R v Juker, 2015 SKCA 127

Court of Appeal for Saskatchewan Docket: CACR2643 Citation: R v Juker , 2015 SKCA 127 Date: 2015-10-22 Between: Her Majesty the Queen As Represented by the Office of the Director of Public Prosecutions Appellant And Robert Scott Juker Respondent Before: Jackson, Ottenbreit and Ryan-Froslie JJ.A. Disposition: Leave to appeal granted, appeal allowed (orally) Written reasons by: The Honourable Madam Justice Jackson In concurrence: The Honourable Mr.

Justice Ottenbreit The Honourable Madam Justice Ryan-Froslie On Appeal From: Provincial Court, Prince Albert Appeal Heard: 22 October 2015 Counsel: Wade McBride for the Appellant Rebecca Crookshanks for the Respondent Jackson J.A. (Orally) [ 1 ] The Crown appeals from the sentence imposed on Robert Scott Juker in Prince Albert on 23 June 2015. Mr. Juker was convicted of unlawfully possessing cocaine for the purposes of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act , SC 1996, c 19. He was sentenced to six months of incarceration in addition to the usual ancillary orders.

The Crown, which asked for a sentence of 15 months of incarceration at trial, now appeals that sentence. [ 2 ] In the early hours of 21 June 2014, two officers stopped a van in which Mr. Juker was seated in the back seat behind the driver. One officer observed that Mr. Juker looked nervous and was holding a black cell phone that he was opening and closing. The officer believed that Mr. Juker was deleting text messages. The officer also saw what appeared to him to be a drug pipe under Mr. Juker’s seat. [ 3 ] Once Mr.

Juker exited the vehicle, the officer noticed a pill bottle standing on the floor of the van immediately beside the seat where Mr. Juker had been sitting. Upon inspection, the pill bottle contained nine “spitball” packages of cocaine. The officer arrested Mr. Juker and the other two occupants of the car, who were found to possess cell phones and drugs. Mr. Juker’s cell phone rang repeatedly at the Prince Albert Police Service. The arresting officer answered three calls in which the callers asked to purchase drugs. The officer also photo-captured 14 text messages from this phone.

One of those text messages seemed to indicate that Mr. Juker was trafficking in cocaine. No cocaine, however, was found on his person beyond the nine packages described above. Mr. Juker ultimately pled guilty to possessing cocaine for the purposes of trafficking, but contested the charge of possession of $165 as proceeds of crime. He was acquitted of the latter offence. [ 4 ] Mr. Juker was born and raised in Prince Albert by his mother and stepfather. His childhood was a happy one, free of substance problems or abuses.

He continues to be close to his family except for his biological father, with whom he has no relationship. After he was released on bail, he returned to live with his mother who continues to support him. Both he and his mother suffer from a disabling degenerative hereditary condition called peroneal muscular atrophy, also known as Charcot-Marie-Tooth disease. He exists on a disability pension. [ 5 ] The pre-sentence report describes Mr. Juker’s beliefs as being “anti-criminal and pro-social” (p. 3). His criminal record is property related.

The trial judge concluded that the current offence was motivated by his addiction. The author of the pre-sentence report stated Mr. Juker is a medium re-offence risk (p. 5). Mr. Juker consistently offended while on bail, committing offences largely to feed his drug addiction. It should be noted that Mr. Juker’s trial counsel sought a sentence of 12 months for his client. [ 6 ] The Crown appeals from the six-month incarceral sentence imposed on Mr.

Juker, arguing principally that it fails to follow the jurisprudence from the Court, misapplies the principle of parity and places inordinate emphasis on the personal circumstances of the offender. [ 7 ] During the sentencing hearing, in exchanges with Crown counsel, the judge appears to conclude that R v McIntrye , 2012 SKCA 111 , 405 Sask R 28 marks a new direction for the Court. But in the balance of his reasons, the judge indicates his familiarity with the leading authorities in this jurisdiction with respect to fixing the amount of custodial time for a cocaine trafficker.

He also notes that the range for drug trafficking is between 18 months and four years and acknowledges the need for deterrence and protection of the public, making it less clear that he made any error in his assessment of this Court’s jurisprudence. [ 8 ] In our view, however, where error is clearly found is with respect to the judge’s treatment of the principle of parity. In the discussions between counsel and the Court, the judge expressed his concern about what happened to the men who were in the van with Mr. Juker. He said the following:

THE COURT: In terms of proportionality [ sic ], we’ve got three individuals in a car who, I would have thought based on the evidence I heard -- and I didn’t hear the trials of the other two -- are involved in a joint operation selling cocaine. And I now find out that one of the individuals the charges were dropped against him, and the other individual pled guilty to simple possession, probably didn’t go to jail. I don’t know. MR. SLOBODIAN [Crown counsel]: No, I don’t know that. THE COURT: You need to tell me that if you can.

In terms of, you know, proportionality between those three individuals, how do you think I should deal with that? MR. SLOBODIAN: Well, I think with the issue of proportionality or parity with respect to -- THE COURT: Parity. Parity was the word. Sorry, you’re right, parity, yeah. … Is it the Crown’s position that all three were involved in the trafficking of cocaine, and they were involved in a joint enterprise? Is it the Crown’s position, in this proceeding, that -- or is it the Crown’s position that Mr.

Juker came up with this on his own and was selling these drugs out of the backseat of the van all by himself, and the two guys in the front seat didn’t know what was going on? Is that the Crown’s position today? MR. SLOBODIAN: Well, I think Your Honour made it clear that it was a participant that this accused was involved in this situation -- … THE COURT: -- as a participant, you want me to send him to jail for 15 months, as a participant, and you’re not disputing that he is a participant, and the leader in the driver’s seat got a $500 fine, let’s say? MR. SLOBODIAN: I don’t think that’s relevant, Your Honour.

We don’t know -- THE COURT: Relevant? It’s critical. What does that -- what kind of message does that send? How can it not be relevant? (pp. T25–T26) Discussions continued in a similar vein and at some length. In our respectful view, the judge was overly influenced by these concerns when he crafted a sentence of six months for Mr. Juker. [ 9 ] As Crown counsel on appeal demonstrated, the three men in the car were not co-accused and they were charged and treated differently. The driver pled guilty to simple possession. The charges in relation to the passenger were stayed.

Insofar as the judge based his decision on how the police charged the other individuals who were in the car with Mr. Juker, he fell into error. [ 10 ] There are, however, other factors at play in this appeal. The judge mentioned Mr. Juker’s disability, and he was correct to do so. He may or may not have given too much weight to it, but in this Court we now have further evidence that would lead us not to impose a greater custodial sentence than six months, now that he has been released from custody. [ 11 ] As has been explained to the Court, Mr.

Juker’s chronic illness causes him significant pain, which is medically controlled outside of the prison setting with hydrocodone and Dilaudid (hydromorphone). Given the nature of these drugs, which are controlled and prohibited—and therefore sought after in jail—the authorities decided they could not provide him with his prescribed medication during his incarceration. Thus, Mr. Juker’s custodial sentence has fallen much more heavily on him than on someone else who did not suffer from a similar disability.

The prison authorities were also unable to allow him proper orthotic footwear to compensate for the deformity of his feet—again exacerbating the harshness of his penalty. Returning Mr. Juker to jail in light of these factors appears to us to be inappropriate. [ 12 ] Thus, we are prepared to grant leave and to allow the appeal but to do so by adding a probationary term of 18 months rather than returning Mr. Juker to jail. In addition to the standard conditions, these conditions are added, which are intended to assist in Mr. Juker’s rehabilitation: (

a) Report to a supervisor at 12th Floor, 800 Central Avenue, Prince Albert, Saskatchewan 953-2836 (Toll free 1-866-305-3888) within two working days of the date of this order, Monday, October 26th, 2015, and after that, as told to do so by the supervisor or designate; (

b) For the duration of this order live with your mother at 1419 6th Street East, Prince Albert, Saskatchewan, or live at a residence approved by the supervisor and not change that residence without prior written permission of the supervisor or designate or the court; (

c) For the first six months of this Order stay inside your approved residence from 10:00 p.m. each night to 7:00 a.m. the next morning unless you have prior (written) permission of your supervisor or designate or the court and come to the door of your approved residence when asked to do so by a police officer/supervisor or designate who may be checking the residence and curfew conditions of this order; (

d) Not possess or consume drugs, except in accordance with a medical prescription; (

e) Participate in an assessment and complete programming for addictions, which may include in-patient and out-patient treatment, as told to do so by your supervisor; and

(

f) Provide, for the purpose of analysis, a sample of a bodily substance prescribed by regulation on the demand of peace officer, a probation officer, or someone designated under subsection [732.1](9) to make a demand, at the place and time and on the day specified by the person making the demand, if that person has reasonable grounds to believe that the offender has breached a condition of the order that requires them to abstain from the consumption of drugs. [ 13 ] It should be noted that Mr. Juker expressly consented to these terms. [ 14 ] Leave to appeal is granted and the appeal is allowed.