R. v. Hussey, 2018 NLSC 138

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Hussey , 2018 NLSC 138 Date : June 20, 2018 Docket : 201701G4194 Her Majesty The Queen v. Mark Hussey Before: Justice Garrett A. Handrigan Reasons for Judgment Given Orally Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: February 12, March 23, June 8, 2018 Date of Oral Judgment: June 20, 2018

Summary: Mark Hussey pleaded guilty to one count of trafficking in cocaine contrary to section 5(2) - 5(3) (

a) of the Controlled Drugs and Substances Act . Mr. Hussey appeared for sentencing. The Court ordered Mr. Hussey to serve a sentence of 15 months’ imprisonment for the offence. It also made other ancillary orders under the Controlled Drugs and Substances Act and the Criminal Code , including a forfeiture order, a firearms’ prohibition order, a DNA order

and a victim surcharge order. Appearances: R. Neil Smith Appearing on behalf of Her Majesty The Queen Shelley A. Senior, Q.C. Appearing on behalf of Mark Hussey Authorities Cited: CASES CONSIDERED: R. v. Bearns, (NL CA), [1989] N.J. No. 179, 77 Nfld. & P.E.I.R. 103 (Nfld. C.A.); R. v.Mitchell, 2017 NLCA 26; R. v. Byrne, 2009 NLCA 3; R. v. Brown, (NL CA), [1997] NJ No. 233, 155 Nfld. &P.E.I.R. 188 (Nfld. C.A.); R. v. Oates, (NL CA), [1992] N.J. No. 165, 100 Nfld. & P.E.I.R. 289 (NLCA). STATUTES CONSIDERED: Controlled Drugs and Substances Act, S.C. 1996, c. 19; Criminal Code of Canada, R.S.C. 1985, c.

C-46;Narcotic Control Act, R.S.C. 1970, c. N-1; Food and Drugs Act, R.S.C. c. F-27. REASONS FOR JUDGMENT Handrigan, J.: INTRODUCTION [1] On February 12, 2018, Mark Hussey pleaded guilty to one count of trafficking in cocaine contrary to Section 5(2) - 5(3)(

a) ofthe Controlled Drugs and Substances Act, S.C. 1996, c. 19. The offence occurred on March 30, 2016 at St. John’s, NL. Mr. Husseyappeared before me on June 8, 2018 for sentencing. I heard from the Crown and defence then and reserved my decision on sentencinguntil now. The Issue [2] What is a fit and proper sentence for Mr. Hussey for committing this offence? The Law General Principles [3] Any discussion of sentences for criminal offences must start with the statement of principles that appears in

section 718 andfollowing sections of the Criminal Code of Canada, R.S.C. 1985, c. C-46. The principles stated in those sections encompass broadconsiderations from denunciation, through deterrence, reparation, rehabilitation and the general promotion of a sense of responsibility inoffenders for the losses they cause their victims. [4] Also, of concern are proportionality, the alternatives to incarceration where they are both available and appropriate, and thefactors that mitigate or aggravate the offence.

The overriding consideration throughout these sections is protecting the public and thechallenge is to achieve it, in the legislative context and the circumstances of the offence. Ultimately, the sentence must fit the offenceand the offender. [5] Communicating to accused persons and others of like mind that they must refrain from criminal activity is one of the primarygoals of sentencing. Denunciation is also important. Overall, deterrence, and especially general deterrence, and denunciation must bestressed when sentencing offenders who traffic in “hard” drugs such as cocaine.

Trafficking in Cocaine – Statute [6] Trafficking in cocaine is an indictable offence. Section 5(3)(

a) of the Controlled Drugs and Substances Act says an offenderwho is guilty of the offence is “liable to imprisonment for life”. There is no minimum punishment in this case. [7] Section 10(1) of the Controlled Drugs and Substances Act, states that “…the fundamental purpose of any sentence for an

offence under this Part [of the Act] is to contribute to the respect for the law and the maintenance of a just, peaceful and safe societywhile encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victimsand to the community”. Section 10(2) of the Act set outs “aggravating factors” that the Court “shall consider”, if “relevant”; none arerelevant to Mr. Hussey.

Trafficking in Cocaine – Case Law [8] Our Court of Appeal dismissed Richard Bearns’ appeal from an 18-month jail sentence the trial judge imposed on him forpossessing cocaine for the purposes of trafficking, contrary to then section 4(2) of the Narcotic Control Act, R.S.C. 1970, c. N-1. In R. v.Bearns, (NL CA), [1989] N.J. No. 179, 77 Nfld. & P.E.I.R. 103 (Nfld.

C.A.), Goodridge, C.J.N. made it clear that“[w]here the evidence discloses that the possession is part of an ongoing business operation as opposed to an isolated transaction, nogreat distinction need be drawn between sentencing for trafficking and sentencing for possession for the purpose of trafficking”: Bearns,paragraph 14. [9] The learned Chief Justice also stressed that “…it must not be forgotten that deterrence in respect of drugs is of paramountimportance”: Bearns, paragraph 13; and he explained why deterrence was so important: “Those at the top of the drug pyramid operate with virtual impunity beyond detection and frequently beyond the territorial limits ofCanada.

They can only exist as long as there are people near the bottom of the pyramid to sell the drugs on the street and to buy thosedrugs. Notwithstanding the jail sentences that have been imposed in the past, dealing in drugs continues.

Courts can only make a positivestep in the suppression of crimes of this nature by imposing sentences that have a real deterrent value”: Bearns, paragraph 13. [10] Finally, the Chief Justice stated that “…the range of sentences for possession of cocaine for the purpose of trafficking runsbetween 6 months and 36 months”: Bearns, paragraph 7. [11] Bearns remains good law in this province, as Welsh, J.A. of our Court of Appeal said in R. v. Mitchell, 2017 NLCA 26, whenshe noted how the Bearns’ range “…accommodate[d] the principle of proportionality…”: Mitchell, paragraph 12.

She also noted that ourCourt of Appeal “reiterated” the Bearns’ range and reaffirmed it in R. v. Byrne, 2009 NLCA 3 and R. v. Brown, (NLCA), [1997] NJ No. 233, 155 Nfld. & P.E.I.R. 188 (Nfld. C.A.): Mitchell, paragraph 12. [12] Earlier in these reasons I described cocaine as a “hard” drug. In R. v. Oates, (NL CA), [1992] N.J. No. 165,100 Nfld. & P.E.I.R. 289 (NLCA), Steele, J.A. noted that, while the drug legislation of the day, the Food and Drugs Act, R.S.C. c.

F-27and the Narcotic Control Act, “…do not distinguish between the so called ‘hard’ and ‘soft’ drugs for sentencing purposes - the courtsdo”: Oates, paragraph 55. He said that his “…review of Canadian case law clearly shows that the courts have little sympathy for dealersin ‘hard’ drugs such as heroin, cocaine and morphine. Convicted traffickers in the ‘hard’ drugs can expect to be treated far more severelythan, say for example, a trafficker in marijuana.

One who traffics in a ‘hard’ drug knowingly increases the risks and consequences”:Oates, paragraph 55. [13] Steele, J.A.’s views about the differences between “hard” and “soft” drugs are commonly held amongst judges. Marshall, J. A.was also on the panel that heard R. v. Oates. Noting that Mr.

Oates pleaded guilty to conspiracy to traffic in cocaine, contrary to theCriminal Code and the Narcotic Control Act, Marshall, J.A. said of the crime: “The offence of the respondent is a serious crime.Trafficking in cocaine, in itself, is grave as it preys upon the addiction of others for profit leaving in its wake inestimable individual andsocial damage and desolation”: Oates, paragraph 24. Conditional Sentence [14] It appears that Mr. Hussey may have believed that a conditional sentence was available to me as a sentencing option for him. Itis not.

Section 742.1 of the Criminal Code provides for conditional sentences. It reads, in part: “If a person is convicted of an offence andthe court imposes a sentence of imprisonment of less than two years, the court may…order that the offender serve the sentence in thecommunity, subject to the conditions imposed under

section 742.3, if (

c) the offence is not an offence, prosecuted by way of indictment,for which the maximum term of imprisonment…is life” [Underlining mine]. The maximum punishment Mr. Hussey is liable to for theoffence he committed is life imprisonment. Thus, I cannot allow him to serve his sentence conditionally, even if otherwise it was asuitable option for him. [15] This is the law I will apply to the issue I stated above. I turn now to analyze that issue, starting with the background to it. Analysis Background The Offence [16] The Crown and Mr. Hussey submitted an agreed statement of facts to support the guilty plea that Mr.

Hussey entered to thecharge on March 30, 2018. This is the statement as I received it from counsel: 1. On the evening of March 30, 2016, Constables Duggan and Simmons of the Combined Forces Special Enforcement Unit(CFSEU) in St. John’s had received information that a male operating a red pickup truck was selling cocaine in the downtown area of St.John’s, NL. The officers located the truck with a lone male driver on Church Hill and began surveillance. In less than twenty minutes,they observed it stop at three different locations where the driver met briefly with three different individuals in public areas.

During thefirst meeting, Cst. Duggan was in close enough proximity that he was able to hear the driver tell the male he was meeting that he “wason workers’ comp” and “doing this to make a few bucks”.

2. At 9:55 pm, the driver was placed under arrest for trafficking in a controlled substance and possession for the purposes of trafficking in a controlled substance and identified by police as Mark Hussey. A search of Mr. Hussey’s person incident to his arrest located a Ziploc baggie with 12 small baggies of cocaine inside. Mr. Hussey also had $770 in cash on his person, in mostly twenty-dollar denominations. 3. Later, while under police caution, Mr. Hussey indicated to police that there was another bag of cocaine in the back-seat area of the truck. Cst.

Simmons, who was conducting a search of the vehicle at the time, found a small vacuum-sealed bag with 20 smaller bags of cocaine inside it. Police also seized a large canister of bear spray, two pieces of paper believed to be score sheets, and two cell phones from the truck. 4. Mr. Hussey admitted to police under caution that he was delivering cocaine for an acquaintance whom he would not name and that he was being paid $75.00 a night to deliver the cocaine which he received in pre-packaged amounts. 5. One of the two cell phones was returned to Mr. Hussey on the night of the arrest.

A search warrant was subsequently issued to search the second cell phone. Data extracted from that cell phone clearly links the phone to Mr. Hussey and contains a significant amount of communications reflecting trafficking in cocaine, primarily in ½ gram amounts for $50.00. 6. The canister of bear spray was subsequently examined by Cst. Laurie Crowe, a member of the National Weapons Enforcement Support Team (NWEST). Cst.

Crowe determined that, while the bear spray could be legally purchased and used to deter bear or other animal attacks, it is capable of injuring, immobilizing or incapacitating a person if used for that purpose. 7. The packages of cocaine were found to each weigh .4 grams with the baggie and contain .2 grams of cocaine. In total, with the packaging removed, the 32 baggies contained 6.4 grams of cocaine. 8. Cst. David Emberley provided an expert opinion report, which is accepted as accurate, regarding the drugs, money, score sheets and the bear spray. In his opinion, the packages of cocaine were being sold by Mr.

Hussey as ½ gram packages and the value of the 32 packages of cocaine sold at the street level as ½ gram amounts would be between $1,280.00 - $1,600.00. He confirmed that the score sheets were written records of amounts owed to Mr. Hussey from previous transactions, and that the cash was consistent with proceeds of drug trafficking. He also stated that bear spray is a favorite weapon of drug traffickers in the St. John’s area, used both for protection against others who might try to steal their drugs and money, and also for intimidation and control [ 17 ] Mr. Hussey, his counsel, Shelley A.

Senior, Q.C., and Crown counsel, R. Neil Smith, signed the agreed statement of facts on March 23, 2018 to confirm they had reviewed its contents and accepted them. They filed the statement with this Court on the same day. I accepted the statement and found Mr. Hussey guilty of the offence, based on his plea of guilty to it and these facts. Mark Hussey [ 18 ] Mr. Hussey was born September 20, 1973 and is 44 years old. He lives in St. John’s, where he grew up and attended school. Mr. Hussey is unmarried but has been in a relationship with a female person for about six years. Mr.

Hussey and his partner lived together for some time but no longer cohabit. They have no children together, but Mr. Hussey says his partner has a 17-year old son from a previous relationship. [ 19 ] Mr. Hussey says a couple that had an older adopted child and a younger child of their own, adopted him soon after he was born and he grew up in their household. Mr. Hussey speaks positively of his childhood and family life. He notes that his mother died more than a decade ago, but says he still keeps in contact with the rest of the family.

He did not want the author of the pre-sentence report to contact his family about this matter, claiming that he was embarrassed and ashamed for what he has done, and that he did not want them to know about it. [ 20 ] Mr. Hussey attended grade school until the 11th grade but did not graduate high school. He left for work and found a job in a fish plant in Holyrood, nearby St. John’s. He says he lost his job in the fish plant when the cod fishery failed in the early 1990’s and the fish plant closed. Mr.

Hussey obtained his GED (General Education Diploma), sometimes considered as equivalent to a high school graduation diploma, after that. Mr. Hussey says he attended a commercial college when he obtained his GED and completed a welding program. Mr. Hussey speaks poorly of the welding program, describing it to the author of a pre-sentence report I obtained about Mr. Hussey, as a “farce”. He claims he did not learn anything in the program. [ 21 ] Mr. Hussey says he worked installing eavestrough after that but says that job ended about three years ago when he fell and injured his back. Since then, Mr.

Hussey says he has been dealing with his injuries and treating them. Mr. Hussey says he receives medical attention for his injuries from a general practitioner, a Dr. Mark Porter, and has consulted several specialists for them as well. Currently, Mr. Hussey receives workers’ compensation benefits of $470 bi-weekly because he is disabled by his injuries. [ 22 ] Dr. Porter provided a letter about Mr. Hussey’s injuries on his behalf. Dr. Porter’s letter is appended to the pre-sentence report and states briefly: “He [Mr.

Hussey] is currently a patient under my care for injuries sustained in a workplace accident in July 2015. He

has chronic low back pain associated with his injuries”. [ 23 ] Otherwise, Mr. Hussey says he lives with friends. It appears these friends may have been his employers when he installed eavestrough. Mr. Hussey says that he pays neither rent nor room and board to his hosts for the accommodations they provide him but looks after their 11-year old autistic son in lieu of paying them. In particular, Mr. Hussey says he transports his hosts’ son to and from school and cares for him while they are at work.

Randy Follett, the child’s father, confirmed the arrangement to the author of the pre- sentence report and expressed his concern that he and his wife would have to find alternate care for their son if Mr. Hussey is incarcerated. [ 24 ] Mr. Follett also told the worker that he was surprised and shocked about the charges against Mr. Hussey. He says he has known Mr. Hussey for about 11 years and was not aware that Mr. Hussey ever had anything to do with illegal drugs, whether to use them or for any other purpose. He felt that Mr. Hussey “was down on his luck at the time of the offence and made a mistake”. Mr.

Follett also told the author of the pre-sentence report that “it is his belief that sometimes a person deserves a second chance”; he obviously thinks that Mr. Hussey is one of those persons. [ 25 ] Mr. Hussey has a criminal record. He points out, and I agree, that his record is dated, that it is not directly related to the charge before me and that there are significant lapses of time between some of the offences of which he has been convicted before.

I note, for example, that he was lasted convicted on October 5, 2007 more than 10 years ago; that there was a gap of 11 years between the offences of which he was convicted in 1995 and the next offence in early 2006; and that several of the convictions were for impaired driving and property-related offences. [ 26 ] Perhaps, the most troubling of these offences to the present offence are the two convictions that Mr. Hussey has for breaching probation and an undertaking; those are troubling because he broke court orders when he committed them. I also note that Mr.

Hussey has received jail sentences for seven of the nine offences of which he has been convicted. [ 27 ] This is the record of Mr.

Hussey’s convictions that the Crown provided to me: Offence Date of Conviction Disposition Driving While Disqualified October 5, 2007 14 days in jail, probation for 1 year and $50 surcharge Impaired Driving/Failing or Refusing to Provide Breath Sample March 29, 2006 14 days in jail, prohibited from driving for 30 months and $50 surcharge Possessing Stolen Goods January 17, 1995 30 days in jail, probation for 3 years and $50 surcharge Unlawfully Possessing Communication Device January 17, 1995 7 days in jail, probation for 3 years and $50 surcharge Breach of Probation January 17, 1995 30 days in jail (concurrent), probation for 3 years and $25 surcharge Impaired Driving January 17, 1995 $300 fine i/d 14 days, prohibited from driving for 6 months, probation for 3 years and $50 surcharge Fraud Over $1,000 April 13, 1994 Suspended sentence, probation of 1 year, compensation order for $600 and $25 surcharge Break and Enter w/Intent January 21, 1994 7 days in jail, probation of 2 years and $35 surcharge Breach of Undertaking December 14, 1993 2 days in jail [ 28 ] This is the background to the charge against Mr.

Hussey. I turn now to discuss an appropriate sentence against that background. Discussion [ 29 ] It is clear from what Goodridge, C.J.N. said in R. v. Bearns that deterrence is of paramount importance and a primary goal in sentencing offenders who sell “hard” drugs, such as cocaine. In R. v. Bearns , our Court of Appeal upheld the 18-month sentence the trial judge imposed on Mr. Bearns stating that it was “…a fit sentence imposed properly with regard to the deterrence factor and is not outside an acceptable range”: Bearns , paragraph 16 . [ 30 ] The police searched Mr.

Bearns’ home and found $827 in cash, electric Fischer scales, score sheets and 21 grams of cocaine having a street value of $4,200. Mr. Bearns was 33 years old; he was employed and supported himself and his wife; and he had no prior record for drug-related offences, although he had been convicted of driving-related offences. [ 31 ] In this case, the police searched Mr. Hussey’s person and his vehicle and located the following: • From his person:

a) A Ziploc baggie containing 12 small baggies of cocaine. b) $770 in cash, mainly in $20 denominations.

• From his vehicle:

a) A small vacuum-sealed bag containing 20 smaller bags of cocaine.

b) A large canister of bear spray.

c) Two score sheets.

d) Two cell phones. [ 32 ] The police analyzed data from one of the cell phones and found that it contained a “significant amount of communication reflecting trafficking in cocaine, primarily in ½ gram amounts for $50”. [ 33 ] While the canister of bear spray was readily available for purchase in Canada and could be used for its intended purpose of deterring bear or animal attacks, it could also be used to injure, immobilize or incapacitate a person if used for that purpose. The 32 packages of cocaine each contained .2 grams of cocaine, or 6.4 grams in total. [ 34 ] The police obtained an expert opinion from Cst.

David Emberley of the RCMP, which Mr. Hussey accepts as accurate. Cst. Emberley provided the following opinions: • The value of 6.4 grams of cocaine, sold on the street as ½ gram packages would range between $1,280 and $1,600. • The score sheets recorded amounts owed to Mr. Hussey from previous transactions and the amounts noted are consistent with drug trafficking. • Bear spray is a favourite weapon of drug traffickers in the St.

John’s area and is/can be used for protection from third parties who might try to steal their drugs or money and it can also be used to intimidate and control customers. [ 35 ] From the preceding I find that Mr. Hussey was a street-level trafficker of cocaine and that his activity on March 30, 2016 was not an isolated, or “one-off” event. That is clear from the data the police retrieved from his cell phone, as well as the score sheets that Mr. Hussey had in his vehicle. Both indicate that he had a history of selling drugs.

In effect, he used his phone to set up the transactions and the score sheets to track the amounts his customers owed him when they bought his drugs on credit. The score sheets, in particular, indicate that Mr. Hussey had dealt with these customers before. [ 36 ] His experience in the drug trade is also borne out by the ease with which Mr. Hussey worked through the three sales transactions on Church Hill on March 30, 2016 that the police witnessed before they arrested him. The agreed statement of facts notes that “[i]n less than twenty minutes…[the police] observed…[Mr.

Hussey’s truck] stop at three different locations where the driver met briefly with three different individuals in public areas”. [ 37 ] His prior connection to the drug trade is also reflected in the quantity of drugs that Mr. Hussey had for sale, either directly on his person or available to him in his vehicle. As noted, he had access to 32, ½ gram amounts of cocaine that evening, with a street value from $1,280 to $1,600; and he already had $770 in cash on his person. Mr. Hussey told the police that he was delivering the drugs for an acquaintance, but he refused to name the person he represented.

He also claimed that his acquaintance would pay him only $75 for his efforts; but that claim has to be accepted at face value from Mr. Hussey, if at all. [ 38 ] Mr. Hussey typifies the persons that Goodridge, C.J.N. was talking about in R. v. Bearns when he spoke of how street-level drug traffickers facilitate and sustain the trade in illegal drugs: “Those at the top of the drug pyramid operate with virtual impunity beyond detection and frequently beyond the territorial limits of Canada.

They can only exist as long as there are people near the bottom of the pyramid to sell the drugs on the street and to buy those drugs”. I accept that Mr. Hussey is at the bottom of the drug pyramid, but his role, as Goodridge, C.J.N. observed in Bearns , is integral to the sustainability and success of the drug trade. [ 39 ] I also note that Mr. Hussey has a criminal record. I provided all pertinent details of Mr. Hussey’s record earlier and need not repeat them here. However, his record indicates that Mr.

Hussey has received jail sentences for seven of the offences of which he has been convicted and has been convicted twice of breaching court orders. While Mr. Hussey’s record is both dated and generally unrelated, it shows a general disregard for the law and it raises questions about how to deter Mr. Hussey from other criminal activity. [ 40 ] Mr. Hussey claims that he was in difficult financial straits at the time of the offence and says that he was selling the cocaine to supplement his income. Crown counsel hesitates to say that Mr. Hussey was motivated by greed, but he also says that I should not discount Mr.

Hussey’s financial motives entirely. Apparently, Mr. Hussey told the author of the pre-sentence report that he needed the brakes done of his car and he approached a neighbour who had some ability in auto mechanics to get the work done. [ 41 ] This is what he says happened: “He states that all he had to do was drive…[his neighbor] a few places. He states that he wasn’t fully aware of what he had gotten himself into and denies previous involvement with this individual or any since the matters before the court.

He states that he wishes to impart on the court that he is not a drug dealer or that type of person”: Pre-sentence report, page 6. [ 42 ] I do not accept Mr. Hussey’s account of how he got involved in selling drugs. The existence of the score sheets, the data the police retrieved from his cell phone and the ease with which he executed 3 transactions in 20 minutes on March 30, 2016 put the lie to Mr. Hussey’s explanation of it. Mr. Hussey was more practiced in the trade and he was more adept in and more sophisticated at it than he allows.

He is a “drug dealer and that type of person”, despite his claims that he is not. [ 43 ] Overall, I find that an appropriate sentence for Mr. Hussey is 15 months’ imprisonment, less of course, the time he has spent in custody since I remanded him on June 8, 2018. For greater certainty, I calculate his remand time, at 13 days (including June 8 and today’s date), which I credit him at 1.5 days each, rounded up to 20 days in total. I base my sentence on the following:

• Mr. Hussey sold cocaine, a “hard” drug. • The range of sentencing for selling “hard” drugs, like cocaine is 6 to 36 months. • The primary and paramount purpose of sentencing drug traffickers is deterrence. • Mr. Hussey was practiced at the drug trade, he had the accoutrements associated with it, including a cell phone, a canister of bear spray, several score sheets and a significant amount of cash; and he had enough cocaine on his person or in his vehicle to complete 32 transactions in ½ gram amounts for approximately $50 each on March 30, 2016. • Mr. Hussey is a mature person. • Mr.

Hussey has a criminal record and he served several short, but sharp jail sentences previously that did not deter him from this criminal activity. • Mr. Hussey attempts to minimize or rationalize his involvement in the drug trade, but the facts indicate otherwise. • The parallels between this and the Bearns case make it a strong precedent. [ 44 ] I also took into account the following factors: • Mr. Hussey pleaded guilty to the offence. • Mr. Hussey has no prior criminal record for drug offences. • Mr. Hussey’s record is dated and there are several lengthy gaps in it, especially in the last 11 years. • Mr.

Hussey has significant health problems, he receives only a small disability income and he may have been supplementing his income by selling cocaine out of a perceived, if not an actual need, and not simply for greed. • Mr. Hussey cooperated with the police when they arrested him and admitted under caution to the police that he was selling cocaine. • The amount of cocaine available to Mr. Hussey on March 30, 2018 was relatively small, as was the money he had on him or could have realized from selling it. • Mr. Hussey’s pre-sentence report is generally positive. • Mr.

Hussey appears to have friends who support him and may need his help. Ancillary Orders [ 45 ] The Crown also requested several ancillary orders, which Mr. Hussey did not oppose. Of these orders, all are mandatory except for the DNA order, which is discretionary. Mr. Hussey’s criminal record satisfies me there is a risk he will re-offend and his DNA profile may be of future evidentiary value if he commits future offences. Thus, I exercise my discretion to allow the police to collect samples of his bodily substances to assist in future investigations should they happen.

Forfeiture [ 46 ] On June 8, 2018, Crown counsel presented me a draft forfeiture order for all items of “offence-related property” the police seized in this investigation. I reviewed the draft order and I accept it. My order is under

section 16 of the Controlled Drugs and Substances Act and includes the following items that will be forfeited to Her Majesty the Queen: 1. Blue “Pixi” Cell Phone and Cord; 2. Score Sheets; 3. One Canister of Bear Spray; 4. Seven Hundred and Seventy ($770) Dollars Cash in Various Denominations; and 5. 32 Small Baggies of Cocaine. Firearms Prohibition [ 47 ] I prohibit Mr.

Hussey from possessing any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance for 10 years from the date he is released from prison and any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. I make this order under section 109(1) of the Criminal Code .

DNA Order [ 48 ] I authorize the RCMP to take or cause to be taken from Mark Hussey the number of samples of bodily substances that is reasonably required for forensic DNA analysis, provided that the person taking the samples is able, by virtue of training or experience, to take them by means of the investigative procedures described in subsection 487.06(1) of the Criminal Code and that, if the person taking the samples is not a peace officer, they take them under the direction of a peace officer; and the said samples shall be taking not later than 10 days from the date hereof. I make this order under

section 487.051(3) of the Criminal Code . Victim Surcharge [ 49 ] Finally, I order Mr. Hussey to pay the mandatory victim surcharge of $200, pursuant to section 737(2) of the Criminal Code .

Summary and Disposition

[ 50 ] Mark Hussey pleaded guilty to one count of trafficking in cocaine contrary to section 5(2) - 5(3) (

a) of the Controlled Drugs and Substances Act . Mr. Hussey appeared for sentencing. [ 51 ] The Court ordered Mr. Hussey to serve a sentence of 15 months’ imprisonment for the offence. It also made other ancillary orders under the Controlled Drugs and Substances Act and the Criminal Code , including a forfeiture order, a firearms’ prohibition order, a DNA order and a victim surcharge order. _____________________________ Garrett A. Handrigan Justice