R v Lewyc-Sullivan, 2021 MBCA 92

Citation: R v Lewyc-Sullivan, 2021 MBCA 92 Date: 20211103 Docket: AR20-30-09481 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Chartier Madam Justice Jennifer A. Pfuetzner Madam Justice Janice L. leMaistre BETWEEN : ) R. M. McElhoes HER MAJESTY THE QUEEN ) for the Appellant ) ) K. R. Hawkins and Respondent ) J. A.

Hyman ) for the Respondent - and - ) ) Appeal heard and THOMAS DANIEL LEWYC-SULLIVAN ) Decision pronounced: ) November 1, 2021 ) (Accused) Appellant ) Written reasons: ) November 3, 2021 LEMAISTRE JA (for the Court) : [ 1 ] The accused seeks leave to appeal and, if granted, appeals his sentence of 54 months’ imprisonment less pre-sentence custody for possession of cocaine for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act , SC 1996, c 19 .

He argues that the judge failed to give sufficient weight to the principle of rehabilitation. [ 2 ] At the hearing, we granted leave, but dismissed the appeal with reasons to follow. These are those reasons. [ 3 ] The accused was arrested in possession of 145.15 grams of cocaine, more than two kilograms of benzocaine (a cutting agent), a digital scale contaminated with cocaine and benzocaine, $2,986.05 in cash and a cell phone. He had been using a hotel room as a stash location and, when he could no longer reach his drug partners, he removed these items from the hotel room.

The accused was actively selling cocaine and packaging crack cocaine. He had the power to negotiate drug prices and he had score sheets on his cell phone to track drug debts. [ 4 ] At the time of sentencing, the accused was almost 32 years old and had a long-standing drug addiction. He said that he sold drugs so he could “sit around and get high.” He has a related, though dated, criminal record.

He was released on bail to the Behavioural Health Foundation Inc. (the BHF) and, by the time of sentencing, had spent 10.5 months there. [ 5 ] The accused asserts that the judge committed an error in principle by failing to give sufficient weight to his successful completion of residential addictions treatment at the BHF. He argues that the judge commented on his rehabilitative efforts, but did not explain how they affected his sentencing analysis. [ 6 ] The standard of review applicable to sentencing decisions is deferential.

Absent an error in principle that had a material impact on the sentence or a sentence that is demonstrably unfit, an appellate court should not intervene (see R v Friesen , 2020 SCC 9 at para 26 ). A sentencing judge’s weighing of relevant factors can only amount to an error in principle where the sentencing judge’s exercise of discretion is unreasonable ( ibid ). [ 7 ] In his reasons, the judge recounted the accused’s progress while at the BHF as outlined in “a very positive report” from its court communicator.

He described the accused as “demonstrating tremendous growth” and commented that he “appears to have turned his life around.” The judge also found the accused’s “genuine attempt at rehabilitation” was a mitigating factor and stated, “ten and a half months of abstinence in the life of an addict is a marked change in their lifestyle.” Finally, the judge concluded that the accused had “an above average chance of rehabilitation.”

[ 8 ] The judge rejected the accused’s assertion that he was a street-level dealer (the accused abandoned this ground of appeal at the hearing). Rather, the judge found the accused to be a mid-level trafficker who was “a trusted and integral member of the drug trafficking operation”. He stated: . . . . . . He was operating a stash reload location, which meant he was trusted and an integral part of the dial-a-dealer operation that was involved in the police investigation. He was important. He tracked money and sales. He was trusted with the drugs, not to use them or otherwise dispose of them.

His role was a mid-level trafficker whose role was multifaceted. . . . . . . [ 9 ] After applying the appropriate sentencing range of five to eight years’ incarceration, the judge imposed a sentence below that range (see R v Rocha , 2009 MBCA 26 at para 64 ). [ 10 ] In our view, a fair reading of the judge’s reasons demonstrates that he carefully considered the accused’s rehabilitative progress and the role of rehabilitation in this case.

He was not required to mathematically particularize how the accused’s rehabilitative efforts factored into his analysis (see R v Sunshine , 2014 BCCA 318 at para 28 ). [ 11 ] Despite the accused’s rehabilitative progress, the judge’s conclusion that deterrence and denunciation were the paramount considerations was, in our view, reasonable in the circumstances (see R v Petrowski , 2020 MBCA 78 at para 39 ). [ 12 ] We have not been persuaded that the jurisprudence relied upon by the accused supports his assertion that he would have received a similar sentence without any rehabilitative efforts.

For the most part, those cases where a sentence lower than five years was imposed involve sentencing ranges appropriate for street-level dealers or mid-level couriers with no decision-making power, rather than “a mid-level trafficker whose role was multifaceted.” As the Crown points out, in the absence of the accused’s rehabilitative efforts, the remaining mitigating factors would not reasonably support a sentence below the normal range. [ 13 ] Finally, there is no merit to the accused’s assertion that the judge merely adopted the Crown’s sentencing recommendation.

Despite agreeing with the Crown that 54 months was the appropriate sentence, the judge’s reasons demonstrate that he conducted his own analysis. [ 14 ] In conclusion, we have not been persuaded that the judge committed an error in principle, nor do we believe that the sentence is demonstrably unfit. [ 15 ] In the result, leave to appeal sentence was granted, but the appeal was dismissed. JA CJM JA