R v Smith, 2019 SKCA 100

Restriction on Publication An order has been made in accordance with s. 486.5 of the Criminal Code directing that any information identifying undercover persons shall not be published. Court of Appeal for Saskatchewan Docket: CACR2934 Citation: R v Smith , 2019 SKCA 100 Date: 2019-10-08 Between: Justin Murray Smith Appellant And Her Majesty the Queen Respondent Before: Richards C.J.S., Jackson and Tholl JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Madam Justice Jackson In concurrence: The Honourable Chief Justice Richards The Honourable Mr.

Justice Tholl On Appeal From: CRM 114 & 107 of 2016, Saskatoon Appeal Heard: April 9, 2019 Counsel: Brian Beresh for the Appellant Wade McBride, Q.C., for the Respondent Jackson J.A. I. Introduction [ 1 ] Justin Smith appeals an 18-year sentence imposed for nine offences involving cocaine, heroin and fentanyl, as well as weapons and criminal organization offences. He also appeals an order directing that he serve nine years of that sentence before being eligible for parole. [ 2 ] For the reasons that follow, I have concluded that the appeal must be allowed.

In the result, I would impose a sentence of 11 years in total, less remand credit, with no order delaying Mr. Smith’s eligibility to apply for parole. II. Background [ 3 ] Mr. Smith and another man, who will be identified in these reasons as NH, were members of the Fallen Saints Motorcycle Club [Fallen Saints]. NH was the vice-president. NH contacted Mr. Smith sometime in 2013 to discuss potential criminal organization activity. At that time, Mr. Smith indicated he was dealing in drugs.

NH followed up in the spring of 2014; however, by this time, NH was under police surveillance. [ 4 ] As a result of the police surveillance, the police arrested both Mr. Smith and NH in May of 2014, giving rise to some of the charges against Mr. Smith. Both men were released on bail, but then, in September of that same year, NH agreed to become a police agent. According to the evidence at trial, from that time on, “as directed by the police he assisted them in their continuing criminal investigation of a variety of people, including Mr. Smith”. Thereafter, all of the exchanges between Mr.

Smith and NH were audio- recorded. [ 5 ] In the spring of 2015, a number of individuals, including Mr. Smith, were arrested and jointly-charged. After numerous appearances with all of the accused, the Crown decided to indict Mr. Smith directly with respect to some of the charges against him and to proceed to trial against him alone. Later, in separate proceedings, the other co-accused proceeded to trial or pleaded guilty. [ 6 ] In preparation for trial, the Crown and Mr. Smith agreed on a number of key facts and executed a document entitled “Admission of Facts”.

This document constituted a large part of the evidence against Mr. Smith. [ 7 ] Pursuant to the Admission of Facts, Mr. Smith agreed that all of the private communications represented by the audio- recordings (

a) were lawfully intercepted, and (

b) took place on the date and at the time indicated. The authenticity of all text messages and the oral communications was admitted. The content of the text messages was acknowledged to be verbatim and a transcript of the intercepted oral communications was acknowledged to be accurate. The only issue from Mr. Smith’s perspective was whether the Crown could prove beyond a reasonable doubt that he was the person at the other end of the communications. [ 8 ] Mr. Smith’s trial began on February 27, 2017. After Crown counsel had given his opening address, he reviewed the

Admission of Facts. He then called NH as the first witness and took him through the Admission of Facts. [ 9 ] NH identified the voice of Mr. Smith on all of the oral communications. He supported his belief by saying the following: (

a) he had known Mr. Smith since they had been in high school; (

b) they had had previous dealings together in 2003; and (

c) Mr. Smith had a “distinctive voice”. With respect to the exhibits attached to the Admission of Facts, NH then proceeded to explain the code he and Mr. Smith had been following, which could be taken as further identifying Mr. Smith as the person to whom NH was speaking. [ 10 ] NH testified for the balance of February 27, 2017, and then again until noon on February 28, 2017. Thereafter, and over the course of two days, Mr.

Smith elected to plead guilty to nine of the offences derived from the two indictments, including three charges that had not been part of the partial trial, but which had been set for a jury trial with the other accused in December of that year. The process that led to Mr. Smith deciding to plead guilty, and the taking of his pleas, is set out in R v Smith , 2017 SKCA 81 , 355 CCC (3d) 505. [ 11 ] In total, then, Mr.

Smith pleaded guilty to nine offences coming from two indictments: CRM 114/116, preferred on May 5, 2016 [the First Indictment], and CRM 107/16, preferred on December 19, 2016 [the Second Indictment]: (

a) from the First Indictment: [1] [count 1] On or between the 21st day of March, 2014, and the 27th day of March, 2014, at or near Saskatoon, Saskatchewan and elsewhere in Canada, did unlawfully conspire together with NH and with a person or persons unknown or unnamed … to commit the indictable offence of trafficking in a controlled substance, to wit: cocaine, contrary to section 5(1) of the Controlled Drugs and Substances Act [ CDSA ], thereby committing an offence contrary to section 465(1) (

c) of the Criminal Code . [count 2] On or about the 10th day of April, 2014, at or near Saskatoon, Saskatchewan, did transfer a firearm, to wit: a handgun, knowing that he was not authorized to do so, contrary to

section 99 of the Criminal Code . [count 3] On or between the 10th day of April, 2014 and the 26th day of July, 2014, at or near Saskatoon, Saskatchewan, did unlawfully possess a firearm, to wit: a handgun, for the purpose of transferring it, knowing that he was not authorized to do so, contrary to

section 100 of the Criminal Code . … [count 7] On or between the 20th day of November, 2014 and the 11th day of December, 2014, at or near Saskatoon, Saskatchewan, did unlawfully traffic in a controlled substance, to wit: fentanyl, contrary to section 5(1) of the Controlled Drugs and Substances Act . [count 8] On or between the 20th day of November, 2014 and the 11th day of December, 2014, at or near Saskatoon, Saskatchewan, did unlawfully traffic in a controlled substance, to wit: heroin, contrary to section 5(1) of the Controlled Drugs and Substances Act . [count 9] On or about the 2nd day of December, 2014, at or near Saskatoon, Saskatchewan, did unlawfully traffic in a controlled substance, to wit: cocaine, contrary to section 5(1) of the Controlled Drugs and Substances Act . [count 10] On or between the 20th day of November, 2014 and the 11th day of December, 2014, at or near Saskatoon, Saskatchewan, did unlawfully have in his possession property or proceeds of property having a value exceeding five thousand dollars, knowing that all or part of the property or proceeds was obtained or derived directly or indirectly from the commission in Canada, of an indictable offence, to wit, trafficking in a controlled substance, contrary to section 5(1) of the Controlled Drugs and Substances Act , thereby committing an offence contrary to sections 354(1) and

section 355 (

a) of the Criminal Code . (

b) from the Second Indictment: [count 1] THAT you … on or about the 30th day of December, 2014, at or near Saskatoon, in the Province of Saskatchewan, for the purpose of enhancing the ability of a criminal organization, to wit: the Fallen Saints Motorcycle Club, to facilitate or commit indictable offences, did participate in the activities of the criminal organization, to wit: the beating of, or assault of, [TM], contrary to

Section 467.11(1) of the Criminal Code . … [count 16] THAT you … on and between the 5th day of November, 2014 and the 15th day of January, 2015, at or near Saskatoon and Prince Albert, in the Province of Saskatchewan, did for the purpose of enhancing the ability of a criminal organization, to wit: the Fallen Saints Motorcycle Club, to facilitate or commit indictable offences, recruit, solicit, encourage, coerce or invite a person or persons to join the Fallen Saints Motorcycle Club, contrary to

Section 467.111 of the Criminal Code . [ 12 ] The background and circumstances pertaining to these offences will be reviewed later in these reasons. III. Sentencing Judge’s Reasons

[ 13 ] Following the taking of the guilty pleas, Mr. Smith was released on bail and the matter was adjourned for sentencing. On March 10, 2017, after having heard sentencing submissions, the sentencing judge imposed a sentence of 18 years of incarceration on Mr. Smith. These are his reasons: [THE COURT] Your criminal record reflects that you have been in the business of being a criminal since 2004. These nine most recent charges complete a contemptible resume. On behalf of the Crown, Mr.

Curliss makes the case that you were at the heart of organized crime as that is defined in this city, and that in dealing in drugs and guns, it is appropriate that the Court focus on denunciation and deterrence. On your behalf, Mr. McDougall submits that it is true that the Court must have in mind denunciation and deterrence, but he also makes the case that the Court should have an eye to your opportunity for rehabilitation and a humane approach to the length of your tenure in prison.

Section 718 of the Criminal Code outlines a list of objectives that I, as the sentencing judge, must have in attempting to craft an appropriate sentence. The record will reflect that the authorities that I have used as touchstones in my analysis, and coming to my conclusion, are three recent helpful decisions of the Court of Appeal dealing with sentencing; R v Briltz [2016] SKCA 2; R v Chuckwu , [2016] SKCA 6, and R v Bear , [2016] SKCA 140. The charges that I am to sentence you on are in relation to the sale and distribution of drugs and firearms, in short, poison and the instruments of death.

Drugs and firearms are a scourge that has befallen the city. You and people like you who deal in that corruption debase the quality of life in this city. In terms of the sentence I must impose, the authorities are clear that in crimes such as these, my primary focus should be denunciation and deterrence. Respecting deterrence, I am alive to the fact that you are, at core, a business person, of course, an amoral business person, a venal business person, but nonetheless a business person. All business people engage consciously or unconsciously in a risk–reward analysis.

For you the [reward], no doubt, was the tax-free money you wished to reap from selling drugs and dealing in guns. You made a conscious decision that the risk of imprisonment was worth the potential reward. I have no doubt that decent law-abiding tax-paying citizens want this court to make it very clear to you and to those like you that there is a considerable risk to that business, that there must be a risk that makes that business unattractive. The Crown has outlined a number of aggravating factors. You have a lengthy criminal record going back to 2004, comprising 26 convictions.

With respect to the drug offences, you were on bail when you committed them. Drugs and proceeds offences were committed in association with a criminal organization specifically to advance the interests of organized crime. Gun trafficking was committed while you were prohibited from even possessing guns, and you were dealing with a person you knew was also prohibited from possessing guns. In terms of mitigating factors, your counsel, Mr. McDougall, has suggested you had a difficult childhood and you are now blessed with a supportive family.

While that is a good thing, respectfully, those are not mitigating circumstances at law. I agree with the Crown, there are no mitigating circumstances.

The real circumstance, the actual truth, is that you dealt in poison and guns, and it is now time that you reap the consequences of that conduct. [ 14 ] He then proceeded to fix the following sentences before determining which would run consecutively or concurrently: Direct Indictment dated May 5, 2016 (First Indictment) Count Offence Provision Sentence 7 Trafficking in fentanyl s. 5(1) CDSA 15 yrs 8 Trafficking in heroin s. 5(1) CDSA 15 yrs 9 Trafficking in cocaine s. 5(1) CDSA 8 yrs 1 Conspiracy to traffic in cocaine s. 465(1)(

c) CC 8 yrs 10 Possess proceeds of crime s. 354(1) and 355(

a) CC 2 yrs 2 Transferring a handgun s. 99 CC 4 yrs 3 Possessing handgun for the purpose of transfer s. 100 CC 4 yrs Indictment dated December 19, 2016 (Second Indictment) 1 Participation in the affairs of a criminal organization s. 467.1(1) CC 2 yrs 16 Recruitment of members by a criminal organization s. 467.111(1) CC ’s 2 yrs [ 15 ] Applying the principles pertaining to consecutive and concurrent sentences, the sentencing judge directed that certain of the sentences should run concurrently to each other thereby arriving at a 35-year sentence and then indicated that he was applying totality to arrive at a global sentence of 18 years: First Indictment Count Offence Provision Sentence 7 Trafficking in fentanyl s. 5(1) CDSA 15 yrs 8 Trafficking in heroin s. 5(1) CDSA 15 yrs concurrent to count 7

9 Trafficking in cocaine s. 5(1) CDSA 8 yrs concurrent with count 1 but consecutive to counts 7 and 8 1 Conspiracy to traffic in cocaine s. 465(1)(

c) CC 8 yrs concurrent with count 9 but consecutive to counts 7 and 8 10 Possess proceeds of crime s. 354(1) and 355(

a) CC 2 yrs concurrent 2 Transferring a handgun s. 99 CC 4 yrs consecutive 3 Possessing a handgun for the purpose of transfer s. 100 CC 4 yrs consecutive Second Indictment 1 Participation in the affairs of a criminal organization s. 467.1(1) CC 2 yrs consecutive 16 Recruitment of members by a criminal organization s. 467.111(1) CC ’s 2 yrs consecutive Total: 35 yrs Additional totality calculation: 18 yrs [ 16 ] Finally, the sentencing judge made an order under s. 743.6 directing that Mr. Smith serve one-half of his 18-year sentence before being eligible for parole. IV.

Grounds of Appeal [ 17 ] According to his factum, Mr. Smith’s grounds of appeal are as follows: A. The sentencing judge failed to consider the early guilty pleas to Count 1 of the May 5, 2016, indictment and both Counts 1 and 16 of the December 16, 2016, indictment; B. The 15-year sentence for Count 7 of the May 5, 2016, indictment (trafficking in fentanyl) is demonstrably unfit; C. The 15-year sentence for Count 8 of the May 5, 2016, indictment (trafficking in heroin) is demonstrably unfit; D.

The 8-year sentence for Count 1 of the May 5, 2016, indictment (conspiracy to traffic in cocaine) is demonstrably unfit; E. The 8-year sentence for count 9 of the May 5, 2016, indictment (trafficking in cocaine) is demonstrably unfit; F. The sentencing judge erred in concluding that the Criminal Code requires that the sentences for Counts 2 and 3 of the May 5, 2016, indictment to run consecutively to one another and to all the other sentences; G. The 2-year sentence imposed for Count 1 of the indictment of December 19, 2016, offends the parity principle and is demonstrably unfit; H.

The 2-year sentence imposed for Count 16 of the indictment of December 19, 2016, offends the parity principle and is demonstrably unfit; I. The sentencing judge failed to correctly apply the totality principle by imposing a disproportionate final global sentence of 18 years’ imprisonment after reducing for totality; J. The sentencing judge failed to give the Appellant credit for time served; and K. The sentencing judge erred in directing that the Appellant would not be eligible for parole until after serving 50% of his sentence. V. Analysis A.

Preliminary Issue [ 18 ] In what must be considered an irregularity, t he “Appearance History/Endorsements” document, dated March 10, 2017, shows a different allocation of the total 18-year sentence than the one made when Mr. Smith was sentenced: CRM 114/16 Direct Indictment Counts 7) Fifteen

(15) Years (TOTALITY ELEVEN

(11) YEARS) Counts 8) Fifteen

(15) Years concurrent (TOTALITY ELEVEN

(11) YEARS CONCURRENTLY) Count 9) Eight (8) years consecutive (TOTALITY SEVEN

(7) YEARS CONCURRENTLY) Count 1) Eight (8) years concurrent (TOTALITY SEVEN

(7) YEARS CONCURRENTLY) Count 2) Four

(4) YEARS consecutive (TOTALITY 4 YEARS CONSECUTIVE) Count 3) Four

(4) YEARS consecutive (TOTALITY 4 YEARS CONCURRENT) Count 10) Two

(2) YEARS concurrent (TOTALITY 2 YEARS CONCURRENT) CRM 107/16 – Information # 24520467 Count 1) Two

(2) YEARS consecutive (TOTALITY EIGHTEEN

(18) CONSECUTIVE) Count 16) Two

(2) YEARS consecutive (TOTALITY EIGHTEEN

(18) CONSECUTIVE) The certificate of conviction and the warrant of committal , both issued pursuant to s. 570 of the Criminal Code , repeat this allocation.

[ 19 ] Counsel for Mr. Smith was not aware that this different allocation of the 18-year sentence among the various offences had been made until he received a copy of the Crown’s factum, which included the certificate of conviction and the warrant of committal as appendices. Crown counsel on appeal advised the Court that he was unable to shed any light on how this different allocation came to be made.

A second allocation gives rise to this preliminary issue: which sentences should this Court consider in determining the fitness of sentence, i.e., the sentences reflected in the reasons for judgment or what appears in the certificate of conviction and the warrant of committal? [ 20 ] Mr. Smith submits that the allocation among the various offences was made without authority and as such is of no effect.

He grounds his submission in the principle that the allocation of a sentence for the purposes of considering totality directly affects the liberty of an accused and is a matter upon which submissions should be permitted. Since the allocation of individual sentences can make a difference to his parole eligibility, he argues he should have been permitted to make submissions. He argues further that the irregularity of what happened shows the sentencing process was deeply flawed.

Crown counsel, on the other hand, sees no meaningful irregularity in the process and submits that the highly deferential standard of demonstrable unfitness should be applied to the sentences as shown in the endorsement and not to the sentences imposed according to the oral reasons. [ 21 ] While I recognize the potential significance of this issue, I am not persuaded that the second allocation has a bearing on the outcome of this appeal. I say this because, even if I disregard the sentences shown in the endorsement, Mr.

Smith would still be challenging the sentencing judge’s approach to totality, which involved an unexplained reduction of the 35-year sentence to arrive at a sentence of 18 years. Providing scant reasons to explain the 18-year sentence represents an error and the sentence would have to be set aside in any event.

Once the judge’s initial decision regarding totality is set aside, this Court would take, as a reference point, the sentencing judge’s 35-year sentence. [ 22 ] In my view, however, whether I consider the fitness of the 18-year global sentence, as per the transcript or as allocated in the court records, the result would be the same, i.e., the sentences are demonstrably unfit or are the product of error permitting appellate intervention. I would reach a similar conclusion about the issues of totality, remand and parole eligibility.

Thus, I will consider the sentences as shown in the endorsement – as it makes no difference to the outcome. With that, I will turn to count 1 from the First Indictment. B. Count 1 of the First Indictment – conspiracy to traffic in cocaine (7 years) 1. Circumstances of the offence [ 23 ] Count 1 charged that Mr. Smith had conspired with NH and with “a person or persons unknown or unnamed” to traffic in cocaine, contrary to s. 5(1) of the Controlled Drugs and Substances Act , SC 1996, c 19 [ CDSA ], thereby committing an offence contrary to s. 465(1) (

c) of the Criminal Code . This offence took place at the end of March 2014, before NH became a police agent. [ 24 ] For ease of reference, s. 465(1) (

c) provides as follows: Conspiracy 465

(1) Except where otherwise expressly provided by law, the following provisions apply in respect of conspiracy: … (

c) everyone who conspires with any one to commit an indictable offence not provided for in paragraph (

a) or (

b) is guilty of an indictable offence and liable to the same punishment as that which an accused who is guilty of that offence would, on conviction, be liable … . [ 25 ] Count 1 had not been part of the trial that had been scheduled to deal with counts 2–10 from the First Indictment only. Hence, NH did not testify about this offence. Instead, the underlying facts for the purposes of sentencing came from Crown counsel in his submissions to the Court for the purposes of sentencing. Specifically, the Crown provided the following facts about count 1: Now, again, keep in mind the dates that we’re talking about here.

If you look at count 1 on the indictment, this particular date is 21 March, the 27 March 2014. So at that particular time, and NH is not a police agent. You’ll recall that he -- he got caught with guns after that, I think it was the end of March some time he got caught with his guns, and that it wasn’t until September 20, I believe, that same year that he signed up to become a police agent. So he still, on this date, up to his ears in the Fallen Saints and the crimes that they are committing. So in this particular case, Mr. Smith had to go to NH for some help. What happened was NH -- or, I’m sorry, Mr.

Smith, had wanted some cocaine, and one of his cohorts that’s also named in the indictment, he wanted cocaine. And they’d arranged for cocaine to come from elsewhere, and that cocaine was eventually supposed to make its way to Mr. Smith. Mr. Smith, of course, was what he did, he was going to pass it down to his purchaser. His purchaser, for whatever reason, backed out, and so he no longer had a buyer for the kilo of cocaine. So this was the $53,000 with cocaine that he didn’t have a buyer for. He didn’t have the $53,000.

And when people arranged a $53,000 with cocaine delivered, and you don’t want to abide, there can be some consequences to that. So Mr. Smith approached NH because there was going to be a restocking fee that was going to have to be paid. So he approached NH to see if NH would finance the $53,000 with cocaine. NH agreed to do that, Mr. Smith wanted to avoid any adverse consequences for not honouring his deal. NH had $53,000 so NH paid $50,000 for the kilo cocaine, and a couple of people headed to Edmonton to pick up the $53,000 worth of cocaine. So that’s that particular aspect of the conspiracy.

[ 26 ] Thus, the basis of the charge is conspiracy to traffic in cocaine, with NH and others, in the amount of one kilogram. Mr. Smith advised NH that he had arranged to acquire one kilogram of cocaine for a third party who could no longer come up with the money. He went to NH for help. NH agreed to provide the money and others proceeded to Edmonton to pick up the cocaine. Nothing more than this is known. The Crown at trial sought a sentence of eight to ten years. 2. Mr. Smith’s personal circumstances [ 27 ] Mr. Smith was 32 years old when he was charged with this count of conspiring to traffic in cocaine.

He had a record, which is summarized below: Date/Location Charges Outcome 2004-01-14 Saskatoon SK (1) poss of a scheduled substance for the purpose of trafficking sec 5(2) cds act (1) 2 yrs less 1 day (2) poss of a scheduled substance for the purpose of trafficking sec 5(2) cds act (2 chgs) (2) 2 yrs less 1 day on each chg conc & mandatory prohibition order sec 109 cc (3) obstruct peace officer sec 129(

a) cc (4) fail to comply with recognizance sec 145(3) cc (6 chgs) (4) fail to appear sec 145(5) cc (2 chgs) (5) assault cbh sec 267(

b) cc (saskatoon ps 71580) (3-5) 6 mos on each chg conc & conc 2004-04-01 Saskatoon SK (1) poss of property obtained by crime over $5000 sec 355(

a) cc (2 chgs) (2) fail to comply with recognizance sec 145(3) cc (4 chgs) (3) poss of property obtained by crime under $5000 sec 355(

b) cc (4) poss of credit card sec 342(1) (

c) cc (saskatoon ps 71580) (1-4) 2 mos on each chg conc but consec to sentence serving 2006-07-26 Saskatoon SK (1) assault sec 266 cc (2) assault cbh sec 267(

b) cc (saskatoon ps 71580) (1-2) 10 mos conditional sentence order & probation 6 mos on each chg 2010-02-03 Saskatoon SK (2) causing a disturbance sec 175(1)(A)(

I) cc 7 days’ time served 2010-04-06 Saskatoon SK (2) fail to comply with recognizance sec 145(3) cc Time served & surcharge $50.00 2010-04-06 Saskatoon SK (4) fail to comply with recognizance sec 145(3) cc Time served & surcharge $50.00 [ 28 ] Mr. Smith was on judicial interim release when he committed the count 1 offence. Following his arrest in February of 2015, he was again released on stringent conditions, which he maintained throughout. [ 29 ] Mr. Smith’s counsel at trial reviewed his record and described his client in these terms: [M]y friend is correct. There are 26 offences for which he was found guilty.

Fourteen of them were fail to attends. There was an obstruct. Interestingly there were over 13 charges -- or there were 13 charges that were either dismissed, stayed or withdrawn. The 2004 charges were 13 years ago when he was 21 years old. There were two PPT charges of possession for purpose of trafficking which added two years less a day, methamphetamines and MMA, and an assault causing bodily harm. The reality is, is those charges are a very long time ago, a very long time ago.

Even when you look at the charges from -- or the 2006 charges and the 2010 charges, those in and of themselves are a very long time ago. The 2010 charge is causing a disturbance, and we -- I don’t -- there’s no indication what that charge is exactly for, other than causing a disturbance. It could have been a loud muffler. Goodness knows what it was. He had obstruct[ed] radio communications. He received a $500 fine. Even at that time, he was just 22 years old. These charges are a long time ago, and there is a principle, a gap principle, that I would suggest the Court, when it comes to looking at Mr.

Smith’s criminal record, needs to take into account. There has been a significant gap. Mr. Smith’s upbringing was anything but luxurious. Born in Saskatoon. At the age of two, he was abducted by his mother to take him out to Vancouver because she and her husband, Mr. Smith’s father, were having issues. Those issues, in fact, surrounded his father’s drug addiction, severe drug addiction, and he’s well known in the City of Saskatoon for his drug addiction, for being on the street, not

because he was a seller, but because he was a severe user. In fact, Murray Smith passed away just last May, so that drug addiction was in the -- within the family. Mr. Smith used drugs from the time he was 17 to 21. When he went to jail for the possession for purpose of trafficking, he quit using drugs. He hasn’t used drugs since. There’s no evidence that he’s a drug user. He tried to clean his life up. … As I said, Justin began using drugs when he was 17, cocaine and meth -- methamphetamines, quit using them when he went to jail, and he’s not used them since.

When he was in jail, he hadn’t quite finished high school. He completed his GED. Interestingly, his test score was in the top one percent. He has three kids, 17, 8, and 7, three of his own children which he carries a responsibility for, and he has a stepson who’s 6. His support of family, his support of spouse, but he had a very, very rocky start in life. Not necessarily did he make the best of it, there’s no question about that.

I’m not pleading that, I’m just suggesting that we’ve got a situation here where Justin Smith, following his arrest, spent over 30 months, as you’ve pointed out, without a breach, did nothing. He appeared at his own insistence, not necessarily mine, in court for every appearance. 3. Mr. Smith’s position on appeal [ 30 ] Mr.

Smith argues that a seven-year sentence for one count of conspiracy to traffic in one kilogram of cocaine imposed on him is outside of the customary range fixed by this Court in such cases as R v Aube , 2009 SKCA 53 , 324 Sask R 303 [ Aube ]; R v Bear , 2016 SKCA 140 [ Bear ]; R v Patryluk , 2002 SKCA 33 , 217 Sask R 309 [ Patryluk ]; and R v Pankewich / R v Gaveronski , 2002 SKCA 7 , 161 CCC (3d) 534 [ Pankewich ]. He submits, based on these authorities, that a seven-year sentence is demonstrably unfit as being disproportionate to the gravity of his offending and his moral blameworthiness. [ 31 ] Mr.

Smith submits that a fit sentence in this case is three years. In support of this sentence, he relies on Aube and an unreported decision of Kalmakoff J. (as he then was) in R v Selskiy (18 August 2017) Saskatoon, CRM 2016 (Sask QB) [ Selskiy ]. [ 32 ] Selskiy concerns the same transaction for which Mr. Smith was sentenced, but from the supplier’s end. It was Mr. Selskiy who was scheduled to deliver the one kilogram of cocaine to NH’s courier for the purposes of it being brought into Saskatchewan. He had instructions “to deal” with Mr. Smith, if he did not receive the agreed-upon sum of $53,000. [ 33 ] Mr.

Selskiy was found guilty after trial. While correctly noting the applicable sentencing range of 18 months to four years, Kalmakoff J. noted the commercial nature of the transaction, the presence of a conspiracy, and the one-kilogram quantity of cocaine involved. He imposed a sentence of four-and-a-half years. [ 34 ] Mr. Smith justifies the disparity between what he proposes (three years) and Mr. Selskiy’s sentence (four-and-a-half years) on the basis of the “sparse facts” relied upon by the Crown in support of count 1 and his guilty plea.

He also submits the sentencing judge erred when he stated there are no mitigating factors in this case. 4. Crown’s position on appeal [ 35 ] On appeal, as at trial, the Crown sought to sustain a sentence of seven years for Mr. Smith on the basis of the unreported sentencing decision of Ms. Ramos, where she was acting as a courier and was sentenced to seven years. The conviction decision is reported at R v Ramos , 2015 SKQB 57 , 469 Sask R 112 [ Ramos ].

According to Ramos , the amount of the cocaine in issue was two kilograms valued at “approximately $60,000 on the wholesale market and $114,000 if being sold by the gram” (at para 42(a)). By the time Ms. Ramos was sentenced, she had fled the jurisdiction. [ 36 ] On appeal in the within case, Crown counsel also relies on Selskiy , which, in his view, suggests a new range for commercial trafficking of cocaine between three and seven years. In support of this range, Crown counsel also directs the Court to jurisprudence from Ontario. 5. Relevant case law [ 37 ] As Mr.

Smith’s counsel submits, this Court has consistently held, in relation to the offence of trafficking in cocaine, that the sentencing range is from 18 months to four years: see Patryluk at para 24, Pankewich at para 21, Aube at para 19, and Bear at para 25 . In each of these decisions, the Court reviewed the existing Saskatchewan jurisprudence and re-affirmed the range. I will briefly provide the circumstances of each of these decisions. [ 38 ] Patryluk concerned two pounds of marijuana and three ounces of cocaine.

The Court set aside an 18-month conditional sentence and imposed a sentence of 11 months after giving credit for time spent on the conditional sentence. [ 39 ] In Mr. Pankewich’s case, he acted as a courier to bring ten ounces of cocaine from Vancouver to Regina and, in a separate transaction, Mr. Gaveronski brought one pound of cocaine into the province. Both were in their early twenties with unrelated records and were less criminally implicated than Mr. Smith. This Court set aside Mr. Pankewich’s 18-month conditional sentence and Mr.

Gaveronski’s 12-months of monitoring and imposed sentences of two years of incarceration less a day to be served in a custodial facility with credit on the basis of 1:1 for the time they had already served under the conditional sentences. [ 40 ] Aube concerned three accused working as “street-level cocaine traffickers, selling crack cocaine in ½ gram, gram, and 3½ gram (8-ball) amounts for a criminal gang” (at para 5). They were involved in this activity for at least eight-and-a-half months.

During the last 60 days of that period, the police recorded in excess of 600 drug deals, involving a “minimum of 300 grams and a maximum of 2.1 kilograms of cocaine for proceeds of between $36,000 and $180,000”. On an appeal from the Crown, this Court set aside a one-year

conditional sentence, saying “[c]onsiderations of parity alone would have warranted a sentence of 2½ years on the trafficking charge alone” (at para 20), and ultimately imposed a total sentence of 18-months of incarceration for the trafficking charge, having regard for totality and the need to accommodate a one-year consecutive sentence for a criminal organization offence (for a total of 30 months less the 5 months given as credit for time already served). [ 41 ] For those more deeply entrenched in the drug trade, this Court has imposed sentences at the upper end of the range.

Bear involved five offences: possession of hydromorphone (133 pills); possession of cocaine for the purpose of trafficking (crack cocaine, 26 grams); possession of hydromorphone for the purpose of trafficking (four capsules); possession of diazepam, for the purpose of trafficking (12 pills); and possession of proceeds of crime under five thousand dollars ($2,850). Ms. Bear had a lengthy record and a troubled past. Two of the offences were committed while she was on bail.

The sentencing judge imposed a sentence of three-and-a-half years for each sentence with the sentences for the last four offences running concurrently to the first. This Court sustained that sentence for the first two offences (hydromorphone and cocaine) and increased the total sentence by 12 months by imposing a sentence of 12 months for the diazepam offence and ordering it to run consecutively. [ 42 ] The following

summary provides a list of representative decisions from the trial courts involving trafficking in cocaine in one kilogram or more: Sentence Case Drug Factors 3 yrs R v Switucka , 2009 SKQB 372 , 342 Sask R 316 4.2 kg of high-grade cocaine, street valued between $166,000 and $301,000 youthful first-time offender with no addiction, no guilty plea 3 yrs R v Rahimi (18 March 2014) Saskatoon, NJ 45/12, facts taken from R v Rahimi , 2015 SKCA 85 , [2015] 12 WWR 436 3 kg, 1.4 grams and other smaller amounts of cocaine, aiding and abetting trafficking — 18 mos R v Carter , 2017 SKQB 74 1 kg cocaine, valued at between $60,000 and $80,000 older first-time offender acting as a courier, no guilty plea 6 yrs R v Beaven , 2013 SKQB 91 , 415 Sask R 279 [Beaven] (multiple accused) 2 counts: trafficking significant amounts of cocaine (3 yrs) and conspiracy to traffic cocaine (3 yrs) acted as mid-level distributor to street dealers, related record two other ringleaders (not Mr.

Beaven) received 7 and 5 yrs courier received 3 yrs (as reported in Beaven at para 20 ) 18 mos R v Radway , 2009 SKPC 81 , 335 Sask R 295 (2 accused) 1 kg cocaine, courier addicted, youthful, first-time offender, significantly rehabilitated at the time of sentencing, guilty plea co-accused (3.5 yrs), with a prior record, pleaded guilty to 2 counts of trafficking and 1 count of possessing proceeds significant player: 36 months plus 2:1 credit [ 43 ] Sentences for cocaine trafficking, which are significantly above the range of 18 months to four years, appear to be reserved for crimes involving the importation of large amounts of the drug: Sentence Case Drug Factors 18 yrs R v Palfrey , 2014 SKCA 1 , 427 Sask R 292 [ Palfrey ] (3 offenders) 1.325 and 1.370 kg cocaine imported from US to Canada Mr.

Palfrey as lead player 12 yrs R v Larsen , 2012 SKQB 345 , 404 Sask R 246 (aff’d Palfrey ) 640 kg cocaine, 95,000 pills ecstasy part of Palfrey operation courier (6 loads), no record and 52 yrs old 11 yrs R v Swanson , 2012 SKQB 485 , 408 Sask R 255 (aff’d Palfrey ) 455–495 kg cocaine part of Palfrey operation courier (5 loads), no record and 23 yrs old ($20 million to $57 million in value) 9 yrs R v Learning , 2019 SKCA 5 30 kg cocaine part of Palfrey operation courier, no record and 27 yrs old ($1.2 million and $2.3 million in value) [ 44 ] For those individuals less criminally implicated, the Court has either imposed or sustained sentences of less than 18 months: Sentence Case Drug Factors 10 mos R v McIntyre , 2012 SKCA 111 , 405 Sask R 28, 1 g quantities of cocaine dial-a-dope operation, no related record 30-day intermittent, 12 mos probation R v Felix , 2017 SKCA 16 1.6 g cocaine no record, 27 yrs old [ 45 ] While the above review shows a series of sentences ranging from an intermittent sentence to 18 years, no one would suggest that the usual range for trafficking in cocaine encompasses all of these sentences.

Such a wide range would not be useful. Having said that, this Court has resisted establishing or recognizing specialized ranges considering specific types of traffickers or specific types of

activity. Specialized ranges and starting-point sentences can provide guidance to the trial courts but, at the same time, can reduce sentencing discretion, making it more difficult to respond to restorative sentencing principles and thereby more difficult to reflect the degree of responsibility and moral culpability of the offender.

There is no indication, at this point, that the lack of a specialized range, such as a commercial range, has inhibited the courts from imposing more or less severe sentences recognizing the gravity of such offences. [ 46 ] It is, however, important to recognize that it has always been possible to draw distinctions between couriers, street-level traffickers, mid-level distributors and more significant players, including importers, as well as aggravating circumstances that demonstrate that an individual is more deeply implicated in the drug trade.

The lines demarking these various categories are not always clear or specified in the authorities, but it stands to reason that the more significant a person’s involvement in criminal activity, the greater the likelihood of a more significant sentence. The converse is also true for those less criminally implicated. [ 47 ] Thus, I have concluded that the general range for sentencing purposes continues to be as the court stated in Patryluk , Pankewich, Aube and Bear : between 18 months and four years. 6.

Did the sentencing judge err? [ 48 ] As will be readily apparent from the above review, a seven-year sentence for one count of conspiracy to traffic in one kilogram of cocaine imposed on Mr. Smith falls outside the range typically imposed in Saskatchewan. I recognize that a deviation from a sentencing range does not, in itself, justify appellate intervention: see, for example, R v Nasogaluak , 2010 SCC 6 at para 44 , [2010] 1 SCR 206, and R v Lacasse , 2015 SCC 64 at paras 72 and 105 , [2015] 3 SCR 1089 [ Lacasse ].

But, in this case, I see no basis to sustain a seven-year sentence. [ 49 ] As I mentioned, the Crown at trial and on appeal sought to sustain the seven-year sentence on the basis of Ramos , but that decision appears to be out of step with the jurisprudence mentioned above. [ 50 ] Similarly, the Court must exercise caution when relying on jurisprudence from outside this jurisdiction. Decisions outside of Saskatchewan, in support of a particular sentence for cocaine trafficking offences, must be viewed with care due to the wide differences among jurisdictions in Canada.

Every province has its own sentencing ranges, which have been developed to respond to local considerations.

In support of this caution, I refer to Clayton Ruby et al, Sentencing , 9th ed (Markham, Ont: LexisNexis, 2017) at 1279, which states that Ontario’s sentencing range for trafficking in cocaine for a first-time offender is six to eight years whereas there is British Columbia appellate authority stating a range for such an offender is six to nine months. [ 51 ] The sentencing judge did not impose individual sentences with individual reasons, which makes it difficult to determine the basis for any of the sentences, including the seven-year sentence imposed for conspiracy to traffic.

However, his reasons for determining that a global sentence of some significance was a proportionate response may be summarized as follows: (

a) Mr. Smith “was at the heart of organized crime” in Saskatoon; (

b) dealing in drugs and guns is a “scourge”; (

c) dealing in drugs and guns is dealing in “poison and the instruments of death”; (

d) the drug dealing took

part in the context of a criminal organization; (

e) Mr. Smith has been “in the business of being a criminal since 2004”; and (

f) there were “no mitigating circumstances”. [ 52 ] In addressing the sentence, the only case law that the judge mentioned, concerning cocaine, was Bear , where a global sentence of three-and-a-half years was imposed for five offences. In my respectful view, nothing in the circumstances of the offence or the offender, or the sentencing judge’s reasons, justifies doubling that sentence. [ 53 ] The sentencing judge reiterated the Crown’s assertion that Mr. Smith was at “the heart of organized crime in the city”.

It may be true that the Fallen Saints was at the heart of organized crime, but as a statement, it does not say much about Mr. Smith or his role in that organization. The evidence does not show that Mr. Smith was an executive officer with the Fallen Saints, or that he was the controlling or directing mind. The evidence does show that (

a) Mr. Smith was one of the “few guys that the Hells Angels had specifically hand-picked at the beginning that they wanted to be a part of [the Fallen Saints]”, and (

b) he “attended up in Prince Albert to the other [three-piece patch organizations] … attempting to convince them of the merits of joining [the Fallen Saints] particular organization” before an attempted takeover. The evidence also shows that NH was the vice-president and someone else was the president. Furthermore, count 1 of the First Indictment took place in March of 2014 when, according to the evidence, the Fallen Saints had not yet become a three-piece patch organization. In any event, on appeal the Crown acknowledges that Mr. Smith was a mid-level trafficker.

It is on that basis that the conspiracy sentence against Mr. Smith must be assessed. [ 54 ] There are, as well, other significant aggravating factors. Mr. Smith was conspiring to traffic a relatively large quantity of cocaine. Moreover, he was carrying out this activity as part of a criminal organization, which is a statutorily imposed aggravating factor (see s. 718.2 (a)(iv) of the Criminal Code ). [ 55 ] Mr. Smith also has a record but, as his counsel demonstrated, the sentencing judge did not describe his record accurately. The sentencing judge stated that Mr. Smith had been offending continuously since 2004.

However, there are gaps in Mr. Smith’s criminal record. Nonetheless, his record does show 26 offences. [ 56 ] With offences for which deterrence is the predominant sentencing principle, the mitigating factors personal to the accused are given less weight. Having said that, the sentencing judge was clearly in error when he said, “there are no mitigating circumstances”.

Although few, there are nonetheless some attenuating features. [ 57 ] First, the sentencing judge overlooked the fact that count 1 had not been part of the trial, which had proceeded on the basis of counts 2–10 only. Count 1 and the whole of the Second Indictment were scheduled for trial by jury to take place later in the year. However, Mr. Smith agreed to plead guilty to this particular count when the judge-alone trial was brought to an end thus saving the cost of a future jury trial and the proof of a conspiracy with multiple accused. [ 58 ] Second, Mr.

Smith was on strict conditions for over 30 months pending the trial and between the end of the trial and the sentencing. In addition to the usual conditions, Mr. Smith was released on the basis that he would adhere to the following: (

a) live at an approved residence; (

b) maintain a curfew from 10 p.m. to 7 a.m., except for work purposes; (

c) come to the door when asked to do so by a police officer; (

d) not possess or consume alcohol or drugs; (

e) not frequent any place in which the main purpose is the sale of alcohol; (

f) not possess or use any cellphone, smart phone or other mobile electronic communications device except for work purposes; and (

g) submit to a search without warrant of his person or any vehicle or residence owned, operated, controlled or possessed by him. [ 59 ] According to the transcript of the sentencing proceedings, the police checked on Mr. Smith every second night except for the last four months prior to trial. There were no breaches. [ 60 ] When submissions were made to the sentencing judge on this point, the judge advised counsel that “staying out of trouble while on bail is not a mitigating factor”.

This, however, is not a correct statement of the law: Lacasse at paras 112 and 113 ; R v Lever , 2014 SKCA 58 at para 12 , [2014] 12 WWR 666 [ Lever ]; and Aube at para 17 . [ 61 ] In Lever , Richards C.J.S. stated for the Court, “speaking generally, time spent on pre-sentence release can reduce an otherwise appropriate sentence only if it involves meaningful hardship or important limitations on the offender’s liberty” (at para 13). It is, however, necessary for the sentencing judge to explain the effects of the hardship or limitation. Restrictions on one’s liberty such as are contained in Mr.

Smith’s recognizance are not uncommon. However, being required to maintain them for 30 months is a significant limitation on one’s liberty. Some recognition should be given to this deprivation of liberty in calculating the sentence. The sentencing judge was also in error when he stated that Mr. Smith’s troubled childhood could not be considered as a mitigating factor. [ 62 ] The reasons of the sentencing judge do not support a seven-year sentence nor do the circumstances of the offence and the offender.

Having regard for the general range for trafficking in cocaine established by this Court and reviewing the fitness of the sentence, I conclude that a seven-year sentence is demonstrably unfit. It is clearly unreasonable – see Lacasse at para 52 and Pankewich at paras 31–32 – and must be set aside. 7.

What would be a fit sentence? [ 63 ] In the face of a demonstrably unfit sentence, or one that is the product of a material error in principle that has had an impact on the sentence, this Court is required to sentence afresh: Lacasse at paras 41 and 44 and R v L.V. , 2016 SKCA 74 at para 74 , 480 Sask R 181 . [ 64 ] The fundamental guiding principle for all sentencing remains proportionality as fixed by s. 718.1 of the Criminal Code : “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”.

In crafting a fit sentence, in addition to considering the principle of proportionality, it is also important to review the fundamental purpose of sentencing as stated in s. 718 of the Criminal Code : Purpose 718 The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. From this list, denunciation and deterrence are the predominant factors when sentencing in relation to trafficking a

Schedule I drug.

[ 65 ] Given the similarities between this case and Mr. Selskiy’s, it is appropriate to place some reliance on the sentence that Mr. Selskiy received. Mr. Selskiy was charged with the same offence in the context of the same enterprise. He, too, had been on judicial interim release for a significant period of time without incident. There are, however, limitations to a complete comparison. Mr. Selskiy had no record. Mr. Smith committed his offence while he was on bail, which has consistently been found to be an aggravating factor ( Bear at para 28 ). Thus, in relation to those factors, Mr.

Smith merits a more significant sentence than Mr. Selskiy. On the other hand, NH testified in Mr. Selskiy’s trial that Mr. Selskiy had been “ordered to attend Saskatoon to take care of the problem by either, one, completing the sale, two, getting paid … $10,000 for expenses, or three, shooting Smith” (trial transcripts, Selskiy at T18). Further, Mr. Smith ultimately pleaded guilty. [ 66 ] Taking these differences and similarities into account, I am of the view that a sentence of four years is a fit sentence for Mr. Smith.

It respects the principle of parity and falls easily within the range of offences imposed by this Court for similar offences committed by similar offenders in similar circumstances. It also gives appropriate effect to Mr. Smith’s guilty plea to the conspiracy alleged by the Crown and his 30 months of strict recognizance conditions. [ 67 ] In the result, with respect to count 1, the sentence is set aside and a sentence of four years is imposed. C. Count 9 of the First Indictment – trafficking in cocaine (7 years) [ 68 ] Count 9 alleged that on or about December 2, 2014, at or near Saskatoon, Saskatchewan, Mr.

Smith unlawfully trafficked in cocaine, contrary to s. 5(1) of the CDSA . [ 69 ] The sentencing judge imposed a sentence of eight years before applying the principle of totality and seven years after. He did not provide any reasons for choosing either figure. He made no findings of fact. [ 70 ] While the details are sparse with respect to almost all of the offences, they are particularly so in relation to count 9. This is because NH did not testify about count 9. This means that the only facts supporting this sentence came from the Admission of Facts.

Crown counsel thought he had provided the sentencing judge with the circumstances pertaining to the offence, but he had not. [ 71 ] In relation to count 9, the Admission of Facts reads as follows: 34. On December 2, 2014, two parties met … between 15:31 hours and 15:36 hours and engaged in a conversation that was intercepted. The full transcript of that conversation is included at Tab 13 . [TAB 25 OF NOTICE OF INTENTION BINDER] The conversation participants are alleged to be NH and Justin Smith. (Emphasis added) The document

summary corresponding to Tab 13 states, “Task 472 – Exhibit 6600-2 Transcript of recording device worn by the agent that captures a conversation between the agent and Justin SMITH on 2014-12-02 for Scenario 42. The transcript was reviewed by the agent”. [ 72 ] The transcript is attached to the Admission of Facts, but it is not possible to determine much about the offence from what was transcribed from the interview as it contains obscured text and many references to words being unintelligible. However, all of the exhibit summaries of the conversations between Mr.

Smith and NH contain handwritten interlineations, said to be made by NH.

In relation to exhibit 6600-2 (which is a transcript of the December 2 discussion), there are handwritten emendations and notations included on the transcript (at 2–3): Justin SMITH: [u̶n̶i̶n̶t̶e̶l̶l̶i̶g̶i̶b̶l̶e̶ They’re ] sending me [u̶n̶i̶n̶t̶e̶l̶l̶i̶g̶i̶b̶l̶e̶ 10 oz as a sample ] the next [u̶n̶i̶n̶t̶e̶l̶l̶i̶g̶i̶b̶l̶e̶ time they send more pills ] … … Justin SMITH: And [u̶n̶i̶n̶t̶e̶l̶l̶i̶g̶i̶b̶l̶e̶ my price is $1525. 00 ] … Justin SMITH: So … NH: Do you want me to just grab that off you or are you going to try to … Justin SMITH: No, I’d rather … Justin is saying that he would r ̶ a ̶ t ̶ h ̶ e ̶ r ̶ like to give all 10 to me rather than have to hustle it himself NH: … work with it or …?

Justin SMITH: I’d rather not fuckin’ [unintelligible]. NH: Ah … just let’s see here. Ah … [u̶n̶i̶n̶t̶e̶l̶l̶i̶g̶i̶b̶l̶e̶] that? I use the calculator in my phone and show Justin that if he’s paying $1525.00 an oz it comes [sic] … NH: That’s pretty deadly, so 18 like … ’cause even if I put that ahm … ah … that … Justin SMITH: Yeah. NH: … [unintelligible] is good. So … ah … right? I’m showing Justin how much money he can make off selling me those 10 oz Justin SMITH: Yeah. NH: So if you were at ah … that … Justin SMITH: Yeah. NH: … right?

And … that and then I would be 18 [unintelligible] … that … it would leave you with that off the 10. [ 73 ] Notwithstanding a limited understanding of what gave rise to Count 9, Mr. Smith’s counsel advised the sentencing judge that his client was prepared to plead guilty to all of the charges before the court – including count 9. In the ensuing comprehension inquiry,

Mr. Smith indicated he understood he was pleading guilty to the essential elements of each offence – and he pleaded guilty to count 9. [74] Under the bare and minimal circumstances that exist here, his counsel makes two arguments. First, he argues that theAdmission of Facts should not be taken as establishing the facts for the purposes of sentencing. Relying on the Supreme Court’s decisionin R v Gardiner, (SCC), [1982] 2 SCR 368, and s. 724(3)(

e) of the Criminal Code, he submits that the Crown wasobliged to prove all of the facts against him beyond a reasonable doubt as part of the sentencing hearing. Second, he suggests anappropriate sentence should be no higher than the bottom end of the sentencing range, being 18 months. [75] In response to the first argument, I have concluded that the evidence from the trial – including the Admission of Facts and itsappendices – was accepted as providing the underlying facts for the purposes of sentencing. The only fact disputed by Mr.

Smith’s trialcounsel, in relation to any of the offences, was the quantum of cash that Mr. Smith had received as proceeds derived from crime. Theabsence of any contest about any of the other facts in relation to any of the offences shows that Mr. Smith accepted what the Crownstipulated the facts to be. [76] In the circumstances of this case, this means that we must take Mr. Smith’s guilty plea as acknowledging the evidence beforethe court, which includes the handwritten interlineations found in the December 2 transcript regarding count 9. The gravamen of thisconclusion means that Mr.

Smith admitted that what is contained in the Admission of Facts constitutes an offer to traffic in cocaine. [77] As to Mr. Smith’s second submission regarding the fitness of the sentence, I agree that, particularly in light of the quality ofthe factual record here, the sentencing judge’s decision to impose a seven-year sentence for this offence is demonstrably unfit. It iscompletely outside of the general range for such sentences and cannot be justified by the evidence presented to the Court. It must be setaside.

I also agree, in light of the court record, that a sentence of 18 months of incarceration is appropriate. D. Count 7 of the First Indictment – trafficking in fentanyl (11 years) andCount 8 of the First Indictment – trafficking in heroin (11 years) 1. Circumstances [78] After NH became a police agent in September of 2014, all of his conversations with Mr. Smith were intercepted. Three of theconversations, which are described in the Admission of Facts, took place on November 20, 2014, December 2, 2014, and December 9,2014. On each of these days, Mr.

Smith supplied NH with a quantity of pills, packaged to resemble OxyContin and referred to in theevidence as “fake oxy’s”: November 20, 2014 (510 pills), December 2, 2014 (603 pills) and December 9, 2014 (721 pills), for a total of1834 pills. The transcript of the conversations from those days became an exhibit at trial. During the abbreviated trial proceedings, NHalso testified about the November 20, 2014, conversation. [79] Mr.

Smith believed he was supplying fentanyl to the vice-president of the Fallen Saints to bring himself “up into goodstanding with the Fallen Saints” by paying his outstanding debt to that club. NH testified that he was willing to pay Mr. Smith $20 eachfor the “good ones”. Mr. Smith would be given $15 per pill to pay the supplier and $5 per pill would be credited to his debt. In one of theconversations, Mr. Smith wanted some of the money to pay his lawyer. [80] After NH turned the pills over to the police, each lot of pills was analyzed. The three certificates of analyst were entered asexhibits.

Each certificate indicates that the pills contained fentanyl and heroin. There is no indication of the amount or quality of eitherdrug in the pills. Some indication of the amount of each type of drug can, however, be taken from the value placed on the pills by thepolice agent. [81] To establish the emerging dangers associated with fentanyl (heroin risk having already been known), the Crown provided thesentencing judge with four documents, which described the harm associated with fentanyl consumption: (

a) Canadian Centre on Substance Abuse and Addiction, CCENDU Bulletin, “Deaths Involving Fentanyl in Canada, 2009–2014” (August 2015) [CCENDU bulletin], outlining the dangers associated with the consumption of fentanyl (a version of this documentcan be found on the CCENDU website); (

b) British Columbia Coroners Service, “Fentanyl-Detected Illicit Drug Toxicity Deaths: January 1, 2012 to October 31, 2016”,documenting fentanyl overdose deaths in British Columbia (this report is updated quarterly and the latest version, “Fentanyl-DetectedIllicit Drug Toxicity Deaths January 1, 2012 to June 30, 2019”, can be viewed on the British Columbia’s Coroners Service webpage,“Statistical Reports on Deaths in British Columbia” (accessed August 2019)); (

c) Saskatchewan Coroners Service, “Drug Toxicity Deaths: Saskatchewan, 2010 to 2015” (January 4, 2016) [SaskatchewanCoroner’s Report], itemizing all drug overdose deaths in Saskatchewan (this document is updated yearly and the latest version, “DrugToxicity Deaths January 1, 2010–June 13, 2019” (accessed August 2019), can be downloaded from the Saskatchewan PublicationsCentre; and (

d) an opinion letter, given in letter form, dated July 25, 2016, from a doctor in British Columbia responding to variousquestions regarding fentanyl. [82] The most relevant aspects of the CCENDU bulletin are as follows (at 1–2): In June 2013, CCENDU first detected and advised network members and subscribers of the appearance of and potential for harmsassociated with fentanyl or fentanyl analogues that were for sale in the illegal marketplace (CCENDU, 2013).

This first CCENDU alertabout fentanyl was followed by a second in February 2014 warning of the dangers of the increasing availability of counterfeit oxycodonetablets containing fentanyl (CCENDU, 2014) and a third in February 2015 notifying CCENDU subscribers that deaths involving fentanylin British Columbia, Alberta, and Saskatchewan had increased (CCENDU, 2015). Data provided by Health Canada’s Drug Analysis

Services indicate that seizures of fentanyl, both diverted prescription and illicitly produced combined, increased over 30 times from 29 in 2009 to 894 in 2014 [figures and footnotes omitted]. According to the RCMP, fentanyl is finding its way to the Canadian illicit drug market via two means: (1) diversion of pharmaceutical fentanyl products (primarily transdermal patches) from domestic supply and distribution channels; and (2) by way of importation or smuggling of pharmaceutical grade fentanyl and fentanyl analogues into Canada from abroad, notably China.

Fentanyl and fentanyl analogues arrive in powdered form, and Canadian-based organized crime use these substances to produce illicit fentanyl products: powdered fentanyl marketed as such or combined with illicit drugs (e.g., heroin); and illicit synthetic drug tablets manufactured in domestic clandestine tableting operations, notably those produced to resemble OxyContin. Synthesis of illicit fentanyl has occurred in Canada, but indicators point to a low incidence.

In early 2015, increases in fentanyl-related harms prompted a media campaign in British Columbia (Know your source, 2015), a public alert by Alberta law enforcement (RCMP, 2015) and an alert by the Drug Enforcement Agency in the United States (Drug Enforcement Administration, 2015).

As of August 2015, concerns about the number of deaths involving fentanyl from both illicit and pharmaceutical sources continue, especially in western Canada where deaths involving fentanyl have continued to occur throughout the summer. (Italic emphasis in original) [ 83 ] Reporting in August of 2015, the CCENDU bulletin provides Saskatchewan statistics with respect to deaths associated with fentanyl. According to this data, “there were 25 fentanyl-implicated accidental deaths in Saskatchewan” from 2010 to 2014 (at 4), ten deaths in 2013, and nine deaths in 2014.

The deaths occurring in 2013–2014 were described as follows: In at least 3 of the 19 deaths occurring in 2013–2014, counterfeit oxycodone tablets were either found at the scene or the deceased was linked to a recent death where counterfeit oxycodone was found at the scene.

Of the 19 deaths in 2013–2014, the information provided indicated that at least 8 individuals had no valid prescription for fentanyl, at least 12 had a history of drug abuse and at least 12 had additional substances such as alcohol, cocaine, stimulants or other opioids, involved in the death. [ 84 ] In a document dated January 4, 2016, the Saskatchewan Coroner’s Report provides further information about the fentanyl- associated deaths in Saskatchewan in 2013 and 2014.

Without specifics regarding the type of fentanyl, the Coroner’s Report shows ten confirmed drug overdose deaths involving fentanyl in 2013, and 11 deaths in 2014. It shows one confirmed drug overdose death related to fake OxyContin, and which involved fentanyl, in 2013, and three such deaths in 2014. 2. The Crown’s position at trial [ 85 ] By way of case law with respect to sentence, Crown counsel at trial relied upon R v Fyfe , 2017 SKQB 5 [ Fyfe ], where Danyliuk J. reviewed the state of the jurisprudence as it existed at that time.

Although that case involved two counts, comprising small amounts of drugs (one and two pills, respectively,) one of the pills contributed to the death of a user. Following an extensive review of the authorities (as of 2017), Danyliuk J. found that an appropriate sentence was five years: two-and-a-half years of incarceration, to be served consecutively, for each of the counts (less time served). [ 86 ] At Mr. Smith’s sentencing hearing, Crown counsel argued that since Mr.

Fyfe had received a five-year sentence, the three transactions in the present case supported a sentencing range of 15–18 years: So what’s the fentanyl trafficking worth? In the prosecution’s submission, the numbers that are involved, they’re in the 15 to 18 year range. You’ve got Fyfe which is three pills for five years. You’ve got this guy which is three events, and the Bear case refers to the number of events when you’re looking at it. You’ve got three events, 500, 600, 700 pills.

And so in my submission, if one is looking at this with the Bear approach that, in fact, the idea of five or six years for each event for 5 or 600 pills is an appropriate number , after trial, given the bail, given the aggravating circumstances , at least from a starting analysis. (Emphasis added) [ 87 ] The Crown also relied upon R v Chukwu , 2016 SKCA 6 , 472 Sask R 241 [ Chukwu ], where this Court dismissed an appeal from a sentence of ten years of incarceration for possession of a

Schedule I drug for the purpose of trafficking, involving 591.5 grams of 46% pure heroin. 3. Relevant case law a. Fentanyl [ 88 ] Unlike with cocaine, there is little jurisprudence from this province pertaining to sentencing for trafficking or possession for the purpose of trafficking in fentanyl. When Mr. Smith was sentenced, Fyfe was the only reported fentanyl trafficking decision from Saskatchewan. [ 89 ] In sentencing Mr. Fyfe, Danyliuk J. began his reasons by noting that “perdition is precisely the correct term for the ultimate destination of purveyors and users of this substance” (at para 2). He described at some length the dangers of fentanyl abuse, and observed the following in

summary: [58] From all of this information, the obvious and unavoidable inference is that fentanyl is a dangerous and powerful drug, highly lethal when used in a non-clinical setting on the street. There can be no gainsaying that fentanyl is lethal, that its unauthorized use is causing

deaths in this province, and that these problems are growing rapidly. As will be discussed below when an appropriate sentence is considered, fentanyl must at least be treated as seriously as other hard drugs (e.g., cocaine) and arguably more seriously, given the substantial risks posed by this substance. [ 90 ] Danyliuk J. carefully reviewed the sentencing principles and relevant decisions involving not only fentanyl but trafficking in other serious drugs: [157] The Crown has suggested that sentences for crimes involving fentanyl (trafficking, or possession for that purpose) ought to start at 30 months.

Respectfully I disagree. Sentencing is not a mathematical calculation. Fentanyl is 100 times more powerful than morphine. Should the sentences then be 100 times higher? Clearly that would be unacceptable. It must be proportionate to the seriousness of the crime and the offender’s culpability. [158] As well, there is a distinction between the low-level street dealer and the commercial or wholesale distributor in terms of a sentencing starting point. [159] In my view the trade in fentanyl needs to be discouraged in the strongest fashion.

Specific and general deterrence and denunciation are the most important factors to consider with respect to the illegal trade in this drug. The havoc wreaked by opioids in terms of death and serious harm is now widely known. It is a street epidemic. [160] That aim of deterrence and denunciation, tempered and balanced by all the other factors as discussed above, can be accomplished through a sentencing starting point of two years.

This means that absent some circumstance that takes a particular offender below that starting threshold, penitentiary time is called for in cases of fentanyl trafficking. [161] I am not prepared to suggest an upper limit to the general range of sentences. I can envisage cases where, as in Chukwu , offenders in possession of significant amounts of fentanyl, involved significantly in the overall distribution and sales network, and with criminal records could receive sentences of ten years or more.

Thus I am not setting any notional “cap” on this range, but rather suggesting that an appropriate starting point for fentanyl-related offences at a lower level (street dealers) is two years. Commercial level dealers and suppliers would start at a higher point, possibly three years. [162] Circumstances may carry an offender’s actual sentence above or below that point, although to go below two years will likely require an exceptional situation, as was the case in Corbett [2015 ABPC 212]. As stated above, this is not intended to be a minimum sentence. It is for Parliament to decide on those matters.

My analysis is akin to the well-established starting point from our Court of Appeal for sexual assaults with significant aggravating factors. The Saskatchewan Court of Appeal has repeatedly said that the starting point is three years, with a careful assessment of relevant sentencing factors (including aggravating and mitigating factors) moving the ultimate sentence higher or lower than the starting point. [163] Thus no one should be of the view that two years is a minimum. Sentencing is a highly individualized process. Courts create appropriate sentences for offenders, not offences.

Neither Crown nor defence should treat this decision as any sort of “magic answer”. The various factors leading to the correct sentence must be assessed with care.

In the result, and as I have indicated earlier, Danyliuk J. imposed a sentence of five years (two-and-one-half years for each of the two counts) less credit for time served. [ 91 ] Since Fyfe was released, there have been only a few fentanyl sentencing decisions in Saskatchewan: R v McCorriston , 2018 SKPC 10 (conviction and a two-and-a-half-year sentence, currently being appealed to this Court) [ McCorriston ]; R v Lichtenwald , 2018 SKQB 174 [ Lichtenwald ] (conviction and a ten-year sentence, with conviction only currently being appealed to this Court); and R v Bellerose , 2019 SKPC 13 [ Bellerose ] (a sentence of two-and-a-quarter years, less enhanced remand). [ 92 ] Both McCorriston and Bellerose received sentences comparable to that seen in Fyfe .

But, neither judgment refers to Danyliuk J.’s analysis on sentencing. [ 93 ] In Lichtenwald , significantly above the two and three year starting points suggested in Fyfe , the accused was convicted after a trial by judge alone of two charges of possession of a controlled substance for the purpose of trafficking, including hydromorphone, methamphetamine, cocaine, fentanyl, and gamma-hydroxybutyric acid (which is a precursor to a known date rape substance) contrary to s. 5(1) and s. 5(2) of the CDSA . As well, Mr.

Lichtenwald was found guilty of various counts of possession of proceeds from trafficking and firearms-related offences (ten counts). His criminal record began in 1998 and contained eight convictions for trafficking or possessing the proceeds of trafficking. The street value of the drugs seized was between $7,000 and $22,000. Evidence was heard that Mr. Lichtenwald was unremorseful and was at a high risk to reoffend. The Crown submitted that he should be sentenced to a global sentence of 12 years of imprisonment.

The defence argued that the accused should receive a six-year sentence as he was not part of a larger, more sophisticated organization, he trafficked in order to feed his own habit and his criminal record had stopped in 2005 until the 2016 charges arose. Mr. Lichtenwald was sentenced to a global sentence of ten years of imprisonment less a credit for two years of time served. [ 94 ] Since little Saskatchewan precedent exists, it is necessary to consider case law from across the country addressing the issue of what constitutes a fit sentence for trafficking in fentanyl.

In fairness to the sentencing judge, a number of these decisions were released after he sentenced Mr. Smith. [ 95 ] A particular aspect of the case law is that fentanyl can be trafficked in different forms: powder, prescription patches and mixed with cutting agents or other drugs in pill form. Within the various forms in which fentanyl is sold, there are gradations of lethality.

In some of the reported decisions, expert testimony allowed the sentencing judge to determine the relative importance of the form in which the fentanyl was offered for sale in terms of its potential for harm – a matter I will return to later in these reasons. However, it should be pointed out that there continues to be controversy about whether fentanyl in patch form or powder form is the most lethal. And there appears to be a general consensus that fentanyl in pill form, while still extremely dangerous, is not as dangerous as fentanyl in patch form.

[ 96 ] Some of the earliest reported decisions in Canada concerned trafficking by health practitioners in fentanyl patches. Most notable of these decisions are the four individuals who acted in concert in a sophisticated drug-trafficking ring in North Bay, Ontario: R v Baks , 2015 ONCA 560 [ Baks ] (with additional reasons in R v Baks , 2015 ONCA 615 ); R v Sinclair , 2016 ONCA 683 [ Sinclair ]; R v Godreau , 2016 ONSC 6318 [ Godreau ] (varied, R v Godreau (8 January 2018) Toronto, C63684 (Ont CA)); and R v Loor , 2017 ONCA 696 [ Loor ].

The accused in these cases used other people’s health cards, identities and personal information to open false patient profiles for a medical doctor and then forged prescriptions in the unsuspecting doctor’s name. Through this fraudulent scheme, they secured and trafficked a total of 900 high-dose (100 μg per hour) fentanyl patches. All proceeded to trial separately. [ 97 ] The first three of these individuals had their sentences reduced by the Ontario Court of Appeal: (

a) Baks (not identified as a higher-drug participant) – guilty plea, mitigating factors, sentence reduced from a jointly-submitted nine years to a global sentence of six years (five years for the 20 counts of trafficking in fentanyl plus one year consecutive for forgery); (

b) Sinclair (recruiter of Ms. Baks) – guilty plea after preliminary inquiry, sentence reduced from a jointly-submitted nine years to an eight-year sentence (fewer mitigating factors); and (

c) Godreau – no guilty plea, notable absence of mitigating factors – reduced from a ten-year sentence to nine years. There were variations between the accused, notably, good rehabilitative potential in some, guilty pleas in Sinclair and Baks and so on.

In Baks , the accused had pleaded guilty and had been sentenced under a joint submission in May 2014. [ 98 ] In Loor , the court would have been prepared to sustain a sentence of nine years, but for the rehabilitative prospects and efforts of the offender, which resulted in the Court sustaining a six-year sentence for trafficking 45 patches of high quality fentanyl. The court commented on the dangerousness of fentanyl patches: [39] When abused, fentanyl patches are especially dangerous . People can abuse a fentanyl patch in many different ways.

They can inject the patch contents intravenously, cut up the contents and chew small portions at a time, inhale it, smoke it, and even make tea with it. What makes the patch particularly dangerous is the medication’s location within the patch. The medication is in a matrix, essentially buried inside the patch . To get the medication out of the patch a person has to chop it up or melt it down or heat it up. But then the person will not know how much fentanyl has been released. Its potency for an individual is thus often unpredictable .

And so … a lot of deaths have been associated with the abuse of fentanyl patches. The court commented on the limited case law available in respect of fentanyl and the circumstances present in the case in deciding to allow the appeal and vary the sentence to six years.

The court declined to establish a range for trafficking in any form of fentanyl, given the lack of case law on point but indicated that those “who traffic significant amounts of fentanyl should expect to receive significant penitentiary sentences” (at para 50). [ 99 ] The leading cases dealing with trafficking in large quantities of fentanyl pills are R v Solano-Santana , 2018 ONSC 3345 [ Solano-Santana ]; R v McCormick , 2017 BCPC 22 [ McCormick ]; R v Aujla , 2016 ABPC 272 [ Aujla ]; and R v Lu , 2016 ONSC 292 [ Lu ]. [ 100 ] In Solano-Santana , Newton J. provided a very helpful, annotated

summary of 21 reported and unreported sentencing decisions involving fentanyl in Canada. In that case, he imposed a sentence of eight years for trafficking for the “exceptionally high quantity of pills at issue here (5,000 pills) [as] a significant aggravating factor. The street value of the pills is estimated at $30,000–$150,000” (at para 29). As in Mr.

Smith’s case, there were other aggravating factors, including a previous criminal record for drug-related offences and breaches of recognizance. (Recently in R v Hudson , 2019 ONSC 290 , Charney J. followed Solano-Santana in a case where the accused was found guilty of importing and possessing 300 grams of powdered fentanyl valued at between $64,000 and $129,000.

He imposed a sentence of eight years for the possession of fentanyl for the purposes of trafficking.) [ 101 ] McCormick involved 27,000 fentanyl pills, 4.054 kilograms of cocaine, 1.016 kilograms of methamphetamine and other substances, with a combined street value of over $2 million. While on bail for those offences, Mr. McCormick was again arrested for possession for the purpose of trafficking while in possession of 1,000 fentanyl pills, two kilograms of cocaine and a significant amount of other controlled substances.

He had a prior penitentiary sentence for trafficking and was in possession of two loaded weapons. Mr. McCormick was sentenced to 14 years in jail. For the first set of offences, including the largest amount of fentanyl, he received a sentence of eight years and, for the second set of offences, he received a consecutive sentence of six years. [ 102 ] In Aujla , the accused was in possession of 454 pills of fentanyl along with 1867 grams of cocaine (street value of $187,000), 796 grams of heroin (street value of $192,000), and 410 grams of methamphetamine (street value of $41,000).

As in McCormick , firearms were involved: two unloaded handguns and body armour were seized. The accused was youthful, with no criminal record. He had no addiction issues. He was convicted after a trial and sentenced to a global sentence of seven years. [ 103 ] In Lu , the offender was convicted of multiple drug offences, including possession of fentanyl for the purpose of trafficking. A large quantity of various drugs was seized from his residence, including 522 fentanyl pills.

He was also found in possession of 277 oxycodone pills, 923 grams of cocaine, 500 grams of hash, $7,815 in small bills and a collapsible baton. Mr. Lu was not an addict and was trafficking in drugs solely for financial gain. He had a prior related criminal record and his current offences were committed only one year after his release from jail for a marijuana trafficking conviction.

The sentencing judge gave him seven months of credit for being under stringent release conditions for four years prior to his trial and then imposed a global sentence of five years of imprisonment, with the fentanyl-related sentences running concurrently to the other sentences. [ 104 ] Specific to fentanyl powder, the most significant decision is R v Vezina , 2017 ONCJ 775 [ Vezina ]. In that case, the substance was a blend of heroin, fentanyl and cutting agents in powdered form and weighed 204.49 grams, with a street value between $41,000 and

$61,500. When arrested in early 2017, Mr. Vezina was in possession of powdered fentanyl, methamphetamine, a large amount of currency, scales, and a concealed,

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