Jennifer Simpson Rooke

The offender pleaded guilty to cultivating marijuana and theft of electricity.

He voluntarily surrendered into custody prior to sentencing and sought a conditional discharge to avoid deportation under the Immigration and Refugee Protection Act.

The court denied the discharge, finding it would be a custodial sentence in disguise and would improperly circumvent Parliament's intent regarding immigration consequences.

The court also denied enhanced credit for the voluntary pre-sentence custody.

However, applying R. v. Pham, the court imposed a sentence of 5.5 months (less 10 weeks credit) to preserve the offender's right to appeal any inadmissibility finding.

The accused was charged with importing cocaine and possession for the purpose of trafficking after 45 kilograms of cocaine were found in his transport truck at the border.

He brought an application for a stay of proceedings under s. 11(b) of the Charter, arguing that the delay of nearly three years from the time of the charge to the trial was unreasonable.

The court analyzed the periods of delay, attributing some to late disclosure by the Crown and institutional delay, but also noting delay caused by the defence and a co-accused.

The court concluded that the state-attributable delay of 18.5 months did not meaningfully offend the Morin guidelines and was outweighed by the strong public interest in trying a serious offence on its merits.

The application was dismissed.