Docket: CACR2430 Her Majesty the Queen Appellant - v. -, 2015 SKCA 6

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2015 SKCA 6 Date: 2014-12-17 Between: Docket: CACR2430 Her Majesty the Queen Appellant - and - Natasha Dumelie Respondent Coram: Jackson, Ottenbreit and Herauf JJ.A. Counsel: Doug Curliss, Q.C., for the appellant Christa Weber for the respondent Appeal: From: Provincial Court Heard: December 17, 2014 Disposition: Allowed in part (orally)

Written Reasons: January 21, 2015 By: The Honourable Mr. Justice Ottenbreit In Concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Herauf OTTENBREIT J.A. [ 1 ] This is an application for leave to appeal and an appeal by the Crown against the sentence of a conditional discharge imposed on Ms. Dumelie for a conviction for unlawfully trafficking in a controlled substance, cannabis marihuana, contrary to s. 5(1) of the Controlled Drugs and Substances Act , SC 1996, c 19.

The Crown also seeks leave to appeal and appeals the stay entered by the trial judge on a second trafficking count for marihuana. When this matter came on for hearing, we granted leave to appeal on both counts. We dismissed the sentence appeal by the Crown on the first trafficking count and, for reasons which I will explain, allowed the appeal, vacated the stay and imposed a sentence of a conditional discharge in relation to the second count. These are the reasons for our decision. [ 2 ] On March 26 and 28, 2013, in Moose Jaw, Ms.

Dumelie sold 9 grams and 3.5 grams of marihuana respectively to two undercover police officers. The undercover officers tried to get the name of Ms. Dumelie’s supplier on the first occasion but she refused to supply it. Ms. Dumelie made a second sale to the undercover officers after they asked to buy drugs again. Ms. Dumelie was not a preordained target of the undercover operation and she was not known to the police. The drugs Ms.

Dumelie supplied were from her supply for personal use. [ 3 ] The record shows the trial judge entered convictions on both counts and then ordered a pre-sentence report and adjourned sentencing. [ 4 ] As part of the sentencing hearing the trial judge questioned Crown counsel whether the reasons for the second purchase were that the Crown was seeking to impose a greater penalty by showing that the sale was not an isolated incident. Crown counsel acknowledged that sometimes that happened but that this was not the case here.

The trial judge then proceeded to enter a stay on the second count because as he stated it was inappropriate for the police officer to lay the second charge in hope of getting a greater penalty. [ 5 ] I will deal first with the stay. The trial judge erred in a number of ways by imposing the stay. First, he did not give either counsel an opportunity to make substantial submissions with respect to the issue of whether a stay should be entered. Second, there was no evidence before the court that the purpose of the second charge was to generate a greater penalty.

In such circumstances, the exercise of the judge’s discretion to enter a stay must be set aside because there was no legal basis to do so. [ 6 ] Accordingly, it falls to this Court to impose a fit sentence for the conviction on the second count. I will address that issue in due course. [ 7 ] At this point I return to the Crown sentence appeal on the first charge. The sentence imposed is, in our view, fit. It is trite that sentencing is an individual process. The trial judge appropriately canvassed the governing sentencing principles at play and the circumstances of Ms. Dumelie.

The sentence which he imposed addressed the special circumstances of the accused, the circumstances of the commission of the offence, and the need for denunciation and deterrence for these kinds of crimes. Given the standard of review there is no basis to interfere with the sentence. [ 8 ] With respect to the second charge, and taking into account my comments regarding the first charge, a fit sentence would be a conditional discharge on the same conditions as the first charge commencing on the day the appeal was heard and ending on the same day as the conditional discharge on the first charge.

The sentence on the second charge will run concurrently with the sentence on the first charge.