ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-14-137

DATE: 20150915

BETWEEN:

HER MAJESTY THE QUEEN

– and –

BAILEY McKANICK

Defendant

C. Noordegraaf, for the Crown

P. Bacchus, for the Defendant

HEARD: July 6, 2015

REASONS FOR SENTENCE

J.R. McCARTHY J.

[1] Bailey McKanick (the Defendant) returns before me today for sentencing.

[2] The Defendant was found guilty of possession of a banned substance (crack cocaine) for the purpose of trafficking contrary to s. 5 of the CDSA.

[3] On October 24, 2012 the Defendant, while in the company of her co-accused Junior Lee, Bailey McKanick, was found in possession of 29.4 grams of crack cocaine hidden on her person. The arrest of the pair followed a two day long police investigation into suspected drug dealing in the City of Barrie.

[4] Having failed in her applications for relief under the Canadian Charter of Rights and Freedoms (“the Charter”) to have the evidence against her excluded, the Defendant invited a finding of guilt upon an agreed set of facts.

[5] There was no pre-sentence report requested or ordered. The Defendant was afforded an opportunity to address the court in compliance with the Criminal Code on July 6, 2015 during sentencing submissions. On that date, the court received submissions from both the Crown and counsel for the Defendant. The court received a series of letters, supplementary employment and schooling information into evidence at the sentencing hearing.

[6] The Crown seeks a period of detention of between 9 to 12 months followed by a period of probation, a mandatory weapons prohibition for ten years and an order that she provide a DNA sample. During the probationary period, the Defendant should not possess any illegal drugs, associate with any persons involved in the use or dealing of drugs and should participate in any counselling that might be recommended by a probation officer. The Crown states that the quantity of drugs found on the Defendant’s person (29.4 grams of crack cocaine) is significant enough to warrant a term of imprisonment given the goals of denunciation and specific deterrence called for in the sentencing provisions of the Criminal Code and the CDSA. The Crown concedes that a conditional sentence to be served in the community would not be outside of the reasonable sentencing range for this case.

[7] The Defendant seeks an 18-24 month conditional sentence. The Defendant relies on the case of R. v. Browne, [2013] O.J. No. 5354, a decision of G.A. Hainey J. of this court where the defendant was given a conditional sentence despite being in possession of 69 grams of crack cocaine and having a lengthy criminal record. In R. v. Burnett, 2013 ONSC 5536, [2013] O.J. No. 4052 (ONSC), a defendant with no supportive letters from family or community members, with a record of two prior convictions and having been found in possession of 25.16 grams of cocaine, similarly benefitted from a conditional sentence of two years less a day. These cases, and the authorities that they cite, should guide this court in the present determination of sentence.

[8] The principles and purpose of sentencing are set out in ss. 718, 718.1 and 718.2 of the Criminal Code. In drug cases, the court is required to consider the factors enumerated in s. 10 of the CDSA. The imposition of a conditional sentence is permitted under section 742.1 of the Criminal Code. I have taken into account the goals of denunciation and deterrence. I have considered as well the quantity of cocaine found on the Defendant as opposed to the amount in the possession of her co-accused. I am mindful of the direction in s. 718.2(d) of the Criminal Code that other available alternatives to imprisonment should always be considered.

[9] I am persuaded that a non-custodial conditional sentence is just and fit for the Defendant for the following reasons:

• A term of imprisonment of less than two years is warranted. The Crown did not seek a custodial sentence beyond that.

• This is the Defendant’s first offence. It did not involve violence or weapons. It did not involve the trafficking of drugs to minors.

• She did not breach any of her bail conditions during almost 33 months.

• Her compliance with house arrest demonstrates that she is willing to follow court orders.

• She is a young woman of twenty-four who has been active in the work force.

• She has supports within both her family and community.

• The Defendant’s use of cocaine appears to have been experimental and fleeting.

• She has offered to the court what I find to be a sincere apology in both written form and in open court.

• I am satisfied that a conditional sentence to be served out in the community will have the desired effect of punishing the Defendant while at the same time allowing for both rehabilitation and community supervision without any risk to the public.

• I find that the Defendant is a low risk to re-offend.

• While the Defendant did not plead guilty, I did find that she had been the victim of a Charter breach. It cannot be said that her pre-trial application was without merit.

[10] I therefore impose the following sentence. Ms. McKanick, please stand:

[11] Bailey McKanick, I sentence you to twenty months to be served in the community, on the following conditions:

(a) That you keep the peace and be of good behaviour;

(b) That you appear before the court when required to do so;

(c) That you report to a conditional sentence order supervisor (“supervisor”) within five business days and thereafter when required by that supervisor and in the manner directed by the supervisor;

(d) That you remain within the jurisdiction of the Superior Court unless you obtain written authorization to go outside the jurisdiction from the court or from your supervisor;

(e) That you reside at an address approved by your supervisor and notify the court or your supervisor in advance of any change in your address;

(f) That you maintain full-time employment and\or attend school full-time unless you have permission from your supervisor to do otherwise. You shall notify your supervisor promptly of any change in your employment or in your schooling;

(g) That you abstain from the possession or consumption of drugs except in accordance with a medical prescription;

(h) That you shall not be in the company of anyone known to be using or trafficking drugs; and,

(i) For the first ten months of this sentence you shall be confined to your residence under house arrest twenty-four hours per day, seven days per week except for the following:

(i) being at work or at school, including the time necessary to travel directly to and from work or school;

(ii) attending counselling directed by your supervisor, including the time necessary to travel directly to and from the appointments;

(iii) reporting to your supervisor, including the time necessary to travel directly to and from the appointments;

(iv) attending medical appointments approved in advance your supervisor, including the time necessary to travel directly to and from such appointments;

(v) dealing with a medical emergency; and

(vi) one time per week, for a period not exceeding four hours including travel time, for personal or household errands, provided that the period is agreed upon in advance with your supervisor.

(j) For the final ten months of this sentence, you will observe a curfew between 10pm each evening until 6am the following morning. You will be confined to your residence between those hours unless granted prior authorization from your supervisor not to observe that curfew for a good reason.

[12] I decline to order a DNA sample order. Given that Bailey McKanick is a first time offender, I find that it is not warranted. There shall be, on consent, a mandatory ten year weapons prohibition under s. 109(2) of the Criminal Code.

J.R. McCARTHY, J.

Released: September 15, 2015

NOTE: As noted in court, on the record, this written ruling is to be considered the official version and takes precedent over the oral reasons read into the record. Any discrepancies between the oral and written versions, it is the official written ruling that is to be relied upon.