DATE: 20020516 DOCKET: C30042

COURT OF APPEAL FOR ONTARIO

LASKIN, GOUDGE AND SIMMONS JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Daniel M. A. Kleiman for the appellant

Respondent

• and -

STEPHEN SCHREINERT

James W. Leising and Moiz Rahman for the respondent

Appellant

DOCKET: C30009

BETWEEN:

John Norris

HER MAJESTY THE QUEEN

for the appellant

Respondent

• and -

James W. Leising And Moiz Rahman for the respondent

ROBERT WINTER

Appellant

Heard: August 24, 2001

On appeal from the conviction by Justice J. Desotti, dated May 6, 1998 and on appeal from the sentence imposed by Justice J. Desotti dated July 6, 1998.

SIMMONS J.A.:

[1] The appellants appeal against convictions and sentences imposed by Desotti J. on a variety of drug related charges.

[2] The Crown’s case against the appellants was based entirely on intercepted communications and evidence derived from those communications. Prior to the commencement of their trial, the appellants applied for an order excluding the proposed evidence because of alleged violations of s. 8 of the Canadian Charter of Rights and Freedoms. The trial judge dismissed the appellants’ applications, finding that five successive authorizations to intercept private communications issued under s. 186(1) of the Criminal Code, R.S.C. 1985, c. C-46, were properly made and that there was accordingly no s. 8 violation.

[3] The appellants did not lead evidence at trial, but rather took the position that the evidence tendered by the Crown did not prove the charges against them.

[4] The main issue on appeal is the propriety of the authorizations to intercept private communications. Mr. Winter also contends that one of the convictions against him is not supported by the evidence, and is therefore unreasonable. Both appellants appeal against the sentences imposed.

[5] For the reasons set out below I would dismiss the appeals against conviction but allow the sentence appeals.

Background

[6] In January 1995 police launched a joint forces investigation into the source of methamphetamine trafficking in Sarnia. The police had informer information naming James Brown as the main methamphetamine supplier. A primary objective of the investigation was to uncover Mr. Brown’s ultimate source(s) of the drug.

[7] The first authorization to intercept private communications was issued on April 24, 1995 for a two-month period. It authorized interception of the communications of 19 known targets, permitted tracking devices to be installed in vehicles, and allowed the interception of communications of unknown persons where the communication occurred at a specified location (any one of five residences occupied by six of the targets), or where the unknown person originated the communication with a known target.

[8] Neither appellant was named as a known target in the first authorization.

[9] The second authorization was issued on June 27, 1995 for a two-month period, and named 22 known targets. Although Mr. Brown and 14 of the other original targets remained named in the second authorization, Mr. Schreinert and some of his associates were added based on information gleaned from several intercepted communications.

[10] In particular, communications intercepted under the first authorization revealed that Mr. Brown was having difficulty obtaining methamphetamine from his suppliers and that he was in search of a “new source”. Police intercepted communications between Mr. Brown, Mr. Schreinert, and others in early May 1995 in which the participants talked about “fishing” in Walkerton. Police interpreted these calls as relating to a drug transaction. One of the other participants in the intercepted calls and Schreinert ultimately agreed to meet at a “hole” in Walkerton on May 5, 1995 at 6 p.m. Police observed that other party and Mr. Brown enter a bar in Walkerton at 6:15 p.m. on May 5, 1995 and then leave at 6:30 p.m.

[11] Police subsequently intercepted a series of seven calls on May 10, 1995 that indicated Mr. Brown was having trouble collecting money to complete a “deal” with Mr. Schreinert. Police interpreted the conversations as relating to a methamphetamine deal worth approximately $2,000.

[12] The third, fourth, and fifth authorizations were issued on July 18, 1995; August 14, 1995; and October 12, 1995 respectively based primarily on the content of intercepted communications. Both appellants were named targets in all three of these authorizations. Only Mr. Brown and one of the other originally named targets continued to be named.

[13] Mr. Winter was added to the list of known targets in the third authorization based on a police assertion that his name had surfaced during the course of interceptions of Mr. Schreinert’s communications as a person involved in the drug trafficking operation. Investigators had received information from the Walkerton Police Service as early as June 17, 1995 that Mr. Winter was an associate of Mr. Schreinert, however, Mr. Winter only became a person of real interest to the investigation after interceptions of communications began on Mr. Schreinert’s telephone line following the second authorization.

[14] Constable Bland filed the affidavit in support of the request to issue the third authorization. He confirmed that it was unclear to investigators whether Rob Winter or a Rob Ralston was the “Rob” involved in some of the communications. In any event, Constable Bland deposed that police had intercepted 26 communications involving one of the “Rob’s” between June 30, 1995 and July 11, 1995, and that 19 of those 26 intercepts were “relevant”. Constable Bland did not, however, explain in what way the 19 intercepts were relevant, and he attached a transcript of only one of the “relevant” calls as an exhibit to his affidavit.

[15] Acting on information gleaned from the intercepted communications, O.P.P. officers from Mildmay stopped a vehicle in which Mr. Winter was travelling on September 24, 1995. The officers found six mature marijuana plants in the trunk. Mr. Winter was arrested and charged with possession of marijuana for the purpose of trafficking.

[16] Again relying on information gleaned from the intercepted communications, police undertook surveillance of Mr. Winter and Mr. Schreinert on November 13, 1995 in anticipation of Mr. Schreinert travelling to Mr. Winter’s home in Guelph to purchase cocaine. Mr. Schreinert in fact attended at Mr. Winter’s home and was arrested shortly after his departure. He had two ounces of cocaine in his possession at the time.

[17] Mr. Winter left his house on November 13, 1995 along with his roommate, Mr. Alexander, shortly after Mr. Schreinert’s departure. Mr. Winter was searched, but nothing was found. Police found about half an ounce of cocaine and a quantity of marijuana on Mr. Alexander.

[18] Subsequent investigation revealed two of Mr. Winter’s fingerprints on the plastic bag containing the cocaine found in Mr. Alexander’s possession and one of Mr. Winter’s fingerprints on the plastic bag containing cocaine seized from Mr. Schreinert.

[19] Police executed a search warrant at Mr. Schreinert’s home on January 24, 1996. No drugs were found. However, police seized equipment suitable for the purposes of cultivating marijuana, a marijuana grower’s guide and pictures of marijuana.

[20] Mr. Schreinert was tried and convicted of conspiracy to traffic methamphetamine, conspiracy to traffic cocaine, conspiracy to traffic marijuana, cultivation of marijuana, and possession of cocaine for the purpose of trafficking.

[21] Mr. Winter was tried and convicted of conspiracy to traffic cocaine, conspiracy to traffic marijuana, possession of cocaine for the purpose of trafficking; cultivation of marijuana, and possession of marijuana for the purpose of trafficking.

[22] The appellants raise the following grounds of appeal:

1. Mr. Schreinert contends that the first authorization was issued in the absence of reasonable and probable grounds;
2. Mr. Schreinert and Mr. Winter both contend that the first and second authorizations were issued in the absence of evidence that other investigative procedures had been tried and failed or were unlikely to succeed;
3. Mr. Winter contends that he was incorrectly named as a known party in the third authorization and that his communications were therefore inadmissible;
4. Mr. Winter alleges that his conviction for conspiracy to traffic marijuana was unreasonable, or alternatively, that it was precluded by the rule in Kienapple[^1]; and
5. both appellants challenge specific aspects of the sentences imposed upon them.

Did the trial judge err by finding there were reasonable and probable grounds to issue the first authorization?

[23] The first authorization was issued based on the affidavit of Constable Reurink. Mr. Schreinert contends that Constable Reurink’s affidavit contains conclusory statements from an informer that Mr. Brown is a drug dealer supported by nothing more than evidence of guilt by association. He also relies on the fact that Constable Reurink acknowledged, when cross-examined in relation to the pre-trial motions, that police did not believe they had enough evidence to get a search warrant at the time of the first authorization. Mr. Schreinert submits that police did not have reasonable and probable grounds for believing that Mr. Brown had committed a specific offence, or that the proposed wiretaps would provide evidence of that offence. If the first authorization was granted improperly, intercepted communications that formed the basis for naming Mr. Schreinert in the second authorization must be excised.

[24] I do not accept Mr. Schreinert’s characterization of Constable Reurink’s affidavit.

[25] Constable Reurink noted in his affidavit that police had received information from an informant Constable Reurink considered reliable that Mr. Brown was Sarnia’s main “speed” supplier, that a Mr. Branton and a Mr. Plain were Mr. Brown’s couriers; that Mr. Brown distributed to a Mr. James, and Mr. Plain; and that they in turn distributed to a Ms.Heath, a Mr. Kameka, a Ms. Fenn, a Ms. Payne, and a Ms. Millier. The informant also advised that Mr. Brown’s source of methamphetamine was outside of Sarnia, that Mr. Brown delegated his business to Millier while he was in the Sarnia jail between December 13, 1994 and January 21, 1995, and that a Mr. Moore was a debt collector and enforcer for Mr. Brown.

[26] Although barren of detail concerning a specific transaction, the informant’s information was more detailed than a simple conclusory statement that Mr. Brown was a drug dealer. Moreover, Constable Reurink indicated that police had considered additional information to support the accuracy and reliability of the informant’s statements, including the following:

• Brown’s criminal record, which includes seven convictions for possession of narcotics;
• James’ and Branton’s criminal records, which include one or more convictions for possession of narcotics;
• Brown, James, Plain, and Branton were linked by surveillance and/or telephone records;
• Branton had one gram of methamphetamine in his possession when arrested in Georgetown on January 4, 1995; he told the officer who arrested him that he had obtained the methamphetamine from a stripper in Georgetown;
• Branton’s address book contained Brown’s unpublished telephone number as well as the names and numbers of several persons associated with Brown and suspected of dealing in or couriering methamphetamine, including Plain, Heath, Payne, Pardy, and Millier;
• Branton told police that Payne and Pardy were major suppliers of methamphetamine in Sarnia;
• Brown’s telephone records disclosed 1695 long distance calls from his telephone line and 303 collect calls to his telephone line in the five month period between August 25, 1994 and January 21, 1995; in particular they disclosed 43 calls to the Payne and Pardy number between August 1994 and January 1995; they also disclosed telephone calls to Georgetown in close proximity to telephone calls to his alleged couriers, Plain and Branton, tending to confirm the informer information that the methamphetamine was coming from out of town;
• Payne and Pardy’s telephone records disclose 36 calls to Brown’s number between November 23, 1994 and December 13, 1994;
• the informant told police that Brown turned his drug business over to Millier while he was incarcerated in the Sarnia jail from December 13, 1994 to January 21, 1995; Millier’s telephone records disclose 9 collect calls from the Sarnia jail during this period; they also disclose 52 calls to Branton’s number following Brown’s incarceration but only one call to Branton’s number between Sept. 10, 1994 and the date of Brown’s incarceration;
• at least three methamphetamine seizures in Sarnia between October 1994 and January 1995 disclosed similar packaging techniques (methamphetamine in a Playtex baby bottle liner, the liner wrapped in black electrical tape); one of those seizures was from the Payne and Pardy residence, another was from the Millier residence;
• methamphetamine contained in Playtex baby bottle liners wrapped in electrical tape was found in the garage of a Georgetown residence on February 24, 1995; the owner of the premises found the drugs and attributed them to the tenants of a basement apartment, Boundy and Smyth;
• police found Boundy and Smyth’s names and telephone number in Branton’s address book; telephone records revealed 8 calls from Brown’s line to Boundy and Smyth’s line and 8 calls from Boundy and Smyth’s line to Brown’s line, they also revealed 16 calls from Boundy and Smyth to Branton;
• Boundy’s criminal record includes six convictions for possession of a controlled drug for the purposes of trafficking, three convictions for trafficking in narcotics, and four convictions for possession of narcotics.
• police observed parties enter and remain at the Payne and Pardy residence for approximately 5 minutes, 7 minutes and 8 minutes on February 16, 1995;
• police observed a known methamphetamine user enter and remain at the Millier residence for approximately 5 minutes on two separate occasions on February 23, 1995;
• police received information that Forsyth, a suspected drug dealer from London was to meet Brown and White on March 1, 1995. Surveillance on White’s residence indicated that Forsyth, Payne, Pardy, Brown and Plain were all in attendance; police arrested an associate of Forsyth on March 23, 1995; the associate had 502 grams of methamphetamine in his possession; the methamphetamine was packaged similarly to the Sarnia seizures; Forsyth was subsequently arrested on April 3, 1995 and charged for the same offence;

[27] I agree that none of the individual pieces of evidence used to corroborate the informer’s information are compelling. However, I am satisfied that taken as a whole, the information contained in Constable Reurink’s affidavit was sufficient to permit the conclusion that there were reasonable and probable grounds to believe that Brown was engaged in the distribution of methamphetamine in the Sarnia area and that the interceptions proposed would provide evidence of that offence.

[28] The informant’s information concerning Millier, Payne, Pardy, and Branton being involved with methamphetamine was confirmed by physical evidence discovered upon the execution of search warrants in the case of Millier, Payne, and Pardy and upon his arrest in Branton’s case. Surveillance confirmed the likelihood that the informant’s information that Millier, Payne, and Pardy were traffickers was correct.

[29] Mr. Brown’s telephone records disclosing unusually high telephone use, contact with Millier from the Sarnia jail tending to confirm the informant’s information about Mr. Brown delegating his business to her, and a significant number of calls to persons named by the informer whose involvement with methamphetamine was confirmed, corroborated the informer’s information and elevated the evidence beyond being merely evidence of guilt by association.

[30] The trial judge found that that there were “more than ample materials [before each justice] to warrant the authorization[s]”. I am not persuaded that there is any basis for interfering with the trial judge’s finding.

Did the trial judge err by failing to find that the first and second authorizations were issued in the absence of evidence that other investigative procedures had been tried and failed or were unlikely to succeed?

[31] Both appellants contend that police failed to exhaust all reasonable investigative methods prior to applying for a wiretap authorization and that they failed to demonstrate investigative necessity. They say that police used informers’ innuendo and police reports to create an exaggerated picture of Brown’s “drug ring” when in fact he was really only a small time user who couldn’t afford to pay his telephone bill[^2]. The appellants submit that what police called “Project Outtake” was really “Project Wiretap” as wiretapping was the only real investigative tool used by police.

[32] Again, the appellants contend that if the first authorization was granted improperly, intercepted communications must be excised from the second affidavit, rendering it no more cogent than the first. If the first and second authorizations are invalid, the third, fourth, and fifth authorizations must also fail, as they depend on intercepted communications and previous information. Moreover, once police had evidence of Mr. Schreinert doing business in a Walkerton bar and Brown scrambling for funds to complete a relatively minor deal, there was even less investigative necessity than before, as it was by then apparent that Brown was not the major player police may once have thought he was.

[33] The appellants point out that police did not attempt to obtain a search warrant for Brown’s residence, that they did not attempt to infiltrate Brown’s organization, and that they made minimal attempts at surveillance. They also note that Constable Bland, who swore the affidavits filed in support of the second, third, fourth, and fifth authorizations, testified that investigators declined to give more investigative responsibility to the Walkerton Police Service for “political reasons”, and that planting an undercover agent would take too much time.

[34] I reject the appellant’s submissions, which appear to be premised on the notion that s. 186(1)(b) of the Criminal Code is a last resort test. That approach was rejected by the Supreme Court of Canada in R. v. Araujo (2000), 2000 SCC 65, 149 C.C.C. (3d) 449 in which LeBel J. distinguished between “a last resort test” and “a no real practical alternative test”, and clarified that the statutory requirement will be met when there is evidence that there is “practically speaking, no other reasonable alternative method of investigation, in the circumstances of the particular criminal inquiry”. The court also recognized that it is appropriate that the objective of the police investigation inform the investigative necessity analysis. LeBel J. said the following at para 43:

If the police have probable grounds to investigate a serious crime, then they may use wiretapping to do so, provided they meet the investigative necessity analysis. There is nothing pernicious about the fact that the objective of their investigation rightly informs the investigative necessity analysis. Here, the police had more need for wiretapping given that they were trying to move up the chain and catch the higher ups in the operation. This rightly reinforces the investigative necessity made plain by the affidavit materials.

[35] Constable Reurink indicated that there were problems with surveillance and search warrants from the outset, and that undercover agents had not been successful in infiltrating the organization. He set out the following specific factors in his affidavit filed for the first authorization to support the police claim of investigative necessity:

• four informants had come forward about the investigation but were only able to provide information about events that had already occurred;
• Sarnia is a small community with low traffic flow in residential areas making surveillance difficult;
• the drugs used by some of the targets made them paranoid and therefore increased the difficulty of effective surveillance;
• two of the targets had used counter-surveillance techniques;
• surveillance does not allow police to determine whether targets are carrying drugs;
• undercover operators had tried unsuccessfully to infiltrate the drug subculture twice in the past three years because the main targets were unwilling to associate with persons with whom they did not have a long history; and
• search warrants executed at residences of two of the targets within the past year in relation to other offences had uncovered drugs, but not in the quantities police suspected were being dealt.

[36] In addition to the grounds for investigative necessity in Constable Reurink’s affidavit, Constable Bland in his affidavit filed in support of the second authorization relied on the fact that a search warrant had been executed at the home of two of the targets reported to be involved with both Brown and another supplier. He indicated that when police executed the warrant they found 13 grams of methamphetamine packaged in three baby bottle liners in the possession of one of the targets. Again, Constable Bland relied on the assertion that search warrants are not effective in allowing police to uncover the quantity of drugs the targets were believed to be dealing in support of the claim for investigative necessity.

[37] Here, the police objective was to investigate the source of methamphetamine coming into the community and to gather evidence against various levels of players involved in distributing methamphetamine within the community. The focus of police efforts was not on catching one or two individual street level traffickers, but on attempting to uncover an entire distribution ring. This remained true in the subsequent authorizations, even though the focus of the investigation shifted somewhat with respect to some of the originally targeted players.

[38] The problems the officers referred to in their affidavits are neither surprising, nor uncommon, given the nature of the investigation undertaken: see Araujo, paras. 41 and 42. Constable Reurink also noted that the targets telephoned each other on many occasions and also met in-person, thus rendering it likely that a wiretap order would assist the investigation.

[39] It was argued in Araujo that police should not be permitted to define the objectives of their investigation as part of the application for a wiretap because that would permit them to manipulate their objectives improperly in order to better their chances of obtaining an authorization. LeBel J. rejected this argument, holding that the reasonable and probable grounds branch of the test for obtaining a wiretap adequately protects against this concern.

[40] The trial judge found that there was an adequate basis in the material before the issuing justices to satisfy the requirement of investigative necessity. I see no basis to interfere with this finding.

Did the trial judge err by failing to find that Mr. Winter was incorrectly named as a known party in the third authorization and that evidence of his communications was therefore inadmissible?

[41] As already noted, the third authorization was issued based on an affidavit filed by Constable Bland. Mr. Winter submits that bare conclusory statements made by Constable Bland in his affidavit filed concerning Mr. Winter’s involvement did not provide a sufficient basis for the issuing judge to satisfy himself that there were reasonable grounds for believing that interception of Mr. Winter’s communications might assist in the investigation of an offence.

[42] Mr. Winter also relies on Constable Bland’s testimony during cross-examinations held in advance of the pre-trial motions. The officer stated that he felt obliged to include Mr. Winter as someone who would probably be a party to communications that were intercepted but that his significance to the investigation “was certainly unclear”, “ha[d] escaped [him]” and “was unclear at best”, at the time the third authorization was sought.

[43] I reject Mr. Winter’s submissions. The threshold for naming a party as a “known” party is a low one. Police need not have reasonable and probable grounds to believe that the party is involved in the commission of an offence. Rather, it is sufficient if police know the identity of the party and have reasonable and probable grounds to believe that interception of that party’s communications may assist in the investigation of an offence: R. v. Chesson (1988), 1988 54 (SCC), 43 C.C.C. (3d) 353 (S.C.C.) at pp. 365-367.

[44] Here, police were focussing their attention on Mr. Schreinert as a main target of the third authorization. They were aware of Mr. Winter as an associate of Mr. Schreinert separate and apart from intercepted communications. They also knew that Mr. Winter had surfaced as a party to a significant number of telephone calls during a short period of time in a way that appeared to them to be relevant.

[45] It was not necessary for police to have determined precisely how Mr. Winter’s communications could assist in the investigation of an offence at that point. It was sufficient that police had identified him and considered that his communications that they had intercepted to that point appeared to be “relevant”. It would undoubtedly have been preferable for Constable Bland to have attached additional transcripts of “relevant” calls to his affidavit, and to have disclosed that police were not then in a position to identify the particular relevance of Mr. Winter’s calls to the investigation. However, the transcript of the one call involving one of the “Rob’s” that was attached to Constable Bland’s affidavit supports an inference that the investigators were capable of assessing relevance. It was reasonable, in my view, given the circumstances, for police to conclude that they would likely continue to intercept “relevant” calls between Mr. Winter and Mr. Schreinert. I conclude that it was appropriate, in such circumstances, to name Mr. Winter as a target.

Is Mr. Winter’s conviction for conspiracy to traffic marijuana unreasonable, or alternatively, precluded by the rule in Kienapple?

[46] Mr. Winter contends that there is no evidence demonstrating that he was a party to an agreement to traffic marijuana. Rather, at its highest the evidence discloses he was involved in cultivating marijuana. In the alternative, Mr. Winter contends that the evidence discloses a single, ongoing conspiracy to traffic in illegal drugs between June 30, 1995 and November 15, 1995. He says that the nature of the drug varied with supply and demand, and that the evidence does not support the existence of two distinct conspiracies, one to traffic in marijuana and one to traffic in cocaine. He submits that the conviction for trafficking in marijuana should accordingly be conditionally stayed in accordance with the Kienapple principle.

[47] I would not give effect to this ground of appeal.

[48] The Crown introduced at trial synopses of 70 intercepted telephone communications in support of the charges against both Mr. Schreinert and Mr. Winter for conspiracy to traffic marijuana. A number of calls involve Mr. Schreinert and Mr. Winter discussing their marijuana crops, and in particular, replanting marijuana, and moving marijuana from indoors to outdoors. Several calls involve Mr. Schreinert discussing specific sales with third parties, some of whom appeared to be distributors. At least two of the calls involve Mr. Winter discussing the sale of plants or clippings with third parties.

[49] The trial judge relied on five of the calls as particularly supporting the suggestion that “the parties are, in fact, conspiring together and have formed an agreement to traffic marijuana”. One of these calls involved a discussion between Mr. Winter (using Mr. Schreinert’s telephone) and a third party concerning a possible sale of 600 clippings from female plants at a cost of $10 per clipping. The trial judge also said that “[q]uantities involved are meant to be used in the trafficking trade”. It is clear that the parties were involved in a common enterprise and that Mr. Winter’s activities went beyond mere cultivation.

[50] I not persuaded that the evidence supports the appellant’s view that there was but one single overarching conspiracy to traffic in at least two forms of drugs. The time frames involved in the two alleged conspiracies are different as are the drugs. In my view, both convictions were supported by the evidence.

Sentence Appeal—Mr. Winter

[51] The trial judge sentenced Mr. Winter to 90 days imprisonment to be served intermittently for conspiracy to traffic cocaine; to 9 months imprisonment to be served in the community conditionally plus 18 months probation, consecutive, for conspiracy to traffic marijuana; and to 9 months imprisonment to be served in the community conditionally, concurrent, for each conviction for possession of cocaine for the purpose of trafficking; cultivation of marijuana, and possession of marijuana for the purpose of trafficking.

[52] The trial judge noted that Mr. Winter was a first time offender with an excellent pre-sentence report, that he was gainfully employed at the time of sentencing, and that he had not breached any of the terms of his bail conditions since being charged. In relation to his decision to impose a sentence of 90 days imprisonment to be served intermittently for conspiracy to traffic cocaine, the trial judge said only that a period of incarceration was warranted given the circumstances of the offences and the principles of sentencing set out in s. 718 of the Criminal Code.

[53] Mr. Winter raises three grounds of appeal against sentence:

1. the trial judge erred in principle in imposing a period of immediate imprisonment on one count given his conclusion that a conditional sentence met the principles and objectives of sentencing on the other counts;
2. the trial judge erred in imposing consecutive sentences for the offences of conspiracy to traffic cocaine and possession of cocaine for the purpose of trafficking as possession for the purpose of trafficking count arose out of the conspiracy to traffic cocaine; and
3. it would be contrary to the interests of justice to uphold the intermittent sentence now given the passage of time.

[54] As I have decided to accede to the third ground of appeal, it is unnecessary that I deal with the first two grounds.

[55] Fresh evidence filed at the hearing indicated Mr. Winter continues to be gainfully employed and that he served the conditional sentence and probationary term while the appeal was pending. He has no further charges pending. He abided with reporting terms while on bail pending trial and subsequently while on bail pending appeal. Since being charged with these offences he has purchased a home and tractor-trailer and appears to have become a contributing member of society. While this was also true at the time of the sentence hearing on July 7, 1998, considering, in combination, the close connection between the conspiracy to traffic cocaine and “possession for the purpose” offences; the disparate sentences imposed for each offence; the time that passed from offence to trial, and from sentencing to appeal; the progress Mr. Winter has maintained throughout these periods; and the fact that Mr. Winter has served all other aspects of sentence, it appears that no useful purpose will now be served by requiring that he complete the intermittent portion of his sentence.

Mr. Schreinert—Sentence Appeal

[56] The trial judge sentenced Mr. Schreinert to 90 days imprisonment, to be served intermittently, for conspiracy to traffic methamphetamine; to 15 months imprisonment to be served in the community conditionally plus 18 months probation, consecutive, for conspiracy to traffic cocaine; and to 15 months imprisonment to be served in the community conditionally, concurrent, for each conviction for conspiracy to traffic marijuana; possession of cocaine for the purpose of trafficking; and cultivation of marijuana.

[57] The terms of the intermittent sentence require that Mr. Schreinert surrender himself to the Walkerton jail on Friday evenings at 7 p.m. until Sunday evenings at 7 p.m. Mr. Schreinert’s only request is that these terms be varied so that he may surrender himself Saturday mornings at 9 a.m. to accommodate new employment involving some night shifts.

[58] This request is unopposed. It is in the interests of justice that it be granted.

Disposition

[59] For the reasons given, I would dismiss the appeals from conviction, grant leave to appeal sentence, and allow the appeals from sentence by varying the sentences imposed as follows:

i) As to Mr. Winter

I would vary the sentence of 90 days imprisonment to be served intermittently for conspiracy to traffic cocaine to a sentence of time served.

ii) As to Mr. Schreinert

I would vary the terms of the sentence of 90 days imprisonment to be served intermittently for conspiracy to traffic methamphetamine such that Mr. Schreinert be required to surrender within 72 hours from the release of this judgment for processing and thereafter serve his sentence on weekends from Saturday at 9 a.m. until Sunday at 7 p.m. commencing on the first weekend next following his surrender for processing and continuing on each weekend thereafter until the 90 day sentence is served.

Released: May 16, 2002 “JL”

“Janet Simmons J.A.”

“I agree John Laskin J.A.”

“I agree S.T. Goudge J.A.”

[^1]: Kienapple v. the Queen, 1974 14 (SCC), [1975] 1 S.C.R. 729 [^2]: Police had information that Brown’s telephone service was cut off on May 11, 1995 because of bills in excess of $1,300.