R v Williams, 2020 SKCA 108

Court of Appeal for Saskatchewan Docket: CACR3344 Citation: R v Williams , 2020 SKCA 108 Date: 2020-09-09 Between: Roy Maxwell King Williams Appellant And Her Majesty the Queen as represented by The Director of Public Prosecutions Respondent Before: Whitmore, Schwann, and Barrington-Foote JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Madam Justice Schwann In concurrence: The Honourable Mr. Justice Whitmore The Honourable Mr.

Justice Barrington-Foote On appeal from: Provincial Court, Swift Current Appeal heard: July 9, 2020 Counsel: Adrian McBride for the Appellant Wade McBride, Q.C., for the Respondent Schwann J.A. I. Introduction [ 1 ] Roy Maxwell King Williams pleaded guilty to one count of possession of a

Schedule I substance (methamphetamine) for purposes of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act , SC 1996, c 19 [ CDSA ], and one count of breach of recognizance contrary to s. 145(3) of the Criminal Code . [ 2 ] Mr. Williams was sentenced to three years imprisonment less 108 days credit for time spent in pre-sentence custody. On appeal to this Court, Mr. Williams submits the sentencing judge erred by failing to hold a sentencing hearing as required by s. 724(3) of the Criminal Code to resolve conflicting facts pertinent to his role in the drug offence.

This fundamental error, he argues, led the sentencing judge to make three findings of fact not grounded in the evidence that, taken together, had an impact on the sentence he imposed. [ 3 ] For the reasons expressed below, I would grant leave to appeal, allow the appeal and impose a sentence of two years. II. Background [ 4 ] Mr. Williams was the passenger in a vehicle that was pulled over by the police. The police officers who searched the vehicle found 26.55 grams of methamphetamine and several cell phones. Mr.

Williams was charged with possession of methamphetamine for the purposes of trafficking contrary to s. 5(2) of the CDSA . [ 5 ] Mr. Williams tendered a guilty plea on June 24, 2019. In the course of the plea comprehension inquiry, the Provincial Court judge who took his plea specifically asked the following of Mr. Williams: “And you possessed that methamphetamine for the purpose of selling it to other people, or of giving it, or in other words --”. Mr. Williams responded to that query by stating, “Distributing it, yes. Yes”. In the pre-sentence report, Mr. Williams is said to have denied trafficking in the drug.

He then applied to expunge his guilty plea; but, after changing legal counsel, he abandoned that application. [ 6 ] Sentencing proceeded before a different judge [sentencing judge] on September 18, 2019. Crown counsel read into the record extracts from Mr. Williams’s warned statement in which, the Crown asserted, he had admitted to an intention to distribute the methamphetamine locally. The Crown drew specific attention to the following excerpt from that statement: The bag that I had getting out of the car I had acquired outside of Avi’s (phonetic) house.

I took a walk earlier, prior to getting into the car with Avi. I know there was some illicit drugs in the bag, that sort of thing. The purpose to have the bag was to distribute the drugs. Let’s not beat around the bush. I’m responsible for distributing the containers that were there. The fourth package is not cocaine, it is meth as well. It was remnants of an ounce package just put into a corner and tied off. It is 100 percent meth, and whatever is put into it. He does not buff his product. [ 7 ] Based on this admission, the Crown asserted Mr.

Williams was a mid-level drug dealer: “The accused has admitted he got the drugs to distribute. They were paid for, and he is -- as a distributor, he would be in the mid-level of the drug trafficking world”. [ 8 ] Emphasizing denunciation and deterrence, and taking into account Mr. Williams’s criminal record, the Crown sought a sentence of between three and four years of incarceration. [ 9 ] In contrast to Crown counsel’s assertion, defence counsel characterized Mr. Williams’s role differently. He emphasized that Mr. Williams was not selling the drugs for profit and went on to explain his role in this way:

Essentially, what had happened is he and two of his colleagues would pool their money together; they would purchase this. And that’swhy he took -- he took some umbrage when [the judge] asked him in the time of the sentencing whether he accepted as an element of theoffence trafficking. His response was “distributing.” And in his mind that was separate. … But the point of that, Your Honour, is we’re not dealing with a -- a for profit drug trafficker. We’re not dealing with someone who’s highon the -- on the chain of command here.

We’re dealing with someone for economics, or the economy of scale purposes, would purchase inthe manner that he did. And when you look at the amounts, Your Honour, they’re not particularly significant. So the suggestion that thisshould attract a penitentiary term of three to four years, I -- with the greatest of respect to my learned friend -- am not able to accede to that. [10] In spite of the conflicting positions taken by Crown and defence about Mr. Williams’s role, the sentencing judge did notconduct a sentencing hearing. The sentencing judge delivered an oral decision on November 18, 2019.

He began by stating thatdenunciation and general and specific deterrence are paramount considerations “particularly where the trafficking is for profit and acommercial enterprise”. In terms of the facts, he stated as follows: The facts that are involved here is that Mr. Williams admits to the facts that he had $2,700 worth of methamphetamine and he had it forthe purpose of distribution. From this, I understand, is that he is not selling it per se to users but providing it to others who will sell it tousers.

While there is -- there is not a specific breakdown of the way meth is sold, the Court repeatedly hears that meth is sold by the pointfor $10. The amount of drugs that Mr. Williams was found transporting would be about 270 doses. That is significant in how many timesa person or persons would be damaged by those doses. [11] The sentencing judge appeared to understand that the parties took different positions on the facts: “The Crown argues this putsMr. Williams into the mid-level role of the drug industry.

The defence argues that the amount [is] really a joint venture between threepeople who pooled their money to buy the meth”. [12] In spite of the different way the parties had characterized what Mr. Williams did, and his role vis-à-vis the drugs, thesentencing judge nonetheless found him to be a mid-level drug dealer and that the offence was motivated by profit. On this point, he saidas follows: Being addicted to drugs himself, he was fully aware of the harm that drugs have on people, including youth and the resulting damage totheir lives. The offence is -- is motivated by profit.

Meth drug use and trafficking is a significant problem in Swift Current and Saskatchewangenerally. There is not a court docket that does not involve a drug-related offence, in particular, the use of meth. Mr. Williams’s lack ofinsight has lack -- lacks insight into this offence. The pre-sentence report indicates he minimizes his responsibility for his offence andbelieves that he does not need addiction counselling. … With the facts that Mr.

Williams is distributing methamphetamine and his criminal record, the goals of denunciation and deterrence apply. (Emphasis added) [13] After referring to this Court’s decision in R v Pankewich, 2002 SKCA 7, [2002] 4 WWR 648 [Pankewich], the sentencingjudge identified the range for trafficking in hard drugs to be 18 months to 4 years of incarceration. Adopting the language in R vLichtenwald, 2018 SKQB 174 [Lichtenwald], he said deterrence is paramount where trafficking is for profit because it is simply a “riskcalculation”.

He then canvassed the following sentencing jurisprudence – R v Goy (1993), (SK CA), 105 Sask R 131(CA) [Goy]; R v Patryluk, 2002 SKCA 33, 217 Sask R 309 [Patryluk]; R v Bear, 2016 SKCA 140 [Bear]; and R v Bellerose, 2019 SKPC13 [Bellerose] – and sentenced Mr. Williams to 3 years of incarceration on the CDSA offence and 1 day concurrent for the breach. After108 days credit for pre-sentence time, the global sentence imposed on Mr. Williams was 2 years and 257 days. [14] Mr. Williams appeals from the sentence imposed. III. Analysis A. Was there an error in principle? [15] Mr.

Williams asserts the sentencing judge erred in three respects. First, he argues the sentencing judge erred in failing to hold asentencing hearing on a crucial contested matter that the Crown relied upon as an aggravating fact. Second, Mr. Williams says thesentencing judge improperly relied upon an unproven aggravating circumstance to impose sentence. Third, relying on that finding,Mr. Williams argues the sentencing judge improperly found as fact that the drugs could reach 270 people and that the offence wasmotivated by profit.

I will deal with each argument in turn. [16] Where an accused is found guilty – either following trial or after a guilty plea – it falls to the sentencing judge to determine a fitsentence (s. 720 Criminal Code).

Section 723 of the Criminal Code codifies the procedural aspects of a sentencing hearing. Pursuant tos. 723(1), the Crown and defence are given an opportunity to make submissions “with respect to any facts relevant to the sentence to beimposed”. As this Court recently observed in Thomas v Quinlan 2020 SKCA 82 [Thomas], while “sentencing judges are entitled to acceptnon-contentious facts” put to the court in sentencing submissions, “factual assertions made by counsel during the course of sentencing arenot evidence” (emphasis in original, at para 81).

Thomas cited R v Pahl, 2016 BCCA 234, 336 CCC (3d) 221, which stated the followingsentencing hearing propositions: [55] Counsel’s podium is not the equivalent of the witness box. In speaking to sentence counsel make submissions, they do not give“evidence”: R. v. Cousins (1981), (NL CA), 22 C.R. (3d) 298 at 301 (Nfld. C.A.); R. v. Gobin (1993), (MB CA), 85 C.C.C. (3d) 481 at 484 (Man. C.A.). However, this does not mean that sentencing judges can never accept

information provided through submissions as factually accurate. [56] Sentencing judges routinely accept and act on information counsel provide to them through submissions. I agree with Mr. Pahl that itwould unduly burden the courts to require proof of every factual assertion counsel make at a sentencing hearing. However, it is not open toa judge to accept as fact an assertion made by counsel that is disputed and unsupported by any admissible evidence. Put otherwise, a judgeis entitled to accept a fact advanced solely through submissions only if that fact is non-contentious: R. v.

Asp, 2011 BCCA 433 at para. 34,278 C.C.C. (3d) 391; Cousins at 301. (Emphasis in original) [17] This brings me to aggravating facts.

As pointed out in Clayton Ruby, et. al, Sentencing, 9th ed (Toronto: Lexis Nexis, 2017)(QL) [Ruby], in spite of a more lenient and forgiving approach to matters of evidence taken at the time of sentencing, when it comes toaggravating facts, “the Crown is still required to prove any fact upon which it intends to rely as an aggravating factor for the purpose ofsentencing beyond a reasonable doubt, and the offender is entitled to object to material offered by the Crown” (footnotes omitted, atpara §3.8). [18] In this case, Mr. Williams pled guilty and there were no agreed facts for sentencing purposes.

The Crown must prove anyaggravating facts beyond a reasonable doubt. In R v Gardiner, (SCC), [1982] 2 SCR 368 at 414–415 [Gardiner], theSupreme Court stated the following: It should also be recalled that a plea of guilty, in itself, carries with it an admission of the essential legal ingredients of the offenceadmitted by the plea, and no more. Beyond that any facts relied upon by the Crown in aggravation must be established by the Crown. Ifundisputed, the procedure can be very informal.

If the facts are contested the issue should be resolved by ordinary legal principlesgoverning criminal proceedings including resolving relevant doubt in favour of the offender. Also see R v Malinowski, 2007 SKCA 33, 293 Sask R 172; R v Tomdio-Yiuti, 2010 SKCA 81, 350 Sask R 318; R v Kunicki, 2014 MBCA22, 307 CCC (3d) 233 [Kunicki]; R v T.A.S., 2018 SKQB 143 [T.A.S.]; R v Campbell-Ball, 2019 SKCA 41; and R v Smith, 2019 SKCA100, [2020] 5 WWR 70 [Smith]. [19] Section 724(3) of the Criminal Code codifies the process for resolving contested facts.

It provides as follows: Disputed facts 724(3) Where there is a dispute with respect to any fact that is relevant to the determination of a sentence, (

a) the court shall request that evidence be adduced as to the existence of the fact unless the court is satisfied that sufficient evidence wasadduced at the trial; (

b) the party wishing to rely on a relevant fact, including a fact contained in a presentence report, has the burden of proving it; (

c) either party may cross-examine any witness called by the other party; (

d) subject to paragraph (e), the court must be satisfied on a balance of probabilities of the existence of the disputed fact before relying onit in determining the sentence; and (

e) the prosecutor must establish, by proof beyond a reasonable doubt, the existence of any aggravating fact or any previous conviction bythe offender. [20] With that, I turn to how the sentencing judge dealt with the contested issues. As noted, there was no trial and no agreedstatement of facts for purposes of sentencing. When the parties first appeared before the sentencing judge on September 11, 2019, theCrown was alert to the need to call evidence if the facts were disputed: “we’re not … going to argue today, because if there’s a dispute onthe facts … there will have to be evidence given”.

Sentencing was adjourned one week. When it proceeded, the Crown did not callevidence to establish any aggravating facts; instead, as discussed above, the Crown simply submitted that Mr. Williams was a mid-leveldrug dealer, a point that he vigorously disputed. [21] Respectfully, the positions taken by the Crown and the defence during sentencing are irreconcilable. In my view, thesentencing judge committed an error in principle by not holding an evidentiary hearing as required by s. 724(3)(

a) and further erred inconcluding that Mr. Williams was a mid-level drug dealer without the Crown having proven that fact beyond a reasonable doubt. [22] Mr.

Williams goes on to argue that the failure to hold a sentencing hearing to establish if he was a mid-level drug dealercoloured the sentencing judge’s perception of his role in relation to the drug charge, which in turn drove him to make two additionalfindings of fact that were not grounded in the evidence: that the drugs would be “sold by the point for $10” and that distribution couldpotentially reach 270 people. [23] The only evidence the methamphetamine was to be distributed to others for a profit came from the warned statementMr.

Williams had given to the police in which he said – in a very general way – that he was responsible for distributing the drugs. As tothe value of the drugs that were seized by the police, Crown counsel simply conveyed what the police had told him: the estimated streetvalue of the seized drugs was $2,700, based on a calculation of multiple individual sales at $10 per one tenth of a gram. There were nosubmissions from the Crown about a profit motive. [24] The observations made by the sentencing judge (seen in para 12 above) seem to ignore the other evidence and Mr. Williams’ssubmissions.

The seized drugs were found in three separate containers containing 3.555 grams, 5 grams and 18 grams each. Mr. Williamshad vigorously insisted on a number of occasions that he was a distributor, which he explained as a joint effort whereby he and his friendspooled their money to purchase methamphetamine, as defence counsel put it, “on the economy of scale purposes …”. Furthermore, notonly did defence counsel deny that Mr. Williams was in it for profit, but he made specific submissions about Mr. Williams’s addiction:

He was homeless at times. He has tried in-patient treatment. And I think Mr. Neufeld is absolutely right when he talks about the scourgeof meth, because no one has lived that more than my client, someone who otherwise would likely have had a productive life. He’s hadopportunities, he’s had spouses, he’s had children. He had a lot of things going for him, but -- but he did fall under the influence of theravages of -- of this horrible drug, and -- and that is clear.

So that has to be tailored in on your sentence, Your Honour. [25] Respectfully, the sentencing judge’s acceptance of an unproven, disputed fact as an aggravating circumstance for purposes ofsentencing amounts to an error in principle. This error led to him to make two further findings of fact that were either unsupported by theevidence or hinged on a finding that Mr. Williams was a mid-level dealer. The next question is whether those errors had an impact onsentence. I turn now to that issue. B.

Did the errors have an impact on sentence? [26] It is trite law that an appellate court must afford a measure of deference to sentencing decisions, a principle that was recentlyreiterated by the Supreme Court in R v Friesen, 2020 SCC 9, 444 DLR (4th) 1 [Friesen]. An appellate court may only intervene to varysentence in one of two situations: (

a) the sentence is demonstrably unfit, or (

b) the sentencing judge made an error in principle – whichincludes a failure to consider a relevant factor or erroneously considering an aggravating or mitigating factor – that had an impact onsentence. Also see R v Lacasse, 2015 SCC 64, [2015] 3 SCR 1089 [Lacasse]. [27] Not every error in principle is material. As the Supreme Court confirmed in Friesen, an “appellate court can only intervene if itis apparent from the trial judge’s reasons that the error had an impact on the sentence” (at para 26).

Similarly, as the Court stated inLacasse, “an error in principle, the failure to consider a relevant factor or the erroneous consideration of an aggravating or mitigatingfactor will justify appellate intervention only where it appears from the trial judge’s decision that such an error had an impact on thesentence” (at para 44). [28] Thus, to justify appellate intervention, Mr.

Williams must persuade this Court that the error or errors had an impact on thesentence that was imposed by the sentencing judge. [29] Lacasse describes the phrase impact on sentence in various ways, relying, in large measure, on the approach taken by theQuebec Court of Appeal in R v Gavin, 2009 QCCA 1 [Gavin], and R v Sidhu, 2009 QCCA 2441 [Sidhu], specifically endorsing thefollowing passage from Gavin: “unless the Court finds that the sentence imposed was harsher because of [the alleged error] … this error inprinciple had no real effect on the sentence” (at para 35).

Adopting the language in Sidhu, the Court in Lacasse also observed as follows: [46] The Quebec Court of Appeal also adopted this reasoning in R. v. Sidhu, 2009 QCCA 2441. As in Gavin, the trial judge hadconsidered lack of remorse as an aggravating factor (para. 23 ), but the Court of Appeal found that this error was notdeterminative and had had no effect on the sentence (para. 24). Since the sentence the judge imposed would not have been different hadthere been no mistake in that respect (para. 26), the error was not reviewable (para. 55).

Thus, rather than simply substituting its opinionfor that of the trial judge because he had made an error in principle, the Court of Appeal limited itself to considering whether,independently of that error, the sentence was unreasonable or demonstrably unfit.

On finding that that was not the case, it decided not tointervene (para. 55). [30] A helpful analysis of the concept of impact on sentence can be found in R v Agin, 2018 BCCA 133 at paras 49–53, 361 CCC(3d) 258 [Agin], where the Court of Appeal for British Columbia reviewed the various ways in which the phrase impact on sentence hasbeen applied in that province. In the end, that Court settled on the following formulation: [52] In our view, the question is whether the error was material in that it had an impact on the sentence imposed and the sentence wouldhave been different had there been no error.

In other words, did the error impact the judge’s analysis in imposing the sentence: R. v.Eakins, 2016 BCCA 194, at para. 21.

This accords with the rationale, outlined at para. 43 of Lacasse, that requiring an impact aims toprevent appellate courts from intervening where an error cannot be said to have impacted the sentence, as to do so would undermine thedeference owed to sentencing judges as well as public policy goals animating appellate review, including finality. [53] We note that finding that an error had an impact on sentence at this stage of the analysis means only that appellate intervention isjustified, and not that the sentence should be necessarily varied. [31] Some examples from this jurisdiction of where an error was found to have had an impact on sentence include the following: Case ParticularsR v L.V., 2016 SKCA 74, 2016 SKCA 74 , [2017] 1WWR 439 [L.V.] • a mischaracterization of the offence and thesignificance of what the offender had done (at para 74) R v McLean, 2016 SKCA 93, [2017]3 WWR 498 • improperly conflating the consecutive–concurrentanalysis and the totality analysis (at para 57)R v Wilton, 2016 SKCA 131 • improperly accounting for statutory release fordetermining sentence length (at paras 55–58)R v Delorme, 2017 SKCA 3 • failure to correctly apply Gladue factors in thesentencing analysis (at paras 72–82)R v Noname, 2017 SKCA 22 • a mischaracterization of the offence and thesignificance of what the offender had done (at para 72) R v MacLeod, 2018 SKCA 1, 2018 SKCA 1 , [2018] 5WWR 743 • over-emphasis on parity with co-accused indifferent circumstances (at paras 34–35) R v Johnson, 2018 SKCA 28, 2018 SKCA 28 , [2018] 6WWR 725 • improperly conflating the consecutive–concurrentanalysis and the totality analysis (at para 70)

R v Chicoine, 2019 SKCA 104, 2019 SKCA 104 , 381CCC (3d) 43 • a misapprehension of the gravity of the crime (atparas 99–101) R v McKay, 2019 SKCA 129 • using a joint submission that was the product of ajoint submission as a base or starting point to establish afit sentence for a co-accused (at para 20)R v J.P., 2020 SKCA 52, 2020 SKCA 52 , 62 CR(7th) 328 • failure to apply Gladue factors (at para 74) [32] Decisions where appellate courts have found no impact on sentence include R v Mathur, 2017 ONCA 403, where there hadbeen a failure to consider a secondary factor, R v Rockey, 2016 ONCA 891 at paras 31 and 33, 3 MVR (7th) 1, where there had been afailure to consider a lack of remorse, and R v C.J.S., 2017 BCCA 87, 352 CCC (3d) 76. [33] Returning to the matter under appeal, I am persuaded that the error identified above had a direct bearing on the sentenceimposed on Mr.

Williams. It is apparent from his reasons that the sentencing judge had classified Mr. Williams as a mid-level distributerfor profit and had used those findings as aggravating facts for purposes of sentencing. The following extracts from the oral reasons,considered in light of counsel’s submissions on sentence, support this conclusion: (a) “Where trafficking is for profit and commercial enterprise, deterrence is … aptly remarked by … Lichtenwald … ‘Allbusiness people, either consciously or unconsciously engage in a risk–reward analysis. For drug traffickers, it is the same.

Is the risk ofprison time worth the reward of tax-free sales”. (b) “The facts … he had it for the purpose of distribution. From this, I understand, is that he is not selling it per se to users butproviding it to others who will sell it to users. While there is -- there is not a specific breakdown of the way meth is sold, the Courtrepeatedly hears that meth is sold by the point for $10”. (c) “The amount of drugs that Mr. Williams was found transporting would be about 270 doses.

That is significant in how manytimes a person or persons would be damaged by those doses”. (d) “Being addicted to drugs himself, he was fully aware of the harm drugs have on people, including youth and the resultingdamage to their lives”. (e) “In order to bring home the fact that there’s a cost benefit in relation to criminal activity … there comes a point that the cashbenefits simply do not outweigh the time that one is going to serve in prison for such offences”. (f) “Bellerose … is also very similar to Mr. Williams. Being a mid-level dealer as is Mr. Williams”. (g) “A significant factor is Mr.

Williams’s record and the fact that he is transporting the drugs to enable others to sell them”. [34] In my view, acceptance of the mid-level dealer narrative permeated the entirety of the sentencing judge’s reasoning, beginningwith the statement that Mr. Williams was “trafficking for profit and a commercial enterprise”. While the sentencing judge went on to findthat Mr.

Williams was “not selling it per se to users but providing it to others who will sell it to users”, he made clear findings that the totalamount of drugs equated to “about 270 doses”, that the offence was “motivated by profit” and, most importantly, that Mr. Williams was amid-level drug dealer. The frequency with which mid-level dealing or analogous statements appear in the decision makes it almostimpossible for the sentence not to have been impacted by this error. [35] This conclusion is supported by the jurisprudence relied upon by the sentencing judge.

Although he recognized decisions suchas Goy, Patryluk and Pankewich as having established a sentencing range of 18 months to 4 years for sentences for trafficking in harddrugs, the sentencing judge seems to have fastened on Bellerose in particular. In 2017, Ms. Bellerose was found in possession of 39 gramsof crystal methamphetamine, baggies, multiple cell phones, cash and shotgun shells. The Crown tendered an expert report concerning thestreet value of the drugs and the types of people who traffic in drugs. Ms.

Bellerose admitted she possessed crystal methamphetamine forpurposes of trafficking, which the court found made her a mid-level dealer: “The Crown suggests and I accept that Ms. Bellerose is what isknown as a mid-level trafficker …” (at para 11). The Crown had asked for 33 months of imprisonment, but the judge chose to impose asentence of 27 months, less time for enhanced pre-sentence credit because of the presence of Gladue factors and Ms. Bellerose’s effortstoward rehabilitation. Although Ms.

Bellerose had a limited criminal record, the fact she was found to be a mid-level trafficker in crystalmethamphetamine, who had sold the drug for profit, were significant factors in relation to sentence. [36] There are several factual and procedural differences between Ms. Bellerose and Mr. Williams, but the within sentence is greaterthan that in Bellerose. This difference is based (it would seem) on Mr. Williams’s criminal record, which the sentencing judge found to bemore extensive than Ms. Bellerose’s record. However, a more extensive criminal record does not, on its own, account for the elevation ofMr.

Williams’s sentence unless the sentencing judge also classified him as a mid-level dealer who sold drugs for a profit. As discussedbelow, it is rare for an offender to receive a sentence under s. 5(2) of the CDSA of more than two years without classification as a mid-level dealer (or an analogous finding). [37] The Crown argues that even if there was an error in principle, the error did not have an impact on the sentence imposed onMr. Williams because it was not demonstrably unfit. I would not give effect to this argument.

As noted above, an appellate court mayintervene and substitute its own sentence in one of two situations: “The first is when the sentence imposed by the trial level court isdemonstrably unfit. The second is when the trial level court made an error in principle, failed to consider a relevant factor, or gaveerroneous consideration to an aggravating or mitigating factor and that error had an impact on the sentence” (L.V. at para 74).

However, asL.V. went on to discuss, it is not the law that appellate intervention is only warranted if the sentence is demonstrably unfit (see para 75). [38] Similarly, in Agin, the Court of Appeal for British Columbia reassessed its prior sentencing jurisprudence by examining theimpact of the error as separate and distinct from any consideration of sentence fitness: “The framework for appellate intervention on asentence appeal is disjunctive, in that a sentence need not be demonstrably unfit to warrant appellate review where there is an error that

impacts the sentence” (at para 48). [39] In conclusion, I find the sentencing judge erred in principle in finding that Mr. Williams was a mid-level drug dealer who soldmethamphetamine for profit – both aggravating facts for purposes of sentencing – without making a finding of fact in that regard followinga sentencing hearing. This finding caused him to make further findings of fact that were not based on the evidence before him, all of whichimpacted the three-year sentence he imposed on Mr. Williams. C. What is an appropriate sentence for Mr.

Williams? [40] Having found an error in principle that had an impact on the sentence imposed, it falls to this Court to sentence afresh: seeLacasse at paras 42 and 44 and L.V. at para 74. [41] There is authority for the proposition that when the facts related to sentence are disputed, absent evidence from the Crown toestablish a more aggravating circumstance, “then the accused’s version is to be accepted, unless there is some manifest reason why thatinterpretation is contrived or erroneous” (R v Ewanchuk, 2002 ABCA 95 at para 22): see also R v Gobin (1993), (MBCA), 85 CCC (3d) 481 (Man CA) at 482, and T.A.S.

Generally speaking, if the facts are unclear, or, as in this case, unresolved, anappellate court is to impose a sentence based on a factual understanding that is “most favourable to the offender” (R v Maloney, 2012NSSC 250, 318 NSR (2d) 185 at para 27, citing R v Cardinal, 2007 ABCA 46 at para 8, 404 AR 3 [Cardinal]). Also see Ruby at §3.129.

Iaccept this statement of the law. [42] Turning to the sentencing jurisprudence regarding the offender’s role in the drug offence, this Court has recognized thattrafficking under s. 5(2) of the CDSA can encompass varying forms of offender behaviour and degrees of involvement.

While rejectingspecialized ranges for specific types of traffickers or types of activity, Jackson J.A. in Smith commented on the importance of properlyclassifying the behaviour of an individual charged with trafficking: [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 anindividual is more deeply implicated in the drug trade.

The lines demarking these various categories are not always clear or specified inthe authorities, but it stands to reason that the more significant a person’s involvement in criminal activity, the greater the likelihood of amore significant sentence.

The converse is also true for those less criminally implicated. [43] By way of illustration, in R v Kamara, 2020 SKCA 76, Richards C.J.S. noted that a sentence of 46 months of incarceration wasappropriate in that case because the sentencing judge had found the offender to be a mid-level dealer who was “motivated only by money”and who had “supplied street-level dealers” (at para 59). At the other end of the spectrum, Jackson J.A. concluded a 12-month sentencewas not demonstrably unfit in R v Bissky, 2018 SKCA 102, 369 CCC (3d) 315 [Bissky], “[h]aving regard for the trial judge’s finding thatMr.

Bissky is not a mid-range trafficker …” (emphasis added, at para 102). [44] Given this Court’s jurisprudence, classification of an offender as a mid-level distributor (or equivalent) can be seen as attractinga higher sentence. [45] As Mr. Williams pled guilty to possession for purposes of trafficking, he is taken to have admitted the essential elements of theoffence , but no more. As I interpret the record, Mr.

Williams appears to – initially at least – have taken the view that he did not traffic inthe drug per se because he and two acquaintances had bought the methamphetamine in bulk as an economy in scale type of purchase.Section 2(1)(

a) of the CDSA defines the word traffic to mean “to sell, administer, give, transfer, send or deliver the substance”, with theword give defined to include “sharing with others, including for social purposes, regardless of whether the accused will receive anything inreturn” (R v Kernaz, 2019 SKCA 37 at para 15, 439 DLR (4th) 92). The record reveals that Mr. Williams bought the drugs to distribute totwo others. There is nothing in the record to support the conclusion that the largest of the three containers was destined for Mr.

Williamshimself, nor that the other two individuals involved in the bulk purchase intended to sell the drug to others. I will proceed on that basis. [46] Turning to his personal circumstances, Mr. Williams was 49 years of age at the time of sentencing. He has a grade 8 or 9education. Prior to his arrest, Mr. Williams had eked out a living doing odd jobs yet acquired some skills along the way. By all accounts,he is a decent person who treats people with respect. He was employed at the time of his arrest and his employer, along with several otherindividuals, provided strong letters of support.

The content of these letters, as summarized by the sentencing judge, is that “Mr. Williamsis a kind, respectful, hard-working, intelligent individual. … Many expressed that he had told them about some of his past and theyrecognize his efforts to better himself”. [47] Mr. Williams has struggled with addiction throughout his life and has fallen prey to the ravages of drugs, which has led tohomelessness from time to time. Mr. Williams has tried in-patient treatment.

He urged the sentencing judge to impose a rehabilitative typeof sentence to allow him to continue along that path. [48] With the exception of finding Mr. Williams to be a mid-level drug dealer and that he sold the drugs for profit, I agree with theother aggravating circumstances that were identified by the sentencing judge. Mr. Williams’s criminal record is extensive and, of course, aconcern that cannot be ignored. His record dates back to 1994.

It includes a total of 35 convictions, of which, 5 were drug-related. [49] As to mitigating factors, the sentencing judge properly identified his guilty plea, community support and reputed goodcharacter. The sentencing judge did not, however, refer to Mr. Williams’s addiction problem and consequently it played no role in how hecrafted the sentence.

Failure to refer to his addiction was important because “those who traffic to support their own habit may be morelikely to receive a restorative disposition than those who traffic for other reasons” (R v Pankewich, 2002 SKCA 7 at para 49), [2002] 4WWR 648. [50] On appeal, Mr.

Williams’s counsel indicated that reported decisions matching the circumstances of this offence are sparse.That has proven to be the case; nonetheless, without establishing a hard and fast rule, I find the sentencing jurisprudence for trafficking incocaine provides useful guidance for purposes of considering sentence parity in this case (see R v Figiel, 2015 ABCA 19 at para 5, 588AR 372).

[51] In that vein, I begin with R v Aube, 2009 SKCA 53, 324 Sask R 303 [Aube], which confirms that the personal circumstances ofan accused “while not to be ignored, are secondary considerations to issues of deterrence and denunciation” (at para 19): see also Patrylukat paras 21–23.

Aube, among others, also confirmed the customary sentencing range of 18 months to 4 years for trafficking in hard drugs:see, for example, Smith at para 47; Bissky at para 101; R v Shawile, 2012 SKCA 51 at para 9, 393 Sask R 211; Pankewich at para 37; R vMcIntyre, 2012 SKCA 111 at para 36, 405 Sask R 28; and Goy at para 5. [52] This Court’s decision in Bear is also relevant. Ms. Bear pled guilty to four counts of possession of

Schedule 1 drugs forpurposes of trafficking (hydromorphone (two counts), cocaine and diazepam), and to a possession of proceeds of crime charge. The policehad seized a substantial quantity of hard drugs, syringes and zip lock bags. As this Court observed, the substantial number of syringesspoke to “a prodigious trafficking enterprise” (at para 24). Ms. Bear had a lengthy criminal record, and she received a global sentence ofthree years and six months of incarceration for all charges.

The Crown’s appeal from sentence was allowed, although the error at issuepertained to the sentencing judge’s totality analysis and not with the sentence imposed for each offence. In fact, as this Court said, “Thesentence of three years and six months imposed by the sentencing judge for count 1 was, on this basis, not unfit” (at para 24). Count 1pertained to the possession of hydromorphone for purposes of trafficking charge. [53] In Kamara, the offender had either pleaded guilty or was found guilty after trial on 13 charges, one of which was possession ofcocaine for purposes of trafficking.

His total sentence was 78 months, less 905 days as pre-sentence credit. On the trafficking charge, hereceived a sentence of 42 months of incarceration. On appeal to this Court, Richards C.J.S. concluded as follows: [59] I am not persuaded that Mr. Kamara’s sentence is demonstrably unfit. The sentence for cocaine trafficking was not unreasonablegiven his role in a trafficking operation which, as the trial judge found, saw him acting as a significant player – a mid-level dealer – in anongoing operation.

He was motivated only by money and supplied street-level dealers from a stash house where he cooked the cocaine.The sentence of 42 months was significant but not a substantial and marked departure from the sentences that have been imposed forcocaine trafficking in other broadly similar cases. See, for example: R v Rahimi, 2015 SKCA 85, 327 CCC (3d) 234; R v Bear, 2016SKCA 140. [54] Bellerose, as discussed above, involved trafficking in methamphetamine. Ms. Bellerose, who was found to be a mid-level dealerin it for profit, received a shorter sentence than Mr.

Williams. [55] Another lower court decision involving methamphetamine is R v Khan, 2018 SKPC 11. Mr. Khan was found guilty ofpossession for the purposes of trafficking in cocaine (136 grams) and in methamphetamine (45.8 grams) in what the trial judge describedas a “relatively sophisticated”, commercial, dial-a-dope operation (at para 53). Mr.

Khan had a prior criminal record for drug convictions.On the methamphetamine charge, he was sentenced to a period of 2 years of imprisonment concurrent with the 42 months imposed on thecocaine charge. [56] Decisions from other provinces involving trafficking in methamphetamine offer some guidance. In R v Ruth, 2007 ABCA 34, a20-month sentence was reduced to 16 months. In R v Francis, 2008 BCCA 309, 258 BCAC 80, the accused was charged with two countsof possession for the purposes of trafficking (marijuana and methamphetamine).

Together, the drugs were valued in excess of $40,000.The offender was sentenced to 30 months of incarceration on the methamphetamine count and six months concurrent on the other count.The British Columbia Court of Appeal upheld the sentence. In both of these now somewhat dated decisions, the insidious nature of thisdrug was emphasized by the court. [57] There is also limited jurisprudence with regard to sentences for the so-called social trafficker.

What constitutes socialtrafficking was described in R v Gittens, 2019 ABCA 406, 94 Alta LR (6th) 307, as an unorganized transfer by one addict to another in asocial context or “one-off opportunistic transactions” (at para 36). Generally speaking, sentences imposed on social traffickers – notably insoft drugs – have been more lenient. In this regard, Bruce A. MacFarlane, Robert J.

Frater & Croft Michaelson, Drug Offences in Canada,loose-leaf (Rel 2019-6, December 2019) 4th ed, vol 2 (Toronto: Thomson Reuters, 2019) at 33–29, note the following: The social trafficker, particularly the person who traffics in soft drugs, is likely to receive a more lenient sentence: see, for example, R. v.Yeo (1989), (PE SCAD), 77 Nfld. & P.E.I.R. 349 (P.E.I.C.A.); R. v. Young (1971), (BC CA), 2C.C.C. (2d) 560 (B.C.C.A.); R. v. Rogalsky (1975), (Sask. C.A.); R. v. Fitzpatrick (1996), (NL CA), 140 Nfld. &P.E.I.R. 250 (Nfld. C.A.). In R. v.

MacIvor (2003), 2003 NSCA 60 , 176 C.C.C. (3d) 420 (N.S.C.A.), the court imposed aconditional sentence on a person who shared marihuana with his spouse to relieve her medical conditions, and admitted sharing marihuanawith other friends on a social basis. [58] What, then, is an appropriate sentence for Mr. Williams? In my view, given Mr. Williams’s extensive criminal record,particularly his multiple prior convictions for similar offences, the need to prioritize denunciation and general and specific deterrence, andthe aggravating factors at play, a custodial sentence is clearly warranted in this case.

However, given the mitigating factors,Mr. Williams’s addiction issue, the fact he was not selling drugs for profit, and the amount of drugs involved, a fit sentence for him is 24months of incarceration, less time spent in pre-sentence custody. IV. Conclusion [59] In

summary, I am persuaded the sentencing judge erred in his approach to crafting a fit sentence in the circumstances and thaterror had an impact on sentence. [60] For the reasons given, I would, therefore, grant Mr. Williams leave to appeal against sentence, set aside the lower courtsentence and impose a sentence of 24 months of incarceration, less time spent in pre-sentence custody. The sentencing judge’s ordersremain unchanged in all other respects. “Schwann J.A.” Schwann J.A. I concur. “Whitmore J.A.”

Whitmore J.A. I concur. “Barrington-Foote J.A.” Barrington-Foote J.A.