R v Bisson, 2018 MBCA 92

Citation: R v Bisson, 2018 MBCA 92 Date: 20180919 Docket: AR18-30-09041 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Diana M. Cameron Madam Justice Jennifer A. Pfuetzner Madam Justice Janice L. leMaistre BETWEEN : her majesty the queen ) J. S. Kliewer and ) A. M. Parashin Appellant ) for the Appellant ) - and - ) E. A.

Wach ) for the Respondent leslie gerald bisson ) ) Appeal heard and (Accused) Respondent ) Decision pronounced: ) September 19 , 2018 On appeal from 2018 MBPC 12 pfuetzner JA (for the Court): [ 1 ] After pleading guilty, the accused received a sentence of eight years’ incarceration for trafficking cocaine and a concurrent two-year sentence for possession of a firearm without a licence. The Crown seeks leave to appeal and appeals the eight-year trafficking sentence. [ 2 ] At the sentencing hearing, the disputed issue was whether the accused was a high-level or mid-level trafficker.

Considerable evidence was led, including transcripts of intercepted communications, text messages and photographs. The Crown also called a drug expert who testified and provided an expert’s report.

The Crown sought a sentence of 11 to 12 years, while the accused suggested a sentence of about four years. [ 3 ] After considering the evidence, the sentencing judge found that the accused was trafficking at the mid-level “primarily on the lack of any real organization which he controlled, the lack of sophistication of his operation, and the lack of evidence that he ever sold large quantities in individual sales” (at para 17).

The sentencing judge considered the aggravating and mitigating factors and imposed an eight-year sentence, describing it as being at the “upper range of a mid-level dealer” (at para 38) (see R v Rocha , 2009 MBCA 26 at para 64 ). [ 4 ] The Crown argues that the sentencing judge erred in finding that the accused was a mid-level trafficker based primarily on his conclusion that there was no evidence that the accused trafficked in kilogram quantities or was part of a network and that his trafficking operation was not particularly sophisticated.

As a result, the Crown submits that the sentence is demonstrably unfit and that the accused should have been sentenced as a high-level trafficker and received a sentence at the high end of that range—the range being eight to 12 years (see R v Grant (IM) , 2009 MBCA 9 at para 107 ). [ 5 ] The threshold for appellate intervention in a sentencing decision is very high.

Unless there has been a material error impacting the sentence or the sentence is demonstrably unfit, deference is owed (see R v Houle , 2016 MBCA 121 at para 11 ). [ 6 ] The categorisation of drug traffickers as street-level, mid-level or high-level dealers and the application of the corresponding sentence ranges are useful tools to help assess the moral culpability of an offender in arriving at a fit sentence. However, the determination of the appropriate category is not a scientific exercise; it involves the weighing of many factors.

There is no bright line dividing mid-level traffickers from high-level traffickers, nor is any one factor determinative. The categories lie on a continuum and, depending on the particular circumstances, an offender could fall somewhere near the intersection of two categories.

[ 7 ] We agree with the Crown that the sentencing judge erred in finding that the evidence that the accused “purchased cocaine at a multi kilogram level every six to eight weeks and sold these drugs at the multi ounce level to a number of customers” was “inconsistent with” (at para 12) him being a high-level trafficker. While there may not have been evidence of a kilogram-level sale by the accused during the time he was under surveillance, there was evidence that he previously made kilogram-level sales.

Moreover, the cumulative amount of cocaine that he sold at the multi-ounce level was significant and was not inconsistent with high-level trafficking. [ 8 ] The evidence before the sentencing judge revealed some factors consistent with high-level trafficking and others consistent with mid-level trafficking.

However, in our view, even if the sentencing judge erred in failing to categorise the accused as a high-level trafficker, we are not persuaded that the eight-year sentence he imposed is demonstrably unfit. [ 9 ] The sentencing cases relied on by the Crown show that, while the accused’s sentence is at the low end of the range for a high-level cocaine trafficker, it is not significantly lower than the sentences imposed in most of those cases.

See: • R v Woo , 2007 MBCA 151 ; and R v Sweeney (29 April 2013), Winnipeg CR12-01-32072 (Man QB)— eight-year sentences, the latter on a joint recommendation; and • R v Dritsas (K) , 2015 MBCA 19 ; R v Hidalgo , 2017 MBQB 100 ; and R v Banayos (6 October 2017), Winnipeg CR15-01- 34147 (Man QB), aff’d 2018 MBCA 86 — nine-year sentences. It was only in Grant (12 years) where a sentence at the high end of the range was imposed.

That case involved a full-patch Hells Angels member who controlled a sophisticated trafficking organisation, circumstances different than those of this accused. [ 10 ] Although we agree that the eight-year sentence may be somewhat low in the circumstances, we are not persuaded that it is demonstrably unfit. While we would grant leave to appeal sentence, the appeal is dismissed. JA JA JA