R v Hudson, 2015 MBCA 95

Citation: R v Hudson, 2015 MBCA 95 Date: 20151001 Docket: AR15-30-08359 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Mr. Justice Marc M. Monnin Madam Justice Janice L. leMaistre BETWEEN : HER MAJESTY THE QUEEN ) R. T. Amy ) for the Appellant Respondent ) ) A. M. Turner and - and - ) E. D.

Atkin ) for the Respondent JASON STUART HUDSON ) ) Appeal heard and (Accused) Appellant ) Decision pronounced: ) October 1, 2015 STEEL JA (for the Court): [ 1 ] This is an appeal from a sentence of 18 months’ incarceration and 12 months’ probation imposed after a guilty plea to a charge of trafficking in crack cocaine. [ 2 ] As a favour to a friend with whom he was living at the time and who was a drug dealer, the accused delivered the cocaine to a person who turned out to be an undercover officer.

It was a single transaction and the accused was suffering from a long- term addiction at the time. [ 3 ] The accused argues that the sentencing judge erred in imposing a sentence for commercial cocaine trafficking in a situation that was non-commercial. [ 4 ] As well, the argument is made that the length of incarceratory sentences for drug trafficking should be reconsidered now that conditional sentences are no longer available for these offences. The length of conditional sentences and incarceratory sentences should not be the same.

In conditional sentences, rehabilitation can be achieved while satisfying the need for deterrence and denunciation. Now that conditional sentences are no longer available, in situations where rehabilitation is paramount, a short sentence can satisfy the objectives of denunciation and deterrence while allowing for rehabilitation to begin sooner rather than later. [ 5 ] That is an argument with which this Court may have to deal in the future, however, we do not feel that this is a case where that argument will make a difference.

As an appellate court, we can intervene only where there is error. [ 6 ] At 34 years old, the accused is not a youthful offender. He was on probation at the time of the offence and fled from the police when they attempted to apprehend him. Although not related, his criminal record indicates that this is not his first period of incarceration. Besides some previous minor offences, in 2008 he was convicted of five counts of robbery and received a custodial sentence equivalent to 30 months.

In 2011, he was sentenced to eight months of custody on a charge of assault cause bodily harm and in 2012, he was sentenced to the equivalent of a 31-day sentence for an assault. [ 7 ] We agree that for the purposes of sentencing, courts must recognize the distinction that exists between individuals who become involved in the drug trade because of their own addiction and those that do so for commercial purposes.

We are sympathetic to the struggles of addiction and acknowledge the steps this accused has taken since his arrest in 2013. [ 8 ] However, the sentencing judge took all of those factors into account and conducted a balanced inquiry. Although on the high end for non-commercial involvement, it is not a demonstrably unfit sentence and therefore, does not warrant appellate intervention.

[ 9 ] While leave is granted, the appeal is dismissed. J.A. J.A. J.A.