R v Dram, 2020 MBCA 93

Citation: R v Dram, 2020 MBCA 93 Date: 20200930 Docket: AR20-30-09435 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Diana M. Cameron Madam Justice Janice L. leMaistre Madam Justice Karen I. Simonsen BETWEEN: her majesty the queen ) A. R. Hodge ) for the Appellant Respondent ) ) H. D. P.

Crawley ) for the Respondent- and - ) ) Appeal heard and ) Decision pronounced:Roger thomas dram ) September 28, 2020 ) (Accused) Appellant) Written reasons: ) September 30, 2020 simonsen JA (for the Court): [1] The accused seeks leave to appeal and, if granted, appeals his sentence of four years’ incarceration for possession ofmethamphetamine for the purpose of trafficking.

When sentenced for the drug trafficking, he also received a concurrent sentence of 20days’ incarceration for breach of recognizance. [2] At the conclusion of the hearing, we granted leave to appeal but dismissed the appeal, with reasons to follow. Theseare those reasons. [3] The accused asserts that the sentencing judge erred by considering unproven aggravating facts, overemphasisinggeneral deterrence, underemphasising Gladue factors (see R v Gladue, (SCC), [1999] 1 SCR 688) and, in the result,imposing an unfit sentence.

The accused says that a sentence in the range of 18-30 months is fit and proper. [4] The circumstances of the offence are that, upon the execution of a search warrant at the accused’s residence in ThePas, the RCMP located 9.75 grams of methamphetamine, some in plastic wrap and the balance in 16 point-level (.1 of a gram) dime bags,$712 in cash, a number of cell phones, and drug trafficking paraphernalia which included a scale and hundreds of unused dime bags.

Theaccused was also found to have a small bag of methamphetamine on his person. [5] At the time of the search, the accused was on judicial interim release on another charge of possession ofmethamphetamine for the purpose of trafficking, and the conditions of his recognizance required him to reside in Winnipeg and complywith a curfew. [6] The standard of review applicable to sentencing decisions is deferential.

Absent an error in principle that had amaterial impact on the sentence or a sentence that is demonstrably unfit, an appellate court should not intervene (see R v Friesen, 2020SCC 9 at para 26). [7] This sentencing proceeded without contest that the accused was a street-level trafficker. However, the accusedcontends that the sentencing judge erred in principle by finding two aggravating facts with respect to the nature of his involvement,without an evidentiary hearing.

We do not agree. [8] It is well established that the Crown must prove aggravating facts beyond a reasonable doubt (see R v Gardiner, (SCC), [1982] 2 SCR 368; R v Ramos, 2007 MBCA 87 at paras 13-15; and the Criminal Code (the Code) at section 724(3)). Of course, sentencing judges may draw inferences from the facts as proven or agreed (see R v Ducharme, 2012 MBCA 35 at paras 4-6).

[ 9 ] Once the Crown has presented facts that have been proven or agreed in order to establish an aggravating fact by the drawing of an inference, an accused who wishes to dispute the inference may provide evidence or simply argue that an inference should not be drawn. He or she may provide hearsay evidence through counsel or, alternatively, call viva voce evidence. The sentencing judge may, or may not, accept the evidence tendered by the accused (see R v Kunicki, 2014 MBCA 22 at paras 20-25 ; and R v Slotta, 2020 MBCA 79 at paras 13-23 ).

The simple fact that the accused disagrees with the inference suggested by the Crown does not, of necessity, engage the Crown’s onus to call further evidence, nor must the court draw the inference most favourable to the accused (see Ducharme at paras 4-6 ). [ 10 ] As for the specific factual errors alleged, the accused says that the sentencing judge erred by apparently accepting the Crown’s submission that the accused’s comment in the pre-sentence report (which was tendered by consent) that “he believed he could make more money in The Pas” meant that he had come to the community to sell methamphetamine.

The accused now says that this comment was actually a reference to his seeking legitimate employment. However, he did not advance that position at the sentencing hearing; rather, defence counsel (not counsel on the appeal) addressed the comment only to dispute the drawing of any potential inference that the accused had been selling drugs in Winnipeg. [ 11 ] In all of the circumstances, it was open to the sentencing judge to draw the inference that he did regarding the accused’s motive for going to the community.

We reject the accused’s argument that the above situation constituted a dispute on the facts which engaged the onus on the Crown to call evidence. [ 12 ] We are also not persuaded that the sentencing judge erred by finding that the drug-trafficking operation was commercial in nature.

At the sentencing hearing, the accused disputed that his drug trafficking was commercial, noting that he was selling methamphetamine primarily to support his drug habit, and that he was doing so out of a condemned house which had no running water or electricity. [ 13 ] However, it was common ground that the accused received not only drugs but some money from the enterprise.

Taken together with the accused’s lack of other legitimate income, his offering of free samples of methamphetamine to potential customers to create an addicted and therefore dependable customer base, the cash and the amount of drugs located by the police and their manner of packaging, as well as the large number of unused bags and scale that were found, the sentencing judge was entitled to conclude that this was a commercial operation (see Ducharme at para 6 ). [ 14 ] Nonetheless, the sentencing judge was alive to the accused’s position that his moral culpability was reduced due to his addiction to methamphetamine.

The sentencing judge characterised the operation as “low level” and, in the course of submissions, noted that he was aware of the distinction between trafficking driven by addiction as opposed to “cold-blooded commercialism”. [ 15 ] We also agree with the Crown that the sentencing judge did not overemphasise general deterrence. He appreciated, appropriately, that denunciation and deterrence were the key principles on this sentencing and his profound concern about the arrival of methamphetamine-trafficking charges on his local docket in The Pas was justified.

He noted that the accused was “in the vanguard of introducing [methamphetamine] to the members of this community with all its devastating effects”, and imposed a sentence meant to deter other like-minded individuals (see R v Lacasse, 2015 SCC 64 at paras 87-105 ). [ 16 ] With respect to the sentencing judge’s assessment of Gladue factors, the accused identifies as Métis, as did his father. The accused had witnessed racist attitudes both expressed by and directed at his father, and felt a sense of disconnection from his background.

However, he came from a relatively stable home without abuse, neglect, family violence or addictions issues, and with access to education and employment. We are not persuaded that the sentencing judge erred in concluding that the Gladue factors were not “prominent”. [ 17 ] In our view, the sentence imposed recognised the moral culpability of a 49-year-old, previously twice-convicted drug trafficker who was engaged in the commercial trafficking of methamphetamine in breach of the conditions of his release.

Although the accused’s guilty plea, drug addiction and completion of some programming while in custody are mitigating, the intentional risk-taking and consequential harm of his conduct were high. The four-year sentence, while significant, is within the range established by this Court for street-level trafficking and, in all of the circumstances, was not unfit (see R v Gilchrist, 2004 MBCA 21 at paras 26-27 ; Kunicki at para 28 ; and R v Sass ; R v Zammit, 2018 MBCA 46 at para 5 ). [ 18 ] In the result, we granted leave to appeal, but dismissed the appeal. JA JA JA