 SCR 500], at para. 91).

In sum, in the case at bar, the Court of Appeal wasrequired - for practical reasons, since the trier of fact was in the best position to determine the appropriate sentence for L.M. - to showdeference to the sentence imposed by the trial judge. [14] I am therefore to consider the decision and reasons of the sentencing judge through this prism. [15] Before going on to consider the issue of “exceptional circumstances”, I remind myself of what the Supreme Court ofCanada has said with respect to the concept of sentencing ranges and how they are to be dealt with by sentencing and appellate courts.

One of the more recent pronouncements on that issue is that of LeBel J in R v Nasogaluak, 2010 SCC 6, [2010] 1 SCR 206, where hestated (at para 44): The wide discretion granted to sentencing judges has limits. It is fettered in part by the case law that has set down, in somecircumstances, general ranges of sentences for particular offences, to encourage greater consistency between sentencing decisions inaccordance with the principle of parity enshrined in the Code. But it must be remembered that, while courts should pay heed to theseranges, they are guidelines rather than hard and fast rules.

A judge can order a sentence outside that range as long as it is in accordancewith the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is notnecessarily unfit.

Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community inwhich the offence occurred. [16] This issue was also addressed by this Court in R v McCowan (KJ), 2010 MBCA 45, 251 ManR (2d) 295, where SteelJA wrote (at para 11): I believe it can be misleading to apply the range developed for “home invasion robberies” too rigidly without taking careful account ofthe nuances in the facts of each case.

Sentencing ranges are useful in promoting consistency and parity because they provide guidelinesto sentencing judges for the imposition of similar penalties for similar offences of a similar nature involving similar offenders. See R. v.McDonnell (T.E.), (SCC), [1997] 1 S.C.R. 948; 210 N.R. 241; 196 A.R. 321; 141 W.A.C. 321. But they are nothingmore than guidelines and are certainly not conclusive of the appropriate sentence in any given case. The Supreme Court of Canadarecently confirmed this basic principle in R. v.

Nasogaluak (L.M.) (2010), 2010 SCC 6 , 398 N.R. 107; 474 A.R. 88; 479W.A.C. 88; 251 C.C.C. (3d) 293; 2010 SCC 6, when it repeated that a judge can order a sentence outside of a guideline range so long asit is in accordance with the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriatesentences is not necessarily unfit. See also, R. v.

Sinclair (W.J.) (2009), 2009 MBCA 91 , 245 Man.R. (2d) 237; 466 W.A.C.237; 2009 MBCA 91, at para. 6. [17] The reliance on “exceptional circumstances” in dealing with sentences is not a new concept, but it is one that remainssomewhat nebulous and devoid of a precise definition. The dictionary

definitions of “exceptional” or “exceptional circumstances” use anumber of synonymous terms in their description.

Black’s Law Dictionary, 6th ed, sub verbo “exceptional circumstances” provides thefollowing definition of “exceptional circumstances”: “Conditions which are out of the ordinary course of events; unusual orextraordinary circumstances.” [18] However, simply stating this definition is far easier than ascertaining the true nature and meaning of that phrase. [19] While a bit dated at this point, the inherent difficulty in defining exceptional circumstances was addressed in R vBurchnall and Dumont (1980), 1980 ABCA 219 , 24 AR 17 (CA), a case dealing with drug offences.

The Court of Appeal tookthe unusual step of sitting seven members. Laycraft JA, for the panel, opined (at para 35): That does not prelude a Court of Appeal from stating, as is its duty to do, that unless there are highly unusual factors, it will be an error inprinciple not to impose a custodial sentence for trafficking in narcotics. This, of course, leaves undefined the “exceptionalcircumstances” or the “highly unusual factors” contained in these statements of principle. They cannot be defined.

To attempt to do sois to attempt to foresee the infinitely variable facts of every case in the future and the infinitely variable human beints [sic] who will beinvolved in them. In R. v. Doherty (1972), 9 C.C.C. (3d) 115, a trial judge had complained that there were “no guidelines set as to what

constitutes exceptional circumstances”. Gale, C.J.O., giving the judgment of the court said at Page 117: “If by that statement the trial judge was indicating that in his opinion this court should set exhaustive guide lines of sentencing for trialjudges, I simply decline to accept his invitation. In my view it would not only be unwise, but dangerous to attempt any such exercise.

Each case must be considered in the light of its own circumstances and if those circumstances are extraordinary, or rare, and suggest thata jail sentence is not appropriate, then a jail sentence should not be imposed.” [20] The same issue was dealt with by this Court in R v MFD (1991), (MB CA), 75 ManR (2d) 21 (CA),where Twaddle JA wrote (at para 16): It is not this circumstance or that which justifies a departure from the normal sentencing pattern, but the totality of the circumstances. For this reason, the circumstances which may be regarded as “special” are not susceptible of definition.

The best we can do is torecognize that there will be exceptional cases in which the interests of society, or those of the victim and her family, will be better servedby a sentence which gives more weight to rehabilitation than to the other sentencing aims. The identification of those cases must then beleft to judges exercising their discretion judicially. [21] Twaddle JA also dealt with the same issue in R v Scanlon (DJ) (1995), (MB CA), 107 ManR (2d)190 (CA), where he stated (at paras 12-13): As with all general rules, however, exceptions exist.

The general rule does not mandate a penitentiary term in every case. Sentencingjudges retain a discretion to impose a lesser term, or even a non-incarcetory one, where the circumstances justify the chosen penalty. Thedifficulty is in identifying what those circumstances are. This court has frequently referred to such circumstances as “exceptional” (or sometimes “extraordinary”). This somewhat begs thequestion. Until the usual circumstances are defined, how can it be said which are exceptional?

The fact is, however, that thecircumstances of an offence and an offender are of such infinite variety that it is next to impossible to say in the abstract which are usualand which exceptional. The best this court can do is to refer to earlier cases in which exceptional circumstances have been recognized asjustifying departure from the general rule. [22] More recently, in R v Henderson (JA), 2012 MBCA 9, 275 ManR (2d) 168, the accused was convicted of impaireddriving causing bodily harm. The trial judge found exceptional circumstances, suspended the passing of sentence and imposed two yearsprobation.

The Crown appealed. Hamilton JA, in dismissing the appeal, noted the difficulties in determining the nature of exceptionalcircumstances. She began (at para 46): The law continues to be as stated by Twaddle, J.A., in Gutoski [(1990), (MB CA), 63 ManR (2d) 246 (CA)]. Thatis, a sentence for impaired driving cause bodily harm will be a jail sentence unless there are exceptional circumstances that permit thejudge to impose a non-incarceratory sentence. Stating this principle is easier than ascertaining what are exceptional circumstances.

She later stated (at paras 55-56): There are many examples of cases where a judge, or an appeal court, states that “except in exceptional circumstances, a period ofincarceration is called for”, or words to similar effect. However, there is little guidance in the case law as to what constitutes exceptionalcircumstances. In R. v.

Steeves (C.E.) et al. (2005), 2005 NBCA 85 , 288 N.B.R. (2d) 1; 751 A.P.R. 1; 2005 NBCA 85, the New BrunswickCourt of Appeal wrote about exceptional circumstances in the context of sentencing for theft committed by a person in a position of trust,an offence for which general deterrence is also a paramount sentencing principle (at para. 1): It has long been the view of this Court and other Canadian appellate courts that the need for general deterrence must be met whensentencing an employee who stole from his or her employer and thereby abused a position of trust.

Absent “exceptional circumstances”,a fit sentence for an offence of this nature is one that features incarceration. While a finding of “exceptional circumstances” typically

rests upon proof of mitigating factors that tend to lessen guilt or the seeming seriousness of the offence charged, the concept is elastic inmeaning and courts have wisely refrained from attempting to precisely delineate its reach. (emphasis added) [23] I am no more inclined to provide a detailed definition of “exceptional circumstances” than other courts dealing with theissue have done in the past, but do glean from previous decisions the elements that courts have considered in finding that “exceptionalcircumstances” existed in a particular case. [24] The overriding factor that applies to this finding is that “exceptional circumstances” invariably involve multiplemitigating factors.

This was recently and clearly set out by Bennett JA of the British Columbia Court of Appeal in R v Voong (DM) et al,2015 BCCA 285, 374 BCAC 166, where she wrote (at para 59 ): Exceptional circumstances may include a combination of no criminal record, significant and objectively identifiable steps towardsrehabilitation for the drug addict, gainful employment, remorse and acknowledgement of the harm done to society as a result of theoffences, as opposed to harm done to the 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 are above and beyond the norm to justify a non-custodial sentence. There must be something thatwould lead a sentencing judge to conclude that the offender had truly turned his or her life around, and that the protection of the publicwas subsequently better served by a non-custodial sentence. However, Parliament, while not removing a non-custodial sentence for thistype of offence, has concluded that CSO [conditional sentence order] sentences are not available.

Thus, it will be the rare case where thestandard of exceptional circumstances is met. See also R v MacDougall (BA) (1995), (MB CA), 107 ManR (2d) 236 at para 5 (CA); and R v Innes, 2012 ABCA283 (QL). [25] Another factor to be considered is where incarceration, due to substantial rehabilitation coupled with the length of timesince sentencing, would be “counterproductive”.

See R v Kreutziger (WD), 2005 BCCA 231, 212 BCAC 32; R v Nesbitt (NL), 2012BCCA 243, 322 BCAC 249; R v Tran (TH) et al, 2015 BCCA 212, 371 BCAC 312; R v Datt (R), 2014 BCCA 484, 364 BCAC 159; R vCarrillo (OO), 2015 BCCA 192, 371 BCAC 182; and R v Sinclair (

T) et al, 2012 MBCA 24, 280 ManR (2d) 31. [26] Other cases have demonstrated that, while rehabilitation remains the most commonly articulated factor, appellate courtshave referred to many other considerations in the cocktail of factors. Depending on the facts, compliance with strict bail conditions,guilty pleas, co-operation with authorities, health issues, personal characteristics, family concerns, Gladue and Ipeelee considerations,etc., have all had their role to play in the case law (R v Gladue, (SCC), [1999] 1 SCR 688; and R v Ipeelee, 2012 SCC13, [2012] 1 SCR 433).

See R v Liparoti (O), 2011 ABCA 250, 513 AR 97; R v Grammatikos (D), 2013 MBQB 44, 290 ManR (2d) 18;and R v Rockwell (S), 2012 MBQB 280, 285 ManR (2d) 290. [27] However, in this canvass of factors warranting a consideration of “exceptional circumstances”, the aspect ofdemonstrated rehabilitation over a period of time might be the most persuasive of those factors. That factor was dealt with by this Courtin R v Ramos (ZM), 2007 MBCA 87, 214 ManR (2d) 280. The accused was convicted of trafficking in cocaine. The amount seized was10 ounces of crack cocaine divided into 10 one-ounce baggies.

Hamilton JA described the mitigating factors as follows (at para 6): He is 36 years old, with no prior criminal record. He accepted responsibility and showed remorse for his actions. He works steadily, isinvolved in the community and shares parenting responsibilities with his ex-wife for his 12-year-old son. He has not become re-involvedduring his three years on judicial interim release.

The pre-sentence report was extremely positive. [28] In then imposing a conditional sentence, Hamilton JA reasoned (at para 16): While the sentencing principles of deterrence and denunciation are important, this is one of those cases, in my view, where the principlesof rehabilitation and promoting a sense of responsibility should play a significant role as well.

The words of Freedman, J.A., in R. v.Luff (M.P.) (2002), 2002 MBCA 173 , 170 Man.R. (2d) 117; 285 W.A.C. 117; 2002 MBCA 173, are apt (at para. 45): “I am satisfied that the goals of deterrence and denunciation can be met by permitting the accused to serve his sentence in thecommunity. Incarceration is not necessary for that purpose, having regard to the stringency of the conditions that will be imposed on theaccused.

Manifestly the restorative objectives, and in particular the goal of rehabilitation and promoting a sense of responsibility in theaccused will be enhanced and more likely achievable by a conditional sentence. A conditional sentence for the accused who has over alengthy time period demonstrated serious commitment to turning his life around would be fully consistent with the objectives of ss. 718to 718.2.” [29] I conclude this review of “exceptional circumstances” by returning to the reasons of Beveridge JA in Scott. While

lengthy, the following passage from his reasons is instructive (at paras 59-60, 62): As already explained, it is the selection of any sentence of less than two years that the Crown says is simply not allowed in this casebecause of what this Court, as interpreted by the Crown, has said in previous decisions about the mandated sentence for all cocainetraffickers. My colleague has accepted this premise. However, even if one accepts that two years is the minimum starting point for allwho traffic or possess cocaine for the purpose of trafficking, the selection of a lesser sentence is not per se legal error.

This was clearlyexplained by Sopinka J. in McDonnell [ (SCC), [1997] 1 SCR 948]. Deviation from starting point sentences set by anappellate court is not an error in principle. Sopinka J. wrote as follows: [32] In any event, in my view it can never be an error in principle in itself to fail to place a particular offence within a judicially createdcategory of assault for the purposes of sentencing. There are two main reasons for this conclusion.

First, Shropshire [[1995] 4 SCR 163]and M. (C.A.) [ (SCC), [1996] 1 SCR 500], two recent and unanimous decisions of this Court, clearly indicate thatdeference should be shown to a lower court’s sentencing decision. If an appellate court could simply create reviewable principles bycreating categories of offences, deference is diminished in a manner that is inconsistent with Shropshire and M. (C.A.).

In order tocircumvent deference and to enable appellate review of a particular sentence, a court may simply create a category of offence and a“starting point” for that offence, and treat as an error in principle any deviation in sentencing from the category so created. Indeed, thatis what the Court of Appeal in Alberta has done in the present case. If the categories are defined narrowly, and deviations from thecategorization are generally reversed, the discretion that should be left in the hands of the trial and sentencing judges is shiftedconsiderably to the appellate courts.

Justice Sopinka was careful not to suggest that appellate courts may not set out starting point sentences as a guide to lower courts. Heexplained: [43] I add that I do not disagree with McLachlin J. that appellate courts may set out starting-point sentences as guides to lower courts. Moreover, the starting point may well be a factor to consider in determining whether a sentence is demonstrably unfit.

If there is a widedisparity between the starting point for the offence and the sentence imposed, then, assuming that the Court of Appeal has set areasonable starting point, the starting point certainly suggests, but is not determinative of, unfitness. In my view, however, the approachtaken by McLachlin J. in the present case places too great an emphasis on the effect of deviation from the starting point. Unless thereotherwise is a reason under Shropshire or M. (C.A.) to interfere with the sentence, a sentence cannot be altered on appeal,notwithstanding deviation from a starting point.

Deviation from a starting point may be a factor in considering demonstrable unfitness,but does not have the significance McLachlin J. gives it. There have been a number of pre-1996 decisions of this Court [setting] out starting points for break and enters and robberies.

There is noneed to discuss them, nor the numerous examples of this Court upholding and imposing significantly lower sentences for those offenceswithout ‘exceptional circumstances’ being demonstrated - all that was required was for the trial judge to have correctly identified andapplied the relevant objectives and principles of sentence, including whatever general guidelines this Court may have articulated. In myopinion that is precisely what Judge Tufts did here.

No error in law or principle has been established. [30] I am not convinced that the accused in this case was anything more than a street-level cocaine trafficker. As FreedmanJA explained in R v Gilchrist (R), 2004 MBCA 21, 184 ManR (2d) 23, the range of prison sentences for low-level cocaine trafficking inManitoba is “very wide (anywhere from 12 months to significant penitentiary terms)” (at para 26).

That aside, when I consider thereasons of the sentencing judge in the case at bar in light of how courts have considered “exceptional circumstances”, and in light of thedeference that is owed to sentencing judges, I am unable to find that he erred in principle in imposing the sentence that he did, or that thesentence he imposed was unfit. [31] The sentencing judge was dealing with a youthful, immature young offender with no prior involvement with thecriminal justice system.

The sentencing judge accepted the accused’s claim that he had sought out the opportunity to become involved inthe drug trade to earn money to pay his university tuition. The accused was on bail from the time of the offence in July of 2010 to thetime of sentencing on November 4, 2014, with strict conditions and complied with those conditions including serving 12 months of hisconditional sentence by way of house arrest. There was, in my view, an inordinate amount of time that passed between the time of theaccused’s arrest and the time of sentencing.

The sentencing judge properly effected a balance between the need for denunciation anddeterrence with the accused’s more than apparent rehabilitation. The accused has completed the community service imposed as part ofhis sentence. He has been gainfully employed and has the support of his employer.

This is one of those rare cases where, in my view, itwould be counterproductive to send this offender to jail, let alone a penitentiary term. [32] In the long term, society will be best protected and served by having this accused rehabilitated and continuing to be aproductive member of the community as opposed to serving time in jail. [33] The Crown is granted leave to appeal, but its appeal is dismissed.

JA I agree: JA I agree: JA