R. v. Gladish, 2014 BCSC 977

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Gladish, 2014 BCSC 977 Date: 20140509 Docket: 35983-2 Registry: Courtenay Regina v. Brennan Joseph Gladish Corrected Judgment: The date of the judgment was corrected at the top right corner to read 20140509 on June 11, 2014 Before: The Honourable Mr. Justice Halfyard Oral Reasons for Sentence Counsel for the Federal Crown: Counsel for the Attorney General of British Columbia C. Gibson L. Ruzicka Counsel for the Accused: E. Chesterley Place and Date of Sentencing Hearing: Nanaimo, B.C. April 14, 15, 16, 2014 Place and Date of Judgment: Nanaimo, B.C.

May 9, 2014 [ 1 ] THE COURT: On October 24, 2013, after a trial, I found Brennan Joseph Gladish guilty of the following eight offences, all of which were committed at Courtenay on March 22, 2013: - Count 1: possession of marihuana for the purpose of trafficking in an amount less than three kilograms; - Count 2: possession of a loaded restricted firearm without registration or licence; - Count 3: possession of the same firearm without a licence; - Count 4: possession of the same firearm while prohibited by an order made December 9, 2003; - Count 5: careless storage of the same firearm; - Count 6: possession of the same firearm while prohibited by an order made February 8, 2007; - Count 7: possession of the same firearm while prohibited by an order made April 13, 2007; and finally - Count 8: storage of a restricted weapon, that is the same firearm. [ 2 ] I entered a conditional stay on Count 5. [ 3 ] The circumstances of the offences were as follows: The police found 78 grams of marihuana in a duffle bag in a car that the accused was driving at around noon on March 22, 2013, in Courtenay.

The police had been following the accused as he drove around Courtenay that morning, saw him make two short stops which they believed to be for the purpose of selling small amounts of marihuana to two men, and then stopped his car and arrested him. He had about $950 in cash on his person. There were two hatchets in the car and three cellphones. [ 4 ] After finding the marihuana in the car being driven by the accused, the police obtained a search warrant for the house that the accused was living in at 1120 Farquharson Drive.

They executed the warrant at about 4:00 p.m. that afternoon. [ 5 ] In their search of the house, the police found about four and a half pounds of marihuana. There were two half-pound bags of marihuana in a locked wooden chest in the accused's upstairs bedroom. There was $3,000 in cash on the bedroom floor behind the TV set. In a nearby storage space on the same level as the accused's bedroom, the police found a duffle bag which contained seven one-half-pound bags of marihuana. Scales were found in the house. [ 6 ] On a shelf in a closet in the accused's bedroom the police found a .40-calibre Beretta handgun.

It was loaded with nine shells in the magazine. One live shell was sitting beside the gun. The handgun was either inside or beside a holster, and was under some clothing when it was found. The bedroom was not locked.

[ 7 ] My conclusions were that the accused had possession of the marihuana found in the car he was driving and the marihuana found in the upstairs level of the house, and that he had it for the purpose of trafficking. I found that he also had constructive possession of the handgun, and that he knew it was loaded. The findings of guilt on Counts 3 to 8 followed logically from the finding of guilt on Count 2, combined with the admissions of fact that were made. [ 8 ] The value of the marihuana was between $8,000 and $10,000.

Constable Kryzanowski gave expert opinion evidence on two further points which I accept, and I find that Mr. Gladish was trafficking marihuana at street level and was using a dial-a-dope method to sell marihuana. [ 9 ] There was at least one other person besides Mr. Gladish living in the part of the house rented to him. A woman lived on the floor below Mr. Gladish's bedroom. It appears that two of Mr. Gladish's younger children slept at the house on the night of March 21st. He had driven them separately to school and preschool on the morning of March 22nd. It is not known how long Mr.

Gladish had been in possession of the handgun or how long the gun had been loaded. [ 10 ] I turn to the circumstances of Mr. Gladish. He is now 32; he was 31 at the time of the offences. In March 2013, he was separated from his wife. I was not told how long that separation had been. They have four children. As I understood their ages and sexes, they were three daughters aged 11, eight, and five, and a son, who I thought also was said to be aged eight. I accept that Mr. Gladish remained actively involved with his children after separating from his wife. [ 11 ] Before his arrest on March 22, 2013, Mr.

Gladish had last been gainfully employed for some unspecified period of time up to the fall of 2012. I was told he was taking training lessons to get a pilot's licence. No details were given as to when or for how long or as to what progress he had made in that respect. Mr. Gladish has been detained in custody since March 22, 2013. [ 12 ] Mr. Gladish has six previous criminal convictions. On December 9, 2003, at Kamloops, he was convicted of robbery, the offence date being June 24, 2001. He was sentenced to 18 months in jail and 18 months of probation.

There was a firearms prohibition order made. [ 13 ] On August 4, 2006, at Kamloops, he was convicted of driving over .08, the offence date being December 17, 2005. He was sentenced to pay a fine of $600 and there was a one-year driving prohibition. [ 14 ] On February 8, 2007, at Kamloops, he was convicted of drug trafficking. The drug, I was told, was cocaine. The offence date was July 22, 2005. He was sentenced to seven months in jail and 12 months' probation, and another firearms prohibition order was made. [ 15 ] On April 13, 2007, at Kamloops, Mr. Gladish was convicted of two counts of drug trafficking.

It appears that the offence dates for both were on December 8, 2006. He was sentenced to 12 months in jail on each count concurrent, apparently consecutive to a sentence he was then serving. There was a firearms prohibition order made and it appears that that order was for life. [ 16 ] Finally, on September 17, 2009, at Courtenay, Mr. Gladish was convicted of having possession of marihuana. The offence date was August 28, 2009. The sentence was a fine of $500. [ 17 ] I infer that Mr. Gladish was about 19 when he committed the robbery which was the only crime of violence on his record.

I am told, and I accept, that the drug trafficking offences in all cases involved cocaine.

His last conviction for a serious offence was in 2007, about six years before the present offences, and his last conviction was for simple possession and was over four years before the present offences. [ 18 ] The position of the Crown on sentence is that there should be custodial sentences totalling four and a half years as follows: four years for the s. 95(1) offence in Count 2; 18 months for the possession for the purpose of trafficking in Count 1, concurrent to Count 2; six months for each of the three offences of breach of a firearms prohibition order, those were Counts 4, 6, and 7, and the Crown says that these three sentences should be concurrent to each other, but consecutive to Count 2; next, the Crown says there should be a sentence of six months for the s. 91 offence in Count 3, which should be, according to the Crown, concurrent to the other sentences; and finally, the Crown says there should be a sentence of six months for the s. 86(2) offence in Count 8, and submits that that should be concurrent to the other sentences also. [ 19 ] The Crown also requests a DNA order, a s. 109 firearms prohibition order for life, and I think that is mandatory, and finally a forfeiture order for offence-related property under, I think, ss. 16 and 24 of the Controlled Drugs and Substances Act . [ 20 ] The defence position on sentence is, first, the three-year minimum sentence in s. 95(2)(a)(

i) is unconstitutional as being cruel and unusual punishment, that it is not saved by s. 1 of the Charter , and that it should be declared of no force or effect; second, in the absence of the statutory minimum, Mr. Gladish should be sentenced to imprisonment in the range of 18 months to two years for the s. 95 offence; next, the defence says that the sentence for the possession for the purpose of trafficking offence should be in the range of one to two years, but below the mid-range, and says that the sentence should be concurrent to the sentence for the s. 95 offence.

The defence says that there should be shorter sentences for Counts 3 and 8, and that those sentences should be concurrent to the other sentences. Finally, with respect to the three offences for breaching the court orders which prohibited Mr. Gladish from possessing any firearms, defence counsel submits that this court should impose sentences within the range of six to 12 months, but says that they should be concurrent sentences to the s. 95 sentence. [ 21 ] As to the three ancillary orders sought by the Crown, the defence is not opposed.

The terms of a forfeiture order proposed by the Crown are apparently agreed with and, that being so, before moving on, I will make orders in relation to these requests for ancillary orders. [ 22 ] I make the order of forfeiture in the terms that have been agreed to by counsel. [ 23 ] As to the requested DNA order, several of the offences here are secondary designated offences and so I have discretion under s. 487.051(3) of the Criminal Code to make the order, if I am satisfied that it is in the best interests of the administration of justice.

Having considered the accused's criminal record, the nature of the offences, and the circumstances surrounding their commission, andthere being no evidence to show that such an order would have an adverse impact on Mr. Gladish's privacy and security of his person, Iam so satisfied.

I therefore make the DNA order requested in Form 5.04. [24] With respect to the s. 109(1) prohibition order, it is mandatory and I think it is also mandatory for life and I make that order. [25] Counsel for the intervenor, the Attorney General of British Columbia, has presented argument in opposition to the defence'sconstitutional challenge to the three-year minimum sentence set by s. 95(2) of the Criminal Code. The first position advanced by counselfor the Attorney General, speaking also on behalf of the Federal Crown, is that if the court determines that Mr.

Gladish should besentenced to three years or more for the s. 95 offence, disregarding the statutory minimum, then it would be both unnecessary andcontrary to the principle of judicial restraint to decide the constitutional issue raised by the defence. [26] Counsel referred me to a number of authorities in support of that submission, which included: R. v. Curry, 2013 ONCA 420 atparagraph 21; R. v. Craig, 2013 BCSC 2098 at paragraphs 13 to 18; R. v.

Ball, 2013 BCSC 2372 at paragraphs 24 to 32; and finally, R. v.Chambers, 2013 ONCA 680 at paragraph 46. [27] As I understand it, the general rule appears to be this: If the facts of the case do not require that constitutional questions beanswered, the court will ordinarily not do so. That was a statement made by Mr. Justice Sopinka for the court in Moysa v. Alberta(Labour Relations Board), (SCC), [1989] 1 S.C.R. 1572. Since the word ordinarily is used, there would appear to beexceptions where the court may choose to decide a constitutional issue in the abstract. I had at first thought that the case of R. v.

Nur,2013 ONCA 677, a case heavily relied on by the defence, was such an exception. After a more careful reading of R. v. Nur, I am satisfiedthat it is not an exception to that principle stated by counsel for the Attorney General. [28] In that case, R. v. Nur, a five-judge panel decided that the three-year minimum penalty set by s. 95(2)(a)(

i) of the CriminalCode was unconstitutional as being cruel and unusual punishment. The court found that the range of sentence for Mr. Nur was from twoto three years, that the three-year minimum was not grossly disproportionate to Mr. Nur's fit sentence, but that the three-year minimumwould be grossly disproportionate to the fit sentence for a hypothetical person who committed a s. 95(1) offence in hypotheticalcircumstances. The court found that the s. 12 violation was not saved by s. 1, and declared s. 95(2)(a)(

i) of no force or effect. TheCrown's application for leave to appeal was granted on April 10, 2014. [29] Here the defence argues that the sentence for the s. 95(1) offence should be less than three years, but does not suggest that thethree-year minimum would be grossly disproportionate to that sentence. In these circumstances, if I decide that a fit sentence would beless than three years, then it would be necessary to decide whether the three-year minimum is unconstitutional on the application of thereasonable hypothetical test. But if I find that a fit sentence for the s. 95(1) offence committed by Mr.

Gladish is three years or more,then I would decline to decide the constitutionality of s. 95(2)(a)(i). [30] So the first issue is what would be a fit sentence for Mr. Gladish on Count 2, if the three-year statutory minimum did not existas the starting point for the range of sentence. [31] The court must, of course, impose a sentence that is consistent with the fundamental purpose and principles of sentencing setout in ss. 718 to 718.2 of the Criminal Code. There is no doubt that the objectives of denunciation and deterrence take precedence overrehabilitation for s. 95(1) offences prosecuted by indictment.

It is also clear that a custodial sentence of imprisonment is required toachieve those objectives. The issue is the length of the custodial term. [32] The overriding requirement is that a sentence must be proportionate to the gravity of the offence and the degree of responsibilityof the offender. The degree of gravity of the offence and the degree of moral blameworthiness of the offender are determined byidentifying and weighing the aggravating and mitigating circumstances relating to the offences and the offender.

When that has beendone, the court reviews previously-decided cases to see what sentences were imposed in cases where the facts were similar to the facts ofthe case before the court. [33] The maximum penalty for unlawful possession of a loaded restricted firearm is 10 years. I note there are numerous cases inwhich the seriousness of s. 95(1) offences is emphasized and I need not repeat that. [34] In R. v.

Borecky, 2013 BCCA 163, at paragraph 55, our Court of Appeal said that, absent the three-year statutory minimum, thegeneral range of sentence established by the case law for this offence is 18 months to seven and a half years. That range was reaffirmedin R. v. Ball, 2014 BCCA 120 at paragraph 19. [35] The question is where within that range does the fit sentence lie for the s. 95(1) offence committed by Mr. Gladish. Counselhave taken me through a great many sentencing cases in support of their respective positions.

Many of the cases provide little assistance,because the sentences imposed were influenced by the prevailing minimum penalty being the starting point; that is, the bottom of the lowend of the range, which would logically be available only to the best offender. Of course, the combination of aggravating and mitigatingcircumstances in one case relating to both the offence and the offender can never be identical to those in another case.

But the principleof parity requires that similar sentences be imposed on similar offenders who commit similar offences, and the sentences imposed inother similar cases are a useful guide towards achieving parity. [36] The circumstances which aggravate the gravity of the s. 95(1) offence and Mr. Gladish's moral blameworthiness are: first, thefirearm was stored carelessly in an unlocked bedroom of a house in which at least one other person lived, and where other personsvisited, including Mr. Gladish's children; second, Mr.

Gladish had a significant quantity of marihuana stored in the same house, and thathe had it for the purpose of trafficking: I infer there was a connection between the drugs and the gun; third, Mr. Gladish was prohibitedfrom possessing any firearm by three court orders; and fourth, Mr. Gladish has what I consider to be a fairly serious criminal record. [37] I find the only significant mitigating circumstances to be Mr. Gladish's expression of remorse for these offences when headdressed the court at some length on April 16th. I accept his words as being genuine.

His description of his previous activities andinteractions with his children, and his painful separation from them since his arrest persuade me that he has accepted full responsibility

for his crimes. He wants to change his ways and he has a powerful motive to do so. His good behaviour as a prisoner also confirms his intent to change his previous criminal lifestyle. [ 38 ] The letter from Mr. Gladish's mother shows her support for her son, confirms his strong attachment to his children, and expresses her belief that he can change. I infer there is a reasonably good chance that Mr. Gladish will rehabilitate himself. [ 39 ] I do not consider the fact that Mr.

Gladish had constructive possession of the handgun and was not carrying it on his person as being a mitigating circumstance, nor the fact that the serial number was not removed from the handgun. [ 40 ] With these aggravating and mitigating circumstances as a context, I will review some of the cases counsel referred to. [ 41 ] In R. v. Desmond , 2011 BCSC 698 , Mr. Justice Schultes imposed a sentence of two years less a day on a s. 95(1) offender when the minimum penalty was one year. The Crown had sought a sentence of two years less a day to three years.

The offender was carrying a loaded handgun in his pocket on a city street. He was 30 years old, had a wife and two young children, good family support, a good work history, and a relatively minor but not trivial criminal record for offences committed in 2002, about four years before the s. 95(1) offence. [ 42 ] Mr. Justice Schultes appeared to accept the first of the two pre-May 2008 ranges of sentence identified by Judge Lytwyn in R. v. Bacon , 2010 BCPC 325 at paragraph 80 .

Those ranges were, first, for offenders with no criminal record, the range was 18 months to two years and three months; second, for offenders who have a criminal record but have no previous conviction for firearms offences, the range was said to be between three years and eight months and four years. Mr. Justice Schultes treated the carrying of the loaded handgun in a public place and the offender's criminal record as aggravating factors, but found there were numerous significant mitigating factors. In the result, he imposed a sentence at the low end of the range submitted by the Crown. [ 43 ] Next, in R. v.

Pirart , decided at Nanaimo on July 6, 2012, Mr. Justice MacKenzie reviewed the case law, including R. v. Bacon , and concluded that before May 2008, the range of sentence for a s. 95(1) offence for an offender without a criminal record was 18 months to two and a half years. [ 44 ] In R. v. Paterson , 2013 BCSC 880 , Mr. Justice Blok sentenced an offender to four and a half years for constructive possession of four loaded handguns when the minimum penalty was one year. Three of the handguns were semi-automatic.

Quantities of ecstasy, cocaine, methamphetamine, marihuana, and oxycodone were found in the same apartment as the handguns, the drugs having a value of more than $44,000. Cash of $30,000 was found there, and over $4,600 in cash was found on the offender. There were two counts of possession for the purpose of trafficking in ecstasy and cocaine. The offender was 22 at the time of the offence and had only one previous conviction and that was for failing to provide a breath sample.

There was a six-year gap between the offence date and the sentencing, and the offender had made significant progress toward rehabilitation. Mr. Justice Blok identified the pre-2008 range of sentence for possession of a loaded restricted or prohibited firearm for a first-time offender with no significant aggravating or mitigating factors as being 18 months to 36 months. That was at paragraph 56. [ 45 ] In R. v. Nur , Mr.

Justice Doherty, speaking for a five-judge panel, commented on what would be a fit sentence for an offender who was 19 at the time of the s. 95(1) offence, was attending high school, and had no criminal record. The offender had been carrying a loaded handgun on his person on a city street and had tried to run away from the police. At paragraph 109, Mr. Justice Doherty stated, in effect, that two years less a day to three years was a fit range of sentence for that young first-time offender. At paragraph 206, Mr.

Justice Doherty said, in part, and I quote: Thus, as outlined earlier, and regardless of the three-year minimum penalty, this appellant, despite the mitigating factors, could well have received a sentence of three years. [ 46 ] From my review of the case law, including the decisions I have mentioned, I think that Mr. Gladish's sentence for the s. 95(1) offence, absent the effect of the three-year minimum, should fall within the range of three to four years.

I think Judge Lytwyn set the low end of the range too high at three years and eight months for offenders who have criminal records, but not for firearms offences. [ 47 ] In my opinion, the overall effect of the aggravating and mitigating circumstances is that the sentence should be increased above the low end of three years to the mid point of the range I have identified. I find that the fit sentence which reflects the gravity of Mr. Gladish's s. 95(1) offence and his moral blameworthiness is three and a half years.

That is the sentence that I would impose on Count 2, if the three-year statutory minimum did not exist, subject of course to granting credit for time served. [ 48 ] I find it unnecessary to proceed further with consideration of the constitutional analysis. The three-year statutory minimum could not be grossly disproportionate to the sentence that is fit for Mr. Gladish, and I decline to consider the reasonable hypothetical test. [ 49 ] Mr. Chesterley did not pursue the constitutional challenge initially based on s. 7 of the Charter . Having regard to the decision of R. v.

Nur , I think he was right not to press that challenge. The defence application for a constitutional remedy is dismissed. [ 50 ] I must next determine what sentence should be imposed for the offence in Count 1, possession of marihuana for the purpose of trafficking. The maximum penalty is five years less a day. I accept that the range for this offence is from one to two years. I find the aggravating circumstances to be, first, the trafficking operation required some degree of planning and deliberation and it was done for profit alone. [ 51 ] Second, Mr.

Gladish has three previous convictions for trafficking in drugs, although two of the three offences appear to have been committed on the same day. I do not consider the dial-a-dope method of trafficking to be a separate aggravating factor in this case. The cases which indicate that this method of operation may be an aggravating factor were cases involving hard drugs, not marihuana: for example, see R. v. Barrick , 2012 BCCA 83 at paragraph 13 .

Also, I think this method of trafficking is accounted for in the planning and deliberation aspect. [ 52 ] I place some, but not much, weight on the fact that there were two hatchets in the car Mr. Gladish was driving.

[ 53 ] The mitigating circumstances are, first, the drug involved was marihuana, a soft drug, and the trafficking was at a street level only, and second, as I have described, Mr. Gladish is remorseful. [ 54 ] In my opinion, the appropriate sentence on Count 1 is 16 months. [ 55 ] The next issue is whether the sentence on Count 1 should be consecutive or concurrent to the sentence for the s. 95(1) offence. In my view, the weight of the authorities favour the imposition of concurrent sentences in cases involving guns and drugs.

It also appears that counsel agree on this, in this particular case. [ 56 ] The sentence on Count 1 will be concurrent to the sentence on Count 2. [ 57 ] Crown counsel submits that the sentences for each of the three offences in Counts 4, 6, and 7, for breach of firearms prohibition orders, should be six months, should be concurrent to each other, but should be consecutive to the sentence for the s. 95(1) offence.

That is the next issue. [ 58 ] Defence counsel did not specifically dispute the six months length of sentence for these offences, but argued that they should, as a group, be concurrent to the sentence on Count 2. [ 59 ] There are cases going both ways on this issue. The latest statement of the rule was made by the Court of Appeal in R. v.

Ball at paragraph 24 in these words: . . . generally, although not necessarily, sentences on s. 117 breaches will be consecutive to a s. 95 offence . . . [ 60 ] As I see it, the breaches of the prohibition orders were committed at the same time as the s. 95(1) offence, and I think there is a sufficient degree of interconnection between the offences to meet the test established in R. v. Li , 2009 BCCA 85 at paragraph 42 . Moreover, I have treated these breaches as circumstances which aggravate the s. 95(1) offence.

I conclude that the sentence on each of Counts 4, 6, and 7 should be six months, that these sentences should be concurrent to each other as a group, and that they should also be concurrent to the sentence on Count 2. [ 61 ] That leaves Counts 3 and 8. Count 3 carries a maximum penalty of five years, and for Count 8, the maximum is two years. The Crown says that the sentence on each count should be six months and that these sentences should be concurrent to each other and concurrent to Count 2. Defence counsel seemed to agree.

I agree with that submission of the Crown. [ 62 ] Credit for time served is the next issue. In two judgments released on April 11, 2014, the Supreme Court of Canada decided, in effect, that credit at the ratio of one and a half to one for time served before sentencing will now be granted as the general rule: see R. v. Summers , 2014 SCC 26 , and R. v. Carvery , 2014 SCC 27 . There is no dispute about this. [ 63 ] Mr. Gladish has been in custody from the time of his arrest until today, May 9, 2014. By my count, that is a total of 13 months and 18 days.

It follows that, also by my calculation, he should be given credit for 20 months and 12 days. [ 64 ] As I have said, I would have imposed a sentence on Count 2 of three and a half years or 42 months. After deducting 20 months and 12 days for the time served, the net effective sentence I am imposing on Count 2 is 21 months and 19 days. On Count 1, I would have sentenced Mr. Gladish to 16 months concurrent, but I think the effective sentence should be stated as being time served, and I will go through these matters and I will call on counsel at the end.

I am not certain if that is correct. [ 65 ] On each of Counts 4, 6, and 7, I would have sentenced Mr. Gladish to six months.

Those sentences would be concurrent to each other and would be concurrent to the sentence on Count 2, but again I think the effective sentence that I should pronounce is time served. [ 66 ] The sentences on Counts 3 and 8 would have been six months for each count, and the sentences would be concurrent to each other and concurrent to the sentence on Count 2, but I think the net sentence to be imposed again should be time served. [ 67 ] I would like to hear counsel's opinions about how the sentences on the counts other than Count 2 should be worded.

Do counsel agree or disagree with what I have said about time served? [ 68 ] MR. GIBSON: My Lord, I think that what the sentence should read, Your Lordship has set out what the sentence prior to pre-sentence custody would be. I think that for each of those it should be stated as one day and the record to reflect time served in the amount that You -- have stated. [ 69 ] THE COURT: That might be so. [ 70 ] MR. GIBSON: One day concurrent on each of those counts that you labelled as time served, and I think that that would be sufficient. [ 71 ] THE COURT: Mr. Chesterley, what do you say about that?

It is kind of awkward when you have got a series of counts like this, and all of the rest of them, except Count 2, are below what has to be served. [ 72 ] MR. CHESTERLEY: I think Mr. Gibson reflects the way it is often recorded. That is, a one-day sentence after credit of six months for time served, or whatever the sentence which would otherwise have been imposed for that offence, so I think that is correct. [ 73 ] THE COURT: All right. [ 74 ] THE CLERK: Sorry, My Lord, just to clarify, are we stating the full six months and then crediting and then saying one day remaining? [ 75 ] MR. GIBSON: The record --

[ 76 ] THE CLERK: Saying one day jail? [ 77 ] MR. GIBSON: The record should reflect one day jail concurrent, and His Lordship has set out what the sentence would be prior to giving credit for time served. [ 78 ] THE COURT: I think I had better go through those counts then, just to be sure that I am saying what we all seem to agree on now. I have imposed, on Count 2, the sentence of 21 months and 19 days. [ 79 ] On Count 1, giving credit for time served, which I have already mentioned was 20 months and 12 days, I sentence Mr. Gladish to one day in jail concurrent.

On each of Counts 4, 6, and 7, having regard to credit for time served, I sentence Mr. Gladish to one day in jail on each of those counts, concurrent to each other and concurrent to the other sentence. The sentences on Counts 3 and 8 will be one day in jail on each count, concurrent to each other and concurrent to the other sentences. [ 80 ] I think that covers all of the counts and reflects that the time served exceeds any sentence that was imposed on the counts other than Count 2. Do counsel agree with that? [ 81 ] MR.

GIBSON: Yes, My Lord, and when you -- when you stated it initially, what -- you have stated what each sentence would be. [ 82 ] THE COURT: I have already stated what the sentences would be had there been no credit for pre-trial custody. [ 83 ] MR. GIBSON: Yes, thank you. Thank you. [ 84 ] THE COURT: I think in this case I will direct that the fine surcharge will be waived. I have already made the other orders sought by the Crown. Are there any matters we have to clear up now before we adjourn? [ 85 ] MR. GIBSON: I don't believe so, My Lord. [ 86 ] MR.

CHESTERLEY: My Lord, the only remaining concern I had were the funds in the safety deposit box, which I would ask that Your Lordship direct be returned to Mr. Gladish. [ 87 ] THE COURT: Is that going to require a hearing or -- [ 88 ] MR. GIBSON: Well, My Lord, the forfeiture order as drafted did not refer to those funds as being forfeited to the Crown, so what will happen in the usual course of matters will be after the expiration of the appeal period, that money will need to be returned to Mr. Gladish, and if he -- and if it does not get returned to him, then he can make an application for it.

It should be, but those monies were specifically not forfeited, and so after the expiration of the appeal period, they will be returned to him or -- [ 89 ] THE COURT: All right, well -- [ 90 ] MR. GIBSON: -- unless there is some other court order that intervenes. [ 91 ] THE COURT: That is a pretty clear statement, Mr. Chesterley, and you will be at liberty to apply for the return of that money, if it is not returned within a reasonable time after the expiry of the appeal period. [ 92 ] MR.

CHESTERLEY: Yes, my only concern was that the civil forfeiture gets involved, and then we have to prove -- in essence the onus is on Mr. Gladish to prove he should get the money back and we start a new hearing, so -- [ 93 ] THE COURT: I think they are receiving a lot of flack these days, and hopefully it will keep them from -- [ 94 ] MR. CHESTERLEY: They are. [ 95 ] THE COURT: -- trying something like that, but I do not -- without a hearing, I do not think that I should make an order now, and I think that -- you do not foresee that that is going to happen, do you, Mr. Gibson? [ 96 ] MR.

GIBSON: Well, My Lord, I just don't think that we should get into it. If they do bring an order or an application, then my friend can respond to that, but I don't -- that would be on its own merits. The Crown is not seeking forfeiture of those funds in this hearing. [ 97 ] THE COURT: I think they would have a pretty tough time of it, in any event, Mr. Chesterley, if I remember all the facts here, but -- [ 98 ] MR. CHESTERLEY: Thank you, My Lord. [ 99 ] THE COURT: All right. That is all. Thank you, counsel. Good luck, Mr. Gladish. [ 100 ] THE ACCUSED: Thank you. “Halfyard J.”