2012 SKCA 92 Date:, 2012 SKCA 92

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 92 Date: 2012-10-04 Between: Docket: CACR2182 Her Majesty the Queen Appellant - and - Joey Justin Wade McKenzie Respondent Coram: Cameron, Jackson, and Herauf JJ.A. Counsel: Wade McBride for the appellant Terra Lenox-Zepp for the respondent Appeal:

From: CR 19/11, J.C. of Prince Albert Heard: October 4, 2012 Disposition: Allowed in part Oral Reasons: October 4, 2012 By: The Honourable Mr. Justice Cameron for the Court CAMERON J.A. [1] Joey Justin McKenzie, a nineteen year old resident of Prince Albert, was recently convicted in the Court of Queen’s Bench of: (i)possessing three and one half pounds of marijuana for the purpose of trafficking; (ii) possessing proceeds of crime in the amount of$6,695; and (iii) failing to comply with an undertaking to keep the peace and be of good behaviour.

The convictions stemmed from hisoperation of a comparatively large scale commercial trafficking enterprise. As a result of the convictions he was sentenced to a term ofimprisonment of 15 months, to be served in the community pursuant to a conditional sentencing order made under

section 742.1 of theCriminal Code. The Attorney General of Canada then brought this appeal, contending that the conditional sentencing order was made inerror and should be set aside. [2] This was not the first time Mr McKenzie had been convicted of offences such as these. He was earlier found in possession ofmarijuana for the purpose of trafficking, and in possession of the proceeds of crime, and had been convicted in consequence. Theseconvictions also stemmed from his operation of a commercial trafficking enterprise, one that he was caught engaging in only five monthsearlier.

On that occasion he was sentenced to a term of imprisonment of nine months, a term he had also been allowed to serve in thecommunity pursuant to a conditional sentencing order. Between the two occasions he had breached the conditions of this order a numberof times. He had also violated the terms of a probation order. As a result, this conditional sentence order, which is to say the first of suchorders, was terminated and he was ordered to serve seven months in prison. [3] It is unclear why, in these circumstances, the second of these conditional sentencing orders was made.

Section 742.1 empowers asentencing judge to make orders of this kind if, among other things, service of a term of imprisonment in the community (

i) is not apt toendanger the safety of the community and (ii) is consistent with the fundamental purpose and principles of sentencing. The latterincludes the notion that a sentence must be proportionate to the gravity of the offence and degree of culpability of the offender. It alsoincludes the notion that, on occasions such as these, the sentencing objectives of denunciation and deterrence, both specific and general,are to be met. Not to the exclusion of the objective of rehabilitation, to be sure, but not to be lost sight of or glossed over. [4] Unfortunately, the reasons for judgment below are so sparse as to make it difficult to identify the basis upon which the sentencingjudge invoked

section 742.1 on the second occasion. The judge may have thought that, by reason of Mr McKenzie’s intervening effortsat reform, the community would not be endangered by allowing him to serve his term of imprisonment in the community. Even so, itwas incumbent upon the judge to give effect to the fundamental purpose and principles of sentencing, beginning with the fundamentalprinciple that a sentence must be commensurate with the gravity of the offence and the degree of culpability of the offender. [5] As for the gravity of these offences we refer to the observations of this Court in R. v.

Neufeld (1996), (SK CA), 180 Sask. R. 96, at para. 14: Possession of comparatively large amounts of marijuana for the purpose of trafficking commercially, which is what the first of theoffences amounted to in this case, has long been regarded as an offence of considerable gravity, as demonstrated by such cases as R. v.Enden (1988), (SK CA), 66 Sask. R. 239 (C.A.); R. v. Debrowney (1992), (SK CA), 97 Sask. R.262; and R. v. Collins (1997) (Sask. C.A., February 6th 1997, unreported).

This is but a sample of such cases, cited to make the point thatthis court has consistently treated trafficking on a commercial scale, even in the soft drugs, as a serious offence, to be treated as such. Inthis instance, the gravity of the first of the offences, having regard for the circumstances attending its commission, was more or less thatof the offences dealt with in these cases, and there was clearly a commercial element to the offence, elevating the gravity of it beyondthat of other forms of trafficking. This cannot be glossed over. [See, too, R. v.

Phan, 2002 SKCA 8] [6] Turning from the gravity of the offences to Mr McKenzie’s degree of culpability, we note that, aside from his relative youth, there is

nothing to suggest he was anything but fully culpable, bearing in mind the sophistication of his enterprise, his previous experience, and his willingness to run the risk of being caught a second time because of the easy money to be made in resuming his trafficking enterprise. We might add that the number of such cases we see coming out of Prince Albert suggests that trafficking in drugs, soft and hard drugs alike, is a problem to be reckoned with in this community. This community has a relatively large aboriginal population and serves in a sense as the gateway to the aboriginal communities that lie to the North.

The significance of this lies in the fact we are constantly exposed to the social scourge and devastation that so often follows upon the use of illicit drugs in these communities, as indeed in others. [ 7 ] The point, in both principle and practice, is that the sentencing objectives of denunciation and deterrence must be given adequate concrete expression in cases such as these, a point that needs no elaboration but has often been made in this and other courts. [ 8 ] Mindful of all of this, including the circumstances of the case, we are satisfied that the conditional sentencing order under appeal was made in error and falls to be set aside.

There will be an order accordingly [ 9 ] That leaves for consideration the term of imprisonment imposed upon Mr McKenzie in this instance, namely the term of 15 months selected by the sentencing judge in exercise of the judge’s discretion. Ordinarily we would not interfere with this. Having regard, however, for the principle of totality, and even more importantly for the personal circumstances of the offender, we have been persuaded to decrease the length of the term.

We might say that counsel for Mr McKenzie made a compelling submission in this regard, pointing to Mr McKenzie’s relative youth, his demonstrated change of attitude, and the very real efforts he has made, and continues to make, to the end of reforming his ways. He seems well on the way toward achieving this end. That being so, we have decided to reduce the term of imprisonment to twelve months, to be served concurrently with the term of imprisonment he is presently serving.

He and his parents will understand that we are giving him a break here, in the interests of encouraging his continuing efforts at reform, and that, should he reoffend, the courts are apt to come down harder on him. [ 10 ] For these reasons, then, the appeal is allowed to the extent of setting aside the conditional sentencing order and of reducing the term of imprisonment to twelve months to be served concurrently with the sentence he is now serving.