COURT FILE NO.: CR-18-962

DATE: 2022 09 28

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

G. Roy and C. Malezis, for the Crown

– and –

Shondel KELLY

C. Rudnicki and T. Donkor for Ms. Kelly

HEARD: August 12, 2022

REASONS FOR SENTENCE

J.M. Woollcombe J.

Introduction

[1] On November 24, 2021, Ms. Kelly was found guilty by a jury of attempting to import into Canada one kilogram of cocaine and of attempting to possess the cocaine for the purpose of trafficking. She is before me for the imposition of sentence.[^1]

[2] The Crown position is that Ms. Kelly should be sentenced to three years in jail. The Crown also asks for a DNA order and a mandatory weapons prohibition order under s. 109 of the Criminal Code for 10 years.

[3] The defence seeks a conditional sentence of two years less a day, followed by three years probation. No objection is taken to the ancillary orders sought by the Crown.

[4] While Ms. Kelly was found guilty of both counts, the attempting to import count is the more serious charge, warranting a higher sentence. Accordingly, I will focus on deciding a fit sentence for the attempting to import count and impose a concurrent sentence for the attempting to possess for the purpose of trafficking count.

Relevant Facts of the Offence

[5] The facts of the case are not complicated. In April 2017, Ms. Kelly went on two occasions to the Hamilton airport DHL. She tried to pick up a package. That package had been intercepted by the RCMP when it arrived in Toronto from St. Lucia. Inside the package was a set of golf clubs. Concealed within the shafts of the clubs was a total of about a kilogram of cocaine. The value of the cocaine was between $43,000 and $110,000, depending on how it was sold. It was conceded that the amount of cocaine was for the purpose of trafficking,

[6] Ms. Kelly testified and denied knowing that there was cocaine, or a controlled substance, in the package. The only issue at trial was whether Ms. Kelly knew that the package she was trying to pick up contained illegal drugs. The jury’s verdict makes clear that they were satisfied beyond a reasonable doubt that she had this knowledge.

[7] Various intercepted communications between Ms. Kelly and others suggest that Ms. Kelly had a financial motivation to commit these offences. She skipped work to pick the package up and was being paid to do so. Details as to the quantum of payment were not in evidence.

Circumstances of Ms. Kelly

[8] Evidence of Ms. Kelly’s circumstances is contained in an affidavit she prepared for sentencing, a letter from Rashwawna Malcolm (Exhibit 1) and a letter from the Elizabeth Fry Society (Exhibit 2).

[9] More significantly, an Enhanced Pre-Sentence Report, or Morris Report, was prepared by Michelle Richards. She is a Registered Social Worker with an impressive academic history (BA, BSW, MSW, RSW). She has significant experience both engaging with vulnerable communities and in preparing social context pre-sentence reports. To prepare her Report, she met with Ms. Kelly three times. She also conducted seven collateral interviews of Ms. Kelly’s family members. Helpfully appended to her Report is an “Expert Report on Crime, Criminal Justice and the Experience of Black Canadians in Toronto, Ontario”, prepared in 2018 for the court in R. v. Morris, 2018 ONSC 5186. As the Court of Appeal noted, this Report “bears reading and re-reading by those called up to prosecute, defend and sentence Black offenders”: R. v. Morris, 2021 ONCA 680 at para. 43.

[10] The defence also has filed the Third COVID-19 Status Update of the Office of the Correctional Investigator dated February 23, 2021, and various information related to the legislative background and purposes of Bill C-5.[^2]

[11] Ms. Kelly is now 29 years old. At the time of the offences, she was 23. She is a Black woman of Jamaican heritage. She was raised by her mother, Karlene Wynter. Ms. Wynter often travelled, leaving Ms. Kelly under the care of one of her older sisters. Ms. Kelly grew up close to her siblings. Ms. Kelly’s father neither provided for her, nor played a role in her life. As a single Black mother, Ms. Wynter faced challenges raising her family. She spent time on social assistance and accessed food banks when money was scarce. Ms. Kelly was largely unaware of the financial difficulties her mother faced as there was enough to meet the family’s basic needs.

[12] For 16 formative years, beginning when she was about six years old, Ms. Kelly lived in Ridgeway, a subsidized housing complex in Mississauga. Her mother moved the family to Ridgeway, anticipating that it would be a quiet suburb in which to escape gun and drug activity. Unfortunately, Ridgeway proved to be an unsafe neighbourhood, but it was all that Ms. Wynford could afford. On the positive side, the residents were predominantly Black, and it was a place where there was a sense of community.

[13] In Ms. Kelly’s early childhood, she had neighbourhood friends. As she moved to adolescence, her friend group changed and included those who were focused on materialistic goods and popularity. Ms. Kelly now appreciates that she made poor choices in friends. At the time, she perceived that her friends had her best interests at heart.

[14] Ridgeway was a high crime area and Ms. Kelly and her family report that there was a heightened police presence. They describe regular police harassment in the community. They say that the police conduct was unjust and that police mistreated the residents.

[15] In terms of her education, Ms. Kelly enjoyed her primary school and reports having had excellent teachers. By middle school, things deteriorated and she found that the teachers were disinterested in the students. Her middle school did not have many Black students and Ms. Kelly felt targeted. She reports having been assaulted by a white teacher, and then unfairly punished for it, eventually being removed from the school. This conflict left Ms. Kelly feeling like the system was unfair. Ms. Wynter shares the view that her children were unfairly targeted and disciplined in school because they were Black.

[16] Ms. Kelly changed secondary schools multiple times. She was repeatedly removed from school for poor behaviour, skipping class and fighting. She acknowledges that she had academic ability, but says she was under the influence of a negative peer group. She completed her Ontario Secondary School Diploma. Initially, Ms. Kelly pursued college studies in Event Management and Accounting. She discontinued her program before completing it.

[17] Ms. Kelly says that her mother’s strict discipline led to them having a difficult relationship. For a period she was sent to live with her grandmother. She returned home on and off, but moved out permanently at the age of 18. She lived with her older sister. Then, after three years, she moved out on her own. This gave her independence. But having sole financial responsibility for her expenses was difficult, as she had little extra for savings and entertainment. She reports that she was lonely. It was in this period that she committed the offences.

[18] Ms. Kelly now works as a Customer Relation Representative with Spectrum Healthcase Partners. At the time of her arrest, she worked in customer relations for a real estate networking platform.

[19] Ms. Kelly has distanced herself from the others involved in the offences. She sought therapy and personal counselling through the Elizabeth Fry Society in November 2019. She continues in weekly therapy, commenting that it has been validating and helpful. She is also pursuing her interest in having a Black therapist, who is grounded in Christianity.

[20] Everyone with whom Ms. Richards spoke seemed genuinely shocked that Ms. Kelly was involved in these offences. Each person was confident that Ms. Kelly would never do this again.

[21] The conclusions set out in Ms. Richards’ Report highlight that Ms. Kelly’s experiences as a young Black woman are consistent with what the research has revealed in the lived experience of many young Black and racialized Canadians. She felt undervalued by her teachers. She was over-surveilled and disproportionately punished at school when compared with her white peers. This negatively affected her ability to succeed academically. Compounding this, her family and she felt targeted by police in their community. Despite this, Ms. Kelly was able to complete high school and gained some independence through hard work.

[22] While her family was impoverished and she was raised in a neighbourhood where crime was prevalent, Ms. Kelly has no prior criminal record. She continues to work, though she fears for her financial future, particularly given the criminal convictions.

[23] On a more personal level, Ms. Kelly is described by those who know her as a genuine person with a big heart. She is reliable and family-oriented. She has changed her friend group since the offences and now has a small, trusted circle around her.

[24] Ms. Kelly herself told Ms. Richards that she looks forward to demonstrating that she is a law abiding citizen who will never again be involved in the criminal justice system. She acknowledges having made poor choices, which she attributes to her poor choices of peers. She is concerned that her employment options will be limited by her criminal convictions. She is also concerned that the poverty that defined her youth will be a problem in the future. The academic literature referred to by Ms. Richards supports Ms. Kelly’s concern in that employers prefer not to hire those with criminal records and that racialized people are more likely to have lower incomes than their white counterparts.

[25] Ms. Kelly provided an affidavit setting out the consequences of having been on bail since her August 2017 arrest. For almost three years, she lived with her mother, who was her surety. This was difficult and made her feel like a child again. In July 2020, she was permitted to live at an address approved by her surety and moved out.

[26] In 2019, shortly before her initial trial date, Ms. Kelly became pregnant. She decided to terminate the pregnancy because of her anxiety about the trial and being incarcerated. Her boyfriend ended their relationship, although they are now back together. She hopes to have children with him, but recognizes that now is not the right time.

[27] Ms. Kelly has hypertension and her doctor has recommended bariatric surgery. She hopes to take the necessary preparatory steps for the surgery this fall and anticipates it would be in early 2023. It will involve a few days in hospital followed by four to six weeks rest. There is no evidence before me as to whether or not the surgery could proceed were she incarcerated.

[28] While she is fully vaccinated against COVID-19, Ms. Kelly is concerned about catching a new variant of COVID-19 in custody, particularly because she needs to be careful about complications given her high blood pressure.

Impact on the Community

[29] There is no question that the impact of importing drugs like cocaine into Canada is very serious. As Doherty J.A. held in R. v. Hamilton, 2004 CanLII 5549 (ON CA), [2004] O.J. No. 3252 (C.A.) at paras. 104-105:

104 The importation of dangerous drugs like cocaine and others found in Schedule I of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 has always been considered among the most serious crimes known to Canadian law: Sentencing Reform: A Canadian Approach. Report of the Canadian Sentencing Commission, Ottawa Ministry of Supply and Services (1987), p. 205. The immense direct and indirect social and economic harm done throughout the Canadian community by cocaine is well known: Pushpanathan v. Canada (Minister of Citizenship and Immigration) (1998), 1998 CanLII 778 (SCC), 160 D.L.R. (4th) 193 at 235-37 (S.C.C.), per Cory J., in dissent on another issue; R. v. Smith (1987), 1987 CanLII 64 (SCC), 34 C.C.C. (3d) 97 at 123-24 (S.C.C.). The use and sale of cocaine kills and harms both directly and indirectly. The direct adverse health effects on those who use the drug are enormous and disastrous. Cocaine sale and use is closely and strongly associated with violent crime. Cocaine importation begets a multiplicity of violent acts.

105 Cocaine is not indigenous to Canada. Without the cocaine importer, whatever his or her motive or involvement, there would be no cocaine problem. Both before and after the amendments to the sentencing provisions in Part XXIII of the Criminal Code and the introduction of the sentencing provision (s. 10) into the Controlled Drugs and Substances Act, S.C. 1996, c. 19, this court has emphasized the gravity of the crime and, therefore, the need to stress enunciation and deterrence in sentencing all drug importers, even vulnerable first offenders.

[30] See also: R. v. Lloyd, 2016 SCC 13 at para. 26.

Applicable Legal Principles

[31] Section 718 of the Criminal Code sets out the purposes and objectives of sentencing. Section 718.1 of the Criminal Code provides that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. This is, of course, the fundamental principle of sentencing: R. v. Friesen, 2020 SCC 9. Section 10 of the Controlled Drugs and Substances Act S.C. 1996, c. 19 also provides guidance on the purpose of sentencing in this case.

Ranges of sentence

[32] Importation of cocaine, or, as Ms. Kelly did, attempting to do so, is a very serious offence. The Court of Appeal held, at para. 108 of Hamilton, that in cases involving approximately one kilogram “more or less” of cocaine, the range of sentence for a courier who imports cocaine for a commercial purpose is three to five years imprisonment. See also: R. v. Madden, 1996 CanLII 10228 (ON CA), [1996] O.J. No. 376 (C.A.) at para. 4; R. v. Foster, 2018 ONCA 3 at paras. 118;141.

[33] The Crown’s three year position is at the bottom end of that range, which the Crown submits is appropriate, given the mitigating factors here. The defence acknowledges that the three to five year range is usual for importing a kilogram of cocaine, but submits that a fit sentence for Ms. Kelly falls below that range.

[34] In the last few years, there has been significant discussion in the jurisprudence about how the “usual range” of sentence factors into the analysis when a court is tailoring a fit sentence for an individual offender.

[35] The Supreme Court of Canada has emphasized that usual ranges of sentence are neither “straitjackets” nor hard and fast rules. Rather, they are properly understood as “historical portraits for the use of sentencing judges, who must still exercise their discretion in each case”: R. v. Lacasse, 2015 SCC 64 at paras. 56-60. There is no requirement for exceptional circumstances for a sentencing judge to impose a sentence outside the usual range: Friesen, at paras. 36-39; 111-112.

[36] Thus, while ranges are relevant to the analysis, sentencing is best understood as an exercise of judicial discretion to individualize the sentence for a particular offender who committed particular offences, in a particular community. Proportionality remains the overarching objective: R. v. Parranto, 2021 SCC 46, at paras. 36-40; R. v. Mohamed, 2020 ONCA 163 at para. 28.

Anti-Black racism

[37] In its decision in Morris, the Court of Appeal considered how sentencing judges should take into account evidence of anti-Black racism. The Court recognized that social context evidence relating to an offender’s life experiences, including the offender’s experience with anti-Black racism, may be relevant to mitigate the offender’s responsibility or to assist in crafting a fit sentence. This evidence is not relevant to an assessment of the gravity of an offence: Morris, at para. 13.

[38] The Court elaborated that:

[79] The social context evidence can, however, provide a basis upon which a trial judge concludes that the fundamental purpose of sentencing, as outlined in s. 718, is better served by a sentence which, while recognizing the seriousness of the offence, gives less weight to the specific deterrence of the offender and greater weight to the rehabilitation of the offender through a sentence that addresses the societal disadvantages caused to the offender by factors such as systemic racism.

[80] Blending the various objectives of sentencing is the essence of the sentencing process. There is seldom one and only one fit sentence. As long as the sentence imposed complies with the proportionality requirement in s. 718.1, trial judges are given considerable discretion to decide how best to blend the various legitimate objectives of sentencing. If trial judges operate within that band of discretion, the different weight assigned to different objectives may produce different but nonetheless equally fit sentences.

[81] In the present case, the social context evidence provided a basis upon which the trial judge could give added weight to the objective of rehabilitation and less weight to the objective of specific deterrence. By doing so, the trial judge would not diminish the seriousness of the crime, but would recognize that the ultimate sentence imposed must be tailored to the specific offender and the potential rehabilitation of that offender. As long as the sentence ultimately imposed remains proportionate to the offence and the offender, the actual sentence imposed would be a fit sentence.

[39] The Court also highlighted that the impact of racism on an offender can be an important factor in determining a fit sentence for a Black offender. It is evidence that is essential to understand the offender as a person and as a part of society. There must, however, be some connection between the overt and systemic racism in the community and the circumstances that are said to mitigate the criminal conduct. For instance, racism may have affected the offender in a way that feeds into his moral culpability, or in some other way that is relevant to sentencing: Morris, at paras. 91-97

[40] Social context evidence can be relevant even if it does not mitigate the offender’s moral culpability. For instance, it can assist in determining the need for specific deterrence, the offender’s rehabilitative prospects or how to balance the competing principles of sentencing: Morris, at paras. 102-103.

[41] Finally, in considering the “restraint principle”, as codified in ss. 718.2(d) and (e) of the Criminal Code, while Black offenders are not to be equated with Indigenous offenders, courts should remember the “well-established over-incarceration of Black offenders”. Moreover, the restraint principle is operative if a fit sentence is less than two years and “favours conditional sentences over incarceration if a conditional sentence is consistent with the proportionality principle” and addresses the systemic problem of the over-incarceration of young Black offenders: Morris, at paras. 111-112, 123-130.

Conditional Sentences

[42] There can be no doubt that a conditional sentence is a jail sentence, but served in the community. It can advance the goals of both deterrence and denunciation. In fact, when combined with terms of probation, it may impose a greater burden on an offender than a custodial sentence: R. v. Proulx, 2000 SCC 5, at paras. 40-41; 67.

[43] A conditional sentence is available if the court imposes a sentence of less than two years and if the conditions set out in s. 742.1 are met.

Analysis

[44] In crafting a fit sentence for Ms. Kelly, I begin by identifying the aggravating and mitigating factors in this case.

[45] The aggravating features include:

• Cocaine is a very addictive and dangerous drug. Its importation into Canada leads to devastating consequences - social and economic - in this country;
• The value of the cocaine that Ms. Kelly attempted to import was high – up to $110,000;
• The offence was committed by Ms. Kelly for financial gain. She skipped work to try to complete the importation so as to receive the financial compensation she was looking for.

[46] At the same time, there are a significant number of mitigating factors present. These include:

• Ms. Kelly’s role in the offence was secondary. There is no evidence that she had any involvement in the importation of cocaine into Canada. Her function was only to pick up the package and deliver it to someone else. Her role was on the lowest rung of the drug importing hierarchy;
• While she had a trial, Ms. Kelly was cooperative in narrowing the issues. Most of the evidence was admitted by way of an Agreed Statement of Facts. This reduced the issues for the jury and shortened the trial time;
• Ms. Kelly is a relatively young offender. She was only 23 at the time of the offence and is 29 now;
• Ms. Kelly has no criminal record or history;
• Ms. Kelly has faced social and economic disadvantages in her life. She was raised by a single mother, with economic disadvantages, in a dangerous neighbourhood;
• Ms. Kelly has been the subject of personal and systemic anti-Black racism through much of her life, including by the police in her neighbourhood as she grew up and in the school system;
• Ms. Kelly has a wide and supportive network of family and friends in her community, all of whom view the offences as out of character;
• Despite her disadvantages, Ms. Kelly has worked full-time both before the offence and since being charged;
• Ms. Kelly has been on bail since she was charged in 2017, with no violations of any of her conditions. She has been under conditions of the court for more than five years already.
• Ms. Kelly has suffered the collateral effects from the delay in the imposition of her sentence, some of which resulted from the pandemic. For instance, she terminated a wanted pregnancy as she awaited trial and has delayed starting a family;
• Ms. Kelly has worked diligently towards her own rehabilitation and made real rehabilitative gains. She sought counselling through the Elizabeth Fry Society and plans to pursue culturally appropriate, faith based counselling in the community;
• There is every reason to believe that Ms. Kelly will never again engage in criminal activity. When she addressed the court, she expressed what I accept was genuine remorse, apologized for her part in what has happened, indicated that she had learned from what had happened to her, committed to being accountable for what she had done and expressed her desire to build a better future. Her words and actions since her arrest strongly suggest that there is little concern about her re-offending. I find she has a bright future.

[47] I think this is a case in which all of the evidence supports a conclusion that a fit sentence for Ms. Kelly is significantly less than the three years suggested by the Crown. Notwithstanding that the bottom end of the usual range is three years, there are compelling reasons to impose a sentence below three years. These include: the existence of the many mitigating factors I have identified; Ms. Kelly’s reduced level of moral culpability resulting from the relatively minor role she had in these offences; and the sustained, positive steps towards rehabilitation she has taken in the five years since she was charged.

[48] As a result, while recognizing that it is below the usual range, I think a sentence in the range of two years for the attempting to import offence is fit: R. v. Mohamed, at para. 29; R. v. Ferguson, 2018 ONSC 4106.

[49] Having concluded that a sentence in the two year range is appropriate, consideration must be given to whether the sentence should be conditional: Morris, at para. 180. This requires an assessment of whether serving the sentence in the community would endanger the community and whether a conditional sentence would be consistent with the fundamental purposes and principles of sentencing set out in ss. 718 to 718.2 of the Code.

[50] Given that Ms. Kelly has no criminal record, has been on bail since 2017 with no issues and has made substantial rehabilitative strides, a conditional sentence would not endanger the safety of the community.

[51] The more challenging question is whether a conditional sentence is consistent with the fundamental purposes and principles of sentencing.

[52] In Morris, para. 125, the Court of Appeal reminded sentencing courts that the principle of restraint is operative not only in determining whether a sentence of imprisonment is required, but also when consideration is given to whether the sentence imposed should be conditional. This principle means that a conditional sentence is to be preferred over a sentence of incarceration if it is consistent with the proportionality principle.

[53] The defence has proposed a conditional sentence that takes into account not only Ms. Kelly’s circumstances, but which also includes conditions that address the objectives of deterrence, denunciation and rehabilitation, including through ongoing supervision of Ms. Kelly for five more years. A conditional sentence for Ms. Kelly would, additionally, address well-documented concerns about the over-incarceration of young Black offenders: Morris, at paras. 127-129.

[54] The Crown’s position is that a conditional sentence is not proportionate to Ms. Kelly’s moral culpability and the gravity of the offences in that it does not give effect to the needs to denounce and deter this sort of serious commercial offence. While I accept that a conditional sentence is more lenient than a sentence of incarceration, it can still provide “a significant amount of denunciation”, particularly when the terms imposed are onerous and the duration of the sentence is longer than a jail sentence would ordinarily have been: Proulx, at para. 102.

[55] The effect of the sentence proposed by the defence is that Ms. Kelly will, by the time her sentence is completed, have been under court imposed conditions for ten years. This is a substantial length of time for the offences for which she has been found guilty.

[56] I find that a conditional sentence for Ms. Kelly, in all of the circumstances, meets the goals of sentencing and should be imposed. I reach this view having particular regard to the many mitigating factors present here, including the very good prospects for Ms. Kelly’s future, her diminished moral culpability and the systemic racism that she has experienced as a young Black Canadian,: R. v. Desmond-Robinson, 2022 ONCA 369 at paras. 15-16; R. v. Beharry, 2022 ONSC 4370.

[57] Ms. Kelly, please stand:

[58] For the attempting to import offence, count 1, I sentence you to a conditional sentence of two years less a day. On count 2, I sentence you to a conditional sentence of 18 months, concurrent. The terms of your conditional sentence, as agreed upon by the Crown and defence are as follows:

i. The Statutory terms

1. Keep the peace and be of good behaviour.
2. Appear before the court when required.
3. Report to a supervisor within 72 hours of the signing of this order, and thereafter as required.
4. Remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the supervisor.
5. Notify the court or the supervisor in advance of any change of name or address, and promptly notify the court and the supervisor of any change of employment or occupation.

ii. Additional terms 6. Abstain from the consumption of unlawful substances except in accordance with a medical prescription. 7. Abstain from communicating, directly, or indirectly, with the following persons: a. Garren Brown; Jessica Rose; and Samantha (last name unknown). 8. Attend counselling as directed by your supervisor, and sign any release necessary for your supervisor to monitor your progress. 9. For the first 12 months of your conditional sentence: remain in your residence at all times except: a. For medical emergencies involving you or a member of your immediate family; b. For travel directly to, directly from, and while at counseling sessions or work; c. With advance written permission from your supervisor; or d. On Sundays from 1:00 p.m. to 5:00 p.m. for the purpose of attending to the necessaries of life. 10. For months 13 to 18 (inclusive) of your conditional sentence: remain in your residence from 10:00 p.m. to 6:00 a.m. except: a. For medical emergencies involving you or a member of your immediate family; or b. With advance written permission from your supervisor.

[59] Following the completion of your conditional sentence, you will be subject to a term of probation for three years. The terms of that will be:

i. Statutory terms

1. Keep the peace and be of good behaviour.
2. Appear before the court when required.
3. Notify the probation officer in advance of any change of name or address, and promptly notify the probation officer of any change of employment or occupation.

ii. Additional terms 4. Report to a probation officer as required. 5. Abstain from the consumption of unlawful substances except in accordance with a medical prescription. 6. Abstain from communicating, directly, or indirectly, with the following persons: a. Garren Brown; Jessica Rose; and Samantha (last name unknown). 7. Attend counselling as directed by your probation officer, and sign any release necessary for your probation officer to monitor your progress. 8. Perform 50 hours of community service.

[60] In addition, on consent, the following ancillary orders are made:

a. an order pursuant to s. 487.051(2) of the Code for the taking of bodily substances for the purpose of forensic DNA analysis b. a mandatory firearms prohibition order under s. 109(2)(a)(ii) for 10 years and s. 109(2)(b) for life.

Woollcombe J.

Released: September 28, 2022

COURT FILE NO.: CR-18-962

DATE: 2022 09 28

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

• and –

Shondel Kelly

REASONS FOR SENTENCE

Woollcombe J.

Released: September 28, 2022

[^1]: The delay in the imposition of sentence has been as a result of the time it has taken for the completion of the Morris Report, which was sought by the defence. That Report was requested very shortly after the jury’s verdict, but was not completed until July 25, 2022. Ms. Kelly has waived all of the delay for the purpose of s. 11(b) of the Charter.

[^2]: Bill C-5 was almost identical to Bill C-22, the legislation that is now anticipated to remove mandatory minimum sentences for all offences under the Controlled Drugs and Substances Act (“CDSA”). Of course, as a result of R. v. Sharma, 2020 ONCA 478, on reserve at the SCC, s. 742.1(c) and 742.1(e)(ii) of the criminal Code have been struck down and are of no effect. This means that a conditional sentence is available in this case, if the other statutory requirements are met.