ONTARIO COURT OF JUSTICE DATE: 2021 04 28 COURT FILE No.: Peterborough 190562
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
CRAIG COLTON
Before Justice S. W. Konyer
Heard on August 6, 2020 and March 24, 2021 Reasons for Judgment released on April 28, 2021
Mr. D. Wilson....................................................................................... counsel for the Crown Mr. S. Pearl ............................................................. counsel for the accused Craig Colton
KONYER J.:
[1] Craig Colton pled guilty on August 6, 2020 to possession of cocaine for the purpose of trafficking, possession of ecstasy for the purpose of trafficking, possession of cannabis for the purpose of selling it, two counts of trafficking in cocaine, trafficking in psilocybin, and possession of the proceeds of crime. These offences were all committed between February 15 and March 13, 2019. What follows are my reasons for sentence.
[2] The Crown is seeking a sentence in the range of 24 to 30 months in jail, while Mr. Colton is seeking a conditional sentence of imprisonment plus probation. Since a conditional sentence is only available for sentences of less than two years, I will need to first determine whether a sentence under two years is fit in the circumstances of this case. If it is, I will need to go on and consider whether a conditional sentence is appropriate.
[3] In order to explain the conclusions I have reached, I will assess the seriousness of these offences and Mr. Colton’s level of responsibility. I will then identify the purposes and principles of sentencing that apply in this case. This will allow me to determine the appropriate length of sentence and, if a conditional sentence is available, whether permitting Mr. Colton to serve his sentence in the community is appropriate.
The Circumstances of the Offences
[4] These offences occurred during an OPP investigation into Mr. Colton and a business he was operating at the time, Braap Shack Powersports in Lakefield, Ontario. As a result of information received that Mr. Colton was selling drugs from this business, the police set up an undercover sting operation. In February 2019, an undercover officer attended the business posing as a legitimate customer and quickly established a rapport with Mr. Colton. The officer took steps to convey to Mr. Colton that he was a drug user himself, and that he was looking for a supplier.
[5] On February 15, the undercover officer asked Mr. Colton “if he knew anyone that he trusted that I could get some blow off of”, referring to cocaine. Mr. Colton said that he could supply the officer himself, telling him “I can help out, that’s what I’m into, that’s what I do”. The officer purchased 3.5g of cocaine from Mr. Colton for $250. Mr. Colton removed the cocaine from a jar using a scoop and weighed it in front of the officer. He also told the officer that he had 10 pounds of cannabis, 20 pounds of mushrooms (psilocybin) and pills for sale. He also told the officer that “I’ve got everything, that’s what I do – my shit is good as I have a lot of older people”. The cocaine was later analyzed and found to be 93% pure.
[6] The undercover officer returned on March 1 and made another purchase of 3.5g cocaine and 14g of psilocybin. Mr. Colton also offered to sell him ecstasy, which the officer declined. The officer also noticed on this occasion that Mr. Colton was “noticeably sniffling in a way that seemed to indicate drug usage”.
[7] As a result of the investigation, the police obtained search warrants for Mr. Colton’s home, business and vehicles. The undercover officer attended his place of business again on March 7 and asked to purchase a ¼ ounce of cocaine (7g) and an ounce of mushrooms. Mr. Colton supplied the mushrooms but only had 5g of cocaine at the time. He told the officer that his supplier would be replenishing his stock soon. The police decided to delay the execution of the warrants until Mr. Colton had been resupplied.
[8] The warrants were executed on March 13 after Mr. Colton told the undercover officer that his supply had been replenished. At the business, the police seized 6 ounces of cocaine, 3.4 pounds of psilocybin, and 14 pounds of marijuana.
Mr. Colton’s Personal Circumstances
[9] Mr. Colton is 36 years old and has one prior conviction in 2008 for trafficking in a Schedule 1 substance, for which he received a 3 month conditional sentence and 12 months probation. After he entered his guilty pleas on the current charges, sentencing was adjourned for the preparation of a pre-sentence report and to allow Mr. Colton an opportunity to continue to engage in counseling in the community.
[10] Both counsel agree that the pre-sentence report is generally positive. Mr. Colton was raised in a home environment where he was exposed to significant emotional and physical abuse from his father, who was a police officer. He began abusing alcohol and drugs when he was a teenager. He nevertheless completed high school and achieved a college diploma in computer graphics. Mr. Colton has a history of mental health concerns and has struggled with depression. He continued to abuse alcohol and drugs until his previous arrest in 2007, which served as a wake-up call for him and led him to take steps to achieve sobriety for about a decade. After becoming sober, Mr. Colton worked for several years at a research company in Lakefield before acquiring the powersports business. He had owned that business for about four years by the time of his arrest. By that point, the business had begun to fail, and he had relapsed and resumed abusing alcohol and drugs. His mental health also deteriorated. Mr. Colton was depressed, and fearful of being judged a failure by his family, particularly his father. He concedes that he was trafficking cocaine and other drugs not only to support his own use, but also to support his struggling business and to maintain his lifestyle.
[11] Since being charged with these offences, Mr. Colton has engaged in counseling to address his substance abuse and the underlying childhood trauma that is at the root of his addiction. He has been receiving counseling for mental health issues including depression and PTSD. He appears to have been sober since his arrest, which he describes as a life-changing experience. He has not re-offended since being charged more than two years ago. Since his arrest he has found new employment at a local watercraft dealer and was recently promoted to sales manager. He and his partner now have two young children, and he is the sole financial provider for his family. The author of the pre-sentence report described him as polite, cooperative, forthright, and remorseful, and determined that Mr. Colton would be a suitable candidate for future community supervision.
[12] Mr. Colton himself addressed me at his sentencing hearing. He accepted responsibility for his conduct and candidly acknowledged that he was trafficking drugs for a number of reasons – to support his own addiction, to support his struggling business, and to support his partner and himself in their lifestyle. He also explained that his business had begun to fail, his mental health had deteriorated and that he had relapsed. He expressed an appreciation for the harm that his actions had on the community and gratitude for the officers who arrested him for, to use his words, “breaking the cycle of addiction”. He said that he is not the same person now as he was when he committed these offences, and expressed a willingness to continue to engage in counseling in order to ensure that he stays sober and does not re-offend in the future.
The Positions of the Parties
[13] The Crown is seeking a sentence in the low penitentiary range of 24-30 months, which would make a conditional sentence unavailable. The parties agree that if I find a penitentiary sentence is not required, that a conditional sentence is an available sentencing option for Mr. Colton. The statutory criteria are met since there is no mandatory minimum punishment, and a conditional sentence for trafficking is no longer excluded pursuant to s.742.1 (c) of the Criminal Code as a result of the decision of the Ontario Court of Appeal in R. v. Sharma, 2020 ONCA 478, [2020] O.J. No. 3183. If I find that a reformatory length sentence is appropriate, I will need to go on and determine whether permitting Mr. Colton to serve his sentence in the community would endanger the safety of the community and whether doing so is consistent with the fundamental purpose and principles of sentencing: s.742.1 (a).
[14] The Crown concedes that Mr. Colton is remorseful and that he has made significant strides towards addressing his rehabilitative needs. Nevertheless, the Crown argues that the seriousness of these offences and Mr. Colton’s high degree of responsibility require a penitentiary sentence in order to adequately denounce his conduct and to send the appropriate message to Mr. Colton and the community that commercial drug trafficking will always be treated harshly by the courts. The sentencing goals of denunciation and deterrence must be paramount here, according to the Crown, particularly since Mr. Colton was a mid-level drug dealer. Despite his personal circumstances and rehabilitative potential, the need to denounce his conduct and send a deterrent message is so pressing that nothing short of a jail term in the penitentiary range would accomplish those goals. The Crown points to the fact that he has a prior record for trafficking and the fact that he was in possession of ounces of cocaine for the purpose of trafficking to support its sentencing position. There is a well-established sentencing range of between two and five years jail for mid-level cocaine traffickers who deal in ounces. Even if I were to conclude that a sentence of less than two years was fit here, the Crown argues that a conditional sentence would not be consistent with the pressing need to denounce Mr. Colton’s serious unlawful conduct and to send the required deterrent messages.
[15] While the defence agrees that the offences committed by Mr. Colton are very serious, it argues that the only reasonable inference available from the facts is that Mr. Colton was a street-level trafficker, and not a mid-level dealer. Further, the defence argues that Mr. Colton’s level of responsibility is reduced significantly by the fact that he had relapsed and was struggling to support his failing business. His motive was not just to profit from the commercial drug trade; rather, his actions were partly a product of his addiction and fear of being perceived as a business failure, both of which have roots in the childhood trauma he experienced. In those circumstances, the defence argues that a sentence in the upper reformatory range is fit.
[16] Further, Mr. Colton’s rehabilitative potential is excellent. He has not reoffended in over two years on bail and has taken meaningful steps to address the issues at the root of his offending behaviour through counseling. Mr. Colton would not pose an undue risk to the community if he was permitted to serve a conditional sentence of imprisonment. The necessary levels of denunciation and deterrence can be achieved through a lengthy conditional sentence order with punitive terms, and a conditional sentence is the best way to foster Mr. Colton’s ongoing rehabilitation which, in the long run, offers the best protection to the community. In short, the defence argues that a conditional sentence is the sentence that is best suited to achieve the required balance of punitive, restorative and rehabilitative sentencing goals that apply in Mr. Colton’s case.
Analysis
i) The Purpose and Principles of Sentencing
[17] The sentence I impose must be proportionate to the seriousness of these offences and Mr. Colton’s degree of responsibility: s.718.1 of the Criminal Code. The sentence should be designed to protect society by promoting respect for the law and the maintenance of a just, peaceful and safe society: s.718. To achieve these goals, the sentence should denounce Mr. Colton’s unlawful conduct and the harm caused to the community, promote a sense of responsibility in Mr. Colton, assist in his rehabilitation, provide reparations for the harm caused to the community, deter Mr. Colton and others, and separate him from the community if necessary: s.718(a) – (f). Imprisonment is a sentence of last resort, and I am required to consider all alternatives that are reasonable in the circumstances.
ii) The Seriousness of the Offences
[18] The Crown argues that cocaine trafficking is a serious crime which requires a harsh and punitive sentence. It is serious because of the harm caused to the community and the potential for violence.
[19] The Crown relied on R. v. Graham, 2018 ONSC 6817, where Code J observed at para. 44 that “cocaine is a hard drug because it is addictive and because it causes significant direct and indirect damage to users, to their families, and to the safety and security of society.” Further, “because it is an unlawful but lucrative business […] it spawns collateral violent crime, either to protect territory, to protect and enforce unlawful transactions, or simply to steal an unlawful product or its unlawful proceeds”: para. 45.
[20] For these reasons, the Ontario Court of Appeal characterized cocaine trafficking as “both a violent and serious offence”: R. v. Hamilton, [2004] O.J. No.3252, at para. 104.
[21] The serious nature of cocaine trafficking requires a punitive response that focusses on sentencing principles of denunciation and deterrence. As explained by Code J in Graham, supra, at para. 46: “[b]ecause of the significant harms and violence associated with cocaine trafficking, and because it is a planned and premeditated commercial crime, the courts have repeatedly stressed that denunciation and deterrence are the most important sentencing principles in these cases”.
[22] Code J held that for mid-level cocaine traffickers, who deal in ounces to street-level gram dealers, a fit sentence would generally be in the low penitentiary range of 2 to 5 years, while a fit sentence for street-level dealers would be in the reformatory range of 6 months to 2 years less a day. The Crown argues that Mr. Colton, like the offender in Graham, was a mid-level cocaine trafficker.
[23] In Graham, the offender was found in possession of a satchel containing 3 ounces of cocaine, a scale and a firearm. He had been captured on video surveillance in a bar carrying the satchel and interacting with a number of patrons. The Crown called expert evidence before the jury to the effect that because Mr. Graham had the cocaine packaged in 1 ounce amounts, they could infer that he “was a ‘mid-level’ trafficker, capable of supplying one ounce amounts to ‘street-level’ traffickers who generally deal in gram amounts”: para. 27. The Crown argues here that I should draw the same inference about Mr. Colton because he possessed 6 ounces of cocaine when he was arrested.
[24] I do not agree with the Crown that this is inference which can fairly be drawn from the evidence in Mr. Colton’s case. What I know is that Mr. Colton twice sold 3.5g of cocaine to an undercover officer. On the third occasion, he agreed to sell a ¼ ounce or 7g, but then discovered that he only had 5g of cocaine left in his supply. After the police waited for him to be resupplied, he was arrested and found in possession of 6 ounces of cocaine. The undercover officer did not hold himself out as a street level dealer, and no discussion took place to suggest the officer was looking to cut, repackage or resell the grams of cocaine he purchased from Mr. Colton. There is no evidence that Mr. Colton supplied ounce amounts of cocaine to anyone beneath him in the supply chain. The Crown did not call expert evidence at Mr. Colton’s sentencing hearing from which I could draw an inference that he was anything more than a trafficker who sold cocaine directly to consumers.
[25] In fact, Mr. Colton told the undercover officer that his product was of good quality as he generally sold to older and affluent customers. He sold his product from his place of business at the time, a struggling powersports shop located on a rural road in cottage country north of Peterborough. Although he sold larger amounts of greater purity than typically seen of street level dealers in the city who sell to impoverished addicts, the only reasonable inference I can draw is that Mr. Colton had access to a more affluent customer base. I therefore conclude that Mr. Colton was a street-level trafficker who sold his product directly to consumers, rather than a mid-level trafficker who supplied product to street-level dealers.
iii) Mr. Colton’s Level of Responsibility
[26] Assessing Mr. Colton’s level of responsibility is not an exact science. As the Court of Appeal explained in Hamilton, supra, at para. 91, “[t]he ‘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.” An individualized approach is thus required.
[27] The Crown rightly points out that Mr. Colton’s conduct was premeditated and commercial in nature. Although he is an addict, Mr. Colton himself concedes that he was engaged in trafficking drugs to support not only his addiction, but also his failing business and his lifestyle. Further, though he has only one prior conviction, it was also for trafficking in a Schedule I substance. He received a conditional sentence for that offence in 2008, which ought to have served as a warning to him about the wrongfulness and seriousness of this very conduct. He is mature, educated and has a long history of work experience, all of which suggests he is someone capable of fully appreciating the wrongfulness of his actions.
[28] At the same time, the pre-sentence report provides some insight into Mr. Colton’s background and some explanation for his conduct. Judicial experience has demonstrated that a clear link exists between childhood trauma and addiction. Mr. Colton reportedly relapsed when his business began to struggle and identified the prospect of having to admit this failure to his rigid and disciplinarian father as a particular stressor. Despite his maturity, experience and education, Mr. Colton was also unhealthy and struggling with his mental health during the period of time that he was trafficking drugs. Although none of this excuses his conduct, these factors do reduce his level of responsibility for committing these offences. Mr. Colton was not a healthy and rational person when he made these choices, and he bears a lesser degree of responsibility as a result.
iv) The Appropriate Length of Sentence
[29] I rely on the comprehensive review of the law conducted by Code J in Graham, supra, and his conclusion that mid to upper level reformatory sentences are the appropriate range for street-level cocaine traffickers. Although sentencing ranges are not straitjackets, they can nevertheless be useful historical portraits. At the end of day, “[t]he determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation”: R. v. Lacasse, 2015 SCC 64, at para. 58. After balancing the seriousness of these offences with Mr. Colton’s level of personal responsibility, I conclude that an upper reformatory sentence is fit.
v) Whether a Conditional Sentence is Appropriate
[30] Given this conclusion, the real issue I need to decide in this case is whether permitting Mr. Colton to serve a conditional sentence of imprisonment in the community is appropriate. This is a two-stage analysis. First, I must determine whether Mr. Colton would present an undue risk of harm to the community if he were to serve his sentence in the community. If I find that his level of risk is manageable, I must go on to consider whether serving a community-based sentence would be consistent with the purposes and principles of sentencing.
[31] In assessing his level of risk to the community, I need to consider Mr. Colton’s conduct since his arrest on March 13, 2019, over two years ago. He appears to have taken significant steps towards addressing the root causes of his behaviour. He has obtained stable employment and appears to be successful in his new position. He has engaged in substance abuse counseling with the Four Counties Addiction Services Team [1], and by all accounts has abstained from substance use since his arrest. He has also attended counseling sessions with a social worker to address issues including depression, anger management, substance abuse, guilt and post-traumatic stress disorder [2]. He and his spouse have also engaged in marital therapy with a psychotherapist [3]. I conclude that Mr. Colton has taken significant steps to understand the wrongfulness and harmfulness of his conduct, and to acquire coping mechanisms to reduce the risk of a repetition of similar behaviour in the future. These actions on his part bode well for his continued rehabilitation and reintegration into the community. He is also the father now to young children and the sole financial support for his family, which provides additional motivation for him to refrain from further criminal conduct. I find that Mr. Colton would pose little risk to the community if permitted to serve a conditional sentence of imprisonment, particularly if he were subject to home confinement terms enforced by way of electronic monitoring. A technological assessment has confirmed that electronic monitoring is available for Mr. Colton.
[32] The more challenging issue is whether permitting Mr. Colton to serve a sentence of imprisonment in the community is consistent with the purposes and principles of sentencing. Previously decided cases have stressed the pressing need to denounce and deter this type of serious criminal conduct. At the same time, I cannot ignore rehabilitative and restorative sentencing principles, particularly given the strides taken by Mr. Colton to address the issues at the root of his behaviour and his current pro-social circumstances.
[33] The principle of restraint also applies. The Supreme Court held in R. v. Gladue, (1999), 133 C.C.C. (3d) 385 at para. 36, that “[a]s general principle, s.718.2(e) applies to all offenders, and states 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.”
[34] The Crown argues that a conditional sentence of imprisonment simply cannot adequately denounce Mr. Colton’s conduct. These offences are serious, carried the potential for violence, and caused real harm to the community. The Supreme Court held in R. v. M.(C.A.), [1996] 1 S.C.R. 500, at para. 81, that “[t]he objective of denunciation mandates that a sentence should communicate society’s condemnation of that particular offender’s conduct. In short, a sentence with a denunciatory element represents a symbolic, collective statement the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law.”
[35] Conditional sentences can adequately denounce even serious criminal conduct: see R. v. Proulx, 2000 SCC 5, at paras. 41, 67; R. v. Wells, 2000 SCC 10, at para. 35; R. v. Sharma, 2020 ONCA 478, supra, at para. 110. This is particularly so where the sentence is lengthy and includes punitive terms. A conditional sentence that will confine Mr. Colton to his home for a prolonged period while subject to electronic monitoring, and require him to make reparations to the community for the harm that he has caused would, in my view, achieve the required measure of denunciation. Incarceration, the penal sentence of last resort, is not necessary here in order to adequately denounce Mr. Colton’s conduct.
[36] The Crown also argues that nothing short of a period of actual imprisonment can properly send the required deterrent message, both to Mr. Colton and the community at large. In terms of specific deterrence, I am satisfied that Mr. Colton is genuinely remorseful, that he has insight into the wrongfulness of his conduct, and that he has taken significant steps to address the root causes of his addiction and the trauma that likely lies at its root. Although incarceration may send a stronger deterrent message to Mr. Colton, I am not satisfied that it is necessary to resort to incarceration to specifically deter him given the steps he has taken in the two years since his arrest and his strong potential to continue his own rehabilitation in the community.
[37] With respect to general deterrence, it is worth bearing in mind the purpose of this sentencing principle. According to the Supreme Court, “[g]eneral deterrence is intended to work in this way: potential criminals will not engage in criminal activity because of the example provided by the punishment imposed on the offender. When general deterrence is factored in the determination of the sentence, the offender is punished more severely, not because he or she deserves it, but because the court decides to send a message to others who may be inclined to engage in similar criminal activity”: R. v. B.W.P.; R. v. B.V.N., 2006 SCC 27, [2006] S.C.J. No. 27, at para. 2.
[38] It is far from clear that incarceration sends a stronger message of general deterrence than a conditional sentence. The Supreme Court has cautioned that “ Judges should be wary […] of placing too much weight on deterrence when choosing between a conditional sentence and incarceration” because “[t]he empirical evidence suggests that the deterrent effect of incarceration is uncertain”: Proulx, supra, at para. 107.
[39] Long judicial experience also demonstrates that incarceration is a poor general deterrent in drug trafficking cases. Incarceration has been the primary sentencing tool employed to address these serious offences for decades without any discernible deterrent impact. Drug trafficking continues to be a serious social problem despite the mass incarceration of those who have been convicted of engaging in this conduct. The prohibition on the possession, use, sale, production and distribution of controlled substances, together with the highly addictive nature of many of these substances ensures that a lucrative underground market continues to exist. Incarcerating Mr. Colton, in my view, is unlikely to have any greater general deterrent effect than confining him to his home on a conditional sentence. On the other hand, the message communicated by a conditional sentence would be that addict-traffickers who rehabilitate themselves and take meaningful steps to address the root causes of their criminal conduct will be treated more leniently. In my view, a sentence that confines Mr. Colton to his home, permits him to work and support his family, requires him to continue with counseling and to make reparations to the community would also advance the protection of society further in the long term than simply separating this largely rehabilitated offender from society for a period of years. Accordingly, I am not satisfied that the sentencing goal of general deterrence would be advanced by incarcerating Mr. Colton as opposed to permitting him to serve his sentence in the community.
[40] Mr. Colton has real rehabilitative potential, and would have the ability to repair some of the harm he caused to the community if he is permitted to serve his sentence in the community. This case calls for a balance of both punitive measures to achieve the required goals of denunciation and deterrence, and restorative and rehabilitative measures to address the harm caused by Mr. Colton’s unlawful conduct and to foster his ongoing rehabilitation and reintegration into society. Incarceration is a sentence of last resort for good reason. The confinement of offenders away from their families and communities in harsh conditions is harmful. If the punitive sentencing objectives that need to be addressed can be achieved by a sanction other than incarceration, then a just system will impose the lesser sanction. In Mr. Colton’s case, a conditional sentence is best suited to achieving the balance of punitive and restorative goals that is required. A lengthy period of community supervision for Mr. Colton is also the sentence that will achieve the best protection for the community in the long term, and the one that will best promote respect for the law and the maintenance of a just, peaceful and safe society.
[41] Accordingly, the sentence for each of the offences under the Controlled Drugs and Substances Act is a conditional sentence of two years less a day plus two years probation, to be served concurrently. The sentence for the offence under the Cannabis Act is a six month concurrent conditional sentence. The sentence for the proceeds of crime offence under the Criminal Code is a six month concurrent conditional sentence.
[42] The statutory terms for the conditional sentence order apply. The optional conditions are as follows:
- Report in person or by telephone at (705) 745-1929 to a supervisor within 7 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
- Co-operate with your supervisor. You must 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.
- Live at a place approved of by the supervisor and not change that address without obtaining the consent of the supervisor in advance
- This home confinement condition will be in effect for the first 12 months of the sentence. Remain in your residence at all times, except:
- between the hours of 10:00 a.m. and 2:00 p.m. every Saturday in order to acquire the necessities of life
- for any medical emergencies involving you or any member of your immediate family (spouse, child, parent, sibling)
- for going directly to and from or being at school, employment, court attendances, religious services and legal or medical or dental appointments
- for going directly to or from and being at assessment, treatment or counselling sessions
- for going directly to or from and performing community service hours
- 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
- During your period of home confinement:
- do not change your place of residence without first obtaining the written permission of your supervisor.
- do not permit any persons whomsoever to visit your residence, except as approved in writing by your supervisor
- 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 shall report immediately to your conditional sentence supervisor for the purpose of arranging your enrolment in the Electronic Supervision Program.
- You shall participate and abide by the rules and regulations of that program as required by your Conditional Sentence Supervisor and/or designated Electronic Supervision Resource Officer for the purpose of monitoring your house arrest, home curfew, residence restriction, etc.
- You shall be placed on Electronic Supervision for the entire length of the Conditional Sentence Order.
- You shall permit the Ministry of Community Safety and Correctional Services staff and/or persons who are authorized by the Ministry of Community Safety and Correctional Services associated with the Electronic Supervision Program to enter your residence for the purpose of setting up, installing, maintaining, repairing or removing the Electronic Supervision Program equipment.
- You shall make yourself available either by phone or in person as may be required at any time during house arrest/home confinement/curfew and in particular:
- You shall answer the phone at any time during house arrest/home confinement/curfew and
- Present yourself to Ministry of Community Safety and Correctional Services staff, police services and/or persons who are authorized by the Ministry of Community Safety and Correctional Services associated with the Electronic Supervision Program at the door of your residence at any time during house arrest/home confinement/curfew for the purpose of confirming your presence and compliance.
- You shall permit Ministry of Community Safety and Correctional Services staff and/or police services in your residence during the investigation of any alerts; either technical (i.e. transmitter battery low) or compliance issue (i.e. subject leaving during curfew), generated while on the Electronic Supervision Program.
- Following your home confinement, for the balance of your Order, you shall obey a curfew to be determined by your supervisor
- Do not buy, possess or consume alcohol or other intoxicating substances
- 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
- 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, including but not limited to substance abuse
- Perform 100 hours of community service work on a rate and schedule to be directed by the supervisor but must be completed within 18 months of the start date to this Order
[43] The statutory conditions for the probation order also apply. The optional conditions are as follows:
- Report in person to a probation officer within 7 working days of the expiry of your conditional sentence, and after that, at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in your supervision
- Your reporting requirement ends when you have satisfied your probation officer that you have completed all of your counseling and all of your community service hours
- Cooperate with your probation officer. You must sign any releases necessary to permit the probation officer to monitor your compliance and you must provide proof of compliance with any condition of this Order to your probation officer on request.
- 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
- Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer including but not limited to substance abuse
- Perform 100 hours of community service work on a rate and schedule to be directed by the probation officer but must be completed within 18 months of the start date to this Order
[44] There will be an order requiring Mr. Colton to provide a DNA sample. There will also be an order of forfeiture for all items seized by the police in this matter. There will also be an order pursuant to section 109 of the Criminal Code prohibiting Mr. Colton from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for life. The victim surcharge regime in place at the time these offences were committed is unconstitutional, so the victim surcharges do not apply.
Released: April 28, 2021 Signed: Justice S. W. Konyer
[1] Sentencing Exhibit 4 [2] Sentencing Exhibit 5 [3] Sentencing Exhibit 6