Court File and Parties

COURT FILE NO.: CR16-007-0000 DATE: 20170525

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen Ms. Elizabeth Barefoot, for the Federal Crown

• and -

Leroy David Dirckx Mr. Brian Barrie, for the Accused Accused

HEARD: May 25, 2017

REASONS FOR SENTENCE Conlan J.

I. Introduction

[1] Leroy Dirckx was tried before me, without a jury, in Owen Sound in May 2017.

[2] After a very short trial, in written Reasons for Judgment, I found Mr. Dirckx guilty of production of cannabis marihuana contrary to section 7(1) of the Controlled Drugs and Substances Act.

[3] The brief sentencing hearing was held today, May 25, 2017, after the Judgment was rendered.

II. The Facts

[4] In a nutshell, Mr. Dirckx had an ownership interest in a piece of property located on the Bruce Peninsula.

[5] Outdoor marihuana grow sites were located on a nearby property belonging to the North American Native Plant Society.

[6] At one point, after the police became involved, the marihuana plants were counted and numbered 27 at one site and 50 at the other.

[7] Mr. Dirckx and another fellow, his friend Cody Hogan, were involved with the grow sites. Specifically, I found Mr. Dirckx guilty of cultivating, or helping to cultivate, the marihuana plants.

[8] He did not do so out of greed or for trafficking purposes but rather to supply himself personally for medicinal purposes. Mr. Dirckx had a legal indoor marihuana grow operation at another location at the time, however, hydro costs were making that difficult to impossible to sustain.

III. The Offender

[9] Mr. Dirckx is a 44-year old real estate broker. He has no known dependants. He and another person run a real estate brokerage company that operates in this area.

[10] The offender has just one prior criminal conviction, eleven years ago, for simple possession of marihuana.

IV. The Positions of the Parties

[11] A consent forfeiture Order has already been made.

[12] Unopposed, a section 109 Criminal Code Order has already been made, for ten years and life as per the two subsections.

[13] The Crown requests a secondary DNA Order. Rather half-heartedly, that is opposed by the Defence.

[14] The Crown asks for a jail sentence of 60-90 days. The Defence seeks a fine in the amount of $3000.00 to $5000.00, with as long as one year to pay.

V. Analysis

The Legal Parameters

[15] Counsel agree that there is no minimum penalty in play, but a Conditional Sentence Order is not statutorily available to the offender.

[16] The maximum penalty is unimportant as both sides agree that this is not a case approaching anything remotely close to that.

The Basic Legal Principles on Sentencing

[17] Sentencing is a highly discretionary and individualized process.

[18] I must have regard to the principles of sentencing outlined in section 718 of the Criminal Code of Canada – denunciation, specific and general deterrence, the need to separate certain offenders from society, rehabilitation, restorative justice and the promotion of responsibility in offenders.

[19] The paramount sentencing principles most applicable here are denunciation, general deterrence, specific deterrence, and rehabilitation.

[20] Any sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender – section 718.1.

[21] Mr. Dirckx should not be deprived of his liberty if less restrictive sanctions are appropriate in the circumstances – subsection 718.2(d). I should consider all available sanctions other than imprisonment that are reasonable in the circumstances – subsection 718.2(e).

[22] In fashioning an appropriate sentence, I am at liberty to consider what other consequences will be suffered by the accused besides a period in jail. Those other consequences include the criminal justice system experience itself, the criminal record, and community stigma. R. v. M.B., [2006] O.J. No. 5876 (S.C.J.), at paragraph 27.

[23] Here, Mr. Dirckx is voluntarily making a restitution payment to the North American Native Plant Society.

The Aggravating and Mitigating Factors

[24] The major aggravating factor here is that the grow sites were located on another party’s property, even though Mr. Dirckx was a real estate agent and an owner of a rural property just across a tiny tributary.

[25] The impact of the offence on the victim is also important to consider, as evidenced by the letter from the Executive Director of the North American Native Plant Society dated October 29, 2014.

[26] In mitigation, Mr. Dirckx comes to Court with just one minor and dated, albeit related, criminal conviction. He has health issues for which he is legally permitted, and was then, to grow marihuana. And this offence was not committed for profit or for trafficking purposes.

What is a fit Sentence for Mr. Dirckx?

[27] This decision is driven mainly by the parity principle.

[28] Given my findings of fact as to why Mr. Dirckx was growing the marihuana outdoors, Mr. Hogan has certainly been found guilty of a more serious offence – possession of marihuana for the purpose of trafficking in it.

[29] In addition, although Mr. Hogan pleaded guilty rather than force a 1.5 day trial, as Mr. Dirckx did, Mr. Hogan has a much more serious criminal history than Mr. Dirckx, namely, a prior conviction for the exact same offence that he has been found guilty of now, possession of a controlled substance for the purpose of trafficking.

[30] Yes, Mr. Hogan is a younger adult than Mr. Dirckx and has a disabled child, but the parity principle suggests that it would be unreasonable to sentence Mr. Dirckx to something more severe than what Mr. Hogan received.

[31] On a joint submission, Mr. Hogan received no real jail but rather a nine-month Conditional Sentence Order with one-third of it being house arrest.

[32] As Mr. Dirckx cannot receive a Conditional Sentence Order, I am of the view that he ought to be sentenced to a period of probation.

[33] A fine is not punitive enough on these facts.

VI. Conclusion

[34] In addition to the Orders already made, the sentence of the Court is as follows.

[35] The mandatory victim fine surcharge is imposed, with thirty days to pay.

[36] A secondary DNA Order is issued. There is nothing before me as to how that might prejudice the offender.

[37] There is a suspended sentence and eighteen (18) months of probation. All of the statutory terms apply. In addition, the offender shall report today and thereafter as directed; he shall perform fifty (50) hours of community service work at the direction of the supervisor, to be completed within twelve (12) months of today; he shall write a letter of apology to the North American Native Plant Society, for trespassing (as Mr. Dirckx is entitled to maintain his innocence on the charge that he was tried on); and he shall abstain from narcotics unless they are validly prescribed or permitted by a Government licence.

Conlan J.

Released: May 25, 2017