Docket: CACR2071 Merlin Flanagan Appellant - v. -, 2012 SKCA 45

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 45 Date: 20120405 Between: Docket: CACR2071 Merlin Flanagan Appellant - and - Her Majesty the Queen Respondent Coram: Klebuc C.J.S., Richards and Smith JJ.A. Counsel: Peter A. Abrametz for the Appellant Douglas G. Curliss, Q.C. for the Federal Crown Appeal:

From: Provincial Court Heard: April 5, 2012 Disposition: Appeal dismissed (orally) Written Reasons: April 11, 2012 By: The Honourable Mr. Justice Richards In Concurrence: The Honourable Chief Justice Klebuc The Honourable Madam Justice Smith Richards J.A. I. Introduction [ 1 ] Merlin Flanagan pled guilty to five charges including, most notably, trafficking in marijuana contrary to ss. 5(1) and (4) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19 (the “ CDSA ”), possession of marijuana for the purpose of trafficking contrary to ss. 5(2) and (4) of the CDSA and possession of the proceeds of crime contrary to s. 355 (

a) of the Criminal Code . A joint submission was presented to the effect that a conditional sentence order would be appropriate. The sentencing judge declined to follow the submission and sentenced Mr. Flanagan to a jail term of nine months followed by one year of probation. [ 2 ] Mr. Flanagan contended that the sentencing judge had erred in rejecting the joint submission. We dismissed his appeal following argument. These reasons repeat the substance of the decision delivered orally at that time. II. Facts [ 3 ] Mr. Flanagan is 41 years old.

He resides in Meadow Lake and is the custodial parent of his 17-year-old daughter. He is presently employed full-time and owns a house (albeit one with a sizeable mortgage), a ski-doo, motorbike, truck and RRSPs. [ 4 ] The police discovered a half pound of marijuana in Mr. Flanagan’s vehicle and arrested him. On the strength of a search warrant, they subsequently found 11 freezer bags of marijuana in his home. Each bag contained a half pound of the drug. The total street value of the marijuana seized was between $18,000 and $22,000. [ 5 ] The police also discovered a scale, score sheets and $16,000 in cash at Mr.

Flanagan’s home. He admitted the cash was the proceeds of marijuana sales. [ 6 ] Mr. Flanagan was securing marijuana from contacts in Edmonton, repackaging it and selling it at the “retail” level in Meadow Lake. He says that he had become involved in trafficking when he was under financial pressure because of family support obligations and a job loss. He indicated that he had intended to stop trafficking when his financial ship had been righted. III. The Sentencing Decision [ 7 ] Mr. Flanagan entered guilty pleas to charges of: (

a) trafficking in marijuana on January 1, 2010, (

b) possessing marijuana for the purpose of trafficking on January 1, 2010, (

c) being in possession of the proceeds of crime on January 1, 2010, (

d) possessing marijuana on December 31, 2009, and (

e) a further charge of possessing marijuana on December 31, 2009. [ 8 ] Counsel presented a joint submission involving a conditional sentence order of two years less a day. It was proposed that the first eight months of the order would involve “house arrest” and electronic monitoring arranged so as to accommodate Mr. Flanagan’s employment. That was to be followed by 16 months with a curfew and community service obligations. [ 9 ] The sentencing judge expressed his concerns about the joint submission and adjourned the proceedings so counsel could file

authorities. On the next court date, the judge advised counsel that he was not prepared to follow the joint submission and gave them anopportunity to make further representations.

He heard those submissions and reserved his decision. [10] Ultimately, the judge imposed a sentence of nine months imprisonment with one year probation on the trafficking charge, the samesentence (concurrent) on the possession for purposes of trafficking charge, six months with one year probation (concurrent) on theproceeds of crime charge, nine months with one year probation (concurrent) on the first December 31, 2009 possession charge and ninemonths (concurrent) on the second December 31, 2009 possession charge. As a bottom line, and as indicated at the outset, Mr.

Flanaganreceived a sentence of nine months of imprisonment followed by one year of probation. IV. Analysis [11] Mr. Flanagan’s argument, in a nutshell, was that the sentencing judge erred in failing to accept the joint submission. He said therewas no adequate reason for the judge to impose a sentence involving jail time. His counsel emphasized a finding in the pre-sentencereport that Mr. Flanagan was not a danger to the public and stressed that he had complied with strict release conditions since the date ofhis arrest. Counsel also noted Mr.

Flanagan’s efforts to get his life back on track and to re-establish solid relations with his family. [12] Joint submissions are, of course, an important aspect of the administration of justice in the criminal law context. This has beenexplained by this Court in several cases including, most notably, R. v. Webster, 2001 SKCA 72, 207 Sask. R. 257, where Cameron J.A.wrote as follows: [7] Given the general point of concern raised by the Attorney General, we decided to grant leave to appeal and review the judge'sdisposition of the case.

The principles at work in relation to the review were canvassed recently by the Court of Appeal for Alberta, in R.v. G.W.C. (2000), 2000 ABCA 333 , 150 C.C.C. (3d) 513. Speaking for the Court in that case, Berger, J.A., said this at paras.17-18: The obligation of a trial judge to give serious consideration to a joint sentencing submission stems from an attempt to maintain aproper balance between respect for the plea bargain and the sentencing court's role in the administration of justice.

The certainty that isrequired to induce accused persons to waive their rights to a trial can only be achieved in an atmosphere where the courts do not lightlyinterfere with a negotiated disposition that falls within or is very close to the appropriate range for a given offence. ‘The bargainingprocess is undermined if the resulting compromise recommendation is too readily rejected by the sentencing judge’ - R. v. Pashe (1995), (MB CA), 100 Man. R. (2d) 61 at para. 11. Joint submissions...should be accepted by the trial judge unless they are unfit: R. v. Sinclair, [1996] A.J.

No. 464, at para. 4 (Alta.C.A.) or unreasonable: R. v. Hudson, [1995] A.J. No. 797 at para. 1 (Alta. C.A.). In R. v. Dorsey (1999), (ON CA),123 O.A.C. 342, the Ontario Court of Appeal held at p. 345 that ‘a joint submission should be departed from only where the trial judgeconsiders the joint submission to be contrary to the public interest and, ... if accepted, would bring the administration of justice intodisrepute.’ That view accords with the position of the Manitoba Court of Appeal in R. v.

Pashe, supra, at para. 12, that ‘while asentencing judge has a overriding discretion to reject a joint recommendation, “there must be good reason to do so, particularly ... wherethe joint recommendation is made by experienced counsel”.’ See also: R. v. J.C.N., 2005 SKCA 64, 269 Sask. R. 183 at para. 13. [13] The sentencing judge was keenly aware of the Webster decision and referred to it directly. In view of this, he did not lightly rejectthe joint submission but, rather, offered a detailed rationale for not following it. In this regard, he emphasized the following points: (

a) The not insignificant quantity of drugs involved; (

b) The fact Mr. Flanagan was involved in a commercial operation. He was not a minor courier but someone who secured drugs inEdmonton, then repackaged and resold them as part of a planned and organized scheme; and (

c) Mr. Flanagan has four prior convictions for drug-related offences, all in 1998. They include two convictions for trafficking andtwo for possession for the purposes of trafficking. [14] The sentencing judge also emphasized his concerns about circumstances particular to Meadow Lake. He observed that marijuanause was a significant issue, and a growing one, in the community. He also referred to an increasing problem with drugs flowing intoMeadow Lake specifically from the City of Edmonton.

[ 15 ] In light of the sentencing judge’s carefully reasoned decision, we are unable to see any reversible error in his approach. He was keenly aware of the significance of the joint submission and moved to reject it only with caution and deliberation. He dealt directly with the relevant case law and the pre-sentence report. He offered sound reasons for his position. In the particular circumstances found in Meadow Lake, and because of Mr. Flanagan’s trafficking history, we are not persuaded that the sentencing judge made a reviewable error in concluding that he should not accept the joint submission.

This was a course of action which was open to him. V. Conclusion [ 16 ] Mr. Flanagan’s appeal is dismissed.