minicounsel

Court File No.: 13-12907 Date: 2014-06-12 Ontario Court of Justice

Between: Her Majesty the Queen

- and -

Brian Dale Fleming

Before: Justice James Stribopoulos at Brampton

Heard on: January 24, 2014 and May 15, 2014

Reasons for Sentence released on: June 12, 2014

Counsel:

K. Toews for the Crown
K. Jalali for the Accused

I. Introduction

1Brian Fleming pled guilty before me to importing nearly a kilogram of cocaine into Canada, contrary to section 6(1) of the Controlled Drugs and Substances Act. These are my reasons for sentence.

2Although the offence involved is all too common in this jurisdiction, Mr. Fleming's personal circumstances, as an Aboriginal person, are not.

3In deciding on the appropriate sentence for Mr. Fleming I am required to grapple with two lines of authority, which, at least superficially, seem to point in different directions.

4First, there are the decisions of the Court of Appeal that emphasize the very harmful nature of cocaine and characterize its importation as an extremely serious crime. In order to properly address the sentencing objectives of denunciation and (especially) deterrence, these cases provide that, where the amount imported is a kilogram, more or less, a sentence ranging between three and five years imprisonment will ordinarily be appropriate.

5In this case, given that Mr. Fleming is Aboriginal, these decisions must be read in light of Parliament's instruction, found in section 718.2(e) of the Criminal Code, which recognizes restraint as an important principle of sentencing and, in that regard, directs judges to pay "particular attention" to "the circumstances of aboriginal offenders." The Supreme Court has twice explained that statutory direction, providing essential guidance on how section 718.2(e) should be understood, especially when it comes to the sentencing of Aboriginal persons.

6In short, in this case I am required to fashion a sentence that adequately serves the objectives of denunciation and deterrence, given the very serious crime involved, while also properly taking into account Mr. Fleming's circumstances as an Aboriginal person and his prospects for rehabilitation. In the end, the sentence imposed must be proportionate to the gravity of this offence and Mr. Fleming's level of culpability in its commission.

II. Circumstances of the Offence

7On the evening of October 6, 2013, Mr. Fleming, who is a Canadian citizen, arrived at Toronto's Pearson International Airport from Montego Bay, Jamaica aboard a Canjet Flight.

8Following his arrival, Mr. Fleming was referred for secondary inspection. When examination of his baggage commenced, Mr. Fleming admitted to swallowing 136 pellets containing cocaine.

9It was ultimately determined that Mr. Fleming had ingested and imported into Canada 959 grams of cocaine.

10I am told that Mr. Fleming was cooperative throughout his dealings with the authorities. That said, this is not a situation in which Mr. Fleming offered extraordinary assistance to the police, for example by participating in a controlled delivery or otherwise helping to apprehend those who apparently recruited him to serve as a drug courier.

III. Circumstances of the Offender

11In this case, the Court has the benefit of a thorough Pre-Sentence Report, as well as a very comprehensive Gladue Report. Combined, these reports provide critical insight into Mr. Fleming's Aboriginal ancestry, his family history and his difficult personal circumstances.

12Mr. Fleming is an Aboriginal person. He derives his Aboriginality from his mother, who is Cree, originating from the Mistawasis First Nation. The Cree ancestors of the Mistawasis Band migrated to present-day Saskatchewan from the woodlands of eastern Manitoba and the Great Lakes areas of Ontario in the seventeen and eighteenth centuries. Mr. Fleming's mother grew up in Saskatoon before relocating to Toronto. She eventually had four children; Mr. Fleming was her third child.

13Mr. Fleming is forty-eight years old. He was born and raised in Toronto. He has three half-sisters. Unfortunately, Mr. Fleming did not have an easy childhood. Both of his parents were alcoholics. Drunken arguments and violence were an all too common part of his family life as a child. It was Mr. Fleming's mother who was physically abusive towards his father. When Mr. Fleming was six or seven years old, his father finally left his mother.

14For about a year after his father's departure, Mr. Fleming lived with his mother and her intimate partner (as well as his two half-sisters). His mother's new relationship was also marked by much conflict. Mr. Fleming ultimately witnessed his mother being stabbed by her partner. After that, he moved in with his father. (Mr. Fleming's youngest half-sister was eventually taken into care by the Children's Aid Society and ultimately adopted by another family.)

15Over the intervening years, Mr. Fleming has had, at best, a distant and strained relationship with his mother. As a result, he grew up with very limited knowledge of his Aboriginal culture and background.

16After his mother's departure, his father raised Mr. Fleming. Unfortunately, his father's alcoholism plagued their relationship and resulted in near constant conflict. Although his father was not physically abusive toward Mr. Fleming, alcohol abuse, as it often does, led to emotional abuse. At the age of sixteen, Mr. Fleming decided he had enough and moved in with an older sister. He lived with his sister, on and off, for nearly four years.

17In terms of education, Mr. Fleming briefly attended high school but left before completing grade nine because of problems associated with alcohol abuse. After leaving school he held a variety of different jobs.

18He eventually found work with the City of Toronto, working as a park attendant. He was fired from that job in 1994 when he lost his license because of an alcohol related driving conviction. Since then, he has worked as an arborist for extended periods for two different tree service companies.

19A former supervisor confirms that Mr. Fleming is an excellent worker. However, he also mentions that there were occasions when his drinking interfered with his work, noting one or two instances of alcohol use while on the job. Despite this, the former supervisor confirms that he would be happy to employ Mr. Fleming again, should he finally manage to "pull himself together".

20Unfortunately, substance abuse has played a rather destructive role in Mr. Fleming's life. As noted, these issues began during his teenage years, with the abuse of alcohol. Recreational drugs followed; by the time Mr. Fleming was in his thirties he had developed a serious cocaine addiction. In the past, he has been involved in substance abuse programs and managed to stay clean from time to time. However, these periods of sobriety have invariably been followed by relapses, most recently in 2013, the year he committed this offence. In the period preceding his arrest, Mr. Fleming was chronically abusing alcohol, marijuana and cocaine.

21Tragically, as too often happens, Mr. Fleming has used intoxicants as a form of self-medication for the emotional trauma of his childhood. Alcohol and drugs have served as his escape, a means of finding temporary relief from the pain of an upbringing that was short on love and emotional support, marinated by alcohol abuse, and riddled with the ugliness that this invariably brings.

22Since his arrest, while detained at the Maplehurst Detention Centre, Mr. Fleming has been diagnosed with Post-Traumatic Stress Disorder and he has thankfully begun to receive some much-needed psychotherapy. He has also participated in a substance abuse program offered at the detention centre and a bible studies course by correspondence.

23Mr. Fleming has a prior criminal record. It includes the following entries:

Date and Location	Offence	Disposition
1994-03-28 Toronto, Ontario	Over 80 mgs / 253	Fine & 1 year driving prohibition
2002-05-17 Toronto, Ontario	Fail to comply recognizance / 145(2)(a)	Suspended sentence & 1 year probation
2003-01-28 Toronto, Ontario	Fail to comply recognizance / 145(2)(a) Fail to comply probation / 740(1)	11 days imprisonment
2003-04-01 Toronto, Ontario	Fail to comply recognizance / 145(2)(a)	30 days imprisonment
2003-04-03 Toronto, Ontario	Fail to comply recognizance / 145(2)(a)	32 days imprisonment (intermittent) & 18 months probation
2003-07-15 Toronto, Ontario	Fail to comply recognizance / 145(2)(a) Mischief to property / 430(4)(b) Assault peace officer / 270(1)(a) Mischief to property / 430(4)(a)	90 days imprisonment (intermittent) & 18 months probation
2003-09-30 Toronto, Ontario	Impaired driving / 253(a) Refuse breath sample / 254	30 days imprisonment (intermittent) & 18 months probation
2004-04-17 Toronto, Ontario	Fail to comply probation / 740	90 days conditional sentence & 2 years probation
2008-03-03 Toronto, Ontario	Mischief to property / 430(4)(b)	Suspended sentence & 12 months probation
2008-10-02 Toronto, Ontario	Theft under $5,000 / 334(b)(ii)	90 days imprisonment (intermittent) & 12 months probation
2009-07-18 Toronto, Ontario	Failure to comply probation / 733.1(1)(a)	22 days imprisonment
2009-08-12 Toronto, Ontario	Utter threat / 265.1(1)(a)	1 day imprisonment & 12 months probation
2012-02-23 Toronto, Ontario	Fraud under $5,000 / 380(1)(b)(ii)	Suspended sentence & 12 months probation

Mr. Fleming explains his criminal record as being closely associated with his longstanding struggles with alcohol and drugs. Given the nature of his past offences, it is apparent that substance abuse has been the driving force during much of his adult life and has been instrumental in bringing him into conflict with the law.

24Mr. Fleming has been involved in a number of relationships over the years. Most of his past relationships have ended because of his substance abuse, including his marriage. Mr. Fleming is married, but he has long been estranged from his wife and their fifteen-year-old daughter.

25Mr. Fleming has been with his current partner, Brenda Thomas, for the past eight years. They do not have any children. The couple appears to have a loving and supportive relationship. (I note that Ms. Thomas has been present for a number of Mr. Fleming's court appearances.) The couple has struggled because of their shared addictions. However, they have also attempted to help one another and work together to overcome these addictions.

26Mr. Fleming's father is deceased. Mr. Fleming is estranged from his mother and his half-sisters. His youngest half-sister, the sibling with whom he has been closest over the years, severed communication with him over ten years ago because of his ongoing abuse of alcohol and drugs.

27Mr. Fleming has expressed an interest in participating in traditional Aboriginal healing programs to address his drug and alcohol abuse in future. In that regard, the Gladue Report filed on the sentencing hearing makes a number of very helpful recommendations.

IV. The Positions of the Parties

28Although the parties agree that the circumstances warrant a custodial sentence, they hold differing positions on the appropriate length of the sentence to be imposed in this case.

29On behalf of the Crown, Mr. Toews submits that a period of two years imprisonment, less appropriate credit for time spent in pre-trial detention, followed by a year of probation, is the appropriate sentence in this case. The Crown also seeks some ancillary orders (i.e. a weapons prohibition and a DNA order).

30Mr. Toews acknowledges that Mr. Fleming has had a very difficult life and concedes that there are a number of mitigating circumstances in this case, including: Mr. Fleming's relatively early guilty plea; the fact that he appears to be truly remorseful; that he admitted responsibility almost immediately and was cooperative throughout his dealings with the authorities; that he has taken steps while in custody to address his addiction; and, importantly, the Gladue considerations, given Mr. Fleming's status as an Aboriginal person.

31At the same time, in seeking two years imprisonment, Mr. Toews emphasizes a number of aggravating features, including: that the substance imported was cocaine, an extremely dangerous and destructive narcotic; the significant quantity involved (nearly a kilogram); the fact that, as an addict, Mr. Fleming would have appreciated the misery and suffering that cocaine causes; and, finally, the fact that Mr. Fleming has a rather lengthy (albeit unrelated) criminal record.

32In contrast, on behalf of Mr. Fleming, Ms. Jalali argues that the appropriate sentence in this case is a year imprisonment to be followed by a period of probation. (In light of enhanced credit for time spent in pre-trial detention, this would translate into a sentence of time served.) In addition, Ms. Jalali argues that a lengthy period of probation, with conditions that require Mr. Fleming to continue taking treatment to address his substance abuse issues, preferably through services geared towards members of the Aboriginal community, would best ensure his eventual rehabilitation.

33In support of her position, Ms. Jalali relies heavily on section 718.2(e) of the Criminal Code. In particular, its injunction that"all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders". Ms. Jalali does not disagree with the list of aggravating and mitigating features identified by the Crown. Rather, she argues that given all of the circumstances, including Mr. Fleming's difficult upbringing, his life-long struggle with substance abuse, his genuine desire to obtain treatment and counselling through resources available to Aboriginal persons in the Greater Toronto Area, taking proper account of his status as an Aboriginal person, remembering the considerations identified by the Supreme Court of Canada in Gladue, which were recently reaffirmed in Ipeelee, the appropriate and just sentence in the circumstances is time served and probation.

V. The Governing Principles

34The Criminal Code provides that the fundamental purpose of sentencing is to contribute to "respect for the law and the maintenance of a just, peaceful and safe society". This is accomplished by imposing "just sanctions" that reflect one or more of the traditional sentencing objectives: denunciation, general and specific deterrence, separation of offenders, rehabilitation, reparation to victims, and promoting a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community.

35The fundamental principle of sentencing is that the sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. This long established tenet of the sentencing process is now expressly contained in the Criminal Code, and also recognized as a principle of fundamental justice constitutionally guaranteed by section 7 of the Charter. To satisfy this requirement a sentence must "fit" both the seriousness of the crime and the offender's level of moral blameworthiness in its commission.

36In assessing the gravity of the offence, a number of considerations must be borne in mind, including: any minimum and maximum punishments mandated by Parliament; the threat the offence poses to the public and its impact on the community, both in a generic sense and in the particular circumstances presented by the case before the court; and the various considerations enumerated in section 718.2(a) of the Criminal Code.

37In this case, for example, I am mindful that the substance involved is cocaine. The Court of Appeal has acknowledged that the importation of cocaine is"among the most serious crimes known to Canadian law". The seriousness of the offence is attested to by the fact that Parliament has prescribed a minimum sentence of one-year imprisonment, and a maximum of life imprisonment. As Doherty J. observed in Hamilton & Mason:

The use and sale of cocaine kills and harms both directly and indirectly. The direct adverse health effects on those who use the drug are enormous and disastrous. Cocaine sale and use is closely and strongly associated with violent crime. Cocaine importation begets a multiplicity of violent acts. Viewed in isolation from the conduct which inevitably follows the importation of cocaine, the act itself is not a violent one in the strict sense. It cannot, however, be disassociated from its inevitable consequences. Unlike the trial judge (para. 224), I characterize cocaine importation as both a violent and serious offence: see R. v. Pearson, 77 C.C.C. (3d) 124 at 143-44 (S.C.C.).

38It is therefore not surprising that when it comes to the importation of significant quantities of cocaine, the case law makes clear that a substantial period of imprisonment is necessary, even for first time offenders. For example, the Court of Appeal has explained that"as a general rule, absent exceptional or extenuating circumstances, a sentence in the range of three to five years is warranted for first offender couriers found guilty of importing a kilogram, more or less, of cocaine for personal gain."

39The Court of Appeal has indicated that this range is intended to serve as a guideline in order to assist judges with the difficult task of deciding upon an appropriate sentence for this very serious crime. In establishing this guideline, the Court was careful to note that"sentencing is not an exact science and that trial judges must retain the necessary degree of flexibility to do justice in individual cases." The Court therefore recognizes that when a judge is faced with exceptional or extenuating circumstances, upward or downward deviation from the established range may be necessary to achieve justice in individual cases and thereby respect the fundamental sentencing principle of proportionality. This is in keeping with the Supreme Court of Canada's observation that the determination of a fit sentence is "a highly individualized process" and its acknowledgment that sentencing judges "must have sufficient manoeuvrability to tailor sentences to the circumstances of the particular offence and the particular offender." With that backdrop in mind, I turn next to consider section 718.2(e) and its role in helping to determine the appropriate sentence for Mr. Fleming.

40Section 718.2(e) directs sentencing judges to consider all available sanctions other than imprisonment that are reasonable in the circumstances for all offenders"with particular attention to the circumstances of aboriginal offenders".

41The Supreme Court first addressed section 718.2(e) of the Criminal Code fifteen years ago in the Gladue decision. In that judgment, the Court explained that the section is remedial in nature. Its purpose is to ameliorate the serious problem of overrepresentation of Aboriginal people in Canada's prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing. Sentencing judges, the Court made clear, are duty bound to give the provision's remedial purpose real effect. The section does more than simply affirm existing sentencing principles, it requires judges to employ a different method of analysis in determining a fit sentence for Aboriginal offenders. In that regard, judges are required to pay particular attention to the circumstances of Aboriginal offenders because those circumstances are unique, and different from those of non-Aboriginal offenders.

42In Gladue the Supreme Court explained that when sentencing an Aboriginal offender, a judge must consider: (a) the unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the courts; and (b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection.

43In accounting for the unique circumstances of Aboriginal offenders, Gladue instructed that judges are to take judicial notice of broad systemic and background factors affecting Aboriginal people generally. For example, as the Court later explained, judges are to take judicial notice of "the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples."

44Importantly, for purposes of Mr. Fleming's case, the Supreme Court in Gladue was careful to explain that the directive in section 718.2(e) applies equally to all Aboriginal offenders, wherever they may happen to reside, whether on a reserve or in a large urban area. In that regard, judges must consider alternatives sanctions to imprisonment that are available in the particular community that Aboriginal offenders live in.

45In Gladue the Supreme Court also explained that in circumstances where it is necessary to incarcerate an Aboriginal offender, the length of the term imposed must be carefully considered. The Court recognized that the length of the sentence imposed on an Aboriginal offender in some cases may be less than for other offenders, and in other cases the same. According to the Court"the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same".

46The Supreme Court of Canada returned to the subject of sentencing Aboriginal offenders in Ipeelee. In its decision the Court reaffirmed its decision in Gladue. It also seized the opportunity to correct some errors that it identified in the post-Gladue case law that, in the Court's view, had significantly curtailed the scope and potential remedial impact of section 718.2(e).

47First, the Supreme Court made clear that an Aboriginal offender is not required to demonstrate a causal link between historic factors affecting Aboriginal people in Canada and the commission of the offence before being entitled to have such matters considered by the sentencing judge. The Court explained that such factors do not provide an excuse for criminal misconduct. Rather, they assist in providing the necessary context that a judge requires in order to determine the appropriate sentence. Where these factors can be tied in some way to the particular offender and offence, they are relevant to assessing the offender's level of culpability and/or informing which sentencing objectives can and should be actualized.

48Second, the Supreme Court in Ipeelee stated unequivocally that a Gladue analysis is required in all cases involving Aboriginal offenders. This was meant to correct the mistaken view that the Gladue principles do not apply to serious offences. As the Court noted in Ipeelee:

The sentencing judge has a statutory duty, imposed by s. 718.2(e) of the Criminal Code, to consider the unique circumstances of Aboriginal offenders. Failure to apply Gladue in any case involving an Aboriginal offender runs afoul of this statutory obligation. As these reasons have explained, such a failure would also result in a sentence that was not fit and was not consistent with the fundamental principle of proportionality. Therefore, application of the Gladue principles is required in every case involving an Aboriginal offender … a failure to do so constitutes an error justifying appellate intervention.

49In order to determine the appropriate sentence for Mr. Fleming, I turn next to the task of applying the governing principles set out above to the circumstances of this case.

VI. The Appropriate Sentence

50The parties are agreed on the aggravating and mitigating circumstances in this case, as was noted above. Further, in light of the decision in K.K., the Crown essentially acknowledges that the circumstances in this case qualify as "exceptional or extenuating" so as to justify a sentence outside the range that would ordinarily apply to a courier who imports about a kilogram of cocaine into Canada. In my view, this is a fair and entirely reasonable concession for the Crown to make in light of Mr. Fleming's Aboriginal background.

51To be sure, there is no question that the offence involved is extremely serious. However, in order to respect the principle of proportionality the sentence I fashion must also properly account for Mr. Fleming's level of responsibility in committing this serious crime. In my view, it is important to remember Mr. Fleming's Aboriginal background in properly assessing his culpability. Without a doubt, the commission of this offence by Mr. Fleming is closely connected to his lifelong struggles with alcohol and drugs. As explained above, these addictions can be tied directly to his traumatic childhood. Tragically, for far too many Aboriginal Canadians, a life experience like that of Mr. Fleming is all too common. Gladue and Ipeelee require that I take judicial notice of the connection between the history of colonialism, displacement, and residential schools and the devastating intergenerational consequences that these experiences have visited on far too many Aboriginal Canadians, like Mr. Fleming. Because of all of this, I am compelled to conclude that Mr. Fleming's level of responsibility for this offence is sufficiently diminished so as to qualify as the sort of exceptional or extenuating circumstance that justifies deviation from the range of sentences that would ordinarily apply for this offence.

52All of that said, Ipeelee makes clear that while an offender's Aboriginal status can assist in putting his offence in context, it does not afford an excuse. Here, for example, despite his difficult childhood and struggles with addiction, Mr. Fleming is clearly responsible for his actions. As a cocaine addict himself, he would know better than most the toll that the cocaine he was attempting to import would visit upon the lives of those who would ultimately have the misfortune of consuming it. In other words, although his level of culpability is somewhat diminished, it is far from extinguished.

53In fashioning an appropriate sentence for Mr. Fleming, I must also keep in mind the traditional sentencing objectives. Mr. Fleming imported cocaine into Canada, a very dangerous and destructive narcotic. This is a very serious crime. The sentence imposed must therefore send a clear and unequivocal message that this sort of behavior is absolutely unacceptable; it must express this court's strong disapprobation for the conduct involved. At the same time, the sentence must be severe enough to deter not only Mr. Fleming from doing something like this again in future, but also other members of the community who might be inclined to do the same. The sentence must send a strong message that this sort of serious criminal misconduct will result in a lengthy period of imprisonment.

54I have struggled with what the length of the sentence to be imposed in this case should be in order to properly address the objectives of denunciation and deterrence. In a case where Gladue concerns are live, I am not convinced that, as the Crown submits, a sentence of one-year imprisonment would be entirely inadequate for this type of offence. In the end, however, it is not my role to set down any general rule in that regard. Instead, I am engaged in the very specific task of deciding on the appropriate sentence for this offence and this offender. And, for reasons that go beyond denunciation and deterrence, I think that a one-year sentence would be inappropriate in Mr. Fleming's case.

55An important sentencing objective that is of critical concern in this case is rehabilitation. In that regard, there are a number of counseling programs in the Greater Toronto Area that would be available to Mr. Fleming through the Aboriginal community upon his release. Not only would these programs assist Mr. Fleming along the path toward long-term sobriety, they would be in keeping with Gladue's instruction that a sentencing judge should favour procedures and sanctions that are appropriate in the circumstances for the offender because of his Aboriginal heritage. Quite obviously, helping Mr. Fleming achieve lasting sobriety is essential to his long-term rehabilitation.

56It may well be that for a different Aboriginal offender one-year imprisonment followed by a lengthy period of probation requiring drug treatment in the community would be an appropriate sentence for an offence of this kind. Unfortunately, Mr. Fleming does not have a good track record either in terms of maintaining his sobriety or when it comes to complying with court orders. As a result, I think it rather essential that he be well on the road to recovery before he is released into the community. Once he is released, proper supervision and supports will be needed for an extended period to ensure that he continues to receive the substance abuse counseling he clearly requires, so that he might avoid further relapses and the resulting risk of committing further offences in future.

57I accept that Mr. Fleming is truly committed to finally addressing his substance abuse issues. Unfortunately, his opportunities for treatment while he was held in the detention centre have been limited. Mr. Fleming needs intensive treatment before he can safely be released into the community. Once released, he will require intensive and prolonged support. The sentence I intend to impose will serve these needs, and therefore hopefully maximize Mr. Fleming's chances for rehabilitation.

58Given all of these considerations, I believe the appropriate sentence in this case is two years imprisonment, followed by two years of probation.

59I note that Mr. Fleming has been in custody since his arrest on October 6, 2013. By my calculation, that is a period of just slightly more than eight months. I recognize that that period is not subject to remission or parole, and is spent in the comparatively harsher circumstances (relative to a reformatory or penitentiary) of a pre-trial detention facility. As such, I believe it is deserving of enhanced credit at the rate prescribed by section 719(3.1) of the Criminal Code. By my calculation, that works out to approximately 12 months credit for time spent in pre-trial custody.

60Accordingly, Mr. Fleming is sentenced to a further period of one-year imprisonment. In addition, I make a very strong recommendation that he serve his sentence at the Ontario Correctional Institute, where he would be able to receive counseling to address his alcohol and drug addictions. Once at the Ontario Correctional Institute, I recommend that he be seen by the Native Liaison Officer at that facility, who can make recommendations in terms of accessing resources and supports within that institution that are geared toward Aboriginal offenders.

61Further, upon his release from custody, Mr. Fleming will be placed on probation for a period of two years. He will be subject to the following conditions, that he:

Keep the peace and be of good behaviour;
Appear before the court when required to do so by the court;
Notify the court or his probation officer in advance of any change of name or address, and promptly notify the court or his probation officer of any change of employment or occupation;
Report to his probation officer within 72 hours after his release from custody and thereafter if and when directed to do so by his probation officer;
Take any counseling as recommended by his probation officer in consultation with an Aftercare Worker at Aboriginal Legal Services of Toronto, including, for example, counseling at Native Horizons, the Aboriginal Day Withdrawal program offered through the Toronto East General Hospital, and/or the Anishnawbe Health Toronto;
Sign any necessary releases to permit his probation officer to ensure his attendance, monitor his progress, and ensure his completion of any counseling that he is required to undertake;
Pursue and/or maintain gainful employment, except when he is an in patient at a residential treatment program.

VII. Ancillary Orders

62Due to section 109(1)(c) of the Criminal Code, a weapons prohibition is mandatory in this case. Accordingly, Mr. Fleming will be prohibited from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for a period of 10 years, effective from today's date.

63The Crown also seeks a DNA order in this case. I note that the offence of importing a controlled substance is prescribed as a "secondary designated offence" under s. 487.04 of the Criminal Code. As such, the relevant subparagraph of the Code is 487.051(3)(b). I have read this provision in light of the guidance supplied by the Court of Appeal.

64I am to make the order if I am satisfied that it is in the best interests of the administration of justice to do so. In that regard, I am to consider Mr. Fleming's criminal record, the nature of the offence and the circumstances surrounding its commission, and the impact on his privacy and security of the person.

65I note that Mr. Fleming's criminal record includes convictions for assaulting a police officer and for uttering a threat. In terms of the present offence and its surrounding circumstances, as the courts have recognized, cocaine importation begets a multiplicity of violent acts. Beyond that, however, I do not think there is anything about the circumstances surrounding the commission of Mr. Fleming's offence that weighs in favour of issuing a DNA order.

66That said, I am mindful of the Court of Appeal's observation in Hendry that"given an adult offender's diminished expectation of privacy following conviction, the minimal intrusion into the security of the person in the ordinary case and the important interests served by the DNA data bank, it will usually be in the best interests of the administration of justice for the judge to make the order."

67In light of that, given the connection between the importation of controlled substances and other violent crimes, I am satisfied that it is in the best interests of the administration of justice for an order to issue for the taking of a DNA sample from Mr. Fleming for inclusion in the National DNA Databank.

VIII. Conclusion

68In conclusion, Mr. Fleming is sentenced to two-years imprisonment, with 8 months of pre-trial custody credited at the rate of 1.5. In other words, he is to be imprisoned for 12 more months. Following his release from custody, he will be placed on probation for 2 years.

69Further, a weapons prohibition will issue for 10 years, as will an order for the taking of a DNA sample from Mr. Fleming for inclusion in the National DNA Databank.

70I thank both Mr. Toews and Ms. Jalali for their assistance with this matter.

Justice James Stribopoulos

R. v. Fleming, 2014 ONCJ 290

Case Summary

I. Introduction

II. Circumstances of the Offence