R. v. McClain, 2018 BCPC 369

Citation: R. v. McClain 2018 BCPC 369 Date: 20181211 File No: 86412-4C Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CODY ANTHONY McCLAIN ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE A. ORMISTON Counsel for the Crown: R. Randhawa Counsel for the Accused: A. Sidhu Place of Hearing: Abbotsford , B.C. Date of Hearing: November 21, 2018 Date of Judgment: December 11, 2018 [ 1 ] THE COURT: Cody McClain is before the court having entered a guilty plea on two counts of, firstly, unlawfully trafficking in fentanyl and cocaine, contrary to s. 5(1) of the Controlled Drugs and Substances Act between June 6th and June 28th of 2017; and

second, for unlawfully possessing fentanyl and cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act between June 8th and June 28th of 2017. THE FACTS [ 2 ] Early in 2017 police undertook a dial-a-dope investigation here in Abbotsford, British Columbia. [ 3 ] On June 6th of 2017, an undercover officer contacted a suspect phone number and arranged for the purchase of drugs. Mr.

McClain arrived at the meeting point driving a vehicle and sold $40 of fentanyl to the undercover officer. [ 4 ] On June 8th, an officer contacted the number again, arranged to buy drugs on two separate occasions that day and each time Mr. McClain arrived as the driver and sold $40 in fentanyl to an undercover officer. [ 5 ] Officers arranged to buy drugs for a third time that same day, June 8th, and Mr. McClain arrived at the arranged spot. At this time, Mr. McClain was arrested for what would have been the third deal that day and the fourth in total. He was arrested.

The vehicle he was in was searched and police seized 13 packages of fentanyl totalling 2.99 grams and four baggies of cocaine totalling 1.72 grams. Cash in the amount of $1,320 was seized and so were three cell phones. Police noted that on one of these devices the texts and lists were consistent with possession of drugs for the purpose of trafficking. [ 6 ] Mr. McClain was released by police on a Promise To Appear with conditions that same day, June 8th.

He was not told that he had sold drugs to undercover officers prior and four days later, on June the 12th, the undercover officer called again and arranged to buy drugs. Mr. McClain sold the officer $40 in fentanyl. [ 7 ] On each of these occasions when I said Mr. McClain sold undercover officers $40 of fentanyl, the Crown estimates the quantity of substances to be between 0.2 and 0.25 grams. Percentage breakdowns of the exact content of the substances has not been provided, however, the parties proceed on the basis that Mr.

McClain is presumed to have appreciated "the inherent risk that the composition of the drugs may be unknown," quoting from paragraph 19 of R. v. Herrell , 2014 BCCA 114 which is cited in paragraph 17 of R. v. Smith , 2017 BCCA 112 . [ 8 ] The undercover officers were requesting drugs by street names that they say are commonly associated with opioids such as heroin or fentanyl. [ 9 ] On June 28th, an officer called and arranged to buy drugs. Mr. McClain arrived with a Jonathan Flores as the driver of the vehicle and Mr. McClain as the passenger. An officer purchased a bag from Mr.

McClain, a quantity of what is believed to have been illegal substances for $40. Mr. McClain had other small bags of what appeared to be prepackaged drugs on his lap. However, there are continuity issues with the drugs that were seized from this hand-to-hand transaction and they do not form part of the facts that I am relying on in this trafficking charge. Both counsel have invited me to rely on these facts only as context for what happened next. [ 10 ] After the sale to the officer, police followed the vehicle Mr. McClain was in and a black package was tossed from the vehicle before it was stopped.

Photographs described at the preliminary inquiry depict where police found the package and the drugs that were contained in it. Mr. McClain acknowledges that he had possession of that package on June 28th and it contained 70 packages of fentanyl weighing 15.4 grams in total and 26 packages of cocaine weighing 10.56 grams in total. [ 11 ] The Crown estimates that the drugs seized by police on June 28th would have had a street value of, for the cocaine, $844.80 and fentanyl in the range of $2,156 to $2,464. [ 12 ] Mr. Flores and Mr.

McClain were arrested a few minutes after the hand-to-hand transaction by the undercover officer and their vehicle was searched. Police located five phones in the vehicle and observed calls coming in which appeared to be people looking to buy drugs. A total amount of $2,150 in cash was located in the vehicle and seized by police. PRINCIPLES OF SENTENCING [ 13 ] The principles of sentencing that I have to apply here are, first of all, s. 10(1) of the Controlled Drugs and Substances Act which states: ... the fundamental purpose of any sentence for an offence under this

Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community. [ 14 ]

Section 718 of the Criminal Code also provides that I need to take into consideration the following principles of sentencing. First of all, I must consider a sentence that denounces unlawful conduct and the harm done to victims or to the community; deterring an offender and other persons from committing offences; assisting in the rehabilitation of offenders; and promoting a sense of responsibility in offenders and acknowledgement of the harm done to victims or the community. [ 15 ]

Section 718.1 states the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 16 ] In this case, the Crown is seeking a sentence of three to five years incarceration. Defence seeks a lengthy suspended sentence and probation. The issue here is whether or not this is a case that falls within the exceptional circumstances described in R. v. Voong , 2015 BCCA 285 , that would permit a sentence lower than the range established in R. v.

Smith which I cited earlier. [ 17 ] Resolving this issue involves a weighing of the principles in the legislation that is, on one hand, the strong public interest in denouncing and deterring the harm caused by the fentanyl trade and, on the other hand, the need to address the rehabilitation of a young man like Mr. McClain with a sentence that matches his degree of responsibility in committing the offence.

AGGRAVATING AND MITIGATING CIRCUMSTANCES [ 18 ] The first aggravating circumstance here is the nature of the drugs being trafficked. The Crown has rightfully put a heavy emphasis on this factor in their submissions. Cocaine is a serious and harmful drug that has been long recognized in the case law as requiring a sentence that denounces and deters the trade and use of it. I am quoting from paragraph 49 of Justice Harris in R. v.

Smith : ... other dangerous drugs do not kill as frequently, accidentally, or as unpredictably as fentanyl, but the risks posed by those drugs should not be minimized even by comparison with fentanyl. Heroin, crystal meth and cocaine can have devastating consequences. They may not kill as often as fentanyl, but very large numbers of accidental deaths are associated with their consumption...and they destroy lives and wreak social havoc. [ 19 ] Our Court of Appeal in R. v.

Smith recognized the enhanced risk associated with street level dealing of fentanyl and the individual responsibility of dealers given those risks and the public knowledge of them. [ 20 ] I have been provided with the report of Dr. Kennedy from 2016 and the Coroner Services report on fentanyl overdose deaths from March of 2018. These have been relied on in other sentencing decisions that have been put before me. These materials about the impact of fentanyl in B.C. over the last several years support the observations of Justice Harris, again in R. v.

Smith , at paragraph 63 : The number of fentanyl-detected deaths in B.C. and the Lower Mainland continue to grow at a frightening rate. The magnitude of the public health crisis increased dramatically. The evidence accepted by the sentencing judge demonstrates an explosion in the number of illicit drug overdose deaths in 2015 and 2016 and the proportion of those deaths in which fenantyl was detected. Justice Harris went on to note in 2015 there were 397 illicit drug deaths and over 600 in the first 10 months of 2016. [ 21 ] On the facts before me, Mr.

McClain was pedalling in a drug that causes real and catastrophic harm in our communities. You heard evidence, Mr. McClain, from the police officer during the prelim that the package containing fentanyl and cocaine was tossed from a vehicle that was located a quarter block from an elementary school. I am not suggesting you planned that or that you even knew there was a school nearby, but it is a terrifying reminder of the danger that your participation in that drug trade posed to others. [ 22 ] The second aggravating circumstance is the persistence in committing these offences.

This was not a one-time transaction. Mr. McClain conducted these drugs deals over a period of several weeks, including three sales in one day to an undercover officer , after he had been caught, arrested and released on conditions by police. [ 23 ] However, the continuation of these offences also needs to be considered in the context of the reality Mr. McClain was living at the time. That is, he was himself a user and in the depths of an addiction.

I am satisfied, based on the materials that have been filed by his counsel, that these offences were directly tied to his own drug use and this leads me to the mitigating circumstances in this case. [ 24 ] The first mitigating circumstance is that Mr. McClain's involvement in the drug trade was as both a seller and a user. He perpetuated the cycle of harm but he was not only the one inflicting harm, he was also on the receiving end as an addicted user. It is important to consider Mr.

McClain's disregard for his own life while he was using when you look at the harm that he was causing by selling. [ 25 ] The Crown has called into question somewhat this mitigating circumstance in his submissions on a different day. So I want to make clear that I accept, on a balance of probabilities that Mr. McClain was himself an addict at the time of these offences, based on what has been put forward by defence counsel not only in his submissions but also in the materials that have been marked as an exhibit. There is a constellation of people in Mr.

McClain's life that have seen his descent into addiction and the way he has been able to climb back out of it. [ 26 ] He reported that he started using drugs in high school and a pattern of weekend abuse turned into weekday use. After high school he developed a real problem with cocaine and substance abuse consumed his life, leading to loss of his employment and isolation from the prosocial people in his life. In the months leading up to these offences he was kicked out of his house where he lived with his mother and this is corroborated by both his family and his employer.

He felt that the only way to keep up with his addiction and his drug debts was to participate in selling. [ 27 ] After his arrest, Mr. McClain spent six months at VisionQuest Recovery House and he is described by the people there as exceptional. Not only did he participate fully in the programming himself, but he became a leader to other recovering addicts and to this day he is motivated to help other addicts move forward in their recovery and in their lives. Mr. McClain's commitment to his own sobriety through regular NA and AA meetings, the letter from Dr. Thinda that confirms the work Mr.

McClain has put into his general wellbeing, are all consistent with somebody who experienced drug addiction firsthand. While I agree with the Crown that Dr. Thinda's report strays somewhat into an opinion regarding how Mr. McClain would respond to incarceration, I have disregarded any opinions that he has stated therein and have taken his report for what it is: information that was provided to him by Mr. McClain and Mr. McClain's responses to therapy to date. [ 28 ] The second mitigating factor, and it is the most compelling factor on this hearing in terms of mitigating circumstances, is what Mr.

McClain has chosen to do with the approximately year-and-a-half between these offences and the sentencing hearing. [ 29 ] After spending over a month in custody, Mr. McClain has complied with onerous bail conditions since his release in August of 2017.

This has included living at and succeeding at VisionQuest, which is a highly structured residential drug rehabilitation program. [ 30 ] He accomplished a second very difficult task and that is a gradual return from residential treatment into the community where he has continued to comply with strict supervised surety bail and curfew conditions. [ 31 ] I was advised about one incident where he was found out past his curfew relatively recently, because he was late after attending the memorial of a friend. Crown has sensibly exercised their discretion and not charged him with a breach of bail.

[ 32 ] What Mr. McClain has done since his release is secure employment and I accept this was not easy to do for somebody with a fresh criminal record. His employer, Mr. Brakely (phonetic), describes in his letter to the court how Mr. McClain was fired because of his addiction issues and then gradually earned back his trust. Mr. McClain resumed work at that telecommunications company after his residential treatment. The tighter curfew conditions imposed in October of this year followed the alleged breach of curfew. It meant that Mr. Brakely could not continue to employ Mr.

McClain but he is willing to allow him to return to work should his conditions allow for it. [ 33 ] Most importantly, I am satisfied that Mr. McClain has separated himself from the lifestyle and the peer group that he had when he was an addict and when he committed these offences and that is absolutely critical. This has been demonstrated by the year-and-a- half of prosocial decisions Mr. McClain has made since these offences, the input of his mother and his employer, and also the lack of any indication of continued ties from drug dealing or use.

He has succeeded in doing something that is very difficult for very many. He has pulled himself out of a self-centred and self-destructive addition to illegal drugs. [ 34 ] While his response to his own addiction was fairly immediate following his release on bail, more recently, since May of this year, Mr. McClain has been seeing Dr. Thinda, a registered psychologist, where he has been addressing some of the underlying issues behind his addictions. As Mr.

McClain is no doubt aware from going to NA and AA, the hard work is not over. [ 35 ] Protecting his sobriety is something he must always be vigilant about, something he is going to need to continue to fight for. Mr. McClain is realistic about this and so is one of his greatest supports, his mother. [ 36 ] Dr. Thinda and Mr. McClain's mother have both noted how addressing Mr. McClain's ADHD and anxiety have played a significant role in his continued recovery and these factors have come to light since his arrest for these offences. [ 37 ] The third mitigating circumstance is the fact of Mr. McClain's guilty plea.

It is a demonstration of remorse and I am satisfied, based on the submissions of counsel, that it was entered at the earlier opportunity given issues with Crown disclosure. I am also satisfied, having read Mr. McClain's letter to the court and his mother's letter, that Mr. McClain is truly remorseful. Mr. McClain candidly admits that he was not at first, and that when he was arrested he did not appreciate the gravity of what he had done.

I find the genuineness of his remorse in his realization and acceptance of the harm he caused when he trafficked in these drugs and in his desire to give back to the community by helping other addicts. [ 38 ] Mr. McLain is a young man, only 22 years old now and while it is not necessarily mitigating that he has no criminal record, I have to consider that he comes before the court as a first offender. From the materials that have been filed, I can see that he is an intelligent person who, as his counsel says, has more achievements yet to come.

ANALYSIS [ 39 ] The aggravating and mitigating factors in this case need to be considered in the context of the binding case precedents for similar offences and I have considered the following cases that were filed: R. v. Smith , 2017 BCCA 112 ; R v. Voong , 2015 BCCA 285 ; R. v. Mann , 2018 BCCA 265 ; R. v. Adams , 2017 BCSC 2529 ; R v. Tessier , 2018 BCPC 2012 ; R. v. Vu , 2018 BCPC 239 ; R. Mani , 2018 BCPC 100 ; R. v. Grewal , 2017 BCPC 412 ; R. v. Olenik , 2017 BCPC 390 ; R. v. Joon , 2017 BCPC 301 ; R. v. Malenovik , 2017 BCPC 274 ; and R. v.

Klammer , 2016 ONSC 4038 . [ 40 ] Sentencing is a fact specific and individualized process and I am not considering simply the facts of the offence but also the unique situation of Mr. McClain. While no two sentencing cases are exactly alike, the following features of this case help situate it on the continuum of the case law authorities. [ 41 ] This offence has been characterized by the Crown as street-level trafficking in fentanyl and cocaine and I agree. I also agree with counsel that the amount of drugs and cash found on Mr. McClain is not strictly determinative of his level of involvement in the drug trade.

This was more than one hand-to-hand transaction and was repeated over about a month, including after he was released by police. The dial-a-dope arrangement brings with it a higher level of sophistication. However, there is no evidence to link Mr. McClain to the mechanics or organization of trafficking at a higher level. [ 42 ] Mr. McClain was an addict, dealing to support his own addiction and when I turn to crafting a sentence that is proportionate to his responsibility for the offence, I have to look at his degree of moral blameworthiness. The offences committed by Mr. McClain were serious.

The maximum penalty is life in prison. He must bear the moral blameworthiness ascribed by R. v. Smith by perpetuating the use of a drug that is publicly known to cause so much harm (para. 37). However, I must also consider the reasons why he was involved in drug trafficking and in doing so I find that his moral blameworthiness is somewhat tempered when compared to cases like R. v. Olinek or R. v. Grewal . [ 43 ] The real issue here is whether or not exceptional circumstances exist that would make a non-custodial sentence appropriate for Mr.

McClain, despite the aggravating circumstances that call out for a strong message of general denunciation and deterrence. This analysis is governed by the two decisions of our Court of Appeal, R. v. Voong and R. v. Smith cited earlier. [ 44 ] In R v. Voong , the court addressed sentencing ranges for street-level dial-a-dope trafficking in hard drugs. The court required sentencing judges to emphasize general denunciation and deterrence in order to recognize the harm that is done by these drugs in our society.

The court also established that in exceptional circumstances non-custodial sentences could meet these principles of sentencing. The court was careful to reserve this type of disposition for rare cases and only where the offender had demonstrated a verifiable change in circumstances. At paragraph 59 the court writes: ... there must be circumstances that are above and beyond the norm to justify a non-custodial sentence.

There must be something that would lead a sentencing judge to conclude that the offender had truly turned his or her life around, and that the protection of the public was subsequently better served by a non-custodial sentence ... it will be the rare case where the standard of exceptional circumstances is met.

[45] What Voong did not contemplate was the current opioid crisis that grips British Columbia. This reality was at the forefront ofthe sentencing appeal in R. v. Smith. Our Court of Appeal has made it clear that "denunciation and deterrence must generally be givenprimacy in sentencing cases involving fentanyl." (para. 45). [46] Mr. McClain's offences were committed within the context of the current fentanyl crisis, he acknowledges that. I am followingthe reasoning of courts that have found the exceptional circumstances test in R. v. Voong has not been extinguished by R. v.

Smith,especially the comments of Madam Justice Fenlon in R. v. Rutter, 2017 BCCA 193 at paragraph 4: It is clear that going forward, the sentencing range for street-level trafficking in fentanyl begins at 18 months’ imprisonment, and extendsup to or beyond 36 months’ imprisonment. It is also clear that this range is a guideline, not a straight jacket, and that sentencing judgesretain the discretion to depart from this range where there are case-specific exceptional circumstances. [47] On a factual level, Mr.

McClain's case is distinguishable from Smith where the offender was older, had a criminal record forsimilar offences and was trafficking near a place where minors could be expected to be present and whose steps towards rehabilitationwere more inchoate than I can see with Mr. McClain. [48] When I consider the cases that have applied, R. v. Smith and R. v. Voong, they have a variety of aggravating and mitigatingfactors. The lower court decisions that have been provided by the Crown are generally distinguishable from this case.

They havefeatures such as a higher level involvement in the drug trade, related criminal records, flagrant disregard for human life and the use ofweapons. None of them involve an offender with the same demonstrated rehabilitation that Mr. McClain presents. DECISION [49] I find that Mr. McClain's case is exceptional and it meets the test set out in R. v. Voong. He has no prior criminal record. Having considered all of the materials filed by defence counsel and submissions, I find that Mr. McClain stopped using drugs when hewas arrested back in 2017 and he there ended his participation in a criminal lifestyle.

He has taken significant and objectivelyidentifiable steps towards rehabilitation of his drug addiction. He has been gainfully employed for most of the time he has been releasedon bail and I have specific detail from his employer about what he had to overcome in order to do that. I find he is genuinely remorsefulabout the harm he caused and not just the impact it has had on him. There have been no further allegations of criminal misconduct orassociations and he has shown he can and wants to give back to the community he harmed.

He is living in a positive and supportiveenvironment with a demonstrated ability to continue to address his addiction and mental health and to pursue employment. He canresume work as soon as his conditions are relaxed to allow it. [50] I, therefore, conclude that he has established real roots in a prosocial life and there is a strong basis to believe he will notreoffend. [51] I find that sentencing him to 18 to 36 months in jail would not be appropriate. The changes he has made in his life areparticularly meaningful because of the connection between Mr.

McClain's own drug use and his participation in drug trafficking. [52] General denunciation and deterrence are essential in a case like this. Mr. McClain's participation in the trade of these drugscontributed to the opioid epidemic that has claimed lives in the province of this country. The court is all too aware of the magnitude ofthis harm. [53] The Court of Appeal in Voong recognized that although probation orders are primarily rehabilitative, a carefully craftedprobation order can have some deterrent effect. (see paras. 37 to 43) [54] The B.C. Court of Appeal in R. v.

Carrillo, 2015 BCCA 192 at paragraph 36 has also recognized that probation orders,particularly with strict conditions like a curfew, can include a substantial deprivation of liberty. [55] I am satisfied that, in this case, general deterrence and denunciation can be achieved with a non-custodial sentence, given thetime that Mr. McClain has already spent in custody, the fact that he will have a criminal record and will be bound by state supervision foryears to come because of this sentence. I am confident that sending him to a penitentiary would be a crushing experience. I cannot usethe life of a young man like Mr.

McClain who has never been in trouble with the law before, who has gone from a drug-dealing addict toa prosocial member of the community as a resource to deter others. The case law does not support such an approach to generaldeterrence and denunciation. To incarcerate him any further today would do nothing to protect the public because it would riskdestabilizing the difficult work he has already done to serve his own rehabilitation. [56] The court in Voong cited R. v.

Preston (1990) (BC CA), 47 B.C.L.R. (2d) 273 at paragraph 46 stating: If the chance for rehabilitation becomes a reality, society will be permanently protected from the danger which the offender otherwisepresents. [57] I am going to impose a lengthy probation order for more than one reason. Firstly, for your rehabilitation, Mr. McClain, tosupport you in doing what needs to be done to stay clean. Second, there is a punitive aspect to it.

I want to ensure that you are supervisedin the community so you know that there will be real and swift consequences if you return to drug use. [58] Suspending a sentence means just that. If you violate these conditions and, by law, if you do not comply with the probationorder the prosecutor can apply to a judge to revoke the suspended sentence and impose a sentence or re-sentence you on the originalconviction under s. 732.2(5).

At the end of the day, I am imposing it because I think you can do it. [59] Before I go through the details of the probation order, I am going to say a couple of things about the conditions. [60] First of all, I can see from your mother's letter to the court that she is realistic about your addiction and these charges and that isa benefit to you. You are lucky to have supports like her in your life and she has suggested that drug testing be part of your sentence.

That is not a condition that I can put on a probation order, it would be illegal, but you know and I know that if you start using drugs it will not stay a secret for long. You know where it will take you and how fast things will unravel. [ 61 ] I have also considered what your mother and Dr. Thinda have said about your current medications and your therapy.

They both see how your medication for ADHD has helped you and I agree with them that continuing with that treatment is important, so I am also including a condition that is often referred to a Rogers order and it is intended to open up communication between your doctor and your probation officer so that everyone is on the same page with respect to your medical needs and your treatment. [ 62 ] I am going to go through the terms of your sentence now, if you can stand. [ 63 ] What I want to make clear is that I am not taking into consideration the 37 days you have spent in custody as time served.

It will not be counted as time served. I have factored it into my decision as a mitigating circumstance. [ 64 ] The sentence will be a suspended sentence with a period of two years probation.

Three years is the longest that I could impose but, given the time that you have spent following restrictive bail conditions, I am making the probation order two years. [ 65 ] You must keep the peace and be of good behaviour. [ 66 ] You must appear before the court when required to do so by the court. [ 67 ] You must notify the court or your probation officer in advance of any change of name or address and promptly notify your probation officer of any change of employment or occupation. [ 68 ] You must have no contact directly or indirectly with Jonathan Flores. [ 69 ] You must report in person to a probation officer.

And are you attending here in Abbotsford or in Chilliwack? [ 70 ] THE ACCUSED: I'm currently attending in Chilliwack. [ 71 ] THE COURT: In Chilliwack. Okay.

So you can report there, to the probation officer in Chilliwack and the address will be inserted in the order but you know where that is, on Wellington, no later than 3:00 p.m., tomorrow, that is December the 12th of 2018 and after that you must report as directed by your probation officer. [ 72 ] When first reporting to the probation officer you must inform him or her of your residential address and phone number and you must not change your residence or phone number without written permission from your probation officer. [ 73 ] For the first year of this order, you must obey a curfew by being inside your residence between the hours of 10:00 p.m. and 6:00 a.m. each day.

You must present yourself immediately at the door of your residence or answer the phone when any peace officer or probation officer attends at your residence or calls to check your compliance with the curfew condition of this order. You may be away from your residence during curfew hours with the written permission of your probation officer and such permission is to be given only for compelling reasons. You must carry the written permission when you are outside your residence during curfew hours. You may also be away from your residence during curfew hours under subsection (

a) while in the course of your employment or while travelling directly to or returning directly from your place of employment and, if requested, you must provide your probation officer with details of your employment, including location and hours of work; (

b) except for attendances at AA or NA meetings; (

c) in the event of a medical emergency and only while at the healthcare facility or when travelling directly to or directly from the facility. If requested, you must provide your probation officer with written confirmation that you went to the facility, signed by a representative of the healthcare facility to which you went; and (

d) except in the presence of a person approved, in writing, by your probation officer and you must carry the written permission with you when you are away from your residence during curfew hours. [ 74 ] You must not possess or consume alcohol, drugs or any other intoxicating substance except in accordance with a medical prescription. [ 75 ] You must attend, participate in, and successfully complete any intake, assessment, counselling or program as directed by the probation officer. This may include counselling provided by Dr.

Thinda, and you will attend no less than three NA or AA sessions per week and provide confirmation of that to your probation officer. If your probation officer is satisfied that you are attending AA and attending counselling with Dr. Thinda, they may excuse you from any other programming or counselling. [ 76 ] I am just going to take a moment here just to describe what I am doing here and that is, it is up to your probation officer what they want to direct you to take for counselling.

At the end of the day, that is going to be their discretion but I am mindful of what your lawyer has said on the other day about you potentially going to school or having other employment opportunities. I just want to make it clear to the probation officer that if they think you are going to AA and NA meetings and continuing your counselling with Dr. Thinda, that they may find that that is sufficient but, at the end of the day, it is up to him or her. [ 77 ] You may only possess one cell phone with one phone number except as required for purposes directly related to your employment.

You must provide your probation officer with the telephone number and service provider and not change either without the written permission of your probation officer. You must also provide your probation officer with the contact information of your employer in the event that you possess a cell phone for work purposes. [ 78 ] The Rogers order. Having consented, you must do the following, and for Madam Clerk's benefit I am not doing the first paragraph, I am starting at paragraph 2. Attend all scheduled appointments with Dr. Thinda or any other psychiatrists, psychologists or counsellors.

Take all medications prescribed to you. Give Dr. Thinda and any other psychiatrist, psychologist, or counsellor a copy of this order. You must provide your probation officer with the name, address and phone number of Dr. Thinda and any other psychologist, psychiatrist, or counsellor that you are seeing; and you must tell Dr. Thinda or any other psychologist, psychiatrist, or counsellor that you are seeing that if you do not follow any terms of this order he or she is to inform your probation officer and if you decide not to follow

these directions, you must immediately report to your probation officer when his or her office is open and tell your probation officer. [ 79 ] I want to make it clear, Mr. McClain, that maintaining sobriety has to be your number one priority and if anything about this order gets in the way of that, do not let it go. Talk to your lawyer.

Come back to court because it is always open to you to make application to the court to vary or tweak any of these conditions because following this order to the letter of it is essential. [ 80 ] I am going to move on to the ancillary orders but did counsel have any submissions about the conditions as I have imposed them at this time? [ 81 ] MR. RANDHAWA: No, Your Honour. [ 82 ] MR. SIDHU: No, Your Honour.

Thank you. [ 83 ] THE COURT: Pursuant to s. 16 of the CDSA , I am satisfied on a balance of probabilities that cash in the amount $3,470 and the seven cell phones seized on June 8th and 28th are offence-related property in relation to the designated substance offence which you have been convicted and I order that it be forfeited to Her Majesty to be disposed of in accordance with the directions of the Attorney General as defined in s. 2 of the Criminal Code . [ 84 ] These offences are secondary designated offences for DNA. Given the length that your addiction took you to, Mr.

McClain, I will impose this DNA order given the seriousness of what you have been convicted of and the strong public interest in being able to investigate similar offences in the future. [ 85 ] I have considered the factors set out in 487.051(3) and I am satisfied that it is in the best interest of the administration of justice to make an order in Form 5.04 authorizing the taking of samples of bodily substances from you for the purpose of registration in the DNA National Data Bank. [ 86 ] You must attend -- is it better for you to go to the Chilliwack or the Abbotsford police station to give your DNA sample? [ 87 ] THE ACCUSED: Either, but most likely Chilliwack. [ 88 ] THE COURT: You must attend at the Chilliwack RCMP detachment on Airport Road between hours of 9:00 and 5:00, Monday to Friday and submit to the taking of your DNA samples before December the 21st of 2018, and this order is valid until executed. [ 89 ] I am also making the mandatory s. 109 prohibition for a period of 10 years.

You are prohibited from possessing any firearm other than a prohibited firearm or restricted firearm and any crossbow, restricted weapon, ammunition and explosive substance for a period of 10 years, and you are prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device or prohibited ammunition for life. [ 90 ] With respect to the victim fine surcharge, Mr. Sidhu, how -- [ 91 ] MR. SIDHU: Thirty days. [ 92 ] THE COURT: I will make the victim fine surcharge payable within 30 days. (REASONS FOR SENTENCE CONCLUDED)