her majesty the queen AND: augustus boyd tatchell ___________________________________________________________________ Before: The Honourable Mr. Justice William H. Goodridge Edited Transcript of Oral Reasons for Decision ___________________________________________________________________ Place of Hearing: Corner Brook , Newfoundland v. Labrador, 2011 NLTD 87

IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR TRIAL DIVISION ( GENERAL ) Citation : R. v. Tatchell , 2011 NLTD(G) 87 Date : 201106 17 Docket : 201004G0472 BETWEEN: her majesty the queen AND: augustus boyd tatchell ___________________________________________________________________ Before: The Honourable Mr. Justice William H. Goodridge Edited Transcript of Oral Reasons for Decision ___________________________________________________________________ Place of Hearing: Corner Brook , Newfoundland and Labrador Date of Hearing: June 6, 2011

Summary: Following a conviction for trafficking in marihuana, not in excess of three kilograms, the Court accepted a joint recommendation on sentence from counsel. The offender was given a nine month conditional sentence, followed by two years probation. Appearances: David Mills, Q.C. Counsel for Her Majesty the Queen Jamie Luscombe Counsel for the Defendant Authorities Cited: CASES CONSIDERED: R. v. Nasogaluak, 2010 SCC 6 , 315 D.L.R. (4th) 193; R. v. Ash , 2010 BCCA 604 ; R. v. Druken , 2006

NLCA 67 , 251 Nfld. & P.E.I.R. 271; and R. v. Krol , 2009 ABPC 166 . STATUTES CONSIDERED: Controlled Drugs and Substances Act , S.C., 1996, c. 19, ss. 5 and 10 ; Criminal Code R.S.C. 1985, c. C- 46 ss. 718, 718.1 , 718.2 , 732.1(2) , 742 , 742.3 and 742.6(9) . REASONS FOR JUDGMENT Goodridge, J. : INTRODUCTION [ 1 ] Augustus Tatchell, age 38, has pleaded guilty to possession for the purposes of trafficking marihuana.

The Bill of Indictment reads: On or between the 1st day of April, A.D., 2009 and the 23rd day of April, A.D., 2009, in the Province of Newfoundland and Labrador, did unlawfully have in his possession for the purpose of trafficking Cannabis Marijuana, not in excess of 3 kilograms, a substance included in

Schedule II of the Controlled Drugs and Substances Act , S.C., 1996, c. 19, contrary to Section 5(2) of the Controlled Drugs and Substances Act . [ 2 ] The matter is before me today for sentencing. There is an agreed statement of facts and a joint submission on sentence. AGREED STATEMENT OF FACTS [ 3 ] The agreed facts as filed, and confirmed by the offender as accurate, are reproduced below: 1. The Royal Canadian Mounted Police/Royal Newfoundland Constabulary Joint Forces Drug Unit (RCMP/RNC Joint Forces Drug Unit), Corner Brook, Newfoundland and Labrador, in conjunction with the Royal Canadian Mounted Police St. John’s Drug

Section (RCMP St. John’s Drug Section), began this investigation in April of 2009. The investigation was initiated when packages were seized and inspected by Canada Post in the presence of members of the RCMP St. John’s Drug

Section in St. John’s NL. The information obtained led investigators to believe that Kelly PAYNE was responsible for the importation of large quantities of controlled substances to the Province of Newfoundland and Labrador. The information obtained also suggested that Kelly PAYNE was assisted in this importation by Pauline COLBOURNE (PAYNE’s common-law spouse) and Scott LAVERS. Kelly PAYNE appeared to have a network of people in the Province of Newfoundland and Labrador to accept packages shipped from the Province of Ontario, which contained these controlled substances.

Once received by the addressee, the controlled substances removed from within these packages would be provided to Kelly PAYNE for subsequent distribution within the Province of Newfoundland and Labrador. 2. As a result of this investigation Kelly Payne, Pauline Colbourne and Scott Lavers forwarded by mail to the accused two packages of illegal drugs. These two packages each contained a kilogram of cocaine that were addressed for Gus TATCHELL, General Delivery, Port Saunders, NL, AOK 4HO. These packages were shipped from 8 Graymar Road, Brampton, ON, L65 1Z8 on April 6, 2009 via Canada Post Xpresspost.

The package contained two large containers of mustard and inside each container was a mason jar full of a white powdered substance believed to be cocaine. The substance was later removed and weighed at the RCMP St. John’s Drug

Section office and it was determined that one jar contained 494.5 grams of cocaine while the other jar contained 502.2 grams of cocaine. Total amount seized was 2.2 pounds or 1 kilogram. Sgt. SMITH conducted a field test of the white powdered substance and it tested positive for cocaine. 3. The RCMP St. John’ s Drug

Section and the RCMP/RNC Corner Brook Joint Forces Drug Unit were involved in investigating the seizure of five packages by Canada Post. a. Two packages each contained a kilogram of cocaine that were destined for Gus TATCHELL, General Delivery, Port Saunders, NL, AOK 4HO. These packages were shipped from 8 Graymar Road, Brampton, ON, L65 1Z8 on April 6, 2009 via Canada Post Xpresspost. b. One package contained a kilogram of cocaine that was destined for Monty ELLSWORTH, P.O. Box 51, St. Paul’s, NL, AOK 4YO.

This package was shipped from 16 Graymar Road, Brampton, ON, L65 1Z8 on April 6, 2009 via Canada Post Xpresspost. c. One package contained approximately fifteen thousand pills, believed to be N-methyl-3, 4-methylenedioxyamphetamine (Ecstasy) that was destined for Garland APPLIN, General Delivery, Hawkes Bay, NL, AOK 3BO. This package was shipped from 16 Graymar Road, Brampton, ON, L65 1Z8 on April 7, 2009 via Canada Post Xpresspost.

d. One package contained five pounds of Cannabis marihuana that was destined for CJ’s Lounge, General Delivery, Port Saunders, NL, AOK 4HO. This package was shipped from 6 Graymar Road, Brampton, ON, L65 1Z8 on April 7, 2009 via Canada Post Xpresspost. CJ’s Lounge is located in Port Saunders, NL, and is operated by Joseph Scott LAVERS (D.O.B. 1969-12-06). Joseph Scott LAVERS is commonly referred to as Scott LAVERS. 4. On April 17, 2009, Constable Deon RUMBOLT (Cst. RUMBOLT) of the RCMP/RNC Corner Brook Joint Forces Drug Unit, reviewed the hand written notes of Constable Wayne POMEROY (Cst.

POMEROY) and Constable Eric HUMBER (Cst. HUMBER), members of the Royal Canadian Mounted Police St. John’s Drug Section. Cst. RUMBOLT viewed digital photos of the seized packages and spoke personally with Cst. POMEROY and Sergeant Terry SMITH (Sgt. SMITH), a member of the RCMP St. John’s Drug

Section and learned the following: a. On April 16, 2009, Cst. HUMBER spoke to Pat BURTON of Canada Post Security located at 98 Kenmount Road , St. John’s, NL. Pat BURTON advised Cst. HUMBER that Canada Post Security had located five Xpresspost packages at their St. John’s location that were suspicious in nature and requested that Cst. HUMBER attend as they planned on opening the packages; b. On April 16, 2009, Cst. POMEROY, Cst. HUMBER and Constable David FERGUSON (Cst. FERGUSON), a member of the Royal Canadian Mounted Police St. John’s Drug

Section attended Canada Post Security located at 98 Kenmount Road , St. John’s , NL and observed while Pat BURTON opened the five packages; c. The first package opened was addressed to Gus TATCHELL, General Delivery, Port Saunders, NL, AOK 4HO. The return address was 8 Graymar Road , Brampton, ON , L65 1Z8. Xpresspost tracking number 0102803000127152. The package contained two large containers of mustard and inside each container was a mason jar full of a white powdered substance believed to be cocaine. The substance was later removed and weighed at the RCMP St. John’s Drug

Section office and it was determined that one jar contained 494.5 grams of cocaine while the other jar contained 502.2 grams of cocaine. Total amount seized was 2.2 pounds or 1 kilogram. Sgt. SMITH conducted a field test of the white powdered substance and it tested positive for cocaine; d. The second package opened was addressed to Monty ELLSWORTH, P.O. Box 51, St. Paul’s, NL, AOK 4YO. The return address was 16 Graymar Road , Brampton, ON , L65 1Z8. Xpresspost tracking number 0027456000840950.

The package contained two large containers of mustard and inside each container was a mason jar full of a white powdered substance believed to be cocaine. The substance was later removed and weighed at the RCMP St. John’s Drug

Section office and it was determined that one jar contained 496.2 grams of cocaine while the other jar contained 492.5 grams of cocaine. Total amount seized was 2.2 pounds or 1 kilogram. Sgt. SMITH conducted a field test of the white powdered substance and it tested positive for cocaine; e. The third package opened was addressed to Gus TATCHELL, General Delivery, Port Saunders, NL, AOK 4HO. The return address was 8 Graymar Road , Brampton, ON , L65 1Z8. Xpresspost tracking number 0102803000127169.

The package contained two large containers of Bicks Relish and inside each container was a mason jar full of a white powdered substance believed to be cocaine. The substance was later removed and weighed at the RCMP St. John’s Drug

Section office and it was determined that one jar contained 506.6 grams of cocaine while the other jar contained 500.7 grams of cocaine. Total amount seized was 2.2 pounds or 1 kilogram. Sgt. SMITH conducted a field test of the white powdered substance and it tested positive for cocaine; e. (sic)The fourth package opened was addressed to Garland APPLIN, General Delivery, Hawkes Bay, NL, AOK 3BO. The return address was 16 Graymar Road Brampton, ON, L65 1Z8. Xpresspost tracking number 0438375000321462.

The package contained two plastic containers of e.green, purple, red/pink and yellow pills believed to be N-Methy-3, 4-Methylenedioxyamphetamine (Ecstasy). The pills were later removed at the RCMP St. John’s Drug

Section office. One container contained six vacuum-sealed bags of pills. One bag was removed weighed and counted in order to get an estimate of the number of pills. The bag contained 1000 pills. The other container contained three vacuum-sealed bags of pills plus a large number of loose pills. Cst. POMEROY advised that based on his calculations he estimates there to be approximately 15,000 pills in total. Sgt.

SMITH advised that based on his experience dealing with ecstasy for the past six years that the pills are of the same color, shape, size, texture and markings as other ecstasy pills he has seized in the past and believes that these pills are for sale on the street as ecstasy; f. The fifth package opened was addressed to CJ’s Lounge, General Delivery, Port Saunders, NL, AOK 4HO. The return address was 6 Graymar Road Brampton, ON, L65 1Z8. Xpresspost tracking number 0438375000321479. The package contained ten vacuum-sealed bags of Cannabis marihuana, each weighing approximately one half-pound.

The vacuum-sealed bags of Cannabis marihuana were contained in two larger bags and covered in mustard. The total weight of the Cannabis marihuana was 2,253.2 grams or 4.96 pounds.

g.All the exhibits, packages and contents, were seized by Cst. FERGUSON and secured in RCMP St. John’s Drug

Section exhibit locker. 5. On April 20, 2009, Cst. RUMBOLT obtained three Tracking Warrants under

Section 492.1 of the Criminal Code . The warrants were valid from 8:00 A.M. on April 20, 2009 to 11:59 P.M. on April 22, 2009 inclusive, being a period not exceeding sixty (60) days. The three warrants were signed by Provincial Court Judge Bruce SHORT. The warrants authorized Cst. RUMBOLT to do the following: a. To install and monitor or to have monitored a tracking device in or on the said Canada Post Xpresspost packages addressed to: Gus TATCHELL, General Delivery, Port Saunders, NL, and AOK 4HO, b earing tracking numbers 0102803000127152 and 0102803000127169; b.

To install and monitor or to have monitored a tracking device in or on the said Canada Post Xpresspost package addressed to: Garland APPLIN, General Delivery, Hawkes Bay , NL, AOK 3BO, bearing tracking number 0438375000321462; c. To install and monitor or to have monitored a tracking device in or on the said Canada Post Xpresspost package addressed to: Monty ELLSWORTH, P.O. Box 51, St. Paul ’s, NL, AOK 4YO, bearing tracking number 0027456000840950 . 6. Police officers who are specially trained in the installation of such tracking devices covertly removed all the contents of the packages.

The original boxes were then repackaged and placed back in Canada Post for its normal delivery. 7. The package that contained the five pounds of Cannabis marihuana that was destined for CJ’s Lounge, General Delivery, Port Saunders, NL, AOK 4HO was held by St. John’s RCMP Drug Section. 8. On April 20, 2009, Cst. RUMBOLT obtained three General Warrants under

Section 487.01 of the Criminal Code . The warrants were valid from 8:00 A.M. on April 21, 2009 to 11:59 P.M. on April 22, 2009. The three warrants were signed by Provincial Court Judge Bruce SHORT. Among other things the General Warrants authorized Cst. RUMBOLT to do the following: a.

To enter and secure any dwelling, business premises, vehicle or any other location in the Province of Newfoundland and Labrador, whose location is presently unknown, should the Canada Post Xpresspost packages bearing tracking numbers 0102803000127152 and 0102803000127169 be observed entering such a location or determined by other investigative means to be at such a location; b.

To enter and secure any dwelling, business premises, vehicle or any other location in the Province of Newfoundland and Labrador, whose location is presently unknown, should the Canada Post Xpresspost package bearing tracking number 0438375000321462 be observed entering such a location or determined by other investigative means to be at such a location; c.

To enter and secure any dwelling, business premises, vehicle or any other location in the Province of Newfoundland and Labrador, whose location is presently unknown, should the Canada Post Xpresspost package bearing tracking number 0027456000840950 be observed entering such a location or determined by other investigative means to be at such a location. 9. On April 21, 2009, all four packages arrived at the Canada Post outlets in their respective areas. These packages were tracked using the installed tracking devices and through police surveillance. 10.

On April 21, 2009 the package addressed to Monty ELLSWORTH, P.O. Box 51, St. Paul’s, NL, AOK 4YO bearing tracking number 0027456000840950 was picked up from the Canada Post outlet by Llewellyn ELLSWORTH (D.O.B. 1977-06-07) , brother of Montgomery James ELLSWORTH (D.O.B. 1977-06-07). Llewellyn ELLSWORTH detected police following him with the package in his vehicle and drove onto a gravel woods road where he dumped the package. The police were able to locate and seize the package. This information was passed on to Cst. RUMBOLT by Constable Steve HENLEY (Cst.

HENLEY), a member of the RCMP/RNC Corner Brook Joint Forces Drug Unit on April 22, 2009.

11. On April 22, 2009, Cst. RUMBOLT spoke to Constable Dale LEWIS (Cst. LEWIS) a member of the Royal Canadian Mounted Police Gander Drug

Section who advised Cst. RUMBOLT that on April 21, 2009 at approximately 16:30 hours, the package addressed to Garland APPLIN, General Delivery, Hawkes Bay, NL, AOK 3BO b earing tracking number 0438375000321462 was picked up from the Canada Post outlet by Garland APPLIN (D.O.B. 1948-05-01) and taken to his residence in Hawkes Bay. At approximately 20:50 hours, police entered the residence. The packaging material was on the kitchen floor and the contents were missing. Garland APPLIN advised that the contents of the package were hidden in the basement.

Garland APPLIN was placed under arrest and the residence was secured by Cst. LEWIS. 12. On April 22, 2009, Cst. RUMBOLT was conducting surveillance in relation to the packages addressed to Gus TATCHELL, General Delivery, Port Saunders, NL, AOK 4HO b earing tracking numbers 0102803000127152 and 0102803000127169 and learned the following: a.At approximately 11:59 hrs, two unknown females attended the Canada Post outlet in Port Saunders, NL, and obtained the two packages. The two packages were taken directly to a residence in Port Saunders, NL. Staff Sargeant George NOSEWORTHY (S/Sgt.

NOSEWORTHY), a member of the Royal Canadian Mounted Police Port Saunders advised Cst. RUMBOLT that he knows this residence to be the residence of Augustus TATCHELL (D.O.B. 1973-05-24). 13. On April 22, 2009 at 23:15 hours, Cst. RUMBOLT spoke to Corporal Gregory MACKINNON (Cpl. MACKINNON) a member of the RCMP St. John’s Drug

Section who advised Cst. RUMBOLT that Cpl. MACKINNON assisted by other police officers had just entered the residence of Augustus TATCHELL in Port Saunders. Augustus TATCHELL was placed under arrest and Cpl. MACKINNON was currently securing the residence. 14. On April 22, 2009, Augustus “Gus” TATCHELL was interviewed and provided a cautioned statement to Cst. HUMBER and Cst. POMEROY . Augustus TATCHELL advised the members of the following: a. He has known Scott LAVERS for 20 years; b. He has met Kelly PAYNE before and is able to describe him and his truck; c.

He has seen Kelly PAYNE at CJ’s Lounge this past winter with Scott LAVERS; d. Scott LAVERS approached him and told him there were two boxes coming and that the boxes contained marihuana; e. Scott LAVERS instructed him to pick up the boxes from the Post Office, take the labels off, hide it away, and he or Kelly PAYNE would pick it up; f. He was not to open the boxes; g. Scott LAVERS and Kelly PAYNE are in it together; h. Scott LAVERS came to him and told him the boxes were coming to the Post Office that day; i. He was supposed to get an ounce of marihuana for having the boxes come to his address; j.

He admits to smoking marihuana, but denies being a Cocaine user; k. He came home from the dump and the two boxes were in his house as his wife had picked them up; l. He had burned the labels, did not open the boxes, and put them in a garbage bag before hiding them; m. Scott LAVERS was nervous when he showed up, said there were a lot of police in town, and said to hide the boxes; n. He admitted to seeing the police in town himself; o. He thought the boxes contained marihuana and hid them away, knowing that Scott LAVERS would come pick them up; and, p.

This is the first time that he had boxes come to his address for Scott LAVERS, but he did hold onto a cooler one time in the past for him. 15. The Crown accepts that Augustus Tatchell believed he was receiving a large shipment of marijuana in the mail to hold for Scott Lavers and he was to be paid one ounce of marijuana for his efforts and that he never actually opened the boxes to determine what the contents were.

Therefore, for the purpose of a guilty plea and resolution of this matter the Crown accepts Augustus Tatchell’s guilty plea to the charge of possession of marjuanna (sic) for the purpose of trafficking. JOINT SENTENCING SUBMISSION [ 4 ] The joint submission recommends a conditional sentence (house arrest) for nine months followed by probation for two years,

subject to the usual conditions. The Crown acknowledges that the suggested sentence is toward the lower end of the range for trafficking marihuana. He explains that this is still appropriate because the offender had a relatively small role, serving as a postal address in exchange for compensation in the form of an ounce of marihuana. The package of drugs as received through the postal system by the offender was never opened by him. He was holding it for pickup later that day by Scott Lavers, another player in the drug trade. The offender had been told by Mr. Lavers that the package contained marihuana.

This was the only occasion that the offender received a package at his address for Mr. Lavers. OBJECTIVES AND PRINCIPLES OF SENTENCING [ 5 ] For me to accept this joint submission I must be satisfied that it is consistent with the objectives and principles of sentencing as set out in the Controlled Drugs and Substances Act, S.C., 1996, c. 19 ( CDSA ) and the Criminal Code R.S.C. 1985, c. C-46.

Section 10 of the CDSA provides a statement of general sentencing principles for this type offence: Purpose of sentencing 10.

(1) Without restricting the generality of the Criminal Code , 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. Circumstances to take into consideration

(2) If a person is convicted of a designated substance offence, the court imposing sentence on the person shall consider any relevant aggravating factors including that the person (

a) in relation to the commission of the offence, (

i) carried, used or threatened to use a weapon, (ii) used or threatened to use violence, (iii) trafficked in a substance included in

Schedule I, II, III or IV or possessed such a substance for the purpose of trafficking, in or near a school, on or near school grounds or in or near any other public place usually frequented by persons under the age of eighteen years, or (iv) trafficked in a substance included in

Schedule I, II, III or IV, or possessed such a substance for the purpose of trafficking, to a person under the age of eighteen years; (

b) was previously convicted of a designated substance offence; or (

c) used the services of a person under the age of eighteen years to commit, or involved such a person in the commission of, a designated substance offence. Reasons

(3) If, under subsection (1), the court is satisfied of the existence of one or more of the aggravating factors enumerated in paragraphs (2) (

a) to (c), but decides not to sentence the person to imprisonment, the court shall give reasons for that decision. 1996, c. 19, s. 10 ; 1999, c. 5, s. 49 . [ 6 ]

Section 718 of the Code repeats that a fundamental purpose of sentencing is that of contributing, along with crime prevention, to respect for the law and the maintenance of a just, peaceful and safe society. This purpose is met by the imposition of just sanctions that reflect the various sentencing objectives, as set out in the same provision. These sentencing objectives include: denunciation, general and specific deterrence, separation of offenders, rehabilitation, reparation, the promotion of a sense of responsibility in the offender and acknowledgement of the harm caused to the victim and to the community, R. v. Nasogaluak , 2010 SCC 6 , 315 D.L.R. (4th) 193. [ 7 ]

Section 718.1 of the Criminal Code mandates that a sentence be “proportionate to the gravity of the offence and the degree of responsibility of the offender”. Whatever weight I give to the objectives listed above, the resulting sentence must respect this principle of proportionality.

Section 718.2 provides a non-exhaustive list of secondary sentencing principles, including the consideration of aggravating and mitigating circumstances, the principles of parity and totality and a requirement to consider all available sanctions other than imprisonment that are reasonable in the circumstances. A non-exhaustive list of aggravating factors is reproduced above in subsection 10(2) of the CDSA . None of the listed aggravating factors apply in this case and there are no other aggravating factors identified in the agreed facts.

CONDITIONAL SENTENCE OPTION [ 8 ] The last sentencing principle noted above, the requirement to consider sanctions other than imprisonment, would appropriately include consideration of the conditional sentence. While a conditional sentence is a form of custody, it is not imprisonment in the sense familiar to most. The offender does not go to a jail or other penal institution unless the conditions of the “house arrest” sentence are breached. [ 9 ] The process for considering the conditional sentence option has been summed up by the British Columbia Court of Appeal in R. v.

Ash , 2010 BCCA 604 , at paragraph 11 : It is useful first to refer to the Supreme Court of Canada’s decision of Proulx . In Proulx Chief Justice Lamer recognized the four criteria in s. 742.1 of the Criminal Code governing the imposition of a conditional sentence: 1) that the offender is convicted of an offence that is not punishable by a minimum term of imprisonment; 2) that the court must impose a term of imprisonment of less than two years; 3) that

the safety of the community would not be endangered by the offender serving the sentence in the community; and 4) that a conditional sentence would be consistent with the fundamental principles of sentence set out in ss. 718 and 718.2 of the Criminal Code .

Chief Justice Lamer (at para. 47) referred to the first three criteria as prerequisites to any conditional sentence, and observed that the fourth consideration refers the judge to the fundamental purpose and principles of sentencing. [ 10 ] There is no minimum sentence for this crime and no evidence to indicate any safety risk if the offender serves his sentence in the community. In addition, I am satisfied that a conditional sentence under these agreed facts is consistent with the fundamental principles of sentence set out in

section 10 of the CDSA and sections 718 and 718.2 of the Code . The offender is being punished and placed under a form of state control (the compliance with conditions is monitored by correctional officers) for a period of two years and nine months. This will achieve specific and general deterrence, and discourage the offender and others from embarking on the illicit trafficking in drugs. I am satisfied that such a sentence will also promote a sense of responsibility with this offender, and offenders generally.

The offender is currently employed full time and will be permitted to continue employment in a job approved by his supervisor (i.e. the corrections officer) during the conditional sentence. In my view, the prospect of rehabilitation during the sentence term is improved where there is the structure of employment and the financial security that flows form such employment. [ 11 ] There are a few mitigating circumstances. The offender indicated to the Crown his intention to plead guilty more or less as soon as Mr. Luscombe was retained as his lawyer.

The offender cooperated with the police by providing a detailed statement on the same day of his arrest. There was a high level of cooperation from the start. We are dealing with what was assumed by the offender to be marihuana, considered a soft drug by comparison to cocaine or ecstasy. These are known mitigating factors. [ 12 ] There may be other mitigating factors unknown to me. Judges are not privy to the negotiations or other background factors leading to a joint submission on sentence.

In this case it is implicit from the agreed facts that the offender provided information that was relevant to other police investigations. This would be an additional mitigating factor. [ 13 ] In R. v. Druken , 2006 NLCA 67 , 251 Nfld. & P.E.I.R. 271 at paragraph 17 Rowe, J.A. stated that “a sentencing judge should depart from a joint submission by counsel only if accepting the submission would bring the administration of justice into disrepute or would otherwise be contrary to the public interest”.

I do not feel that the sentence suggested in the joint submission would bring the administration of justice into disrepute or otherwise be contrary to the public interest. While at the low end of the sentence range, it is still within the general range for similar offenders for similar offences. For example, a conditional sentence of 18 months was imposed in R. v. Krol , 2009 ABPC 166 , where the offender was convicted of three counts of trafficking in marihuana and one count of possession.

Sentencing authorities for marihuana trafficking that involved jail time often involved more compelling circumstances, such as multiple transactions, larger quantities of marihuana or prior convictions for drug related offences. DISPOSITION [ 14 ] Mr. Tatchell, please stand while I impose your sentence. [ 15 ] The law prohibiting the trafficking of marihuana reflects society’s view that there is a significant social and economic cost arising from this type of illicit behaviour. When you agreed to assist Mr.

Lavers you knew that what you were doing was illegal, but you elected to disregard the law in pursuit of a personal reward. You became one part of a network operating outside of the laws of our country. Further along the chain of this drug trade the potential for profits, and the pursuit of these profits, is often accompanied by significant criminal activity. Even at the community level, the trade in marihuana can give rise to adverse social effects, including: abuse of the drug, dependence on the drug, decline in work ethic, dysfunctional lifestyle habits and more.

You had a role in the trade of marihuana and contributed to this social cost. [ 16 ] The sentencing objectives of denunciation and deterrence usually would demand a jail term for trafficking in a controlled substance, even though marihuana is among the so-called soft drugs. But under

section 742 of the Code I can permit you to serve the sentence in the community, as has been suggested in the joint submission of counsel. I accept the joint submission and impose a conditional sentence of nine months following which there will be two years probation.

Terms of the conditional sentence include [1] : ▪ Keep the peace and be of good behaviour; ▪ Appear before the court when required to do so by the court; ▪ Report to a supervisor within two days of today and thereafter when required by the supervisor and in the manner directed by the supervisor; ▪ Remain within the jurisdiction of the court unless written permission to go outside the jurisdiction is obtained from the court or the supervisor; ▪ Notify the court or the supervisor in advance of any change of name or address and promptly notify the court or the supervisor of any change of employment or occupation; ▪ Remain at your residence (permitted outside the residence building provided still inside the property boundaries) except: while working at a job as approved by your supervisor, while attending a medical appointment as approved by your supervisor, while shopping for the necessaries of life (maximum of two hours per week) as approved by your supervisor, while participating in counseling or educational programs as directed by your supervisor or while meeting with your supervisor. [ 17 ] Following the nine month conditional sentence you will be subject to a probation order for a further two years.

The terms of the probation order are as set out in

section 732.1(2) of the Code : ▪ Keep the peace and be of good behaviour; ▪ Appear before the court when required to do so by the court;

▪ Notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation; and ▪ Report to and be under the supervision of a probation officer as required and in the manner directed by the probation officer. [ 18 ] I have directed the clerk to review with you the terms and conditions of this sentence and the consequences of breach of a condition. The powers of the court, where a breach of a conditional sentence is proven, are set out in

section 742.6(9) of the Code . Most relevant is

section 742.6(9)(

d) which allows the court, in the event of a breach, to terminate the conditional sentence and direct that the offender be committed to jail until the expiration of the sentence. [ 19 ] Pursuant to

section 109 of the Code I impose a firearm prohibition. This is a lifetime prohibition in the case of any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition; and it is a ten year prohibition for other firearms, cross-bows, restricted weapons, ammunition and explosive substances. [ 20 ] Pursuant to section 737(2)(b), you shall pay a victim fine surcharge of $100.00. This surcharge shall be paid within 30 days and in default shall be subject to the additional penalty as is set out in the regulations. _____________________________ William H. Goodridge Justice