Court File and Parties

Court File No.: St. Catharines - 2111-998-12-F0605-00

Date: 2014-03-28

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Monique Mayers

Before: Justice D.A. Harris

Heard: January 28, 2013 and October 2, 2013

Released: March 28, 2014

Counsel:

• P. Heinen/D. Anger — counsel for the Prosecution Service of Canada
• V. Singh — counsel for the Accused, Monique Mayers

Reasons for Sentence

HARRIS J.:

Overview

[1] Monique Mayers pled guilty to importing marihuana and to possessing marihuana for the purpose of trafficking.

[2] She is before me today to be sentenced.

[3] Crown counsel suggested that I should sentence her to imprisonment for two years.

[4] Counsel for Ms. Mayers suggested that I impose a conditional sentence of imprisonment or alternatively a blended sentence.

[5] I find that a conditional sentence is not appropriate in this case but that a blended sentence is appropriate. My reasons for this are as follows.

Conditional Sentence

[6] The conditional sentence came into being when section 742.1 of the Criminal Code was proclaimed in 1996.

[7] The Supreme Court of Canada subsequently stated in R. v. Proulx that "Parliament clearly mandated that certain offenders who used to go to prison should now serve their sentence in the community."

[8] The Supreme Court of Canada stated further that an offender who meets the criteria of section 742.1 will serve a sentence under strict surveillance in the community instead of going to prison. Her liberty will be constrained by conditions to be attached to the sentence. In case of breach of conditions, the offender will be brought back before a judge who may order her to serve the remainder of the sentence in jail, as it was intended by Parliament that there be a real threat of incarceration to increase compliance with the conditions of the sentence.

[9] Section 742.1 lists five criteria that a court must consider before deciding to impose a conditional sentence. These are:

1. the offender must be convicted of an offence that is not specifically excluded under the legislation;

2. the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment;

3. the court must impose a term of imprisonment of less than two years;

4. the safety of the community would not be endangered by the offender serving the sentence in the community; and

5. a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.

[10] The first four criteria are prerequisites to any conditional sentence. These prerequisites answer the question of whether or not a conditional sentence is possible in the circumstances. Once they are met, the next question is whether a conditional sentence is appropriate. That decision turns upon a consideration of the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.

[11] In Ms. Mayers' case, the first four prerequisite criteria have been satisfied.

[12] Her offences were not excluded under section 742.1 at the time that she committed them.

[13] Nor were they punishable by a minimum term of imprisonment at that time.

[14] I am satisfied that I should impose a sentence of imprisonment for much less than two years.

[15] Finally, I find that Ms. Mayers serving her sentence in the community, subject to appropriate conditions, would not endanger the safety of the community. She had no prior criminal record. She has stayed out of trouble since being charged with the current offences. I am satisfied that, with the appropriate safeguards in place, there is no danger that she would return to crime following the imposition of a conditional sentence.

[16] That then leaves the question of whether a conditional sentence is appropriate in all of the circumstances of this case. In making this decision, as I said before, I must consider the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code.

[17] The fundamental purpose of sentencing as expressed in section 718 is to contribute to respect for the law, the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation; deterring the offender and other persons from committing offences; separating offenders from society, where necessary; assisting in rehabilitating offenders; providing reparation for harm done to victims or to the community; and promoting a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[18] The relevance and relative importance of each of these objectives will vary according to the nature of the crime and the circumstances of the offender.

[19] The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and the degree of responsibility of the offender. The punishment should fit the crime. There is no single fit sentence for any particular offence.

[20] Doherty J.A. of the Ontario Court of Appeal stated in R. v. Hamilton that:

The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence. For example, in drug importation cases, the nature and quantity of the drug involved will impact on the gravity of the offence.

[21] He went on to state that:

The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence - especially the fault component - and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime. In drug importation cases, the offender's role in the importation scheme will be an important consideration in assessing the offender's personal responsibility.

[22] He then quoted Rosenberg J.A. who had previously described the proportionality requirement in R. v. Priest:

The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good.

[23] On this point, Doherty J.A. concluded by stating that:

Fixing a sentence that is consistent with s. 718.1 is particularly difficult where the gravity of the offence points strongly in one sentencing direction and the culpability of the individual offender points strongly in a very different sentencing direction. The sentencing judge must fashion a disposition from among the limited options available which take both sides of the proportionality inquiry into account.

[24] Proportionality is the fundamental principle of sentencing, but it is not the only principle to be considered.

[25] I must specifically consider section 718.2(d) which provides that "an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances".

[26] I must also consider the impact of section 718.2(e) which provides that "... all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders."

[27] The Supreme Court of Canada discussed the application of this section in Gladue v. The Queen and said that section 718.2(e) applies to all offenders, and that imprisonment should be the penal sanction of last resort. Prison is to be used only where no other sanction or combination of sanctions is appropriate to the offence and the offender.

[28] The Supreme Court also noted that section 718 now requires a sentencing judge to consider more than the longstanding principles of denunciation, deterrence and rehabilitation. Now a sentencing judge must also consider the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender. As a general matter restorative justice involves some form of restitution and reintegration into the community. A conditional sentence is much more effective than jail in achieving these restorative justice goals.

[29] I must also note that the Supreme Court of Canada expressly said in R. v. Proulx that a conditional sentence is "a punitive sanction capable of achieving the objectives of denunciation and deterrence" although it is not as effective as a sentence of real imprisonment.

[30] I must also look at the specific provisions in the Controlled Drugs and Substances Act with respect to the fundamental purpose of sentencing. Section 10(1) of that Act provides that:

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.

[31] At the time that Ms. Mayers committed her offences, section 10(2) enumerated a number of aggravating factors to be considered but none of those aggravating factors was present in this case.

[32] In addition, I have reminded myself repeatedly that there was no presumption against the imposition of a conditional sentence in drug importation cases despite the need to deliver a forceful warning to those who might consider becoming a drug courier. As the Ontario Court of Appeal stated in R. v. Wellington:

11. This court has made it clear that in cases involving the importation of drugs into Canada, sentences must be significant in order to send a message to those who would not otherwise be involved but who may be tempted by the payment promised to act as a drug delivery service, that they will be subject to being sentenced harshly and severely for their role. The reason of course is that because it is the otherwise innocent person who will raise less suspicion at the border and who is more likely to successfully import the drugs, the courier role is crucial to drug dealers who do not wish to take the risk themselves, and who would receive even more substantial sentences upon conviction.

12. This court has not changed its policy of significant sentences for importing drugs into Canada with the advent of conditional sentences. However, where the sentencing judge determines that the appropriate duration of sentence in all the circumstances is less than two years, then the propriety of a conditional sentence to be served in the community instead of in custody must be considered in the usual manner. Therefore, although statistically conditional sentences will be less frequent in certain types of cases including drug trafficking and importing, the approach which a sentencing court is to take when considering imposing a conditional sentence in any particular case is the same for all offences. The court is not to begin with a rule that the circumstances of the case itself must be rare or unusual. Rather, each case must be approached on the basis that it will be considered on its particular facts taking into account the nature of the offence, the circumstances surrounding the commission of the offence, as well as the personal circumstances of the offender.

13. For example, where a sentence under two years is appropriate in the case of importation of drugs into Canada by a courier or "mule", some of the factors which are relevant in considering the propriety of a conditional sentence relating to the commission of the offence will include the nature and quantity of the drug, the degree of involvement of the courier in the scheme to import, including the planning and the timing of her involvement as disclosed by the evidence, and whether the courier has had any involvement with illegal drugs in the past. The court must also consider all of the relevant facts relating to the personal circumstances of the offender in order to properly consider whether a conditional sentence is appropriate.

[33] So I must consider all of the circumstances and not apply a perfunctory rule that the case "is not one of those rarest of case", without further consideration.

[34] I must, however, also consider the fact that Parliament has since amended the Controlled Drugs and Substances Act such that there is now a mandatory minimum sentence of imprisonment for one year for anyone who imports marihuana for the purpose of trafficking. I am satisfied that I should view this amendment as a reflection of Parliament's intention that such offences should be treated more seriously than they were before.

[35] Andre J. certainly accepted that argument in R. v. Wasiluk, stating that:

In my view, a statutory increased penalty is a legislative signal that the sentencing paradigm has shifted towards a regime of tougher sentences than that which previously existed.

[36] I note also that even prior to the recent amendments, Parliament considered the importation of marihuana into Canada to be a serious enough offence to warrant a maximum sentence of life imprisonment.

Blended Sentences

[37] It is settled law that it is improper to blend a custodial sentence with a conditional sentence in the context of a single offence.

[38] However, "when an accused is being sentenced for more than one offence, it is legally permissible to blend a custodial sentence with a conditional sentence so long as the sentences, in total, do not exceed two years less one day and the court is also satisfied that the preconditions in s. 742.1(b) have been met in respect of one or more but not all of the offences."

[39] The Supreme Court of Canada stated in R. v. Middleton that "intermittent and conditional sentences can be effectively combined to take appropriate advantage of their complementary purposes -- in full compliance with the statutory conditions by which they are respectively governed."

[40] Fish J. elaborated on this stating:

Intermittent sentences strike a legislative balance between the denunciatory and deterrent functions of "real jail time" and the rehabilitative functions of preserving the offender's employment, family relationships and responsibilities, and obligations to the community.

That balance cannot be sustained indefinitely. Parliament has therefore fixed its duration at a reasonable limit of 90 days. Beyond that limit, intermittent sentences lose their purpose: the recurring "taste of jail" becomes disproportionately punitive as a deterrent and counter-productive as a rehabilitative and correctional alternative to continuous terms of imprisonment.

It has not been suggested, on the other hand, that the combination of an intermittent and a conditional sentence -- even when their aggregate duration exceeds 90 days -- is similarly objectionable on any ground of correctional policy, or inconsistent with the sentencing principles enacted by Parliament in the governing sections of the Criminal Code.

On the contrary, it is conceded that their combination in this case served the purposes of both intermittent and conditional sentences. This fit combination of sentences harmonizes the differing correctional advantages of conditional and intermittent sentences, while respecting the letter and the spirit of the provisions of the Criminal Code dealing with both.

[41] Before I can apply the applicable principles of sentencing, however, I must look at the facts underlying the offence here and at Ms. Mayers' background.

The Offence

[42] On February 14, 2012, Ms. Mayers drove a rented motor vehicle up to the primary inspection station of the Canada Border Services Agency at the Peace Bridge in Fort Erie, Ontario.

[43] She said that she had been visiting a cousin in Albany, New York.

[44] There was a "lookout" registered against her passport on the Canada Border Services Agency computer system and she was sent to the secondary inspection station.

[45] She again said that she had been visiting a cousin in Albany, New York.

[46] Canada Border Services Officers searched her vehicle and discovered 62 pounds of marihuana hidden inside interior panels of the motor vehicle.

[47] Ms. Mayers also possessed $1,000 CAD and $450 USD.

[48] She told the Canada Border Services Officers that she was "more courier than queenpin".

Background of Ms. Mayers

[49] I have had the benefit of a Pre-Sentence Report and other material provided on behalf of Ms. Mayers.

[50] Ms. Mayers is now 33 years old.

[51] She resides with her new husband Robert Muir and her nine year old daughter from a previous relationship. The child's biological father provides little to no support in bringing up the child.

[52] According to Ms. Mayers, she was unemployed for six years as a result of losing subsidized daycare for her daughter. Her then fiancé, Mr. Muir was the sole breadwinner for the three of them. He was then laid off in January 2012 leaving them with no income.

[53] She mentioned to a friend that she was experiencing financial difficulty and that friend offered her an opportunity to earn some money.

[54] Ms. Mayers eventually learned that she would receive $5,000. In return for this, she would drive a rented motor vehicle to Florida and back. She understood that she would be bringing marihuana back into Canada on the return trip.

[55] In order to allay her misgivings about this, her friend told her that the plan could not fail.

[56] Ms. Mayers realized that she could eliminate her mounting debt with the money that she would receive and she reluctantly agreed to do what was asked of her.

[57] The Pre-Sentence Report states that she has since recognized that this was a poor decision.

She is not happy about what she did, as she tried to take the easy way out of her financial issues… She is very mad and angry at herself… The person did not make her do it as she ultimately made the decision and knew that there are consequences for her actions… She knows that she has to pay for what she did.

[58] Others describe her as being a good mother. She volunteers at her daughter's school.

[59] She "tries to help anyone in the family when called upon." A friend described her as generous.

[60] She has since found full-time employment with benefits.

Analysis

[61] Doherty J.A. aptly described my task here when he began the judgment in R. v. Hamilton by stating:

The imposition of a fit sentence can be as difficult a task as any faced by a trial judge. That task is particularly difficult where otherwise decent, law-abiding persons commit very serious crimes in circumstances that justifiably attract understanding and empathy.

[62] There is much that can be said in favour of Ms. Mayers.

[63] She pled guilty. She has accepted full responsibility for her offences and expressed remorse.

[64] She had no criminal record.

[65] She has been a productive and contributing member of society despite the fact that she has had a difficult life.

[66] I am sure that she has been personally deterred by being apprehended and brought to court.

[67] She has good prospects for rehabilitation.

[68] Her role in the importation scheme was that of a courier and nothing more.

[69] She became involved in this offence in an attempt to clear up her financial difficulties with the $5,000 she was to receive in return for her bringing the marihuana into Canada.

[70] The reason for her desperate financial circumstances is relevant on sentencing. She was not poor because she did not want to work, was irresponsible or because she had led a lifestyle beyond her means. She was in dire economic circumstances for reasons beyond her control.

[71] It is also important that she has since taken steps to turn her life around and she has found full-time employment with benefits. As Doherty J.A. stated in R. v. Hamilton:

One of the purposes of sentencing is to get at the root causes of the criminal activity and where possible eliminate that cause. If the cause of criminal activity can be addressed in probation terms relating to things such as job training, the fact that the offender's economic circumstances are the result of factors beyond his or her control would offer support for the claim that the sentence should be tailored to include probationary terms which address the underlying causes of the criminal activity. In cases involving serious crimes like this one, those terms would usually follow some period of imprisonment.

[72] In this case, I need not impose such terms of probation since Ms. Mayers has already found a good paying job. I must however consider the fact that a lengthy period of imprisonment will likely lead to the loss of that job and set Ms. Mayers back again.

[73] Finally, it is significant that the drug that Ms. Mayers attempted to smuggle into Canada was marihuana.

[74] In R. v. H. (C.N.), the Ontario Court of Appeal drew a clear distinction between marihuana and other drugs in such cases, stating:

There is a considerable difference in the moral blameworthiness of a person who believes he is importing marihuana, a so-called "soft drug" that is grown in Canada, and one who knows he is importing cocaine, a dangerous drug that has no domestic source.

[75] I note the comments of Dawson J. in R. v. Ashley that:

It is somewhat ironic that someone would import low quality marihuana into Canada when Canada is well known to be a producer and exporter of high quality marihuana that is grown both outdoors and indoors in sometimes large scale sophisticated operations.

[76] However he does state later in his judgment that:

Given the domestic supply and the fact marihuana is not considered a hard drug, two of the important rationales for severe deterrent sentences in the cases of the importation of hard drugs are undermined to at least some degree. On the other hand, where there is an importation of a large quantity of marihuana, the inference is that a commercial criminal enterprise is underway, something which is always relevant to the quantum of sentence and which may call for emphasis of the principle of general deterrence, albeit for somewhat different reasons than in the case of importation of hard drugs. The point is that the concerns are somewhat different and the emphasis should accordingly be somewhat different.

[77] Even later, he states:

In addition, this is a border crossing situation. The violation of the integrity of Canada's borders by means of significant criminality is something that must be deterred. While the authorities acknowledge that a conditional sentence can act as a deterrent, I am of the view that having regard to the quantity of the marihuana and the importance of protecting the integrity of our borders from serious criminality, a conditional sentence in this case would send the wrong message. Although I earlier emphasized the distinction between marihuana and harder drugs like cocaine, when it comes to the question of whether a conditional sentence is adequate to serve the ends of general deterrence, it must be remembered that we are still dealing with the international transportation of illegal drugs. Those who import more seriously harmful drugs use similar techniques to those employed in this case to penetrate our borders and all such efforts must be deterred. The harm that flows from such illegal penetration of our borders is a harm that to some degree transcends the nature of the drug imported. I am of the view that the imposition of a conditional sentence in this case would not take that consideration adequately into account having regard to the fact that almost 45 pounds of marihuana was imported on this occasion.

[78] This is a very important consideration here in the Niagara Region where we have four separate bridges across the Niagara River linking Canada with the United States. As I have noted in previous decisions, the Canada Border Services Agency relies heavily on the honesty of those attempting to enter Canada at any of these bridges across and trusts them to provide accurate information. As a result, not everyone is required to verify the information that they provide to the Canada Border Services Officers. Even so, as anyone who has used those bridges can attest, there can be long line-ups of vehicles waiting for their occupants to be processed. Should the Canada Border Services Officers stop trusting everyone and conduct a full investigation in each and every case, the system would be brought to a standstill.

[79] Doherty J.A. stated in R. v. Hamilton that the imposition of conditional sentences for drug importation offences was inconsistent with the fundamental purpose of sentencing in a number of ways. These included the following:

1. Conditional sentences derogate from the ability of the sentence to adequately denounce the conduct or deter others;

2. Conditional sentences imposed in such cases do nothing to advance the restorative objectives identified in s. 718 that are usually furthered by conditional sentences. They did not provide for reparation for the harm done to the community by the respondents and did not promote a sense of responsibility by the respondents for their conduct;

3. The recruitment of young black poor women with no criminal records to carry drugs into Canada could be encouraged by a sentencing policy that treats the very factors which make them attractive as couriers as justifying a non-custodial sentence;

4. The routine imposition of conditional sentences for offenders who smuggle drugs into Canada undermines significantly the possibility of gaining the cooperation of these persons in the investigation and arrest of higher-ups on the drug-distribution chain. The chance of avoiding jail is usually the best thing that the authorities have to offer drug couriers in exchange for their cooperation. That cooperation has always been recognized as a very important mitigating factor but if couriers can expect to receive conditional sentences, there is very little incentive for them to cooperate with the authorities in attempts to apprehend those who hired them.

[80] Again, I note that he made his comments in the context of accused who were caught importing cocaine into Canada, but I am satisfied that they do have some application here where the drug was marihuana.

[81] On the other hand, the Ontario Court of Appeal allowed the sentence appeal in R. v. Wellington and imposed a conditional sentence of imprisonment for 15 months in circumstances that were not too different from those here:

16. In this case, the appellant was 26 years old at the time of the sentence. She had no criminal record and no involvement with drugs. The drug involved was hashish, which is a serious illegal substance, but not nearly as addictive or otherwise dangerous as cocaine, heroin or some others. The amount was under two kilograms which is not insignificant. The appellant was caught at the airport with the drug in a false bottom of a pot containing fish. The appellant denied any knowledge of the drug and said that at the end of a visit to her grandmother in Jamaica, she was approached by a neighbour of her grandmother to deliver the pot of fish to a friend of his in Toronto. This story was clearly rejected by the jury. However, there is no evidence to suggest any involvement other than agreeing to deliver the pot containing the drugs.

17. The appellant is a single mother with two young children, one under one year at the time of the sentencing. The older child who was six years at the time, required special classes in school for behavioural problems. These were to be provided by the Toronto Board of Education. However, if the children had to live with their grandmother during the period of incarceration, they would have to move to Ajax. There is no information as to what educational accommodation could be made for the child there. The pre-sentence report indicated that in the circumstances of a single parent, the young age of both children and the special needs of one, that the children's need for their mother to remain with them at that time was critical. The appellant was employed in training as a receptionist at an automotive shop, and was acting responsibly towards her family. She had previously completed community college and had attended business school. The pre-sentence report was very favourable and recommended community supervision. There appears to be little or no danger to the community. There are no other aggravating factors.

18. In my view, these are circumstances where a conditional sentence of 15 months to be served in the community but with strict conditions is appropriate to achieve the principles of sentencing set out in ss. 718-718.2 of the Code and in the jurisprudence. I would not interfere with the length of sentence imposed by the trial judge. Fifteen months is a significant term, as it should be for this offence. This length of sentence is imposed to achieve general as well as specific deterrence and denunciation. Taking into account all of the factors of the offence itself, together with the particular circumstances of the offender including the special needs of her young children, in my view, it is an appropriate case for the sentence to be served in the community.

[82] I do note that R. v. Wellington was a case involving the importation of two kilograms of hashish from Jamaica where the drug was hidden in the false bottom of a cooking pot as opposed to the 62 pounds of marihuana secreted in panels of a rental car here.

[83] Quite frankly, after considering all of the above factors, I am torn between two options.

[84] The first option involves sending Ms. Mayers to jail for one year. I am satisfied that this would be an appropriate term of imprisonment in light of all the circumstances of this case.

[85] The second option involves imposing a blended sentence combining an intermittent jail term for the importation offence with a conditional sentence of imprisonment for the possession for the purpose of trafficking offence. I would structure the intermittent sentence in such a way as to maximize the number of weekends Ms. Mayers will spend in jail while minimizing the length of time she will be away from her child on any one occasion. In addition, the conditional sentence of imprisonment would be subject to very strict conditions, would include a sizable community service component and would be for much more than a year.

[86] I am satisfied that both options are within the range of what could be appropriate here.

[87] I am not satisfied that imposing a conditional sentence with respect to both charges would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code. I agree with Dawson J. in R. v. Ashley that "anyone involving themselves in the importation of such a sizeable quantity is involved in a significant commercial criminal endeavour even if they are acting only as a courier" and that such behaviour calls for some time in jail.

[88] I realize that if the current Criminal Code provisions were in effect here, I would have to proceed with the first option. Those provisions are not in effect however.

[89] In the end, I find that sections 718.2(d) and (e) tip the balance such that I should proceed with the second option.

Sentence

[90] With respect to the charge of importing marihuana, I sentence Ms. Mayers to imprisonment for 90 days, to be served on an intermittent basis.

[91] She will be taken into custody today for processing and then released. She will then surrender herself into custody at the jail at 7:00 a.m. on Saturday, April 5, 2014 and remain in custody until 7:00 p.m. on Sunday, April 6, 2014 and thereafter between each subsequent Saturday at 7:00 a.m. until the following Sunday at 7:00 p.m. until the sentence is completed.

[92] By my calculation, it will take her 30 weeks, or about seven months, to complete that sentence. It is my hope and intention that she will pause and reflect on the seriousness of her offences each and every time she attends at the jail to serve this intermittent sentence.

[93] She will be placed on probation for the duration of her intermittent sentence.

[94] The terms of the probation will require that Ms. Mayers:

1. keep the peace and be of good behaviour;

2. appear before the court when required to do so by the court;

3. notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation;

4. appear at the jail on time and in a sober condition;

5. not apply for or accept admission into any temporary absence program at the jail.

[95] With respect to the charge of possession of marihuana for the purpose of trafficking, I sentence Ms. Mayers to a conditional sentence of imprisonment for 21 months to be served in the community, concurrent with the intermittent sentence. During that time she will:

1. keep the peace and be of good behaviour;

2. appear before the court when required to do so by the court;

3. report to a supervisor in person within two working days and thereafter, when required by the supervisor and in the manner directed by the supervisor;

4. notify the court or the supervisor in advance of any change of name or address, and promptly notify the court or the supervisor of any change of employment or occupation;

5. remain within Ontario unless written permission to go outside that jurisdiction is obtained from the court or the supervisor;

6. cooperate with the supervisor and sign any consents or releases necessary to permit the supervisor to supervise her and provide on request proof of compliance with any term of this order;

7. abstain absolutely from the purchase, possession or consumption of illegal drugs;

8. reside at an address approved by the supervisor;

9. for the duration of this conditional sentence, she shall remain within her place of residence at all times except for the purposes of:

   • (a) reporting to the supervisor
   • (b) employment or education that is verified in writing by the supervisor
   • (c) seeking employment in the manner and during the period as the supervisor may direct in writing
   • (d) performing community service as directed by the supervisor
   • (e) attending a dental or medical appointment with the prior written permission of the supervisor, or for a medical or other emergency involving her or her daughter
   • (f) engaging in shopping for food, medicine, clothing or other necessities for one continuous period of up to but not exceeding four hours on no more than one occasion in any seven day period. Unless otherwise specified in writing by the supervisor this four hour period shall occur between the hours of 6:00 p.m. and 10:00 p.m. on Wednesdays
   • (g) serving her intermittent sentence
   • (h) travelling directly to and from the above places
   • (i) for such other purposes and on such written terms and conditions as the supervisor may permit;

10. answer any telephone calls placed to her residence by the supervisor or designate and she shall present herself at the door of her residence at their request for the purpose of confirming compliance with and for the purpose of enhancing enforcement of this order including the determination of her presence and condition in her residence. If she fails to present herself at the door within a reasonable period of time as requested, they may use reasonable force to enter her residence to determine her presence and condition in that residence;

11. she shall be placed on electronic supervision for as long a period of her conditional sentence as can be accommodated by the electronic supervision programme. She shall report at the time and place and in the manner directed by her supervisor or designate for the purpose of arranging to be enrolled and thereafter she shall participate and abide by the rules and regulations of the electronic supervision programme as required by her supervisor or designate for the purpose of monitoring her house arrest and she shall permit them to enter her residence for the purpose of setting up, installing, maintaining, repairing or removing the electronic supervision programme equipment or to investigate any alerts generated while she is subject to the electronic supervision programme;

12. her supervisor may deliver a copy of this order to any person for the purpose of confirming compliance with and for the purpose of enhancing the enforcement of this order, including but not limited to neighbours and employers as well as to any policing agencies;

13. when away from her residence, as allowed by this order, she shall carry a copy of this order with her and she shall produce it upon the request of her supervisor or any peace officer;

14. find and maintain suitable employment or attend school or other educational program;

15. provide for the support or care of dependants;

16. perform 150 hours of community service. The work is to commence within 30 days of the completion of her intermittent sentence and shall be completed at a rate of not less than 10 hours per month in consecutive months and shall be completed to the satisfaction of the supervisor or designate within 15 months following commencement.

[96] I am making an order pursuant to section 732(3) of the Criminal Code directing that the conditional sentence shall not cause the intermittent sentence to be served on consecutive days.

[97] I am making that order out of an abundance of caution in case the correctional authorities are unaware of the statement by the Supreme Court of Canada in R. v. Middleton that "a conditional sentence is not a 'sentence of imprisonment' within the meaning of s. 732(1), (2) or (3)" and that the order is in fact not necessary.

[98] These are secondary designated offences and I make an order pursuant to section 487.051 of the Criminal Code, authorizing the taking from Ms. Mayers of any number of samples of one or more bodily substances, including blood, that are reasonably required for the purpose of forensic DNA analysis.

[99] Ms. Mayers will have 90 days to pay the victim fine surcharges, calculated at the old rate which was in effect at the time that she committed these offences.

Released: March 28, 2014

Signed: "Justice D.A. Harris"

Justice D.A. Harris