Court File and Parties

COURT FILE NO.: Cornwall CR-17-21 DATE: 2019/01/18 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – Melissa Jeaurond

Counsel: Tilton Donihee, Counsel for the Federal Crown Michael Purcell, Counsel for the Provincial Crown Solomon Friedman, Counsel for the accused

HEARD: July 26, 2018 & October 26, 2018

REASONS on sentencing

leroy, J.

Introduction

[1] On July 26, 2018, Ms. Jeaurond plead guilty to careless storage of firearms, unauthorized possession of firearms and possession of psilocybin (magic mushrooms), a listed schedule III substance under the Controlled Drugs and Substances Act for the purpose of trafficking. Today is for sentencing.

Circumstances of the offences

[2] The parties settled on an agreed statement of facts. Ms. Jeaurond resided with her partner in the same rural residence for several years. Except for the contents of room 12, Ms. Jeaurond had knowledge and control over the contents of the residence, the Quonset hut and other buildings on the property. During the execution of a search warrant on June 11, 2015, the police seized twelve firearms. There were two restricted weapons – hand guns taken from room 12 unattached to Ms. Jeaurond for the purpose of this ruling. Nine of the long guns were located in room 16 and one was located in the kitchen. There is no indication of accessible ammunition for the non-restricted long guns.

[3] Approximately 28 kilograms of psilocybin mushrooms valued at between $30,750 and $61,500 were in the residence. There was a suitcase in the basement packed with zip locked bags each containing 227 grams (one-half pound).

[4] There is no evidence attaching Ms. Jeaurond to production. The search of the Quonset building revealed a cannabis grow operation as well as facilities for a psilocybin grow operation. The search of the area to the rear of the Quonset hut revealed additional marijuana plants. Ms. Jeaurond’s partner was charged and convicted for production of cannabis marijuana and possession of psilocybin for the purpose of trafficking. Justice Lacelle concluded that Ms. Jeaurond’s partner was the chief operator in the drug operation – R. v. Roy 2018 ONSC 3855 p.47.

[5] There is no evidence the firearms found in room 16 and the long gun in the kitchen were connected to the drug business.

Sentence Provisions

[6] The maximum sentence for improper storage of fire arms is imprisonment for a period not exceeding two years; for unauthorized possession of non-restricted firearms, it is imprisonment for a period not exceeding five years and for possession of a Schedule III substance for the purpose of trafficking it is imprisonment for a period not exceeding ten years. By comparison, the maximum sentence for possession of cannabis marijuana for the purpose of trafficking (Schedule II) was life imprisonment. Although there are no minimum sentences involved, a conditional sentence is not an available disposition for the offence under the Controlled Drug and Substance Act. There is a mandatory firearms/weapons prohibition under s. 109(1)(c) and a discretionary DNA order arising from these convictions.

Positions of counsel

Provincial Crown - firearms

[7] The provincial Crown proposed 4 months imprisonment, consecutive for each firearms offence followed by 2 years of probation with reporting, weapons prohibition for a period of 5 years, DNA sampling and forfeiture of the items seized. But for the guilty plea and the Downes credit, the Crown would seek sentence in the range of 6-9 months in custody consecutive together with sanction for the CDSA conviction. Both Crowns advocated for sentences consecutive to the other.

Federal Crown – psilocybin

[8] The federal Crown proposed a period of incarceration of between nine and twelve months, followed by probation for 2 years, mandatory firearms prohibition for a period of ten years and a DNA warrant.

Defence Position

[9] The defence proposes a global conditional sentence for a period of eighteen months for the firearms convictions. The first fourteen months to involve full house arrest with exceptions.

[10] For possession for the purpose of trafficking psilocybin, the defence proposes time served. Ms. Jeaurond endured thirteen days in pre-trial custody and fourteen months under full house-arrest bail detention. She spends every night with her parents. Mr. Friedman proposes credit of twenty days for the pre-trial incarceration and a further three months enhanced credit in recognition of the Downes mitigating factor resulting from stringent pre-sentence bail. Total credit sought: three months and twenty days.

[11] Mr. Friedman contested the request for a DNA order.

Circumstances of the Offender

[12] If this sentencing analysis hinged exclusively on the circumstances of the offender, Ms. Jeaurond would not face imprisonment. I accept that individual deterrence is not required in her case. That sets her apart from her partner, Mr. Roy whose conviction following failed Charter applications and sentence is under appeal.

[13] Ms. Jeaurond, age 42 has significant support from family and the community. She is a first-time offender. She is university educated. She is gainfully engaged as a professional photographer, as an online antique dealer and in commercial level agriculture production of garlic crops.

[14] Within her family and community, Ms. Jeaurond is regarded as intelligent, diligent, compassionate and generous with her time to those in need. Several letters of support were filed. The theme is consistent. This matter is out of character.

[15] The following encapsulates the viewpoint:

“Melissa has an outgoing personality, an easy manner with the ability to teach and work with others, be they children, adults or seniors. Her ability for compassion and empathy towards others is a wonderful quality…

I will always think of her as one of the nicest, kindest, most caring people I have ever met.”

[16] Ms. Jeaurond has medical issues: she suffers intolerance to wheat and dairy products that trigger migraine headaches. She has a medical prescription for marijuana to resolve the migraines. Before the arrest, Ms. Jeaurond consumed non-prescription marijuana to assuage migraines.

[17] Ms. Jeaurond acknowledges her mistakes in this matter. She acknowledges that the objective of the criminal activity was financial. She acknowledges knowing of ongoing criminal activity in her home, if not the extent. Mr. Friedman characterized her role as occupier acquiescence. Her role was secondary to Mr. Roy, a passenger with criminal responsibility. She knew she should have put a stop to it a long time ago. She could have imposed her will to end the drug operation but did not.

[18] Ms. Jeaurond addressed the Court expressing remorse and regret for allowing this activity on her property. She does not blame anyone. She worries about how a period of incarceration will affect her parents. Ms. Jeaurond articulated her insight into the harm that unauthorized and unsecured firearms as well as the quantity of psilocybin in her basement present to the community.

[19] This perspective carried through to a positive pre-sentence report. She acknowledged the purpose was financial gain but denied an appreciation of the full extent of the activity. That perspective coincides with the offenses to which she pled guilty. She is seen as low risk to re-offend and is a suitable candidate for community supervision.

[20] Ms. Jeaurond spent thirteen days in pre-sentence custody and forty months subject to strict release conditions resident with her parents in their home.

Applicable principles of sentencing

[21] Section 718 of the Criminal Code establishes that the fundamental purpose of sentencing is to "contribute, along with crime prevention measures, to respect for the law and the maintenance of a just, peaceful and safe society" by imposing just sanctions with one or more of the following objectives:

a. denouncing unlawful conduct; b. deterring the offender and others from committing crimes; c. separating offenders from society where necessary; d. assisting in the rehabilitation of the offender; e. providing reparations for harm done to the victim or to the community; f. promoting a sense of responsibility in the offender; and g. acknowledging the harm done to victims and the community.

[22] The fundamental principle of sentencing is proportionality. A sentence must be proportionate and broadly commensurate with the gravity of the offence and the moral blameworthiness or personal responsibility of the offender (s. 718.1 CCC). The two perspectives on proportionality should converge in a sentence that both speaks out against the offence and punishes the offender no more than necessary.

[23] The enquiry includes consideration of:

• Any relevant aggravating or mitigating circumstances relating to the offence or the offender. A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances. Mitigating and aggravating factors are only those that are related to the gravity of the offence or the moral blameworthiness of the offender. The absence of a factor is neutral.
• Similar sentences for similar offenders for similar offences in similar circumstances (s. 718.2 (b) CCC). Attempts at parity will never be precise.
• All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders. Restraint is required for first-time offenders. The restraint principle requires consideration of all sanctions apart from incarceration. Where incarceration is necessary, the term should be as short as possible, tailored to the individual circumstances of the offender. An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances (s. 718.2(d)).

Aggravating and Mitigating Factors

Mitigating

[24] As noted, Ms. Jeaurond’s personal circumstances are largely mitigating. She expressed remorse and acknowledges the harm done to her community. She is a first-time offender. Her family and community view this set of circumstances as anomalous. They are supportive. Ms. Jeaurond has honoured bail terms over a period of 3.5 years.

[25] Ms. Jeaurond entered a guilty plea to the offences before the Court. Although this did not crystalize until almost three years after the arrest, her file consumed minimal court time. She did not bring Charter motions nor did she require a preliminary hearing. She gave up triable issues to achieve resolution.

[26] Time spent under stringent bail conditions, especially under house arrest, must be taken into account as a relevant mitigating circumstance – R. v. Downes, [2006] O.J. No. 555. However, like any potential mitigating circumstance, there will be variations in its potential impact on the sentence, and the circumstances may dictate that little or no credit should be given for pre-trial house arrest. The jurisprudence eschews a rigid formula for calculating the amount of credit to be given because there can be such a wide variation in bail conditions, and even house arrest conditions. The amount of credit will depend upon a number of factors, including the length of time spent on bail under house arrest; the stringency of the conditions; the impact on the offender's liberty; and the ability of the offender to carry on normal relationships, employment and activity.

Aggravating

[27] The large quantity of psilocybin in proximity to ten long guns and that possession of the controlled substance was strictly for financial gain are aggravating factors. The dearth of ammunition mitigates the juxtaposition of the long guns and psilocybin.

[28] As regards other aggravating factors cited by the crown I repeat that the absence of a factor is neutral.

[29] There is no evidence of what if any role Ms. Jeaurond had in packaging or marketing the psilocybin. Mr. Friedman contextualized Ms. Jeaurond’s plea of guilty to the 5(2) charge as technical rather than substantive. Her control over the content of her home was notional, legal rather than effectual.

[30] Both Crowns submitted that Mr. Friedman’s characterization of Ms. Jeaurond’s involvement as a mere passenger along for the ride strains credulity. Mr. Purcell submitted there is no evidence Ms. Jeaurond was not the driving force of the operation. The statement of fact states that Ms. Jeaurond had knowledge and control over the property save for room 12. That is equally consistent with active engagement and passive occupier acquiescence. Justice Lacelle determined that Mr. Roy was chief operator.

[31] The requirement is that aggravating factors require proof beyond reasonable doubt. Ambivalent circumstantial evidence does not meet that standard. On the other hand, the failure to prove an alleged aggravating fact beyond reasonable doubt does not permit the court to assume the most favourable facts to the offender. The evidentiary lacuna on this issue defeats prospect for more than speculation.

[32] There is no evidence the guns were involved in the drug operation. The premises are situate in a rural setting. She pled guilty to the unauthorized possession and careless storage in that context.

Jurisprudence – imposition of similar sentences for offenders in similar circumstances

[33] Sentencing is necessarily individualized.

[34] The ruling in R. v. Roy, 2018 ONSC 3855, Lacelle, J. underscores the disparity in the gravity of offence and moral blameworthiness dynamic between Ms. Jeaurond and Mr. Roy. Mr. Roy is Ms. Jeaurond’s common law partner. He contested the Charter validity of the search and seizure and lost. His offences are further along the scale of gravity of offence. He was convicted for production (CDSA 7(1)) – marijuana, possession of the psilocybin for the purpose of trafficking – CDSA 5(2), unauthorized possession of firearms – CCC 91(1), possession of prohibited weapons – the hand guns in room 12 with readily accessible ammunition – CCC s. 95, possession of a restricted weapon contrary to an s. 109 order.

[35] Similarly, Mr. Roy’s moral blameworthiness was significantly greater than that of Ms. Jeaurond. He did not have the benefit of such mitigating factors as a guilty plea, an expression of remorse – the conviction is under appeal or the absence of a criminal record. Justice Lacelle confirmed that lack of remorse is not an aggravating factor but, in the circumstances, lugs in the need to address individual deterrence, not a factor for this offender.

[36] Aggravating circumstances not involved in Ms. Jeaurond’s sentence include the finding he was the chief operator in the drug operation, the criminal record, the breach of the s. 109 order, the two restricted hand guns and ammunition is proximity to the grow operation viewed as significant aggravating factors. Most section 95 offences will attract the imposition of sentences at or near the maximum reformatory sentence even for first offenders which he was not.

[37] Justice Lacelle’s sentence included:

i. Possession of the hand guns and accessible ammunition - 3.5 years in custody; ii. Possession and storage of the long guns - 3 years in custody concurrent; iii. 6 months in custody consecutive for the s. 109 breach; iv. Production 12 months in custody; v. Possession of the psilocybin for the purpose of trafficking – 12 months concurrent.

[38] Justice Lacelle concluded that the sentences for the drug offences should run consecutively to the firearm offences because these offences engage different societal interests and the prior s. 109 order Mr. Roy breached raised issues of individual deterrence which favoured consecutive sentences.

[39] There is a paucity of jurisprudence dealing exclusively with possession of psilocybin for the purpose of trafficking. Psilocybin cases tend to involve more harmful substances in greater amounts and lessor amounts of psilocybin so that sentences for psilocybin offences attract little comment and tend to run concurrently to sentences imposed on the more serious charges. The range, albeit without full analysis, has been between 9 and 12 months concurrent imprisonment: see Dunstan, Sanchez and Hobeika.

[40] It makes sense that possession of the psilocybin in the context of the more serious offences involving ecstasy, cocaine, oxycodone and cannabis marihuana is aggravating and attracts higher end imprisonment than it might otherwise as a schedule III substance stand-alone offence.

[41] R. v. Dunstan 2016 ONSC 971 was a case involving possession for the purpose of trafficking MDMA (ecstasy), 4.7 kg of cocaine, 43 pounds of marijuana and 4 kg of psilocybin. The Court inferred a commercial business from the quantity, variety, packaging and large sum of money seized - $100K as aggravating factors.

[42] Although the Dunstan case featured some of the same mitigating features as the case at bar, he was convicted after trial.

[43] Mr. Dunstan was 43 year of age without a criminal record, gainfully employed. He was sentenced to eight years in custody on the cocaine charge (the most serious). The sentences imposed for the three remaining substances were each 12 months concurrent to the cocaine sentence.

[44] I am not convinced that Justice Glass critically analysed the merit of the disposition for the cannabis and psilocybin. Forty-three pounds of cannabis (a schedule II substance carrying a maximum sentence of imprisonment for life) and 4 kg of psilocybin (a schedule III substance carrying a maximum sentence of ten years) without the shadow of the significant cocaine store might have attracted different evaluations of the gravity of the offences before the Court.

[45] The same applies in the rulings of Justice Dunphy in R. v. Sanchez, 2018 ONSC 1294 and R. v. Hobeika 2018 ONSC 1293. Hobeika and Sanchez shared a dedicated drug den supporting a retail trafficking enterprise. Hobeika was the chief operator.

[46] After trial they were found in possession of for the purpose of trafficking:

i. Cocaine – 1.043 kg in four different locations within the unit; ii. Cannabis – 1.8 kg in two different locations within the unit; iii. Psilocybin – 577 grams in two different locations within the unit; and iv. Oxycodone – 112 tablets.

[47] Sanchez was age 32, without a prior criminal record a positive PSR without substance abuse issues. He complied with his bail conditions for four years with no reported issues. His rehabilitative prospects were very good. Justice Dunphy concluded that Sanchez’ role within the operation was at a relatively subordinate level.

[48] The aggravating factors not present in the case at bar included:

i. Under gravity of offence: widespread harm done to users and the community at large by the trade in narcotics generally and oxycodone and cocaine in particular; ii. The quantities seized together with the related items establish a substantial operation, albeit retail; iii. The variety of narcotics seized – four different types of narcotics together with the tools for dispensing them – one stop shopping that exposed customers to more serious narcotics than they might previously have known.

[49] Justice Dunphy centered attention on similar cases contending with large quantities of cocaine. At paragraph 25 Justice Dunphy wrote:

“I have not recited here the authorities relied upon in arriving at sentences for the other three counts (oxycodone, psilocybin and marijuana). Each of these three narcotics were present in important volume. None of these authorities were the object of serious contest in oral argument which focussed, appropriately, on the global sentence. Since the sentence for the most serious of these (cocaine) is aggravated to some degree by the presence of the other three, it is clearly appropriate that the sentences determined should be concurrent.”

[50] As an active but subordinate participant in the business of trafficking narcotics, having regard to similar circumstances, the mitigating factors – youth, clean record, strong work ethic and family and community support; the aggravating factors and harm done to the community; recognition of the weight that has to be accorded to the objectives of deterrence and denunciation Sanchez was sentenced as follows:

i. Cocaine – 4 years 6 months custody; ii. Oxycodone – one year custody serve concurrently; iii. Psilocybin – 9 months custody serve concurrently; iv. Marijuana – six months custody served concurrently.

[51] Hobeika as the chief operator, with a significant profit motive and no remorse was sentenced after trial to longer terms in custody on the cocaine and oxycodone convictions.

Firearms offences

[52] The provincial Crown’s position is that the firearms offences before the Court merit 4 months imprisonment on both served consecutively for a total of eight months.

[53] The offender in R. v. Delchev was 36, with a record, on bail when arrested was found guilty of multiple counts after trial. He was arrested in a mall with a loaded gun. His arsenal included 2 restricted firearms – an assault rifle and carbine rifle without authorization, a prohibited weapon with ammunition readily available – pistol, unauthorized possession of 2 firearms without registration, 5 prohibited weapons – switch blade knife, push dagger, butterfly knife, three point Shuriken and a Yaqua blowgun one count of a prohibited device – high capacity magazine for the assault rifle. He was convicted of storing ammunition in a careless manner.

[54] Delchev was convicted of 2 counts of possession for the purpose of trafficking – cocaine and oxycodone and possession of marijuana and hashish.

[55] The gravity of Delchev’s offences and his moral blameworthiness relative to both of the firearms and controlled substances offences make the offences in the case at bar seem small by comparison.

[56] Delchev received a sentence of 42 months custody on the firearms offences, one year concurrent for the controlled substances offences. Although the combination of guns and drugs was an aggravating factor, there was no evidence the guns were tools in the business.

[57] At paragraph 34 the court concluded that sentences relating to firearms and narcotics do not need to be consecutive. The decision whether a sentence should be made consecutive or concurrent is a discretionary one. While there are separate societal interests at stake, there is no absolute rule that drugs and weapons convictions must attract consecutive sentences.

[58] In R. v. Rutledge, 2015 ONSC 6625, the offender was a farmer convicted of possession of handguns (3) with accessible ammunition, careless storage of twenty long guns and ammunition and possession of large quantities of marijuana for the purpose of trafficking. Mr. Rutledge had an unrelated criminal record. He was convicted after a trial.

[59] Mr. Rutledge was sentenced to a fine of $500 and one year probation for the marijuana conviction – under 3 kg together with a ten-year s. 109 order.

[60] Unlike the case at bar the salient aggravating factor involved the hand guns. Mr. Rutledge was sentenced to 12 months for the handguns after credit of six months and three months concurrent for the long guns and careless storage. The long guns were not proven to be associated with the other drug and gun (hand gun) activities and the totality principle make it appropriate there be a short sentence of three months concurrent to the hand gun sentence of twelve months followed by probation for two years.

[61] In R. v. Dobbin, 2009 NLCA 52, Mr. Dobbin pled to possession of cannabis for the purpose of trafficking and unlawful production of cannabis, unlawful storage of firearms, and unlawful possession of 4 unlicensed firearms. The seizure included 5.5 kg of product, 141 plants valued between $10K and $100K, two 12-gauge shotguns, one 22-caliber rifle, one 303 rifle and more than 500 rounds of ammunition. Unlike Ms. Jeaurond, Mr. Dobbin had a criminal record and was viewed as high risk to re-offend.

[62] Dobbin was sentenced to 2 years on each charge under the CDSA to be served concurrently, but consecutive to 2 months on each firearms charge to be served concurrently to one another. The presence of firearms at the scene of a grow op is an aggravating factor – although not as codified in CDSA s. 10(2) (a)(i).

[63] While the lack of evidence Mr. Dobbins intended to use the guns in connection with illegal activity reduced the degree of aggravation, it did not eliminate the proximity of the weapons as an aggravating factor.

[64] The Court of Appeal noted that sentence for unsafe storage and unauthorized possession of firearms involve separate offences with different elements of illegality. The trial judge did not err in recognizing that the presence of firearms at the scene of a grow op is an aggravating factor independent of proof of the carrying, use or threatened use of the firearm. As a matter of general deterrence, the message to those who engage in cannabis production is that the presence of firearms whether legally registered and safely stored or not in close proximity to an illegal production site will not be tolerated and will result in consequences on sentencing.

[65] The Appeal Court concluded that 26 months was at the higher end of the range after factoring in the guilty plea, the offender’s medical condition and the relatively unsophisticated but large operation, as well as the aggravating factors including the amount and intent to sell commercially as an independent operator, his lack of insight, length of criminal record, the proximity of weapons and continuing anti-social behaviour.

Defence jurisprudence

[66] The theme derived from the defence jurisprudence relates to the merit of conditional sentences in circumstances involving grow operations and possession for the purpose of trafficking. Even though a conditional sentence is no longer an option for these offences, the variety of circumstances more aggravating than those at bar that previously attracted conditional sentences is not lost on the Court.

[67] In R. v. Atwell, 2007 NSPC 60, the youthful first naïve offender with a positive PSR, family, guilty plea, remorse – small grow operation for financial gain, was sentenced to two years less one day conditional sentence for the grow operation together with a fine for the firearms in the attic improperly stored.

[68] In R. v. Denny, 2001 BCPC 459, the offender was occupied in a dial-a-dope operation peddling cocaine, marijuana and psilocybin. Denny was 25, a first-time offender who pled guilty, had family support, was a recovering addict and had been clean for one year since arrest. Even though the start point for a dial-a-dope operation is one year in prison, having regard to the objectives of deterrence and denunciation, the Court acceded to a conditional sentence of eighteen months and probation.

[69] In R. v. Giang, 2010 BCSC 1016, two first-time offenders were involved in a mid-size relatively sophisticated commercial grow operation.

[70] The ruling noted that at the time, there was no presumption in favour or against a conditional sentence. The range and approach to sentencing for production and related offences turned most crucially on the commercial nature of the offence and the personal circumstances of the offenders. Sentences for commercial production will be more severe than non-commercial production.

[71] Mr. Giang, the chief operator expressed remorse and maintained employment. He was sentenced to fifteen months conditional sentence with twelve months house arrest.

[72] The court observed that denunciation and deterrence are significant sentencing factors where persons make deliberate decisions to engage in commercial production of controlled substances for profit.

[73] The Court also noted that the interests of the administration of justice includes investigation and early exoneration of the innocent and both are served by the DNA bank.

[74] The circumstances in R. v Jesson and Gough, 2015 BCPC 171 involved a sophisticated large scale grow operation, brass knuckles, no indications of remorse although there were efforts at rehabilitation. The Court noted that when the law is broken in deliberate fashion for profit, respect for the rule of law is undermined both for the offenders and the wider society who learn of it.

[75] Notwithstanding this was a large commercial operation, the personal circumstances of the offenders weighed the scales in favour of an 18 month conditional sentence including 10 months house arrest. Jesson was 25, had family support, gainful employment since arrest, brought a number of supportive letters, he coached teen touch football, but had a criminal record for assault. Gough was a first offender, age 30 without problems since the arrest.

[76] In R. v. Malenfant 2016 BCSC 995, the offender was found guilty after trial. He was sentenced to an eighteen month conditional sentence. This was the second offence involving sophisticated commercial production. The sentencing judge made the point that the grow operators in the community would view a conditional sentence as victory. Even so the sentencing judge was influenced by the premise that a person should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances.

[77] The case of R. v. Presidente 2012 BCSC 1636, involved a first-time offender and guilty plea, possession of cocaine, ecstasy, cannabis, psilocybin, LSD and morphine. The offender was 34 and was involved for profit. Mr. Presidente was sentenced to twelve months conditional sentence with onerous terms including six months house arrest, community service.

[78] The sentencing judge noted that the authorities are clear that serious consideration must be given to the imposition of a conditional sentence when the statutory pre-conditions are met. The Court noted the difference in maximum sentencing for the difference substance schedules.

[79] The sentencing judge wrote that “for those who assume a conditional sentence is a get-out- of-jail-free card, Parliament has said imprisonment should be a sanction of last resort and given the conditions I will impose there will be ample denunciation and deterrence. A CSO sentence is typically longer so the offender is under the Court’s control for longer – if there is a breach, the offender is brought before the Court and the offender may be forced to serve the remainder of the term in prison.”

Discussion, conclusion and ancillary orders

[80] I cannot accede to the defence proposal to sentence Ms. Jeaurond in respect to the possession for the purpose of trafficking conviction to enhanced time served – three months and 20 days as an appropriate disposition that accords with s. 718 – 718.2 sentencing purposes and objectives. While it may reflect the moral blameworthiness of the offender, it does not recognize the gravity of the offence, reflect the aggravating factors or respect parity.

[81] Had it been an option, Ms. Jeaurond is an obvious candidate for a conditional sentence for this offence. That said, deterrence is a by-product of the whole system of justice. There were legislative objectives behind the removal of a conditional sentence as an alternative to institutional incarceration in such cases. When the law is broken in deliberate fashion for profit, respect for the rule of law is undermined both for the offender and the wider society who learn of it.

[82] Although Psilocybin is a schedule III controlled substance not in the same category as cocaine, oxycodone or even cannabis marijuana Ms. Jeaurond knew of the large quantity of psilocybin in the basement and did not demand that it be removed or destroyed. The large quantity is an aggravating factor.

[83] Ms. Jeaurond knew of the unauthorized firearms as well as the improper storage. There is no evidence that any of the firearms Ms. Jeaurond knew of were ever associated with the psilocybin. That said, the combination of controlled substances and firearms is a recognized toxic combination. Public and police safety can be important considerations and this circumstance is viewed as an aggravating factor. That there is no evidence of access to ammunition reduces the aggravating aspect.

[84] The range of sentence for the firearms offences is wide. The rural setting and absence of ammunition mitigates. All but one of the unrestricted firearms were in one room. But for the suitcase full of packaged mushrooms, the unauthorized possession and careless storage of the unrestricted firearms in this rural premises without evidence of access to ammunition borders on the regulatory. However, even without ammunition, the significance of the toxic relationship diminishes but doesn’t disappear – when police enter property and see guns, exigency elevates commensurately.

[85] While the offence and quantity of the Schedule III substance together with the unauthorized possession firearms not properly stored requires a sentence recognizing the gravity of the crimes to which she pled, Ms. Jeaurond’s involvement in the enterprise was subordinate, she is a first offender and restraint is required.

[86] Ms. Jeaurond has never been imprisoned. She faces health related consequences in that environment. A sentence of imprisonment, seemingly small victory to someone who sees imprisonment as the cost of doing business, will seem an eternity to Ms. Jeaurond.

[87] Consecutive sentences are not mandatory. Though firearm registration and storage involve different societal interests than law enforcement related to controlled drugs, Ms. Jeaurond’s personal circumstances mitigate the point of consecutive sentences. She was not subject to a pre-existing s. 109 order.

[88] Individual deterrence is not a requisite element of this sentence. Ms. Jeaurond is a first offender. She has stable residence, is university educated, gainfully occupied, with family support. She accepts responsibility for the error of her ways

[89] Crown counsel did not seriously contest Mr. Friedman’s submissions regarding the Downes’s house arrest and pre-sentence custody mitigation factoring. Ms. Jeaurond has spent every night for 3.5 years with her parents. That is a feat. Accordingly, a credit of three months and twenty days is appropriate.

[90] Where psylocybin is a tag-along substance with cocaine, oxycodone and marijuana as a cog in trafficking, retail by otherwise pro-social offenders has attracted concurrent sentences in the range of nine to twelve months without dedicated analysis. In the case at bar, the quantity and packaging in the context of possession for the purpose of trafficking and the purely financial purpose give comfort to a similar range. A period of incarceration is required. The mitigating factors noted move the needle for Ms. Jeaurond to the lowest end or even beneath the typical range.

Conclusion

[91] For possession of psilocybin for the purpose of trafficking: The fit sentence without credit for pre-sentence incarceration and house arrest would be eight months imprisonment. After credit of three months and twenty days Ms. Jeaurond is sentenced to imprisonment for four months and ten days to be followed by 12 months of probation – statutory terms but reporting not required;

[92] Ancillary order: mandatory s. 109 ten year firearms/weapons prohibition;

[93] For unauthorized possession of firearms: sentenced to three months concurrent;

[94] For unsafe storage of firearms: sentenced to three months concurrent.

[95] Forfeiture order to issue.

[96] I commend Ms. Jeaurond as candidate for early parole and available TAPs.

DNA request

[97] The Supreme Court in R. v. C.(R.W.), 2005 SCC 61, [2005]3 S.C.R. 99 concluded that the public interest in a DNA order lies in the protection of society through the early detection, arrest and conviction of offenders. As noted earlier, the public interest is also served by early exclusion of the innocent.

[98] A DNA order engages privacy of the person and informational privacy. There is minimal effect on privacy of the person because the procedure for collecting samples is non-invasive. Informational privacy is seriously engaged because DNA contains the highest level of private and personal information.

[99] To balance privacy interests against public interest the Court is to consider:

i. the offender’s criminal record – to the extent it might indicate the probability of recidivism, the extent of dangerousness, or whether there are convictions for which DNA identification was a useful tool; ii. the nature of the offence; iii. the circumstances surrounding the commission of the offence; iv. the impact on the offender’s privacy and the security of her person; and v. all the circumstances of the case.

[100] The Ontario Court of Appeal in R. v. B.(K.) (2003), 179 C.C.C.(3d) 413, suggested it is reasonable to assume that in the vast majority of cases involving adult offenders, it is in the best interest of the administration of justice to make a DNA order.

[101] The public interest in a DNA order articulated by the Supreme Court in R. v. C.(R.W.) evenly balances Ms. Jeaurond’s privacy interests. I am not persuaded that a DNA order in the case at bar is in the best interests of justice. Before this, Ms. Jeaurond did not have a criminal record. The probability of recidivism is nominal. DNA recording would not further the investigation in the case at bar.

[102] There is little information about the circumstance of the offence other than Ms. Jeaurond was resident with concomitant control over the property.

[103] Ms. Jeaurond’s privacy interests match evenly with the value to the public interest in an order. The application is denied.

The Honourable Mr. Justice Rick Leroy Released: January 18, 2019