R v McKay, 2019 SKCA 129

Court of Appeal for Saskatchewan Docket: CACR3182 Citation: R v McKay, 2019 SKCA 129Date: 2019-11-29 Between:Trevor Marcel McKayAppellantAndHer Majesty the QueenRespondentBefore: Jackson, Barrington-Foote and Kalmakoff JJ.A.Disposition: Appeal allowed, sentence variedWritten reasons by: The Honourable Madam Justice JacksonIn concurrence: The Honourable Mr. Justice Barrington-Foote The Honourable Mr. Justice KalmakoffOn Appeal From: 2018 SKPC 51, Prince AlbertAppeal Heard: June 6, 2019Counsel: Nicholas Stooshinoff, Q.C., for the Appellant Wade McBride, Q.C., for the Respondent Jackson J.A. I.

Introduction [1] This is an appeal from a nine-year sentence for possession for the purpose of trafficking 11.25 kilograms of cocaine andrelated offences. The offender, Trevor McKay, is young and Indigenous, without a significant record, and with strong Gladue factors thatpoint in favour of a sentence crafted in accordance with the Supreme Court’s decisions in R v Gladue, (SCC), [1999] 1SCR 688, and R v Ipeelee, 2012 SCC 13, [2012] 1 SCR 433, and this Court’s decisions in R v Chanalquay, 2015 SKCA 141, [2016] 4WWR 242 [Chanalquay], and R v Whitehead, 2016 SKCA 165, 344 CCC (3d) 1 [Whitehead].

His co-accused, Kelsey Bear, pleaded guiltyand received a seven-year sentence based on a joint submission. [2] In my respectful view, the sentencing judge erred by reasoning from a co-accused’s seven-year sentence to arrive at a nine-year sentence, without considering independently what would be a fit sentence for this offence committed by this offender and in thesecircumstances. [3] I would allow the appeal and impose a sentence of seven years. II. Background [4] The background is taken substantially from the decision under appeal: R v McKay, 2018 SKPC 51 [Sentencing Decision]. [5] Mr.

McKay pled guilty to three offences: (

a) possession of a controlled substance for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and SubstancesAct, SC 1996, c 19 [CDSA]; (

b) possession of property obtained by crime contrary to s. 354(1)(

a) and s. 355(

a) of the Criminal Code; and (

c) laundering proceeds of crime contrary to s. 462.31(2) of the Criminal Code. No appeal was taken from the proceeds and money laundering offences. The concurrent sentences imposed on Mr. McKay with respect tothose offences are unaffected by this appeal. [6] The above charges arose out of the discovery of 11.25 kilograms of cocaine in an apartment in Prince Albert, Saskatchewan,and ensuing investigations into the bank accounts, tax records, cell phones and effects of Mr. McKay and his common law partner,Ms. Bear. [7] In addition to pleading guilty, Mr.

McKay executed a document entitled “Agreed Statement of Fact”, eliminating the need toprove a substantial part of the aggravated nature of the case against him. A sentencing hearing was called apparently for the purposes ofhearing the testimony of Constable Scott Bellefontaine. The sentencing judge qualified Constable Bellefontaine as an expert in theprocessing, handling and usage of cocaine and, in particular, to offer the opinion that Mr. McKay and his group were engaged in “highlevel” trafficking. [8] The sentencing judge reviewed the evidence extensively such that I need not do so.

It is sufficient to quote from theSentencing Decision regarding what was found in an apartment controlled by Mr. McKay and his co-accused: [11] In total, 11.25 kg of cocaine was found in the apartment. Of this total, approximately 8.29 kg was in a nearly pure form (i.e., 82% to

88%). Officer Bellefontaine testified that this level of purity would tend to indicate that it had recently been imported into Canada from a source country. The balance of the cocaine (approximately 2.96 kg in total) had been cut and repackaged for sale as either powder or crack cocaine. The powder cocaine was in concentrations ranging between 26% and 40%. Officer Bellefontaine testified that, in his opinion, the nearly pure cocaine would likely be cut – diluted with other agents, such as Procaine and Phenacetin – before being sold to dealers.

He further testified that pure cocaine needed to be cut before being sold to users because it would be very unusual – arguably dangerous – for cocaine to be consumed in a nearly pure form. [12] The powdered cocaine that was found in the apartment had been cut with the same agents that were present in the apartment – namely Procaine and Phenacetin. In Constable Bellefontaine’s opinion the nearly pure cocaine coming into the apartment was being both cut and cooked for sale on the street through a network of dealers.

If all of the cocaine had been cut, the total quantity of cocaine would increase to at least 19.55 kg depending on the level of concentration. It is further noted that sufficient cutting agent was present in the apartment to cut an additional 54 kilograms of pure cocaine for sale on the street. [13] Constable Bellefontaine calculated the total estimated value of the cocaine found in the apartment using three different assumptions. Firstly, the officer estimated that if the cocaine was sold by the kilogram to a midlevel dealer, its total value would be approximately $780,000.00.

On the other hand, if the cocaine was sold by the ounce to street level dealers, the value would increase to approximately $977,000.00. Finally, the officer estimated the street value of all the cocaine found in the apartment would be approximately $1.5 million assuming that it was cut to a 40% concentration and sold by the gram on the street. [14] Constable Bellefontaine referred to the apartment as a “stash house”. There was no furniture found in the apartment.

While multiple grams of cocaine were discovered in the form of loose powder on the floor and on the countertops, no evidence of drug use was found at the apartment. There was no evidence that the apartment was used for anything other than storing, cutting, repackaging and distributing the cocaine.

Certainly, there was no evidence that anyone lived in the apartment and no evidence that anyone was using drugs in the apartment. [ 9 ] From his review of the evidence, the sentencing judge drew these conclusions: [23] I am satisfied beyond any doubt that the subject operation was both highly sophisticated and intended for the commercial distribution of large volumes of cocaine in Northern Saskatchewan.

The police seized over 11 kilograms of cocaine from the subject apartment (the majority of which was in a nearly pure form) together with all the supplies and equipment necessary for the preparation, cutting, repackaging and sale of cocaine to dealers at the street level. If all of the cocaine was cut and prepared, the quantity would increase to 20 kilograms. Furthermore, enough cutting agent was present in the apartment to prepare 54 more kilograms of cocaine for sale.

Police value all of the cocaine found in the apartment at between $780,000.00 and $1.5 million, depending on how it was sold. [24] To maintain security, only a small group of accomplices went to the apartment and no drugs were used at or sold from that location. Simply put, the operation was designed to be hidden in plain sight. It was covertly located in ordinary apartment with a rational cover story for the movement of product in and out of the building – namely, the outward appearance of a drywall operation. [25] The drugs prepared and sold by Mr.

McKay’s group were distributed within Prince Albert as well as to a number of northern communities, including Meadow Lake, Lac La Ronge, Ile a la Crosse, and Pinehouse, along with the Muskoday, Green Lake, and Flying Dust First Nations. The terrible effects of drugs on these communities are well-documented in the victim impact statements. [ 10 ] The sentencing judge also determined that Mr. McKay was “the guiding mind and lead player in the entire operations” (at para 39) or the “local lead player” (at para 40).

He reviewed the evidence in support of that conclusion: [39] … This evidence included banking and other records, the statements obtained from accomplices, the communications obtained from the phone records, the fingerprint evidence, and the surveillance video. There is a compelling inference to be drawn from the evidence that Mr. McKay is not a new entrant into drug trafficking. The evidence from the Canadian Revenue Agency would indicate that Mr.

McKay did not have a lawful source of income in 2016 or any of the two preceding years and yet his banking records are consistent with a person of significant financial means. [Witnesses] identify Mr. McKay as the lead player, which evidence is corroborated by the communications observed in Mr. McKay’s phone records, together with his direct participation in the activities at the stash house. [40] I cannot infer that someone else was the guiding mind behind this operation merely because Mr. McKay is young and has no prior record involving drug trafficking.

In the absence of some evidence of another person, it would be purely speculative on my part to infer that such person exists. Furthermore, even if there was someone external to Prince Albert to whom he was reporting or receiving instructions, Mr. McKay was the local lead player. In Oddleifson [2010 MBCA 44], the Court used the words “trusted overseer”. [ 11 ] The sentencing judge established the facts relating to Mr. McKay’s personal circumstances and reviewed a Gladue report that had been filed in support of a restorative sentence. Mr.

McKay was 27 years old when he committed the offences in question. [ 12 ] He has a record, which the sentencing judge described fairly, emphasizing that his longest custodial sentence was seven days: [49] Finally, Mr. McKay has a criminal record. In July of 2009, he received 12 months of probation for theft under, mischief under, failure to attend court (x2), and a breach of an undertaking. In November of 2009, he was fined for a breach of recognizance and a failure to attend court. In January of 2013, Mr. McKay was fined for possession of a controlled substance and for refusal to provide a breath sample.

He also received time served (seven days) for breach of an undertaking. In May of 2013, Mr. McKay was fined for driving while disqualified and breach of a recognizance. In January of 2014, he received a 12-month conditional sentence order for assault causing bodily harm. Finally, May of 2014, Mr. McKay received a three month conditional sentence order for driving while disqualified and for breach of an undertaking. In

summary, Mr. McKay has no previous conviction for drug trafficking and his longest previous period of incarceration was seven days. [ 13 ] The sentencing judge stated his conclusion on the sentence in these terms: [57] I conclude that the appropriate global sentence … is nine years of incarceration, to be apportioned as follows:

• nine years on count (1) – possession of a cocaine for the purpose of trafficking, less any remand credit to be determined atthe time of sentencing; • two years concurrent on count (2) – possession of property obtained by crime; and • two years concurrent on count (3) – laundering the proceeds of crime. [58] The sentences for counts (2) and (3) will be served concurrently to each other and concurrently to count (1) for two reasons. First, aglobal sentence in excess of nine years would be unduly harsh in all the circumstances.

As a result, the totality principle requires that thesentences for counts (2) and (3) be served concurrently. Second, while I was satisfied that Mr. McKay was the lead player in a large-scale,sophisticated cocaine trafficking operation, the quantum of unexplained deposits found in his bank account ($15,440.00) was smallrelative to the size and scale of the operation, as is the value of the two vehicles that he acquired. While counts (2) and (3) involve theviolation of distinct legally protected interests, I am satisfied that they are derivative from and concomitant to Mr. McKay’s traffickingactivities. III.

Issues [14] Mr. McKay’s counsel has identified a number of issues but, in my view, this appeal turns on his first point, which he describesin his factum as follows (at 10): A.

The learned sentencing judge erroneously applied the parity principle, which impacted the sentence, as follows: i. failed to evaluate and compare sentences imposed on similar offenders for similar offences committed in similar circumstances tothe circumstances of the offender and the offence before the Court and instead only assessed the parity principle with reference to a co-accused’s sentence; and ii. required that the Appellant’s sentence be greater than his partner and co-accused’s sentence, which was disposed of by way of ajoint submission … . IV. Analysis A.

Error in Principle [15] At two places, the Sentencing Decision describes the effect of finding Mr. McKay to be the lead player and the impact of thisfinding when considered in relation to Ms. Bear’s sentence: [41] I find that Mr. McKay was the lead player and guiding mind behind the establishment and operation of the stash house located bypolice in Prince Albert on August 18, 2016. I am also satisfied that Mr. McKay’s motivation for his involvement in this operation wasentirely commercial. There is no other reasonable inference that can be drawn from the whole of the evidence.

Simply put, he was in it forthe money. [42] In R v Aden, 2015 SKCA 59, 460 Sask R 98 [Aden], which involved a cocaine trafficking operation involving multiple individuals,the Court of Appeal upheld the trial judge’s sentence for Mr. Aden. The trial judge had found him to be a “controlling figure” of theenterprise in question and as such Mr. Aden deserved a greater sentence than his associates. A similar analysis and result can be seen inPalfrey [2014 SKCA 1]. … [59] In terms of parity, Mr.

McKay’s partner and co-accused in these proceedings, Kelsey Bear, pled guilty to each of these same offences,plus additional charges, on June 1, 2018, and was sentenced to a global sentence of 7 years in prison as part of a joint sentencingsubmission. As noted, Ms. Bear was sentenced on the basis of a joint submission recommended by the Crown and defence. In R vMacLeod, 2018 SKCA 1, the Court of Appeal made clear that a sentence given to a co-accused under a joint submission is not evaluatedfor its fitness and is therefore of limited value as a comparator when sentencing another co-accused.

Nonetheless, I am satisfied thatMr. McKay was a “controlling figure” and thus deserves a greater sentence than his associates. See: Aden and Palfrey. [16] In my view, these paragraphs demonstrate an error of law. As a principle, it stands to reason that the leaders of a criminaloperation leave themselves open to potentially harsher sentences than those whose roles in such an operation are not as great.

This Court’sdecisions in R v Palfrey, 2014 SKCA 1, [2014] 4 WWR 643 [Palfrey], and R v Aden, 2015 SKCA 59, 323 CCC (3d) 514, make that plain.But, if a co-accused pleads guilty to an offence and receives a sentence following the sentencing judge’s acceptance of a joint submission,there is no principle of law that says that the co-accused’s sentence is a starting point for the sentences for the ring-leaders of the particularcriminal endeavor. [17]

Section 718.2(

b) of the Criminal Code provides that “a sentence should be similar to sentences imposed on similar offendersfor similar offences committed in similar circumstances”. In Whitehead, Caldwell J.A., for the Court, reviewed the history and rationalefor the parity principle, grounding it in concerns about fairness: [25] As can be seen from the dicta in R v M.(C.A.) [ (SCC), [1996] 1 SCR 500], the principle of parity is usually invokedat the appellate court level in circumstances where there is disparity in the sentences imposed by a sentencing court on co-accused or asbetween similar offenders for similar offences committed in similar circumstances. It is unusual for an offender to argue, as

Mr. Whitehead does in this case, that a sentence is unfit, or that a judge has erred in principle, by reason that the offender’s sentence is thesame or on par with the sentences imposed on co-accused. For this reason, the case law around the principle of parity is often couched interms of the avoidance of disparity, but the principle itself is grounded in fairness. In Clayton C. Ruby, Gerald J.

Chan and Nader R.Hasan, Sentencing, 8th ed (Markham, Ont: LexisNexis, 2012), the authors note: §2.28 The principle of parity has developed to preserve and ensure fairness by avoiding disproportionate sentences among convictedpersons where, essentially, the same facts and circumstances indicate equivalent or like sentences. The rule has been variously articulatedover the years prior to the enactment of

section 718.2(b). In Sentencing (at §2.30), the authors described the principle as a rule “that, to the extent possible, convicted persons must not be left with asense of injustice or grievance as a result of disparate sentences”. [26] Certainly, as a matter of general principle, a sentencing court should seek to avoid imposing disparate sentences for similar offencescommitted by similar offenders in similar circumstances, “but not without considerable qualification”: R v Knife [(1982), (SK KB), 16 Sask R 40 (CA)] at para 11. Given that s. 718.2(

b) uses the words should and similar, the codified principle does notbind a court to impose exactly the same sentence on an accused as was imposed on a co-accused. As the Criminal Code suggests – and ascourts have consistently held – sentencing is an inherently individualized process where the gravity of the offence and the role theoffender played in its commission must be considered alongside the degree of responsibility of the offender, having had regard to theoffender’s unique individual circumstances.

Differences in these considerations may well account for variations in sentence even asbetween co-accused provided the predominant goal of sentence proportionality is achieved. (Italic emphasis in original, underline emphasis added) [18] This is the key – How does one explain the difference between Mr. McKay’s nine-year sentence and Ms. Bear’s seven-yearsentence? The difference could be explained by saying he was the ring-leader and, therefore, he should receive a greater sentence, but todo so makes an assumption that is not warranted in this case because Ms. Bear’s sentence is the product of a joint submission.

Hersentence cannot be understood as having been assessed for the purposes of its fitness. [19] In R v MacLeod, 2018 SKCA 1, [2018] 5 WWR 743 [MacLeod], the Court canvassed the difficulties associated with using ajoint submission as a base or a starting point to establish a fit sentence for a co-accused who had not been sentenced on the basis of a jointsubmission.

The sentencing judge, in that case, had imposed a sentence in line with the sentences imposed by way of a joint submissionwithout considering the principle of proportionality and thereby did not take into account the differences between the degree ofblameworthiness among several offenders in that case.

In finding that this constituted error, Caldwell J.A., for the Court, wrote as follows: [21] … since a joint submission is not directly evaluated for its fitness under the fundamental principle of sentencing, the sentenceimposed on a co-accused under a joint submission loses much of its value as a comparator when it comes to the sentencing of any co-accused who has not entered into a joint submission. [20] In my respectful view, the sentencing judge’s reliance on Ms. Bear’s sentence contravenes the principle that this Courtarticulated in MacLeod. The sentencing judge assumed the joint submission imposed on Ms.

Bear is a proportionate sentence. As a result,he concluded that Mr. McKay merits a more significant sentence because of his greater moral blameworthiness by virtue of his role as thelead player in the offences in question. But as mentioned, therein lies the error. The sentencing judge has used Ms. Bear’s sentence as acomparator, when there has been no independent judicial assessment of its fitness other than that as permitted by such Supreme Courtauthorities as R v Anthony-Cook, 2016 SCC 43, [2016] 2 SCR 204 [Anthony-Cook].

In my view, this constitutes an error in principle. [21] My conclusion in that regard is reinforced because it is not clear how the sentencing judge arrived at a sentence of nine years –without using Ms. Bear’s sentence as the floor. Granted, both Mr. McKay and Ms. Bear were involved in serious crimes but, at the end ofthe day, they were not charged with a criminal organization offence or a conspiracy to commit the crimes in question.

The crimes chargedwere as I have indicated: possession for the purpose of trafficking, possession of proceeds and money laundering. [22] In R v Smith, 2019 SKCA 100 [Smith], the Court confirmed the sentencing range for trafficking in cocaine continues to be 18months to four years.

On behalf of the Court, I reviewed the case law from Saskatchewan trial courts involving sentencing for traffickingin one kilogram or more (see para 42): SentenceCase Drug Factors3 yrs R v Switucka, 2009 SKQB 372, 342 Sask R316 4.2 kg of high-grade cocaine, streetvalued between $166,000 and$301,000 youthful first-time offender with noaddiction, no guilty plea 3 yrs R v Rahimi (18 March 2014) Saskatoon, NJ45/12, facts taken from R v Rahimi, 2015SKCA 85, [2015] 12 WWR 436 3 kg, 1.4 grams and other smalleramounts of cocaine, aiding andabetting trafficking — 18 mosR 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 plea6 yrs R v Beaven, 2013 SKQB 91, 415 Sask R 279[Beaven] (multiple accused) 2 counts: trafficking significantamounts of cocaine (3 yrs) andconspiracy to traffic cocaine (3 yrs) acted as mid-level distributor to streetdealers, related record two other ringleaders (not Mr.

Beaven)received 7 and 5 yrs courier received 3 yrs (as reported in Beavenat 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 Sentence Case Drug Factors [ 23 ] In Smith , I also reviewed the sentences emanating from the Palfrey enterprise: R v Larsen , 2012 SKQB 345 , 404 Sask R 246 (aff’d in Palfrey ); R v Swanson , 2012 SKQB 485 , 408 Sask R 255 (aff’d in Palfrey ); and R v Learning , 2019 SKCA 5 .

Those sentences ranged from 9 years, for trafficking in 30 kilograms of cocaine as a courier (Mr. Learning), to 18 years, for trafficking in excess of 1000 kilograms of cocaine (for Mr. Palfrey as the lead player): see Smith at para 43 . Clearly, Mr. McKay’s situation does not belong in that group of cases. Rather, Mr. McKay’s case fits more easily in the group of cases where R v Beaven , 2013 SKQB 91 , 415 Sask R 279 [ Beaven Sentencing ], figures prominently. [ 24 ] Mr.

Beaven was found to be part of what would be known as Project Avalanche – which, like the offences in question here, took place in Prince Albert. Mr. Beaven was convicted after trial of (

a) one count of trafficking in cocaine contrary to s. 5(1) of the CDSA , for the benefit of a criminal organization of at least five named individuals, contrary to s. 467.12 of the Criminal Code ; and (

b) unlawfully conspiring together with that same group to traffic in cocaine contrary to s. 5(1) of the CDSA and s. 465(1) (

c) of the Criminal Code (see R v Beaven , 2013 SKQB 7 , 411 Sask R 129 [ Beaven - Conviction ]). [ 25 ] The factual background to Project Avalanche is described in Beaven-Conviction : [3] The evidence entered by the Crown at trial stems from an intensive joint force operation between the Royal Canadian Mounted Police (“RCMP”) and the Prince Albert Police Service (“PAPS”) titled Project Avalanche. Through obtaining two

Part VI authorizations under the Criminal Code R.S.C. 1985, c. C-46 , on May 23, 2007 and July 19, 2007 (the “wiretaps”) and related authorizations to covertly enter and search premises, along with physical surveillance, the police were able to identify persons who were involved in trafficking cocaine and cannabis marihuana. Project Avalanche culminated in search warrants being executed for the residences of Trevor Anderson (“Anderson”) and John Earby (“Earby”) on August 28, 2007.

Seizures at Trevor Anderson’s acreage north of Prince Albert, Saskatchewan, included a quantity of cannabis marihuana, cocaine packaged in an individual sized potato chip bag and cash proceeds in excess of $70,000.

The police observed numerous baking sheets in Trevor Anderson’s kitchen. … [6] From the admissions at trial, along with the wiretaps and the surveillance, the Crown has proven an elaborate scheme directed by Anderson where he obtained shipments of cocaine from out of Saskatchewan, added other product to it to increase the amount of substance (referred to as “buffing”), and stored the cocaine at Earby’s residence. Anderson and Earby divided the buffed cocaine into one ounce portions, and placed one ounce in a plastic bag inside an individual sized potato chip bag.

These potato chip bags were then provided to others, including Evan Richards (“Richards”), for sale. As explained by the expert, Sgt. Keith Dalton, one ounce of cocaine could be divided into one-half gram or one gram portions, such that one ounce could supply twenty-eight to fifty-six street users. [ 26 ] Mr. Beaven conceded at trial that he had been trafficking in cocaine, but he argued that he had never been involved in a criminal organization.

The issue at trial was to determine whether the Crown had proven the aggravating features of the offences against him, notably the criminal organization and conspiracy aspects of the case. Justice Rothery ultimately found the Crown had proven those aggravating aspects beyond a reasonable doubt and convicted him accordingly. [ 27 ] In Beaven Sentencing , Rothery J. described Mr. Beaven’s specific involvement in Project Avalanche: [4] As a starting point, it is important to summarize the factual background for Beaven’s conviction, which has been chronicled in the judgment cited at 2013 SKQB 7 .

Beaven was part of a criminal organization, directed by Trevor Anderson (“Anderson”), where cocaine was brought into Saskatchewan, to the Prince Albert area, other product added to it to increase the amount of substance, and distributed by concealing one ounce packages in individual sized potato chip bags. Beaven was one of the distributors of the one ounce packages of cocaine to sellers on the street.

One ounce of cocaine can be divided into one gram or one-half gram portions, to supply twenty-eight to fifty-six street users. [5] Beaven was a trusted associate of Anderson, and even when he decided to discontinue distributing cocaine in late July, 2007, for a period of no more than one month, Beaven ensured that he had additional sellers working for him. He was distributing up to four ounces of cocaine per night. Beaven and Anderson were such close associates that Anderson suggested that he keep track of Beaven’s commissions while Beaven took a hiatus from trafficking cocaine.

Anderson also counselled Beaven on being careful and discreet with his personal use of cocaine as other criminal associates had observed Beaven’s cocaine usage. [6] Beaven’s involvement in Anderson’s criminal organization was summarized in the pre-sentence report at page 5: Tanner said he obtained the drugs “already packed” from Trevor [Anderson] and then he would pass them on to others to sell. To get an understanding of how he benefited from his drug dealing he revealed, for example: for every $100.00 he sold he received 10%, and used some of his profit to finance his own drug addiction.

He said he was using drugs (smoking crack cocaine) regularly but more so weekends. He admits he sold daily and sold large amounts. [7] As found on the facts, Beaven sold a one-ounce package of cocaine in the potato chip bag for $2000. From a daily sale of four one- ounce packages of cocaine, Beaven’s commission would be $800, based on his disclosure to the author of the pre-sentence report. [ 28 ] Justice Rothery detailed the sentences imposed on the members of Project Avalanche, which ranged from three to seven years,

with the ring leader, Mr. Anderson, receiving the highest sentence of seven years: [20] Anderson, the leader of the criminal organization, received a sentence of seven years imprisonment. John Earby, who was primarily a courier, pled guilty some years ago, and received a sentence of three years imprisonment. Jason Ingram, who was also closely associated with Anderson in this criminal endeavour, pled guilty to the same charges and received a sentence of five years. [21] Therefore, considering all the principles of sentencing, including parity among offenders, I find that a period of incarceration of six years is appropriate for Beaven, and order accordingly. [22]

Section 467.14 of the Criminal Code requires that a sentence under s. 467.12 must be served consecutively to any other sentence imposed. Beaven shall be sentenced to three years for the conspiracy charge, being count 2 in the indictment. Beaven shall be sentenced to three years for the criminal organization charge, being count 1 in the indictment, which shall be served consecutively to the sentence for conspiracy to traffic cocaine. [ 29 ] Clearly, proportionality is the fundamental principle of sentencing ( s. 718.1 of the Criminal Code ), whereas parity among offenders who have committed similar offences is a secondary sentencing principle ( s. 718.2 (

b) of the Criminal Code ). Nonetheless, a comparison between Mr. McKay and the principals in Project Avalanche raises a question about whether his nine-year sentence would be proportionate to the gravity of his offence, which supports my conclusion that the sentencing judge did indeed use Ms. Bear’s sentence as a starting point. [ 30 ] Having regard in particular for paragraph 23 of the Sentencing Decision , I recognize the gravity of Mr. McKay’s offences. He (and Ms.

Bear) were part of a highly-sophisticated drug operation designed for the commercial distribution of over 11 kilograms of pure cocaine, which could be prepared, cut and repackaged in ways leading to a value of between $780,000 and $1.5 million, depending on how it was sold. The sentencing judge drew the inference that Mr. McKay had been drug trafficking at some level at least throughout 2016. As evidenced by the community impact statements, northern Saskatchewan communities are deeply and tragically affected by Mr. McKay’s and Ms. Bear’s offences.

Further, they were dealing in a hard drug expected and understood to merit a significant penitentiary sentence. As an additional aggravating factor, it appeared that Mr. McKay had at least attempted to traffic in cocaine via his cell phone after his arrest. [ 31 ] While these are the aggravating circumstances, it must be noted that the contours of this particular series of offences do not involve aspects of drug offending that usually add to the gravity of such offences, notably guns and intimidation.

The sentencing judge found there was “no evidence of weapons being involved in this particular drug operation and little evidence of violence either in enforcing debts or in dealing with rival suppliers both of which are unfortunate but common features in drug trafficking operations” (at para 55). Further, on this point, as Crown counsel at trial indicated, Mr. McKay has a record, but it is clearly not as significant as some. [ 32 ] As well, there are mitigating factors. First, Mr. McKay pled guilty. He was arrested on December 13, 2016. The information that finally settled on the charges against Mr.

McKay was sworn February 24, 2017, and he pled guilty on October 23, 2017 (at what appears to have been the earliest opportunity, given the complexity of the police operation). As mentioned, he executed the Agreed Statement of Fact in March of 2018, which admits a substantial part of the aggravated nature of the offences against him. It saved the administration of justice considerable time. Second, Mr. McKay acknowledged the harm he had caused and was found to be genuinely remorseful for what he had done.

Third, there are significant Gladue factors, which the sentencing judge summarized: [48] The author of the Gladue report summarized the following circumstances as being relevant in sentencing Mr. McKay (page 10): • Parents split up when Trevor was a baby. • Significant addictions and alcohol abuse on both sides of his family. • Significant physical abuse by grandparents and mom’s partners. • Transient life, attended several different schools. • Mother’s many partners where abusive and alcoholics/addicts.

Trevor was exposed to and suffered abuse alongside his mother when he was in her care. • Serious quad accident that resulted in year-long hospital stay for Trevor. • Parent, parent’s partner and grandparent were all known drug dealers. • Loss of his paternal grandmother. • Father murdered as a result of a drug deal gone bad (beaten to death outside a bar). • Sister Larissa died due to brain aneurism in her 20’s. • (Step mother) died from drug related issues.

She had HIV/aids, Hepatitis C and was severely addicted to needles and crack – Trevor witnessed her having sex to get drugs. • Relationship breakdown with mother of two children ages three and five. • Relationship breakdown with mother of one child age three. • Quit good job at the mine due to stress. • Got involved with the wrong people and started selling drugs.

[ 33 ] The over-representation of Indigenous offenders in prison populations remains a significant problem in this jurisdiction. In a series of decisions – notably Chanalquay , R v Slippery , 2015 SKCA 149 , 472 Sask R 181, and Whitehead – this Court has attempted to give full effect to Gladue and Ipeelee and to Parliament’s direction in s. 718.2 (

e) of the Criminal Code that “all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders”. [ 34 ] In Whitehead , this Court confronted the issue of how to give effect to restorative justice principles when an offender is facing a penitentiary sentence as opposed to a provincial sentence or a sentence in the community. Justice Caldwell concluded that s. 718.2 (

e) is not a direction that is confined to finding a restorative sentence for an Indigenous offender who is facing provincial or community sentences only. It is a principle that arises every time an Indigenous offender is sentenced. In each case, an analysis must be undertaken to determine whether the offender’s unique circumstances had a bearing on the question of moral blameworthiness. As Caldwell J.A. indicated, “The failure to undertake this examination is an error of principle” (at para 49). In some cases, it may be appropriate to acknowledge s. 718.2 (

e) through the term of imprisonment imposed on the offender ( Chanalquay at para 54 and Whitehead at paras 2, 56, 84 and 85 ). [ 35 ] In this appeal, it is clear that Mr. McKay’s circumstances had a bearing on his culpability for his offences. Indeed, the sentencing judge found as much: [52] As I have already noted, any proportional sentence for Mr.

McKay will involve a lengthy period of incarceration in light of his intentional involvement in a highly serious drug trafficking operation and the negative impact his actions will have had on many people in northern Saskatchewan, as well as the communities in which they live. However, I am satisfied that Mr. McKay is an Aboriginal offender and that Gladue factors have been operative in his life . His relatives attended residential schools. His childhood was characterized by dysfunction, alcohol and drug abuse, housing insecurity and loss of culture.

Of particular significance, drug use by his parents was a common experience during his youth and his father both taught him the drug trade and normalized the sale of drugs as a source of income. While Mr. McKay’s drug trafficking activities dwarfed the kind of street-level drug dealing that his father was engaged in, the connection between his experience as an Aboriginal youth and his current offences is obvious . While there need not be a causal link before a judge may take Gladue factors into consideration in sentencing, in Mr.

McKay’s case the connection is hard to miss . (Emphasis added) [ 36 ] While the sentencing judge made this finding, it is not so clear as to how he actualized this principle in arriving at a sentence of nine years. A sentence of nine years is the longest reported sentence dealing with trafficking of cocaine that did not involve some form of importation of the drug, firearms or some other aggravating feature.

That, of course, is not the error that I have focussed on; rather, it supports my conclusion that the error in principle previously identified – using a joint submission sentence as a starting point – did indeed occur and that it had an impact on the sentence. [ 37 ] I have reached this conclusion fully understanding that the sentencing judge was also the judge who accepted the joint sentencing submission that led to Ms. Bear being sentenced for seven years. Clearly, he would have greater insights into Ms. Bear’s offending and Mr.

McKay’s offending than this Court would have and, on that record and on those reasons, would be better able to draw a meaningful comparison between the sentences of Mr. McKay and Ms. Bear. [ 38 ] On the court record before us, however, this is what we know about Ms. Bear. From the transcript, it can be gleaned that Mr. McKay and Ms. Bear were in a long-term relationship and that they “were living a very nice lifestyle”, including each having purchased or presently owning luxury vehicles. The Crown asked the Court to draw the inference that Ms. Bear was one step below Mr.

McKay in the drug operation and that they were using the same bank account only for the purpose of laundering proceeds. From the Sentencing Decision , we know she pled guilty to the same charges as Mr. McKay, “plus additional charges” (at para 59) – the nature of which are not explained. [ 39 ] But it is not in the relative comparison between the circumstances of Mr. McKay’s and Ms. Bear’s offending and circumstances where I find error. It is in the use of Ms. Bear’s sentence as a starting point comparator from which Mr. McKay’s sentencing proceeded.

As the Court in Anthony-Cook held, trial judges do not assess joint submissions on a fitness basis (see para 46), but rather they are directed to exhibit restraint “rejecting joint submissions only where the proposed sentence would be viewed by reasonable and informed persons as a breakdown in the proper functioning of the justice system” (at para 42). All that can be known with certainty about the fitness of Ms.

Bear’s seven-year sentence is that there was no basis for the sentencing judge, after conducting the public interest inquiry referred to in Anthony-Cook , to reject it. [ 40 ] In short, the weighing of the aggravating and mitigating factors associated with Mr. McKay’s offending, including the Gladue factors, against the backdrop of sentencing for cocaine trafficking in this province, serves to confirm the error that Mr. McKay has identified did in fact occur. B.

Fit Sentence in this Case [ 41 ] In the face of a demonstrably unfit sentence, or one that is the product of an error in principle that has had an impact on the sentence, this Court is required to sentence afresh: R v Lacasse , 2015 SCC 64 at paras 41 and 44 , [2015] 3 SCR 1089, and R v L.V. , 2016 SKCA 74 at para 74 , [2017] 1 WWR 439. I have found that an error in principle occurred and that it did have an impact on Mr. McKay’s sentence thereby justifying this Court sentencing afresh. [ 42 ] Mr.

McKay requests that his sentence appeal be granted and that his sentence be varied to what he submits is a fit sentence for him in this case – seven years. Having regard for the assessment of the gravity of the offence and the degree of his responsibility that I have undertaken in the previous section, I find this to be a fit sentence. C. Victim Surcharges

[ 43 ] In compliance with the prevailing legislation ( s. 737 of the Criminal Code ), the sentencing judge ordered Mr. McKay to pay victim surcharges in the total amount of $600. Following R v Boudreault , 2018 SCC 58 , 429 DLR (4th) 583, victim surcharges may no longer be levied at sentencing, and those surcharges that have already been levied may be set aside where offenders, subject to the surcharge, still have an avenue of appeal open to them. Therefore, the victim surcharge is set aside. V.

Conclusion [ 44 ] The appeal is allowed to the extent that the nine-year sentence is set aside, and a seven-year sentence is imposed in its place. The sentencing judge granted Mr. McKay a 978 day credit for 650 days spent in pre-sentence custody. That credit remains in place. The victim surcharge order is set aside. All other ancillary orders remain. “Jackson J.A.” Jackson J.A. I concur. “Barrington-Foote J.A.” Barrington-Foote J.A. I concur. “Kalmakoff J.A.” Kalmakoff J.A.