R. v. Baillie, 2016 NSPC 11

PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Baillie , 2016 NSPC 11 Date: 2016-02-23 Docket: 2874480, 2874481 Registry: Pictou Between: Her Majesty the Queen v. Rupert Allen Baillie SENTENCING DECISION Judge: The Honourable Judge Del W. Atwood Heard: 23 February 2016 in Pictou, Nova Scotia Charge: Section 7(1) Controlled Drugs and Substances Act Section 4(1) Controlled Drugs and Substances Act Counsel: Bronwyn Duffy for the Public Prosecution Service of Canada Stephen Robertson for Rupert Allen Baillie By the Court: [ 1 ] Mr. Rupert Allen Baillie elected trial in this court and pleaded guilty to a charge of production of a

Schedule II substance, cannabis marihuana, contrary to sub-section 7(1) of the Controlled Drugs and Substances Act. Mr. Baillie also pleaded guilty to a single

summary count of possession of cannabis resin, contrary to sub-section 4(1) of the Controlled Drugs and Substances Act. [ 2 ] The facts relayed to the court by the federal prosecutor, in accordance with sections 723 and 724 of the Criminal Code , inform the court that on 13 May 2015, the Pictou County Integrated Street Crime Unit executed a forced-entry search at a residence owned by Mr. Baillie in Hillside, Pictou County, Nova Scotia. Upon entering Mr. Baillie’s home, police detected a strong odour of cannabis marihuana. They found a well-developed grow-op.

There were six (6) large, mature plants that were seized by police, as well as 69 clones. Police found 795 grams of cannabis shake in a living-room, 669 grams of shake in a freezer, 126 grams of cannabis bud, two (2) ice-cream containers with shake immersed in methyl alcohol, along with glass vials used for decanting cannabis resin. Police found also three (3) boxes of small-calibre ammunition. [ 3 ] Mr. Baillie was not at home at the time of the search; he surrendered himself into police custody the following day. Mr.

Baillie informed the investigators that he grew cannabis for personal use and that he used the shake to make personal-use “oil”. [ 4 ] Mr. Baillie elected trial in this court and pleaded guilty at a very early opportunity. [ 5 ] Mr. Baillie’s biography is set out in the pre-sentence report. Much of his adult life has been chaotic. He developed early on an addiction to substances: first came alcohol, and later, controlled substances as a result of a lobster-fishing accident and self-medication with analgesics. [ 6 ] The pre-sentence report includes a list of Mr. Baillie’s convictions.

His record is populated around a relatively small number of dates. Mr. Baillie is able to get along without coming into conflict with the law for long stretches; then the wheels come off due to intermittent, acute drug use. Mr. Baillie’s lengthiest term of incarceration was a federal-penitentiary sentence imposed in June 2000 for offences involving robbery, false pretences, forgery, theft and violation of bail. Since then, Mr. Baillie has done reasonably well; his offending behaviour has been limited mostly to property-related offences; however, I do note that Mr.

Baillie was sentenced in 2010 for a charge of drive over .08, possession of a firearm while prohibited, and careless use of a firearm. Mr. Baillie has one, but very dated record, for a controlled-substance-related offence, that one back in January 1983; he got handed a fine for simple possession. [ 7 ] The positive factors are Mr. Baillie’s guilty plea and full acceptance of responsibility. Mr. Baillie has gone five (5) years since last coming into contact with the court, and much of his record is very dated.

He is responsible solely for his conduct, but his degree of responsibility is diminished in my view because of his history of drug dependency. While production is a serious offence, reflected in the maximum 14-year penalty, this one would fall at the lower end of the range as this was not a large-scale grow-for-profit. [ 8 ] Applying the gap principle, as outlined by the Court of Appeal, in R. v. Bernard , 2011 NSCA 53 , the court does not regard Mr. Baillie’s prior record as an aggravating factor; and in any event, Mr.

Baillie is not to be re-sentenced for offences committed in the past for which he has done his time. [ 9 ] Mr. Baillie has accepted responsibility for his actions and has not sought to minimize or justify them. This stands in contradistinction to R. v. MacDonald , (8 January 2015), case number 2708725, unreported, when this court imposed a short period of provincial incarceration upon an offender charged with production of cannabis.

When that offender appeared before the court for sentencing, he informed the court that he felt that he had done nothing wrong and intended to resume production regardless of any sentence that the court might impose. Mr. Baillie’s attitude also stands in contrast to a Mr. MacPherson, Ms. Duffy, that was the individual who was trafficking in … [ 10 ] Ms. Duffy : Rennie MacPherson. [ 11 ] The Court : Rennie MacPherson, yes, that’s exactly the case. Well, it’s … that is R. v. MacPherson 2014 NSPC 13 . Mr. MacPherson was charged with, either possession for the purpose of trafficking, or trafficking in hydromorphone.

Mr. MacPherson informed the court that he had every intention, upon the completion of his sentence, of resuming trafficking in hydromorphone because it was his lifestyle. The court imposed a three-year federal term. MacPherson was a much more serious case than this one: it involved trafficking in a

Schedule I substance by someone with a trafficking record. What was of moment in MacPherson and MacDonald was the both offenders made it clear to the court that they intended to resume their offending behaviour once the court piece got wrapped up. The court took that to be an aggravating factor. [ 12 ] Mr. Baillie’s attitude toward this offence is very different. Mr. Baillie understands that what he did was contrary to the law and is resolved not to resume doing it. I would infer from Mr.

Baillie’s frame of mind that he recognizes that there are legal means of accessing cannabis marihuana with a valid medical prescription, and he’ll go about things that way in the future. [ 13 ] There are aggravating factors here. It is always easy to reduce offences to simplistic narratives. So it is that production of cannabis is taken sometimes to be an innocuous offence, merely the cultivation of a few plants by benign botanists. But this court must take the larger view. [ 14 ] I apply the principles set out in R. v. Gibbon, 2006 BCCA 2019 at paras. 21 and 26 , R. v.

Prasad, 2006 BCCA 470 at para. 12 , and particularly R. v Nguyen, 2013 ONCA 51 at para. 4 . This court is able to take notice of the prevalence and nature of crimes committed in this community. It is well known to the court that grow-ops are particular gravity wells of crime. Even if not set up by an offender for retail profit, grow-ops will be the target of armed rip-offs. The court has encountered this on numerous occasions. There have been home-invasion cases come into court from Westville and Stellarton. There was one out in the county.

There was the attempted robbery out in Hopewell by a wrecking crew with a bow and arrow and crowbar. This is not a matter of the court hearing tendentious, pseudo-expert evidence about notional dangers of grow ops as the Federal Court had to listen to recently in a case on reserve. These are cases which I have heard right here. [ 15 ] In imposing sentence, it is necessary for the court to turn its mind to the principles of sentencing set out in

Section 718 , 718.1 and 718.2 of the Criminal Code . The court must denounce unlawful conduct. The production of cannabis is an offence under

Section 7 of the CDSA. To be sure, there are many who are taking advantage of the present uncertain regulatory state of licensed production to produce a biomass of uncertain purity and potency, and there is litigation on the go that might excuse or decriminalize that sort of activity. R. v. Smith , 2015 SCC 34 , certainly did so, at least notionally as applied to Mr. Smith. However, the fact is that for people such as Mr. Baillie, this agronomic activity is a crime. The good thing is that Mr. Baillie understands that. [ 16 ] The court must deter Mr.

Baillie and other like-minded persons from committing this type of offence. The court must consider separating offenders from society, but only where necessary. The court must assist in the rehabilitation of offenders, and the court must promote a sense of responsibility in offenders, and that includes ensuring that the offender acknowledge the harm done to the community. [ 17 ] I have considered the principles of sentencing set out in

Section 718.2 of the Criminal Code , particularly, particularly para. 718.2 (b): a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. The court must ensure that an offender not be deprived of liberty if less restrictive sanctions might be appropriate in the

circumstances, and the court has to consider all available sanctions other than imprisonment as would be reasonable in the circumstances. [ 18 ] The prosecutor has made a sentencing recommendation that is certainly within the range – 60 to 90 days of imprisonment served on weekends followed by probation for a period of one (1) year. [ 19 ] Defence counsel invites the court to consider a non-custodial sentence. In doing so, the court would note that para. 7(2)(

b) of the CDSA provides that, if the subject matter of the offence is cannabis marihuana, the maximum term of imprisonment would be 14 years. None of the mandatory minimums applies here. None of the aggravating factors in sub-s. 7(3) is applicable here. However, as the maximum potential penalty is 14 years, this offence would be excluded from the conditional-sentencing regime under para. 742.1 (

c) of the Criminal Code , which states that the offence before the court for sentencing must not be an offence prosecuted by way of indictment for which a maximum term of imprisonment is 14 years or life. Is there any dispute on that point, Mr. Robertson? [ 20 ] Mr. Robertson : No. [ 21 ] The Court : Thank you. The court, obviously, is required to consider the principles of sentencing parity as set out in para. 718.2 (b). [ 22 ] In analyzing parity, I have considered the judgment of Cacchione J. of the S in R. v. Simpson 2008 NSSC 57 .

In that case, the offender was to be sentenced for possession of cannabis marihuana, possession for the purpose of trafficking and production. The offender produced cannabis oil to help others with medical problems and did not traffic for profit. Cacchione J. reviewed the principles of sentencing, noted that Mr. Simpson had shown no remorse for his conduct. Cacchione J. stated at paragraph 18 of his judgment: I am mindful that there is a risk of attracting a criminal element to his community posed by his cultivation of marihuana plants in his back yard and the potential risk of violence associated with that.

This is a factor which I have considered in arriving at my sentence in this case. It would seem, however, despite Mr.

Simpson’s notoriety in the community, his open discussion of what he was doing and where he was doing it, together with the attention generated by these proceedings, which identified the location of his activities that no violence or attraction of criminal element has been shown to have occurred. [ 23 ] Cacchione J. had been invited by defence counsel to consider the imposition of a discharge; in the view of the court: To grant a discharge in this case despite the accused’s altruistic purposes would be to send a message to the community that if you don’t like a certain law, just ignore it and there will be no consequences.

That, in my opinion, will not be in the public interest. [ 24 ] Cacchione J. concluded his judgment by saying, Having considered the submissions of counsel, the cases cited, the principles of sentencing set out in the Criminal Code , the circumstances of these offences and this offender, I am of the opinion that a fit and proper sentence is one which has some element of deterrence for this offender and other like-minded individuals who chose to break the law, even if that is done for altruistic purposes.

The sentence of this court is that you be sentenced to one day in jail considered by your time in court as time served. There will be a fine in the amount of two thousand dollars, or, in default of payment of that fine, six months in custody. [ 25 ] This case leads me strongly in the direction of a non-custodial sentence. [ 26 ] To recap, I take into account the principles of proportionality and sentencing parity; I apply the gap principle in evaluating Mr. Baillie’s prior record; I credit Mr.

Baillie for having accepted, unconditionally, responsibility for his actions, and he does not come to court projecting himself as a cannabis white knight. All this leaves the court of the view that Mr. Baillie is likely to respond positively to a rehabilitative-based sentence. [ 27 ] In line with Simpson , the court will impose fines and place Mr. Baillie on a period of probation of twelve (12) months. [ 28 ] Mr. Robertson, Mr. Baillie is still living at 45 Little Egypt Road? [ 29 ] Mr. Robertson : That’s right. [ 30 ] The Court : Thank you. That will be shown as Mr. Baillie’s address throughout.

What the court is going to do, first of all, in relation to the imposition of fines, applying the principles of fine imposition as set out in R. v. Topp , 2011 SCC 43 , the court is going to impose fines of $50.00 on each count, along with the mandatory $15.00 victim-surcharge amounts on each count and Mr. Baillie will have twelve (12) months to pay those amounts. Mr.

Baillie lives in poverty, and he can’t afford to pay any more than that. [ 31 ] There will be a period of probation starting immediately of twelve (12) months with these terms: • keep the peace and be of good behaviour; • appear before the court when required; • notify the court or your probation officer in advance of any change of name, address, employment or occupation; • report to a probation officer at 115 MacLean Street, New Glasgow, no later than 4 pm 25 February 2016, and after that as directed; • you must not possess, take or consume any controlled substance as defined in the CDSA except in accordance with a physician’s prescription for you;

• you must attend for substance use assessment and counselling, as directed by your probation officer; • and you must go in for any other assessment, counselling or programming directed by your probation officer; • participate in and co-operate with any assessment, counselling or program directed by the probation officer according to the terms as directed by your probation officer, and you must immediately report to your probation officer any missed assessment or counselling appointments; • comply immediately with any demand for urinalysis made of you by a peace officer or probation officer; • comply with any voice-recognition house-arrest check program as directed by your probation officer; • sign immediately all consents to release of information required by your probation officer to arrange rehabilitative services; • remain confined to your home at 45 Little Egypt Road, Pictou County, NS, starting immediately and ending after three (3) months.

There will be exceptions to the house arrest, Mr. Baillie, and any time that you’re travelling to and from any of the places where you’re allowed to go, it has to be by the most direct route from your place at Egypt Road, no stop offs, detours or side trips. • And the exceptions will be: when dealing with a medical emergency or a medical appointment involving you.

You must notify your probation officer within 24 hours of any emergency hospital visit; • when attending a scheduled appointment with your lawyer or probation officer, attending court at a scheduled appearance or under subpoena; • when attending a counselling appointment or a treatment program at the prior written direction of or with the prior written permission of your probation officer; • when looking after your personal needs for not more than three (3) hours per week, as approved in advance by your probation officer, in writing; • as well as any other valid exception approved in writing in advance by your probation officer setting out in writing the precise times when and places where you might be outside your residence. • prove that you are complying with the house arrest condition by presenting yourself immediately at the entrance of your residence should a probation officer or a peace officer attend there to check; • you are to carry with out at all times when outside your residence a copy of all your sentence orders and a copy of any permissions slips from your probation officer. [ 32 ] The court will order forfeiture of any ammunition and firearms seized, as well as the controlled substances and production paraphernalia.

And the court will sign off on the appropriate orders once presented to the court in the proper form. [ 33 ] Anything further in relation to Mr. Baillie? [ 34 ] Ms. Duffy :

Section 109, Your Honour. [ 35 ] The Court : Oh yes, yes, thank you very much, Ms. Duffy. As cannabis production is an offence that would fall under the provisions of 109 of the Criminal Code , under para. 109(1) (c), the court orders and directs that Mr. Baillie be prohibited from possessing any firearm, other than a prohibited firearm, or restricted firearm and any cross-bow, restricted weapon, ammunition and explosive substance, and that will be for life. And Mr.

Baillie is also prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life. The initial prohibition requires a life-time term because of the fact that Mr. Baillie was the subject of an earlier

Section 109 order. Anything further for Mr. Baillie? [ 36 ] Mr. Robertson : No, Your Honour. [ 37 ] Mr. Gorman : No, Your Honour, thank you. [ 38 ] Ms. Duffy : No, Your Honour. [ 39 ] The Court : So, Mr. Baillie, what we’ll have you do, we’ll have you take a seat out in the lobby. Once all the court orders have been signed, you will be free to go. JPC