DATE: June 24, 2022 COURT FILE No.: 21-15000130;21-15000131 ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

BENJAMIN SHEARER

Before Justice David Porter May 20, 2022

Reasons for Sentence

Released on June 24, 2022

S. Gardezi................................................................................................................... for the Crown E. Dann..................................................................................................................... for the Accused

Porter J.:

Overview

[1]

Overview

On May 20, 2022, Benjamin Shearer entered pleas of guilty to three counts: trafficking in fentanyl contrary to section 5(1) of the Controlled Drugs and Substances Act, possession of fentanyl contrary to section 4(1) of the Controlled Drugs and Substances Act, and carrying a concealed weapon contrary to section 90(1) of the Criminal Code. The Crown elected to proceed summarily on the charge of carrying a concealed weapon. It was agreed between counsel that, pursuant to the decision of the Ontario Court of Appeal in R. v. Sharma, 2020 ONCA 478, dated July 24, 2020, all of the counts, including the count of trafficking in fentanyl, were potentially eligible for a conditional sentence if appropriate.

2The Crown position on sentence was that the fit sentence is a period of actual incarceration of two years less a day on the trafficking fentanyl count, time served of the enhanced credit totalling seven days of incarceration spent in pre-sentence custody on the simple possession count, and a six-month concurrent custodial sentence on the possession of the concealed weapon count, along with a period of probation of two years.

3The defence position was that a total sentence of an 18-month conditional sentence, and the two year probation period proposed by the Crown was the appropriate disposition in this case. While the Crown did not agree with a conditional sentence, the Crown agreed that, if a conditional sentence was ordered, the terms proposed by defence counsel were agreed to.

4As the Crown has conceded that a period of incarceration of two years less a day is appropriate, the fundamental issue for the court is whether the period of incarceration to be imposed should be a period of actual incarceration or, as proposed by the defence, a period of incarceration served in the community as a conditional sentence pursuant to section 742.1 of the Criminal Code.

The Agreed Statement of Facts

[5]

The Agreed Statement of Facts

The Crown and defence agreed to the following Agreed Statement of Facts filed as Ex.1:

“On January 6, 2021, an undercover officer from the Toronto Drug Squad contacted an individual named “Ben,” who police had information was selling drugs, by text message. Ben and the undercover officer had a drug-related conversation where the undercover officer agreed to purchase a quantity of fentanyl for $100. The undercover officer was directed to attend the intersection of Greer Road and St. Germain Avenue in the City of Toronto to complete the deal.

Surveillance officers observed Benjamin Shearer exit the rear of a residence at […] Avenue and walk one block down the street to St. Germain and Greer where he met the undercover officer. The undercover officer handed Mr. Shearer $100 of police-issued buy money and, in turn, Mr. Shearer handed the undercover officer a small baggie containing fentanyl. The undercover officer left the area and Mr. Shearer was arrested a short time later by surveillance officers. Upon arrest, he was found to be in possession of the $100 of police issued buy money along with a switch blade and animal pepper spray that were in his jacket pockets.

Police then obtained a Controlled Drugs and Substances Act search warrant for […] Avenue. Officers attended the home, searched Mr. Shearer’s bedroom and located a quantity of fentanyl and a digital scale, along with his ID documents.

The fentanyl sold to the undercover officer was 0.43 grams. The police seized 2.84 grams of fentanyl from Mr. Shearer’s bedroom. Both quantities of fentanyl were cut with caffeine. There was paraphernalia found in Mr. Shearer's room consistent with his personal drug use.”

6The Crown filed evidence documenting the seriousness of the opioid pandemic in the City of Toronto. A document entitled “Calls to Paramedic Services for Suspected Opioid Overdoses” demonstrated that between January 1, 2021 and December 31, 2021 there were 6,350 calls for suspected opioid overdoses within the City of Toronto. The Crown filed information from the Toronto Overdose Information System which showed that in 2022 up until March 31, 2022 paramedics responded to 79 suspected fatal opioid overdoses. An analysis of the opioids sold in the street confirmed that the opioid toxicity had increased 80% since 2019. As the Crown noted, the number of fatalities in 2021 was 186% higher than the number of fatalities in 2016. As the Crown noted the public’s justifiable concern about the well-documented opioid epidemic in Toronto and elsewhere in Canada cannot be overstated.

The Background of Mr. Shearer

[7]

The Background of Mr. Shearer

Mr. Shearer was born May 10, 1998 and was therefore 22 years old at the time of these offences.

8Mr. Shearer has suffered from depression and anxiety since he was a teenager. He has been diagnosed with Attention Deficit Disorder. He struggled in school. Since his early teen years, he began to use alcohol and drugs to cope with his mental health issues. He became an addict. This worsened his depression. Since 2012, he has been hospitalized twice on a Form 1 as a result of threatening to harm himself. He refused to attend therapy in Ontario and ran away from his parents’ home. At the age of 15, his parents enrolled him in a wilderness therapy program in Oregon for three months.

9Upon returning to Ontario from Oregon in December 2013, an attempt was made to enroll him in the Pine River Institute in Shelburne, Ontario in a therapeutic boarding school. While en route to that location, while a passenger in the car driven by his father driving up Highway 400, at full speed, Mr. Shearer attempted to jump out of the car window, but fortunately was prevented from doing so by his mother. He resisted attempts to enroll him in the therapeutic program at Pine River, left the program, left the family home and at the age of 16 lived on the streets.

10In July 2014, he returned to his family home in Toronto and enrolled in City Academy, where he ultimately completed high school as an Ontario scholar.

11At the age of 17, he was the victim of a stabbing and, in combination with injuries suffered in competitive skiing, he developed chronic pain for which he was prescribed opioids. He then became addicted to opioids.

12In September 2017, while still addicted to opioids, he enrolled in Western University in London. In the winter of 2017, he was injecting opioids, and returned home to Toronto where he was treated at CAMH for addiction recovery and chronic pain. He continued to use opioids as an addict. In 2018, he joined an addiction medicine program at True North. He began to be prescribed methadone in March 2020, but continued to show opioid use in his regular drug screens up until January 5, 2021, the day before the offences before the court. Upon his arrest he was incarcerated for 5 days before his release without access to methadone. Accordingly, he suffered a very painful period of drug withdrawal before his consent release on Jan 11, 2021.

Rehabilitation Steps while On Release Since January 2021

[13]

Rehabilitation Steps while On Release Since January 2021

Mr. Shearer has successfully abstained from opioid use since his release.

14As documented in the Sept 28,2021 report from Dr. Damian Rzeznikiewiz of True North on Benjamin Shearer:

“Due to his struggles with opioid use disorder, at times more serious than others, he routinely provided positive urine drug screens (for opioids) until the early days of 2021, more specifically - his last positive screen was on January 5, 2021. Since then, he has adhered to his treatment program with no exception, and has provided weekly, negative urine drug screens since then - but more importantly, his affect and outlook have vastly improved alongside his productivity and motivation which is exemplified by him recently completing his Bachelor’s Degree at the University of Western Ontario. He continues to be in the highest standing in our program, and I am eager to continue to see Mr. Shearer achieve his goals moving forward.”

15Drug screens showing negative drug screens for opiates continuing through to March 2022 were filed in evidence. The evidence filed on sentencing confirms that he has remained sober throughout his entire release period.

16Since August 2021, he has attended a Smart Recovery Program in which he participates several times per week to assist in his recovery from addiction. Mr. Shearer reconnected with his therapists Dr. Siegi Schuler and Dr. Rod Cohen upon his release and has attended weekly or bi-weekly relapse prevention sessions. In March 2021, he attended CAMH to obtain a program for managing his chronic pain without opioids. In March 2022, he enrolled in the Canadian Securities Course, requiring between 135 and 200 hours of self-study which started in March 2022. Since April 2022, he has been employed full-time in landscaping with Urban Garden 40 hours per week, getting up at 5:30 a.m. each day to report for work.

The Social Context of Fentanyl Trafficking

[17]

The Social Context of Fentanyl Trafficking

In determining a sentence which is proportionate to the gravity of the offence the court must take into account the seriousness of the current epidemic of opioid addiction, which is exacerbated by fentanyl trafficking with potentially lethal consequences to those who ingest the drug. The concurring minority decision of Moldaver, J. in R. v. Parranto, 2021 SCC 46 dealing with large scale commercial trafficking in fentanyl to vulnerable northern communities, summarized the seriousness of the opioid epidemic in Canada at para. 96:

“More broadly, federal statistics on opioid-related deaths show that, between January 2016 and March 2021, approximately 23,000 Canadians lost their lives due to accidental apparent opioid-related deaths, with fentanyl involved in 71 percent of these deaths (Special Advisory Committee on the Epidemic of Opioid Overdoses, Opioid and Stimulant-related Harms in Canada (September 2021) (online). The epidemic also shows no signs of abating, with over 6,000 accidental deaths occurring in 2020 alone, 82 percent of which involved fentanyl (Government of Canada, Federal actions on opioids to date (June 2021) (online)). These figures throw into stark relief the dark and inescapable reality that “[e]very day in our communities, fentanyl abuse claims the lives of Canadians” (R. v. Loor, 2017 ONCA 696, at para. 33).”

Community Impact Statements

18Section 722.2(1) of the Criminal Code provides for the admission of community impact statements on sentencing. It states:

“722.2 (1) When determining the sentence to be imposed on an offender or determining whether the offender should be discharged under section 730 in respect of any offence, the court shall consider any statement made by an individual on a community’s behalf that was prepared in accordance with this section and filed with the court describing the harm or loss suffered by the community as the result of the commission of the offence and the impact of the offence on the community.”

19The Crown has sought to file 7 community impact statements. The defence objects to the admissibility of these statements. Counsel agreed that the admissibility of the community impact statements would be determined based on written submissions of counsel which I have received and reviewed.

20On behalf of the defence, Ms. Dann submits that a person filing a community impact statement does not need to be part of a formal organization, and that looser structures can meet the definition of “community”, but “that structure, body or group must still be defined enough such that it can speak with one voice, through an author who is positioned to speak to the harm suffered by the community as a result of the offence”. Defence counsel submits that the authors of the community impact statements often are said to represent a “loose geographical area of Toronto”, and the pain they may have experienced “does not entitle the authors to participate in every sentencing involving the trafficking of fentanyl in the City of Toronto.”

21There is no definition of “community” in s. 722.2.

22In the majority of cases, community impact statements have been filed by a representative of an organization in the community dedicated to a particular cause. For example, in many child pornography cases a statement was accepted on behalf of the Canadian Centre for Child Protection: See R. v. Nepon, 2020 MBPC 48 at para. 32; R. v. Snowden 2021 ONCJ 597 at para.46; R. v. LaPlante, 2021 NWTSC 29, at para.34; R. v. Jonat, 2019 ONSC 1633, at para.47.

23In R. v. Husbands 2019 ONSC 6824 at para. 131, involving sentencing for manslaughter in a shooting at the Eaton Centre in Toronto, a statement from the Coalition for Gun Control and Victim Justice Network was admitted.

24In other cases, the “community” represented by the individual making the statement was defined more broadly such as the community of mostly volunteer fire fighters in R. v. Gaudet 2021 PECA 15 at para. 22. In R. v. Ahmadi 2021 ONSC 478 at para.42 the Mayor of Windsor described the impact of a violent random attack on the Windsor community as a whole.

25In R. v. LaPlante, 2021 NWTSC 29, the court held that a community impact statement was admissible on a sentencing for a child pornography offence from a lawyer representing The Canadian Centre For Child Protection, a charity dedicated to preventing the exploitation of children. The Court stated the following about the purpose of s.722.2(1) of the Criminal Code at para.44:

“[44] More generally, Parliament’s intention, in enacting Section 722.2, had to have been to give sentencing courts access to a broader scope of information about the impact of a crime than what was already available. Information about the impact on individual direct victims was already available through the mechanism set out at Section 722. For that reason, in my view, Section 722.2 should be given a generous and liberal interpretation at the admissibility stage. The task of determining what weight to give to various aspects of community impact statements should be left to the discretion of the sentencing judge, taking into account the overall circumstances of each case.”

26In R. v. Theriault, 2020 ONSC 5784 Di Luca J. stated with respect to community impact statements at para. 4:

“Community impact statements are a relatively new feature of the sentencing process. They are intended to provide a mechanism for enhanced public participation in the criminal sentencing process. They also recognize that the impact of certain offences is often felt by the community where the offence occurs and not just the individual victims of the specific offence or offences. Within permissible confines, community impact statements provide the court with meaningful and helpful information to be considered in arriving at a fit sentence for a particular offence.”

27In this case, the proposed community impact statements are generally not from representatives of a formal organization but are offered by persons described as follows; “Concerned resident and mother of fentanyl overdose victim”; “North Toronto Resident;” “Downtown Toronto (the Annex), friends and family of those who suffer/suffered from mental health issues and drug addictions;” “Midtown Toronto (Lytton Park), friends and family of those who suffer/suffered from addiction to fentanyl”; “Midtown Toronto (Lytton Park), friends and family of those who suffer from substance use disorder(particularly to fentanyl).” In one instance the author describes the community for whom she speaks as follows; “Members, Toronto Healing Hearts, a peer support program for Moms Stop the Harm”, a peer support group for parents of children who have died from drug overdose, and in another the author is the Executive Director of “Families for Addiction Recovery”, speaking on behalf of “North York; Families Affected by Addiction.”

28In my opinion, s. 722.2(1) should be given a large and liberal construction to permit representatives of a community affected by the offence at issue, in this case street-level trafficking in fentanyl in the City of Toronto, to describe the impact of that offence on their community. As “community” is not defined, it is sufficient, in my view that the impact statements come from representatives of that geographical community who have been affected by, or aware personally of the effects of, street-level trafficking of fentanyl in their community and who are therefore in a position to comment on the impact of the offence on their community. The weight to be given to the statements will be for the court to determine in the particular circumstances of the case. Where the person speaking on behalf of a community has no formal position as a designated representative of that community it may, depending on the circumstances, affect the weight to be given to that person’s community impact statement.

29In R. v. Theriault, supra, Di Luca J. summarizes the requirements of the community impact statement at paras. 6-9:

“[6] In accordance with this section, [722.2(1)] the court shall consider a community impact statement that describes the harm or loss suffered by the community as a result of the commission of the offence and the impact of the offence on the community.

7The community impact statement must relate to the offence committed by the offender, see R. v. Ali, 2015 BCSC 2539 at paras. 23-24. As such, it is necessarily bound by the factual and legal determinations made by the court. Assertions of fact that fall outside or contrary to the findings made by the court are not properly admissible as part of a community impact statement, see R. v. Gabriel (1999), 137 C.C.C. (3d) 1 (Ont. S.C.J.) at para. 37.

8A community may be directly affected by a criminal offence where, for example, the community is itself the victim of the offence. A community may also be affected by the offence where the victim of the offence belongs to the community or where the community has a sufficient connection with the offence. In the context of community impact statements, the “harm or loss occasioned by the offence” and the “impact of the offence” on the community will often relate to the broader impacts that an offence has on a particular community. Of necessity, the harm, loss or impact of the offence may, at times, be described in terms that are not as directly or strictly related to the commission of the offence as might be the case where the actual or specific victim of the offence speaks of its impact.

9The impact of an offence within a community will often depend on context. At times, a community’s history and lived experience will provide valuable insight that serves to contextualize the harm, loss or impact of an offence, in a manner that might not be otherwise appreciable to a person who is not from the community”.

30As noted by Di Luca J. in R. v. Theriault, supra, at paras 10-13, there are important limits on the content and use of community impact statements in sentencing. Di Luca J. stated:

“[10] While this type of context is important, it must also be remembered that the accused is to be punished for the offence he has committed and not offences committed by others. A community impact statement is not a vehicle through which the crimes of others are to be visited upon the accused before the court.

11This is a point that is implicitly recognized by the Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64 at para. 90, wherein the court notes that while the prevalence of a type of offence within a community is a factor to consider in balancing the various objectives of sentencing, consideration of this factor must not result in a demonstrably unfit sentence.

12A community impact statement, much like a victim impact statement, should refrain from making sentence recommendations; see R. v. Gabriel, supra, at para. 39.

13A community impact statement should also refrain from including comments that disparage the defendant or seek vengeance, see R. v. McDonough and McLatchey, 2016 ON SC 18369 at para. 30, R. v. Denny, 2016 NSSC 76 at para. 115, and R. v. B.P., 2015 NSPC 34.”

31The approved form for the community impact statement states expressly:

“Your statement must not include:

• any unproven allegations
• any comments about any offence for which the offender was not convicted
• except with the court’s approval, an opinion or recommendation about the sentence.”

32The Crown submits that the statements filed provisionally as Exhibit A, pending a ruling on admissibility, do not breach these requirements but agrees at paragraph 15 of its written submission that, if they do, the court should redact any offending portions of the statements before admitting them in evidence. The defence submits that, if the statements are found to be admissible, numerous redactions, specified in the written defence submissions, are required to remove portions of the statements that breach the required conditions for admissible community impact statements.

33I find that the community impact statements in Exhibit A are admissible, but I agree with the defence submission that redactions are required to remove offending passages from the community impact statements to have them conform to the requirements of s.722.2(2) of the Criminal Code.

34I have made these redactions and provided to the clerk, and to counsel, the redacted statements to mark as exhibits on the sentencing.

35Passages were removed to give effect to the principle that statements about unproven allegations against Mr. Shearer, or other offences other than the offence for which he is being sentenced, are not properly contained in a community impact statement. There were also frequent statements about the nature of an appropriate sentence, which required redaction. Statements implicitly or explicitly denigrating the character of Mr. Shearer were also removed.

36The properly admissible community impact statements highlighted for the court the great concern in the community with respect to the harm suffered by the community from fentanyl trafficking generally and the grave risk fentanyl trafficking poses to the citizens of Toronto. The community impact statements were consistent with the evidence filed by the Crown concerning opioid use in Toronto and confirm the seriousness of this problem in our community.

The Principles of Sentencing

37Section 10 of the Controlled Drugs and Substances Act states:

“Purpose of sentencing

Section 10(1)

Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community.”

38The general principles of sentencing are established in the following provisions of the Criminal Code. Section 718 states:

“The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

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

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

(d) to assist in rehabilitating offenders;

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

(f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community”

39Section 718.2 states:

“A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, ….

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) 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.”

40The fundamental principle of sentencing is the principle of proportionality. Section 718.1 of the Criminal Code states that a sentence,

“must be proportionate to the gravity of the offence and the degree of responsibility of the offender”.

41In R. v. Ipeelee, 2012 SCC 13, the Supreme Court of Canada defined the principle of proportionality as follows at para. 37:

“The fundamental principle of sentencing (i.e., proportionality) is intimately tied to the fundamental purpose of sentencing — the maintenance of a just, peaceful and safe society through the imposition of just sanctions. Whatever weight a judge may wish to accord to the various objectives and other principles listed in the Code, the resulting sentence must respect the fundamental principle of proportionality. Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system. As Wilson J. expressed in her concurring judgment in Re B.C. Motor Vehicle Act, 1985 SCC 81, [1985] 2 S.C.R. 486, at p. 533:

“It is basic to any theory of punishment that the sentence imposed bear some relationship to the offence; it must be a “fit” sentence proportionate to the seriousness of the offence. Only if this is so can the public be satisfied that the offender “deserved” the punishment he received and feel a confidence in the fairness and rationality of the system.

Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other.”

42In its recent decision on the appropriate sentence for large scale commercial trafficking in fentanyl, R. v. Parranto 2021 SCC 46, the Supreme Court of Canada recently reaffirmed the importance of the principle of proportionality in sentencing. The majority stated at paragraphs 10 and 12:

“The goal in every case is a fair, fit and principled sanction. Proportionality is the organizing principle in reaching this goal. Unlike other principles of sentencing set out in the Criminal Code, proportionality stands alone following the heading “Fundamental principle” (s. 718.1). Accordingly, “[a]ll sentencing starts with the principle that sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender” (R. v. Friesen, 2020 SCC 9, at para. 30). The principles of parity and individualization, while important, are secondary principles.

As to the relationship of individualization to proportionality and parity, this Court in Lacasse aptly observed:

Proportionality is determined both on an individual basis, that is, in relation to the accused him or herself and to the offence committed by the accused, and by comparison with sentences imposed for similar offences committed in similar circumstances. [para. 53] Individualization is central to the proportionality assessment. Whereas the gravity of a particular offence may be relatively constant, each offence is “committed in unique circumstances by an offender with a unique profile” (para. 58). This is why proportionality sometimes demands a sentence that has never been imposed in the past for a similar offence. The question is always whether the sentence reflects the gravity of the offence, the offender’s degree of responsibility and the unique circumstances of each case (para. 58).”

43In R. v. Parranto, the majority confirmed the important role of provincial appellate courts in providing guidance to lower courts to assist sentencing judges in reaching proportionate sentences that balance parity in sentencing with individualization. As the Court stated in R. v. Parranto, supra, at para. 15:

“Secondly, provincial appellate courts must promote stability in the development of the law while providing guidance to lower courts to ensure the law is applied consistently in a particular jurisdiction (Lacasse, at para. 37). In carrying out this role, appellate courts may provide guidance to assist sentencing judges in reaching a proportionate sentence that properly balances parity and individualization (para. 2).”

44In Ontario, the Court of Appeal has provided explicit guidance on the significance of drug addiction as an individualizing factor in sentencing for drug trafficking.

45In R. v. C.N.H. 2002 ONCA 7751, [2002] O.J. No. 4918, Rosenberg J.A. stated at para. 31:

“... the importance of s. 10 [of the Controlled Drugs and Substances Act] is to encourage courts to recognize the particular problem that in many cases persons convicted of drug offences are themselves victims of the drug culture and dependent upon drugs as addicts or users. I think s. 10 recognizes a view that had become increasingly prevalent that, especially for the addict trafficker, the public interest -- including the protection of the public -- is best served by the treatment and rehabilitation of the offender.”

46This guidance was recently summarized by Rondinelli J. in R. v. Kozachenko (Unreported, Reasons For Sentence Sept 10, 2019) in the context of sentencing an accused for trafficking in fentanyl and possessing proceeds of crime. Rondinelli J. stated at p. 2:

“ Mr. Kozachenko pled guilty to one count of trafficking in Fentanyl and one count of possessing proceeds of crime. The aggravating factor is that we are dealing with Fentanyl, a powerful addictive drug. Indeed, Mr. Kozachenko has seen the devastating impact the drug may have in the overdose deaths of some of his close friends. Ordinarily the trafficking of Fentanyl would easily attract a significant custodial sentence. However, in this case we are dealing with an addict trafficker.

In recent years, our Court of Appeal has recognized that there is a difference in moral blameworthiness between one who feeds an addiction by trafficking and one who engages in drug trafficking for greed. As long as there is direct connection between the addiction and the drug trafficking, more emphasis should be placed on the principle of rehabilitation. (See R. v. Barkhouse, [2017] ONCA 29 at para. 5, and R. v. Cloutier, [2016] ONCA 197 at para 61.”

47Indeed, as noted by the Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64, at para. 4:

“ One of the main objectives of Canadian criminal law is the rehabilitation of offenders. Rehabilitation is one of the fundamental moral values that distinguish Canadian society from the societies of many other nations in the world, and it helps the courts impose sentences that are just and appropriate.”

48The sentencing principle of rehabilitation is important when sentencing a youthful first offender, as is the case with Mr. Shearer.

49The Court of Appeal has stressed the principle of restraint in imposing a custodial sentence on a youthful first offender. As Gillese J.A. stated in R. v. Batisse, 2009 ONCA 114, [2009] O.J. No. 452 at paras. 32-34:

“[32] The principle of restraint operates in three ways in the present case. First, it is an important consideration because the appellant was a first offender. As such, the restraint principle requires that the sentencing judge consider all sanctions apart from incarceration and where, as here, incarceration must be imposed, the term should be as short as possible and tailored to the individual circumstances of the accused: see R. v. Priest (1996), 1996 ONCA 1381, 30 O.R. (3d) 538, [1996] O.J. No. 3369 (C.A.), at p. 545 O.R. [page 651]

33Second, the principle of restraint requires the sentencing judge to consider rehabilitation in determining the appropriate length of the sentence. In lowering a sentence given to a first offender, this court stated in R. v. Blanas, 2006 ONCA 2610, [2006] O.J. No. 364, 207 O.A.C. 226 (C.A.), at para. 5:

[G]eneral deterrence cannot be the sole consideration. The appellant is relatively youthful and has no prior record and appears to have the full support of her family and community. Appropriate consideration must be given to the rehabilitation of the appellant.

34In serious cases and cases involving violence, rehabilitation alone is not the determinative factor -- general deterrence and denunciation are also significant factors to be considered. However, as this court ruled in R. v. Dubinsky, [2005] O.J. No. 862, 2005 ONCA 5668, at para. 1, it is an error to focus almost exclusively on general deterrence and fail to consider individual deterrence and rehabilitation, especially when sentencing a first offender.”

Analysis

[50]

Analysis

A proportionate sentence must give significant emphasis to denunciation and general deterrence in light of the gravity of any offence involving trafficking in fentanyl. However, it is also appropriate to bear in mind that a properly structured conditional sentence can satisfy the sentencing objectives of deterrence and denunciation. As stated by Lamer C.J. in R. v. Proulx, 2000 SCC 5 at para. 22:

“The conditional sentence incorporates some elements of non-custodial measures and some others of incarceration. Because it is served in the community, it will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community, and the promotion of a sense of responsibility in the offender. However, it is also a punitive sanction capable of achieving the objectives of denunciation and deterrence. It is this punitive aspect that distinguishes the conditional sentence from probation, …..”

51In R. v. Proulx, supra, the Court rejected a presumption against conditional sentences for certain categories of offences. Lamer C.J. stated at paras. 79, 81 and 83:

“79 Thus, a conditional sentence is available in principle for all offences in which the statutory prerequisites are satisfied….

81 In my view, while the gravity of such offences is clearly relevant to determining whether a conditional sentence is appropriate in the circumstances, it would be both unwise and unnecessary to establish judicially created presumptions that conditional sentences are inappropriate for specific offences. Offence-specific presumptions introduce unwarranted rigidity in the determination of whether a conditional sentence is a just and appropriate sanction. Such presumptions do not accord with the principle of proportionality set out in s. 718.1 and the value of individualization in sentencing, nor are they necessary to achieve the important objectives of uniformity and consistency in the use of conditional sentences.

83 My difficulty with the suggestion that the proportionality principle presumptively excludes certain offences from the conditional sentencing regime is that such an approach focuses inordinately on the gravity of the offence and insufficiently on the moral blameworthiness of the offender. This fundamentally misconstrues the nature of the principle. Proportionality requires that full consideration be given to both factors. As s. 718.1 provides: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” [Emphasis added.]”

The Sentencing Cases Relied Upon By The Crown

[52]

The Sentencing Cases Relied Upon By The Crown

The Crown has submitted that the simple possession of fentanyl by Mr. Shearer is appropriately penalized by the enhanced credit of 7 days of pre-trial custody already served by Mr. Shearer. Its position that an appropriate sentence is actual incarceration of 2 years less a day is with reference to the single transaction of selling .43 grams of fentanyl for $100 after being contacted by an undercover police officer.

53In my opinion, the cases relied on by the Crown are generally distinguishable from the case at bar.

54The sentence in R. v. White, 2019 ONCJ 191 involved the accused giving fentanyl to his friend, an addict who needed a fix, believing it to be heroin, resulting in his friend’s death. A sentence of 18 months in jail was imposed at a time when conditional sentences for trafficking were not available.

55Similarly, in R. v. Oksem, 2019 ONSC 6283, when conditional sentences were not available, a global sentence of 1.5 years was imposed on an addict trafficker for possession of 5.62 grams of fentanyl for the purpose of trafficking and simple possession of 7.64 grams of cocaine in circumstances where he was on bail for the cocaine offence at the time he possessed 5.64 grams of fentanyl for the purpose of trafficking.

56In R. v. Broderick, 2020 ONSC 7434, the accused had a significant prior criminal record including prior convictions for trafficking in drugs, and possessing drugs for the purpose of trafficking, along with 8 non-drug-related offences including sexual assault. In contrast, Mr. Shearer has no criminal record. Mr. Broderick was convicted of possessing 6.79 g of purple fentanyl mixed with heroin for the purpose of trafficking, a much larger amount than the .43 grams trafficked by Mr. Shearer. Mr. Broderick received a time served sentence of 3 years and 6 months.

57The 2015 Ontario Court of Justice decision in R. v. Gatfield, [2015] O.J. No. 5019 involved a sale of fentanyl for financial gain. The accused had a prescription for fentanyl patches and, working in conjunction with another person, supplied 2 patches for sale to an undercover officer for $680, and volunteered to sell more if needed: R. v. Gatfield, supra, at p. 21. Mr. Gatfield was working in conjunction with a Joshua Bradley, and was functioning as the supplier in the commercial sale of fentanyl to the undercover officer: R. v. Gatfield, supra, at pp. 2-3 and 26. He was sentenced to 30 months.

58In R. v. Menzie, [2020] O.J. No. 654, on January 29, 2020, when conditional sentences were not available, the court sentenced Mr. Menzie, after trial, to a sentence of 2 years, 2 months and 7 days, for the possession for the purpose of trafficking of 5.05 grams of fentanyl. At the time of the offence, when police approached, he attempted to flee from police and drove into a police vehicle. He was in breach of a bail release, and was found in possession of 5.05 grams of fentanyl and over $6,000. This was possession of fentanyl for the purpose of trafficking for financial gain, in substantial quantities, by a person who was not an addict: R. v. Menzie, supra, at paras. 10, 15.

59In R. v. Parranto, 2021 SCC 46, the Supreme Court of Canada considered an appeal involving large scale fentanyl trafficking, in which the Alberta Court of Appeal increased the sentences of the accused to 10 years and 14 years respectively. The Supreme Court of Canada dismissed the accuseds’ appeal. In the case of one accused, Mr. Felix, he was the head of a commercial trafficking operation in which fentanyl was sold in Fort McMurray and Nunavut. The convictions related to 5 completed transactions involving 1,398 fentanyl tablets and 19.75 ounces of cocaine sold for $76,000 and an incomplete transaction involving 987 fentanyl tablets, and 69.83 ounces of cocaine. He had no relevant addiction or substance abuse issues: R. v. Parranto, supra, at para.64-65. The court noted the aggravating feature of trafficking fentanyl to remote communities in Nunavut. The court noted his choice to “traffic drugs to those vulnerable communities for easy money” and stated that the courts below could have considered this as a significantly aggravating factor: R. v. Parranto, supra, at para.71.

60Mr. Parranto was sentenced on appeal to 14 years, upheld by the Supreme Court of Canada. The majority summarized the facts as follows at para 74-75, and 79:

“Mr. Parranto entered guilty pleas on two counts of possession of fentanyl for the purposes of trafficking in a wholesale commercial operation (CDSA, s. 5(2)); two counts of illegal possession of a loaded handgun for use in the trafficking operation (Criminal Code, s. 95); one count of possession of a handgun, knowing he was prohibited by court order (Criminal Code, s. 117.01(1)); and breach of a recognizance (Criminal Code, s. 145(3)). These charges arose from events that occurred on two separate dates: March 24, 2016, and October 22, 2016. What follows is a summary of the relevant facts derived from an Agreed Statement of Facts.

At the time of his March arrest, Mr. Parranto was under a lifetime firearm prohibition and was bound by a recognizance order prohibiting him from possessing controlled substances and firearms. In March, police recovered 27.8 g of fentanyl powder with an approximate street value of $5560 and $55,575 in cash. In October police recovered 485.12 g of fentanyl powder (capable of producing 500,000 individual doses) with an approximate street value of $97,064, along with $20,690 in cash.

Mr. Parranto was in possession of significant amounts of fentanyl in addition to large quantities of other drugs, guns and body armour. He had a lengthy and related criminal record, and following his release from detention in July 2016 for the March offences, he was able to and did re-establish his presence as a wholesale trafficker in approximately 12 weeks.”

61In summary, the decision of the Supreme Court of Canada in R. v. Parranto addressed the fit sentence for large scale commercial traffickers in fentanyl, not, as Moldaver J. noted at para. 99 of R. v. Parranto in his concurring minority opinion the “sentences for street-level trafficking, or where traffickers are motivated by a need to support their own addiction.”

62Finally, the Crown relied upon R. v. Lynch 2022 ONCA 109, in which the Court considered the appropriate sentence for a mid-level trafficker in fentanyl. The court increased the sentence from 4 to 6 years for selling fentanyl or cocaine to an undercover officer on 6 occasions. He was convicted of trafficking in fentanyl, trafficking in cocaine, and possession of cocaine for the purpose of trafficking, and possession of the proceeds of crime. As summarized by Nordheimer, J. “he accepted responsibility for 965.01 grams of cocaine, 149.28 grams of MDMA, and 41.37 grams of fentanyl”: R. v. Lynch, supra, at paras1-2.

The Defence Cases

[63]

The Defence Cases

Since the decision of the Ontario Court of Appeal in R. v. Sharma made conditional sentences available for trafficking in narcotics, conditional sentences have been imposed in a number of cases of trafficking fentanyl, often with more aggravating circumstances than the case at bar.

64In R. v. Grant 2021 ONCJ 507, after trial, an 18-year-old accused with no prior record was sentenced to a conditional sentence of two years less a day and three years probation for possession of fentanyl for the purpose of trafficking (9.5 grams), possession of crack cocaine for the purpose of trafficking (13.2 grams), possession of powder cocaine for the purpose of trafficking (13.2 grams), and possession of -methamphetamines for the purpose of trafficking (4 grams), and possession of oxycodone (1.5 pills). In this case, Mr. Grant was not an addict trafficker, however he had had a challenging upbringing, including bouts of depression and anxiety, and had shown significant maturation and rehabilitative efforts while on bail pending trial and sentencing, demonstrating that he was committed to pursuing a better path in the future: R. v. Grant, supra, at para.30.

65The Court stated at paras 30 and 32:

“ For a youthful first-time offender, the restraint principle requires that a sentencing judge consider all sanctions apart from incarceration: R. v. Batisse (2009), 2009 ONCA 114, 93 O.R. (3d) 643 and R. v. Priest (1996), 1996 ONCA 1381, 30 O.R. (3d) 538. [32]

Moreover, although deterrence and denunciation are paramount objectives in this case, they can be achieved for these offences through a conditional sentence in these exceptional circumstances. As noted by the Court in R. v. Fabbro, 2021 ONCA 494 at paragraph 27:

“Even if denunciation and deterrence were the overriding objectives in this case, a sentence of imprisonment was not the only route to achieve them. A conditional sentence recognizes the seriousness of the offences while at the same time acknowledging and promoting the significant strides in rehabilitation that the appellant has made with the help of his family and the medical community. Imposing a custodial sentence was likely to have a serious negative effect on the appellant's progress and would not serve the genuine societal interest.”

66In R. v. Brockington (Ontario Court of Justice Reasons for Sentence dated July 29,2021), the accused sold an undercover officer 3.5 g of fentanyl for $750, a larger transaction than the sale by Mr. Shearer. The accused was 22 years old at the time of the offence, had no prior record, and had long-standing mental health and addiction issues. The court described him as” an addict trafficker who has made significant inroads in overcoming his addiction”: R. v. Brockington, at p. 29.

67In imposing a conditional sentence of 18 months, all of which was subject to the home confinement condition, Justice Bliss stated at p.32:

“Mr. Brockington continues to meet expectations and excel in his rehabilitative programs. He has demonstrated his commitment to his rehabilitation. Adopting Justice Gillese’s words, successful treatment of addiction is the best means of addressing drug crime. The public interest is served by diverting individuals such as Samuel Brockington into drug treatment programs that address the addictions which fuel their criminal activity. His steps toward rehabilitation will be encouraged by a conditional sentence given the likelihood of incarceration in the event of a breach.

With sufficiently punitive terms, a sentence is able to denounce and deter such conduct for not only Samuel Brockington as the offender, but also, others. Such a sentence will also assist in Samuel Brockington’s rehabilitation, which in turn, assists the community in having him as a productive and not destructive member of the community, with the threat that if he does not maintain this path of rehabilitation and does relapse, the cost will be that he may well serve the rest of any sentence in jail that he has worked so hard to avoid.”

68In that case, the court imposed an 18 month conditional sentence with a full period of home confinement, with the usual exceptions for work, school, religious services, or medical or dental services, and attending appointments for assessment treatment or counselling.

69In R. v. Kozachenko (Ontario Court of Justice, September 10, 2019) Justice Rondinelli sentenced the accused for one count of trafficking in fentanyl and one count of possessing proceeds of crime. This sentencing occurred prior to the decision of the Ontario Court of Appeal in R. v. Sharma, supra, so that a conditional sentence was not available at that time. Justice Rondinelli noted that “the aggravating factor is that we are dealing with fentanyl, a powerful addictive drug”: R. v. Kozachenko, supra, at p.2.

70He stated at p. 2:

“Ordinarily the trafficking of fentanyl would easily attract a significant custodial sentence. However, in this case we are dealing with an addict trafficker.

In recent years, our Court of Appeal has recognized that there is a difference in moral blameworthiness between one who feeds an addiction by trafficking and one who engages in drug trafficking for greed. As long as there is direct connection between the addiction and the drug trafficking, more emphasis should be placed on the principle of rehabilitation. (See R. v. Barkhouse, [2017] ONCA 29, at para.5, and R. v. Cloutier, [2016] ONCA 197, at para. 61.”

71The Court stated at p. 5:

“In my view, to incarcerate Mr. Kozachenko, even on an intermittent basis, would be counterproductive since it sacrifices the meaningful gains that have been achieved in terms of rehabilitation since the date of this offence simply to foster the principles of denunciation and general deterrence by means of incarceration (see R. v. Ghadban, 2015 ONCA 760 at para.24.)”

72In R. v. Kozachenko, supra, in circumstances where a conditional sentence was unavailable, the court imposed a suspended sentence and probation of three years with probation focusing on the accused’s active participation in assessment treatment and counselling.

73In R. v. Hillier and Blain, 2018 ONCJ 397, West, J. sentenced 2 accused to possession of fentanyl for the purpose of trafficking. The total weight of the fentanyl seized at the time of the arrest of the accused was 3.5 g: R. v. Hillier and Blain, supra, at para.10. In the absence of conditional sentences, the court imposed a custodial sentence of two years less a day followed by three years of probation on Mr. Hillier, who the court found was a low-level street trafficker trafficking for a commercial purpose, which was found to be an aggravating circumstance: R. v. Hillier and Blain, supra, at paras 150, 152. Ms. Blain who was an addict and came from tragic personal circumstances, and had a lesser involvement in the offences, received a suspended sentence and probation: R. v. Hillier and Blain, supra, at paras 160 and 166.

74In the course of sentencing these accused, when conditional sentences were not available, West J. stated at p. 30:

“ Certainly when conditional sentences were available as part of the sentencing options for trafficking or possession for the purpose of trafficking in Schedule 1 substances, numerous decisions have recognized that a conditional sentence could and did address the principles of deterrence and denunciation. Further, numerous judges recognized that an appropriately designed conditional sentence could balance deterrence and denunciation, while at the same time acknowledging the progress in overcoming a drug addiction an offender had made and putting in place appropriate support and enforcement mechanisms that would assist in the offender’s continued rehabilitation. Justice Gillese referred to this in Lazo, where she held: “…his steps towards rehabilitation will be encouraged by a conditional sentence, given the likelihood of incarceration in the event of a breach.” It is unfortunate sentencing judges no longer are able to fashion custodial sentences, served in the community through the use of conditional sentences, given the recognition by the Ontario Court of Appeal that successful drug treatment and rehabilitation of the addict trafficker provides the best protection for the public.”

75In R. v. Lazo, 2012 ONCA 389, [2012] O.J. No.2547, the Court of Appeal allowed the accused’s appeal from a trial judge’s refusal to accept a joint submission for an eight month conditional sentence for an addict trafficker who trafficked $40 worth of crack cocaine to an undercover police officer. Gillese J.A. stated at paras. 7 and 8:

“Moreover, although the sentencing judge acknowledged the appellant’s participation in [an addiction treatment program], in my view it was an error on his part to fail to consider that the appellant met the program’s expectations and successfully completed it. In so doing, the appellant demonstrated a genuine effort and progress toward his rehabilitation…. Successful treatment of addiction is the best means of addressing drug crime. The public interest is served by diverting individuals in the appellant’s situation into drug treatment programs that address the addictions which fuel their criminal activity”.

Conclusion

[76]

Conclusion

In my opinion a proportionate sentence in this case must reflect the principles of denunciation and general deterrence in relation to the offence of trafficking in fentanyl. The social context of this sentencing is a factor to consider, as the sentence imposed must be responsive to the increase in the risk to the public caused by fentanyl trafficking, and the public concern about the risk to the public posed by any trafficking in fentanyl reflected in the Community Impact Statements.

77It must also be proportionate to Mr. Shearer’s moral blameworthiness for exposing the public to the dangers associated with the use of fentanyl. The public is justifiably concerned about the epidemic of addiction, and often fatal consequences that result from the trafficking in fentanyl. The highly addictive, and dangerous, characteristic of fentanyl is a significant aggravating factor in this case.

78However, a proportionate sentence must also take into account the fact that Mr. Shearer is himself addicted to opioids and is a youthful first offender. A proportionate sentence must take into account the mitigating circumstances including his plea of guilty, the fact that there was one incident of trafficking a small amount of fentanyl (.43 grams) for $100, and his determined pursuit while on pre-trial release of treatment for his addiction, and his successful participation in the treatment previously described. He has successfully complied with strict house arrest bail conditions for 17 months since his arrest. A significant mitigating circumstance is Mr. Shearer’s success in his rehabilitation programs. A proportionate sentence must balance the principles of denunciation and general deterrence, with the principle of rehabilitation that is important for youthful first offenders, and persons who traffick in narcotics as a result of their own addiction.

79In my opinion, a conditional sentence is the appropriate sentence to reflect principles of denunciation and deterrence, and rehabilitation, in a manner specifically tailored to ensure that the sentence is proportionate to the gravity of the offence and the degree of responsibility of Mr. Shearer, while providing for the continued rehabilitation of Mr. Shearer. In my opinion, service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing in ss. 718 to 718.2. Serving the custodial sentence in the community is both in Mr. Shearer’s interest, and ultimately in society’s interest, in ensuring that his addiction continues to be addressed, thus minimizing any risk of re-offence.

80In my opinion a conditional sentence of 20 months is the proportionate sentence that reflects the principles of denunciation and deterrence, while also facilitating Mr. Shearer’s continued rehabilitation, and his status as a youthful addicted first offender.

81I have carefully considered the conditions of a conditional sentence order which counsel advised were agreed to, if I determined that the appropriate sentence was a conditional sentence. In general, I am in agreement with the terms proposed, except that, in my view, both to fashion a fit sentence, and one that is of greatest assistance in ensuring the successful rehabilitation of Mr. Shearer, it is important for the period of house arrest to continue, with the suggested exceptions, for the full 20 month conditional sentence.

82In addition, to make reparations to the community, and to assist in his rehabilitation, I believe a period of community service would be appropriate as part of the conditional sentence. In light of the substantial time commitments involved in Mr. Shearer’s work, counselling, and continued education, I have concluded that a requirement that Mr. Shearer complete 100 hours of community service, at a rate of no less than 5 hours per month, within his 20 month conditional sentence, is appropriate.

83Accordingly, I am sentencing Mr. Shearer to a 20 month conditional sentence, on the charge of trafficking in fentanyl, on the following terms:

Statutory conditions:

1. Keep the peace and be of good behaviour.
2. Appear before the court when required to do so.
3. Report as the Court directs (see Reporting in the Additional Conditions) in person to a supervisor and thereafter report when required by the supervisor and in a manner directed by the supervisor.
4. Remain in Ontario unless you have prior written permission from the Court or the supervisor to leave the province.
5. Notify the court or supervisor in advance of any change of name or address and promptly notify the court or supervisor of any change in employment or occupation.

Reporting

Report in person to a supervisor

1. within 2 working days and after that, at all times and places as directed by the supervisor or any person authorized by a supervisor to assist in your supervision.
2. Your reporting requirement ends when you have satisfied your supervisor that you have completed all of your counselling.
3. Co-operate with your supervisor and sign any releases necessary to permit the supervisor to monitor your compliance and you must provide proof of compliance with any condition of this Order to your supervisor on request.
4. Residence

Reside at […] Avenue, Toronto, or a place approved of by the supervisor and do not change that address without obtaining the consent of the supervisor in advance.

5. House Arrest

This home confinement condition will be in effect for the entire conditional sentence.

Remain in your residence or on the property of your residence at all times, except:

(i) between 4 P.M. TO 8 P.M. on Saturdays in order to acquire the necessities of life; (ii) for any medical emergencies involving you or any member of your immediate family (spouse, child, parent, sibling); (iii) for going directly to and from or being at school, employment, community service work as approved by your supervisor, court attendances, religious services, and legal or medical or dental appointments; (iv) for going directly to or from and being at assessment, treatment or counselling sessions; (v) for any other purpose that may be approved of by the supervisor.

• You will confirm your schedule in advance with the supervisor setting out the times for these activities with the prior written approval of the supervisor. The written approval is to be carried with you during these times while out of the residence.
• You must present yourself at your doorway upon the request of your supervisor or a peace officer for the purpose of verifying your compliance with your home confinement condition.
• You may obtain from the supervisor written permission to be absent from the residence for any other reason deemed appropriate by the supervisor. You shall carry such written permission on your person at all times while out of the residence.

7. Weapons and Permits

• Do not possess any weapon(s) as defined by the Criminal Code (for example: a BB gun, pellet gun, firearm, imitation firearm, cross-bow, prohibited or restricted weapon or device, ammunition or explosive substance or anything designed to be used or intended for use to cause death or injury or to threaten or intimidate any person).
• If you now possess any of the items referred to in the above condition you must surrender them to the police within 48 hours.
• All licences and registration certificates pertaining to these things referred to above, shall be surrendered, and do not apply for any such licences and registration certificates.

8. Drugs

• Do not possess or consume any unlawful drugs or substances (refer to the Controlled Drugs and Substances Act) except with a valid prescription in your name or those available over the counter.
• Do not possess any weigh scales, hydroponic growing equipment or other drug paraphernalia.

9. Counselling and Treatment

• Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the supervisor and complete them to the satisfaction of the supervisor.
• You shall sign any release of information forms as will enable your supervisor to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed.
• You shall provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed.

10. Community Service

You shall complete, within the 20 month conditional sentence, 100 hours of community service, as approved by your supervisor, at a rate of no less than 5 hours per month. You shall sign releases to allow your supervisor to receive information to confirm your completion of the required community service.

As submitted by Crown counsel the sentence on the possession of fentanyl will note pre-sentence custody of 5 days, enhanced at the rate of 1.5:1 to be 7 days of enhanced credit for pre-sentence custody, and a suspended sentence and 2 years of probation on the terms outlined below.

The sentence on the carrying a concealed weapon will be a concurrent sentence of a 6 month conditional sentence, concurrent to the conditional sentence on the trafficking count.

The probation will start at the conclusion of the 20 month conditional sentence and will be for a period of 2 years, with conditions as follows:

Statutory conditions, and:

• report as required by your probation officer;
• take counselling or treatment as directed by your probation officer, cooperate with your probation officer, sign all necessary forms to ensure compliance and completion of the programs;
• Do not possess any weapon(s) as defined by the Criminal Code (for example: a BB gun, pellet gun, firearm, imitation firearm, cross-bow, prohibited or restricted weapon or device, ammunition or explosive substance or anything designed to be used or intended for use to cause death or injury or to threaten or intimidate any person).

84Pursuant to s.737 of the Criminal Code, there will be a victim fine surcharge of $500 payable within 12 months of today’s date.