R. v. Dicesare, 2018 BCPC 364

Citation: R. v. Dicesare 2018 BCPC 364 Date: 20181217 File No: 37035-2 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DENNIS JOSEPH DICESARE REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: M. Down Counsel for the Defendant: M. Sanders Place of Hearing: Duncan , B.C. Date of Hearing: September 13, 2018 Date of Judgment: December 17, 2018 Introduction

[ 1 ] THE COURT: Dennis Joseph Dicesare is before this court. Mr. Dicesare has entered a guilty plea on Count 2 of Information 37035-2. The allegation is that on or about the 23rd of February, 2017, at or near Duncan, in the Province of British Columbia, he did unlawfully possess a controlled substance, namely cannabis (marihuana) in an amount not exceeding three kilograms for the purposes of trafficking. That is an offence contrary to s. 5(2) of the Controlled Drugs and Substances Act . [ 2 ] This matter was originally before me for the purposes of conducting a preliminary inquiry on May 25, 2018.

The matter was adjourned over for a continuation on July 18, 2018 which was again adjourned. The matter was back before me on September 13, 2018, at which point Mr. Dicesare entered a guilty plea to the amended charge on Count 2. The matter has come before me today for the purposes of a sentencing and specifically to determine a fit sentence for this offence. Facts Circumstances surrounding the offence [ 3 ] Crown has provided details of the circumstances that surround this offence. No issue is taken with respect to those circumstances.

However, for the purposes of these reasons for sentencing, I will provide a brief

summary. [ 4 ] These matters originally arose out of a police service call to premises on a rural road known as Clements Road in Duncan, British Columbia. The purpose of the police attendance on that occasion, in around December 17, 2016, was to deal with a pickup truck which had been found abandoned in the ditch. A police officer from the North Cowichan-Duncan detachment of the RCMP attended.

It was during the course of conducting the abandoned truck investigation that the police officer had occasion to interact with Dennis Joseph Dicesare (hereinafter referred to as the "Offender"). [ 5 ] That interaction permitted the police officer to detect the smell of vegetative marihuana or fresh marihuana on the Offender. The Offender and the police officer parted company. In the course of continuing the investigation concerning the pickup truck, the police officer went up the driveway from which the Offender had recently departed in his vehicle.

At that point, the police officer detected a strong smell of fresh marihuana.

That gave rise to further suspicions on the part of the police officer and thereafter subsequent checks were conducted with respect to hydro electric usage at this particular premises. [ 6 ] A search warrant was obtained on February 23, 2017, and that search warrant was executed on or about the same date. [ 7 ] As a result of the execution of that search warrant, as I understand it, by members of the Vancouver Island RCMP emergency response team, the Offender was arrested upon the discovery of a marihuana grow operation being conducted in a carriage house located on the property subject of the search. [ 8 ] What was detected were three rooms in which hydroponic growing of marihuana was being conducted.

In Room 1, there were 35 plants which were approximately four feet in height, ready for harvesting. In Room 2, the officers located 35 plants, again of the same height and again ready for harvesting. In Room 3, there were 92 plants. They were described as being at the vegetative stage and not ready for harvesting.

In total there were 162 plants located and seized. [ 9 ] The police experts determined that if the marihuana was being sold, it could be sold by the pound for between $500 and $1,000 per pound, by the gram at $10 a gram, and by the ounce it would fetch between $200 and $300 per ounce. [ 10 ] The unusual factors relating to this particular set of circumstances is that there was purportedly a valid licence in effect with respect to the marihuana grow operations which were being conducted at these premises.

However, it appears that the compliance with any of the licensing requirements was not being fulfilled. [ 11 ] There was produced what is referred to as a “Health Canada Designated Person Production Licence, Dried Marihuana for Medical Purposes” (the “Production License”). The individual being named as the holder of the Production Licence is not the same as the Offender in the matter before me. [ 12 ] The Production Licence designates a different location than the one at which the police executed the search warrant.

The production site listed in that Production Licence is an address in Cobble Hill in the southern end of the Cowichan Valley Regional District, some distance from the location subject of the police search. [ 13 ] The Production Licence had purportedly been amended by way of what is referred to as an “Election to Change Details of Personal Production”. That election document appeared in what was purported to be a notarial form and it directed that the production site was at the subject address located on Clements Road in Duncan, British Columbia.

It appears that such election was an invalid designation and, accordingly, the production facility located on Clements Road during the course of the police raid was not, in fact, the proper location for a marihuana grow operation to be conducted. [ 14 ] As a result of the detection of the marihuana grow operation, the Offender was originally charged on two counts and the first count was unlawfully producing a controlled substance (which was ultimately stayed) and the second offence, with various amendments, is the one to which Mr. Dicesare, the Offender, has pled guilty.

Circumstances of the Offender [ 15 ] Dennis Joseph Dicesare comes before the court without any prior criminal history. At the time of the offence, he was 28 years of age. He has spent most of his life growing up on Vancouver Island in the mid-island or central island area. He graduated from high school and thereafter completed training to gain a qualification as a welder. [ 16 ] To assist the court in dealing with Mr. Dicesare's personal background and situation, a report has been provided by defence, authored by Dr. Karl M. Williams. Dr. Williams is a clinical forensic and consulting psychologist.

He has a lengthy curriculum vitae which indicates that he is clearly an expert in the areas for this report is being tendered.

[ 17 ] I understand the Crown does not contest Dr. Williams' credentials. At present time, after having been a consultant engaged with a number of ministries, both at the federal and the provincial level, he is currently serving as a psychological consultant to the B.C. Forensic Psychiatric Services Commission. [ 18 ] Dr. Williams conducted various assessments of the Offender and, in addition to that, administered a number of psychometric tests. As a result of the interview, the tests administered and general observations made of Mr. Dicesare, Dr.

Williams came to a number of conclusions. [ 19 ] First of all, he notes that Mr. Dicesare revealed no evidence of thought disorder, personality disorder, or significant anomalous behavioural propensities. He concluded that the Offender holds generally prosocial attitudes and does not have a criminal orientation. He goes on in his

summary and conclusions to indicate that Mr. Dicesare's history suggests an industrious individual with average, middle-class values and aspirations. On the basis of the testing and the interviewing that was conducted, the Offender was assessed as being at a very low or negligible risk for any future involvement with the criminal justice system. [ 20 ] In the penultimate paragraph of the psychology report completed on November 7, 2018, Dr. Williams opines as follows: Given the absence of psychopathology or criminal orientation, I have no specific recommendations with respect to management or disposition.

There was no identified need for any form of treatment or counselling, and from a psychological and behavioural perspective Mr. Dicesare is unlikely to benefit intrinsically from incarceration or from a reporting and supervision requirement. In my estimation, he does not represent any sort of threat to the community, and his stability and ongoing productivity would be enhanced were he to be able to continue to work and to train as a carpenter. [ 21 ] As part of defence submissions, it was indicated that this Offender had previously work itinerantly as a welder; he has made a career change.

He is now in the process of working as an apprentice carpenter and thereby seeking to obtain a journeyman qualification. [ 22 ] A number of letters were presented in support of Mr. Dicesare. They come from a host of friends and people who have known him within his community and on various sports teams in which he has participated. The common theme of all of these letters is that he is a reliable individual who has a great work ethic. He is regarded highly for his cooperation and fidelity as a friend. He is an individual who enjoys outdoor activities and sporting activities.

He is described as being extremely smart, honest, and a giving person, and is of good moral character. [ 23 ] A number of these individuals know Mr. Dicesare through his common law partner and some are related to his common law partner. Notwithstanding the connection through family, they all express the same positive views of this individual and essentially what I can infer from these various letters is that the charges that bring Mr. Dicesare before the court are very out of character for him. [ 24 ] The submissions made by Mr.

Sanders on behalf of the Offender characterize him as being "that guy" and “that guy” is a positive and contributing member of the community who is industrious, hardworking, goal oriented, and seeks to eventually find himself in a position as a journeyman carpenter and with a home and family. [ 25 ] The report from Dr. Williams makes a couple of observations about the circumstances that brought Mr. Dicesare before the court. Essentially based on the submissions I heard from Mr. Sanders, there is agreement in the report and in those submissions that in the grand scheme of this marihuana grow operation, Mr.

Dicesare could be described as playing a very minor role. As I understand it, Mr. Dicesare's situation is that he was occupying part of the premises in which the grow operation was located. He was away from his usual home area in the northern part of Vancouver Island and living in the Cowichan Valley for work purposes. He was motivated to assist in some minor tasks in or around the grow operation in order to help with a reduction in his rent. [ 26 ] In Dr.

Williams' report, he notes as follows, and I quote: As far as I was able to ascertain, his actions were not inspired by the prospects of significant monetary gain or by criminal association, nor did he act out of any need to support a substance use habit or disorder. In hindsight, and given the already serious ramifications of his offending behaviour, he appears to have developed a cogent awareness that he should not have been as involved as he was in the upkeep of the marijuana plants. However, I was unable to elicit any deeper nefarious or illicit incentive. [ 27 ] In Mr.

Sanders' submissions, the indication is that Mr. Dicesare was of the belief that he was participating in a lawful grow operation for medicinal cannabis production. He placed some reliance upon the information that there was a Production Licence and also placed some reliance on the purported election to change the details of the Production Licence and the change of the production address, all of which was apparently pinned on the wall of the grow operation facility.

Position of the Crown on sentencing of the Offender [ 28 ] It is Crown's position that, given the whole of the circumstances, the lack of criminal record of Mr. Dicesare, and his somewhat limited role in the grow operation, that the appropriate disposition would be a $3,000 fine. That, of course, would give rise to the Offender having a criminal record. Defence position on the sentencing of the Offender [ 29 ] As described at the outset, defence seeks an absolute discharge with respect to the offence for which Mr. Dicesare is before the court.

In the alternative, it is proposed that there be a conditional discharge. [ 30 ] Prior to commencement of the sentencing of Mr. Dicesare, I did hear and obtain from Michael D. Sanders, as defence counsel, his professional undertaking to the court, whereby Mr. Sanders indicates that he is in a position to make a charitable donation to a designated charitable organization on behalf of the Offender. As I understand it Mr. Sanders holds those monies in trust and therefore he can make that donation forthwith if that is directed by the court.

[31] I am also told that in connection with such a charitable donation, Mr. Dicesare was prepared to make it prior to sentencing, andat the urging of his counsel, but found himself in the position that he financially may not be able to afford a donation, if in fact he werethen also to be subject to a $3,000 fine. Case authorities relied upon by defence [32] Defence has provided 18 separate authorities for consideration by the court.

Although in my reasons for sentencing I may notmake reference to some of these case authorities, I wish to confirm to both Crown counsel and defence counsel that I have had theopportunity during the lunch break to read through each of the case authorities and to consider the principles that are contained withinthem. Those case authorities are as follows: 1) R. v. Lacasse, 2015 SCC 64 , [2015] 3 S.C.R. 1089; 2) R. v. Tessling (2013), (ON CA), 171 C.C.C. (3d) 361 (ONCA) (reversed on other grounds, [2004] 3 S.C.R.67); 3) R. v. Nguyen, 2011 ONSC 2187; 4) Chu v. Canada, 2017 BCSC 630; 5) R. v.

Fallofield (1973), (BC CA), 13 C.C.C. (2d) 450 (BCCA); 6) R. v. Bigg, [1994] B.C.J. No. 174 (B.C. Prov. Court); 7) R. v. Anderson, [2004] B.C.J. No. 2801 (BCSC); 8) R. v. Lennox, 2013 BCPC 273; 9) R. v. Soberano (B.C. Prov. Court) unreported: September 18, 2013, Vancouver Registry No. 22645 per Bahen J.; 10) R. c. Yargeau, 2013 QCCQ 11957; 11) R. c. Houle, 2008 QCCQ 4811; 12) R. v. Carlson, 2015 BCPC 287; 13) R. v. Holder-Zirbser, 2018 ONCJ 59; 14) R. v. Lima, 2017 SKCA 108; 15) R. v. McPherson, 2011 BCPC 482; 16) R. v. Placek, 2012 BCSC 1660; 17) R. v.

Vallance, (Provincial Court) unreported: March 3, 1999, Vancouver Registry No. C44645 per Howard J.; and 18) R. v. Wiens, 1981 CarswellBC 1155 (BCCA). [Discussions re: correct neutral citation for R. v. Wiens] Purposes, objectives, and principles of sentencing [33] Sentencing is an individualized process which requires the court to take into account both the circumstances of the offence andthe specific circumstances of the offender (see R. v. Shoker, 2006 SCC 44 at paragraph 14 and R. v.

Angelillo, 2006 SCC 55 at paragraph22). [34] As the sentencing judge, I must direct myself to consider all of the principles of sentencing contained in the Criminal Code, butalso be mindful that, depending upon the nature of the offence committed, certain principles will receive more emphasis than others (seeR. v. McCormick, 2006 ABCA 410 at paragraphs 9 to 12). [35] The fundamental purpose and objectives of sentencing are set out in s. 718 of the Criminal Code. The other statutory principlesof sentencing are set out in ss. 718.1 and 718.2.

Section 718 states as follows: Purpose and Principles of Sentencing Purpose 718 The fundamental purpose of sentencing is. . . to contribute, along with crime prevention initiatives, to respect for the law and themaintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct. . . (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary;

(

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [36]

Section 718.1 provides that any sentence imposed be "proportionate to the gravity of the offence and the degree ofresponsibility of the offender." [37]

Section 718.2(

a) states that: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offenceor the offender. . . [38]

Section 718.2(

b) requires that: (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; [39] As noted by Romilly J. in R. v. Ralph, [2014] B.C.J. No. 485 this provision requires an analysis of what is commonly referred toas the range of sentence for a specific offence (see paragraph 26). [40] However, because of the proportionality principle and individualized sentences, the parity principle does not preclude disparitywhere warranted by circumstances. There is no such thing as a uniform sentence for a particular crime (see R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163). [41]

Section 718.2(

c) requires that: (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; [42]

Section 718.2(

d) directs that: (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; [43]

Section 718.2(

e) provides that: (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with harm done to victims orto the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. Provisions relating to drug offences [44] The purpose of sentencing as it relates to drug offences is found in s. 10 of the Controlled Drugs and Substances Act, whereinthe relevant portions read: 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 isto contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, andtreatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community. [45] The authorities confirm denunciation and deterrence are the primary sentencing objectives for drug offences involving thetrafficking of hard drugs (R. v. Ahmed, 2001 BCCA 504; R. v. G.(J.M.), 2005 BCPC 333; R. v. Sidhu, 2015 BCPC 91).

Earlier decisionssay that except in highly unusual cases a custodial sentence is required for narcotic trafficking even in cases involving cannabis. Thecourts should not, however, attempt to define what can constitute exceptional or highly unusual circumstances: R. v. Burchnall; R. v.Dumont (1980), 1980 ABCA 219 , 65 C.C.C. (2d) 490 (Alta. C.A.) Conditional discharges and absolute discharges [46] The position that is put forward by defence counsel is that the court should consider this matter as being appropriate for anabsolute discharge or a conditional discharge. Reliance is therefore placed on R. v.

Fallofield (citation noted above). Fallofield is theleading authority with respect to the granting of conditional discharges. The test that is outlined in Fallofield is that the granting of adischarge must, first of all, be in the interests of the accused and, secondly, the test is that it must not be contrary to the public interest. [47] Fallofield draws the following conclusion with respect to the application of s. 730 for discharges. They are listed as follows:

(1) The

section may be used in respect of any offence other than an offence for which a minimum punishment is prescribed by law orthe offence is punishable by imprisonment for 14 years or for life or by death.

(2) The

section contemplates the commission of an offence. There is nothing in the language that limits it to a technical or trivialviolation.

(3) Of the two conditions precedent to the exercise of the jurisdiction, the first is that the Court must consider that it is in the bestinterests of the accused that he should be discharged either absolutely or upon condition. If it is not in the best interests of the accused,that, of course, is the end of the matter. If it is decided that it is in the best interests of the accused, then that brings the nextconsideration into operation.

(4) The second condition precedent is that the Court must consider that a grant of discharge is not contrary to the public interest.

(5) Generally, the first condition would presuppose that the accused is a person of good character, without previous conviction, that it is not necessary to enter a conviction against him in order to deter him from future offences or to rehabilitate him, and that the entry of a conviction against him may have significant adverse repercussions.

(6) In the context of the second condition the public interest in the deterrence of others, while it must be given due weight, does not preclude the judicious use of the discharge provisions.

(7) The powers given by [what is now s. 730] should not be exercised as an alternative to probation or suspended sentence.

(8) Section [730] should not be applied routinely to any particular offence. This may result in an apparent lack of uniformity in the application of the discharge provisions. This lack will be more apparent than real and will stem from the differences in the circumstances of cases. [ 48 ] I am going to stand down very briefly.

I am just going to get some water. [ 49 ] THE SHERIFF: Order in court. (PROCEEDINGS ADJOURNED) (PROCEEDINGS RECONVENED) [ 50 ] THE CLERK: Order in court, all rise. [ 51 ] THE COURT: Analysis [ 52 ] I am mindful, as the first step in my analysis, that I must consider whether or not the provisions of s. 730, being the discharge provisions, are applicable to the offence before the court. No issue is taken by counsel with respect to an affirmative conclusion.

The offence, possession for the purposes of trafficking in less than three kilograms of marihuana, is punishable by a maximum of five years less a day, and there is no prescribed minimum, thus a discharge is available.

A discharge under s. 730 is not available where there is a minimum punishment prescribed or one punishable by imprisonment for 14 years or more. [ 53 ] Therefore the court, in considering the submission placed before it as to the granting of an available conditional discharge or an absolute discharge, then must follow the description of the principles to consider as outlined in Fallofield . [ 54 ] The case authorities presented by defence, at this point, bear some mention in considering the analysis of the sentencing positions before the court. In the R. v.

Lacasse decision, the aspect of proportionality is discussed in various portions of the judgment. At paragraph 12, our Supreme Court in Lacasse says as follows: [12] In such cases, proportionality is the cardinal princiiple that must guide appellate courts in considering the fitness of a sentence imposed on an offender. The more serious the crime and its consequences, or the greater the offender's degree of responsibility, the heavier the sentence will be.

In other words, the severity of a sentence depends not only on the seriousness of the crime's consequences, but also on the moral blameworthiness of the offender. Determining a proportionate sentence is a delicate task. As I mentioned above, both sentences that are too lenient and sentences that are too harsh can undermine public confidence in the administration of justice.

Moreover, if appellate courts intervene without deference to vary sentences that they consider too lenient or too harsh, their interventions could undermine the credibility of the system and the authority of trial courts. . . [ 55 ] Defence has also relied upon R. v. Tessling . This is a decision of Madam Justice Abella, then of the Ontario Court of Appeal.

The decision in Tessling is cited to this court for consideration of the provisions found under paragraph 81, in which Madam Justice Abella was considering the change in public, judicial, and political recognition of offences similar to the one that is before the court. Reading from paragraph 81 as follows: [81] I acknowledge that in 1993, the Supreme Court of Canada in Plant observed that preventing marijuana growing was a compelling state interest.

It is impossible to ignore, however, that since that decision, there has been public, judicial, and political recognition that marijuana is at the lower end of the hierarchy of harmful drugs. This means that in the speculative judicial balancing exercise inherent in determining how best to protect public confidence in the administration of justice under s. 24(2), the weight of this offence is lighter on the scales than other drug-related offences. [ 56 ] Chu v.

Canada is referenced by defence with respect to consideration of the nature of criminal records, and whether a criminal record is part of an offender's original punishment, as that test is outlined in the decision of R. v. K.R.J.

Starting at paragraph 156, the court in Chu , in arriving at the conclusion that considering criminal records merely as an administrative result of contact with the criminal justice system fails to take into account the sanction impact of a criminal record, notes as follows: Are Criminal Records Part of the Arsenal of Sanctions? [156] For the reasons which follow, I have concluded that criminal records meet the first branch of the K.R.J. test for punishment because they are part of a sentencing judge's arsenal of sanctions for criminal behaviour. [157] Among the sanctions available to sentencing judges are terms of imprisonment, fines, or, where certain conditions are met, conditional or absolute discharges. . . . . .

[159] The effect of a discharge is that the offender is not convicted and, accordingly, has no criminal record of conviction. In determining whether to impose a discharge, sentencing judges effectively determine whether to impose a record of conviction.

The discharge options available to a sentencing judge avoid the damaging consequences of a criminal record for offenders charged with relatively minor offences. [160] Clayton Ruby said this in his sentencing textbook: Sentencing , 8th ed. (Markham: LexisNexis Canada Inc., 2012) at page 414, para. 9.2: Implicit in the provision of this alternative disposition [a discharge] is a recognition by Parliament that a criminal conviction may in itself be a form of punishment and that further punishment is neither appropriate nor necessary in some instances.

On occasion, very harsh effects upon an accused person's life can result from the acquisition of a criminal record, and this legislation was thought to be one way of relieving this consequence in appropriate cases. A person who has been granted a discharge may truthfully state that he has never been convicted of a criminal offence and has no criminal record, though, undoubtedly, a record of the finding of guilt and the discharge is kept. . . . [161] The imposition of a discharge also results in an automatic pardon/record suspension.

In the case of an absolute discharge, s. 6.1 of the CRA [being the Criminal Records Act ] requires that all references to a discharge be removed from CPIC after one year. In the case of a conditional discharge, all references are to be removed after three years. After the expiry of those time periods, disclosure of the discharge is severely restricted.

Offenders are not required to apply for these benefits; instead, they are effective automatically after the passage of time. . . . [163] The distinction between a conditional discharge and the next most serious sentence available to a sentencing judge, a suspended sentence with probation, is the entering of a conviction, the creation of a record of conviction, and the need to apply for a record suspension. [164] In sentencing hearings in criminal courts throughout Canada, counsel regularly make submissions about the appropriateness of a discharge to avoid a criminal record. As Judge Gosselin said in R. v.

Kairouz , 2011 QCCQ 1829 (CQ) at paras. 56-57 : [56] The crux of the matter—whether the sentence, which is adequate in normal circumstances, becomes disproportionate given the facts in this case—must now be examined. For, it bears repeating, a sentence of discharge is an alternative to conviction when the latter would be enough to make the sentence seem disproportionate to the acts of the person to be punished. . . . [ 57 ] At paragraph 176 of Chu , the Supreme Court goes on to state as follows: [176] Recently, in Ontario, in R. v.

Novielli , 2015 ONCJ 192 (ONCJ) at para. 19 , the Ontario Court of Justice took into account, as a factor in considering the appropriateness of a discharge, that the Amendments increased restrictions on pardon availability: . . . when considering the suitability of discharges in 2015, judges might appropriately tweak their analysis from some of the categories of the past. I say this for two reasons. The first is that information in 2015 is not what it was in 1960 or 1970 or 1980.

Computerization and information-sharing now mean that records of a person's criminal history, as well as many lesser contacts with law enforcement, are likely to be immeasurably more widely available than ever before, whether to the public on the internet or to foreign agencies by means of post-"9/11" data-sharing agreements, at the same time that the availability of a "pardon" (now a record suspension) has been constrained. The difference between a conviction and a discharge is now more acute than it has been in the past.

The other consideration is that, sometimes for legitimate reasons and sometimes simply because it is possible, it seems to be much more common for employers and voluntary organizations to insist upon records checks. The potential for a criminal conviction to affect a much broader group of defendants is thus very real. [ 58 ] The B.C. Provincial Court decision of the Honourable Judge Paradis in R. v. Bigg is cited to this court for the observations made in paragraph 23 of that decision, which reads as follows: [23] In

summary, having selectively reviewed what has been said in the past about the term "contrary to the public interest" in

Section [now 730(1)], I come to the following conclusions: 1. The public interest cannot and should not be equated with public concern if it exists over the severity or leniency of sentences; and 2. The only basis upon which the term can be applied rationally in any given case is by asking the question: Is it against the public interest not to warn the public at large about the accused through the medium of a criminal record? [ 59 ] That decision was cited with approval in the Supreme Court of British Columbia decision of R. v.

Anderson . [ 60 ] Defence has also referred this court to portions of the decision of the Honourable Judge Harris of our Provincial Court in R. v. Lennox . In that decision, at paragraph 55, Judge Harris cites R. v. Pham , 2013 SCC 15 (S.C.C.) , especially at paragraph 11 , which references the collateral consequences of a sentence and the consequences or the impact on a particular offender.

At paragraph 10 Pham discusses the principles set out in s. 718 of the Criminal Code and then says as follows: [11] In light of these principles, the collateral consequences of a sentence are any consequences for the impact of the sentence on the particular offender. They may be taken into account in sentencing as personal circumstances of the offender. However, they are not, strictly speaking, aggravating or mitigating factors, since such factors are by definition related only to the gravity of the offence or to the degree of responsibility of the offender ( s. 718.2 (

a) of the Criminal Code ). Their relevance flows from the application of the principles of individualization and parity. The relevance of collateral consequences may also flow from the sentencing objective of assisting in rehabilitating offenders ( s. 718 (

d) of the Criminal Code ). Thus, when two possible sentences are both appropriate as regards the gravity of the offence and the responsibility of the offenders, the most suitable one may be the one that better contributes to the offender's

rehabilitation. [ 61 ] At paragraph 56 of Lennox , Judge Harris goes on to say as follows: [56] When sentencing an offender a court must be guarded to ensure that the hardship created by the sentence is not disproportionate to the seriousness of the offence or the offender's culpability. Such a consideration includes the impact that a conviction will have on an offender. [ 62 ] The decision in R. v. Soberano is further cited to this court. That is a decision of the Honourable Judge Bahen of our court.

Particular reference is made to paragraph 21 of that decision in which Judge Bahen notes that expressions of denunciation and deterrence can be accomplished by the terms of a conditional discharge. [ 63 ] The Court of Quebec decision in R. c. Yargeau is referred to by defence for the resulting outcome of the sentence. In that case, the individual who was before the court pled guilty to two counts of production of marihuana and had a very favourable presentence report was unlikely to reoffend.

She was not a menace to society, appeared to be genuinely deterred by the judicial process, and there was no evidence of trafficking on her part. Those are circumstances not unlike ones before this court. In the Yargeau decision, the court granted a conditional discharge and ordered her to perform 125 hours of community work and to donate $2,000 to a designated charity. [ 64 ] A similar result occurred in the R. c. Houle decision in which there were a significant number of marihuana plants in a cellar where the accused was paid to water the plants and was being paid $15 an hour.

He had no criminal record and he cooperated fully with the police. The court declined to grant an absolute discharge, but did find that a conditional discharge and the payment of an amount of $1,000 to a charity and with 14 months probation was an appropriate sentence. [ 65 ] The decision in R. v. Carlson , a decision of the Honourable Judge Giardini, again of this court, is relied upon for the sentencing results. In that case, the accused had come before the court to deal with offences under the Marihuana Medical Access Regulations on several occasions.

Given that she had lived with uncertainty of not knowing what was going to happen and had endured some potential work-related repercussions, the court found that the circumstances in that case warranted the granting of an absolute discharge, noting that the circumstances in that case were unusual and justice would be served and the public interest would be served by the granting of an absolute discharge, which was found to be more appropriate than a conditional discharge. [ 66 ] The decision of Her Majesty The Queen v. Holder-Zirbser was also relied upon by defence.

That is a decision of Justice Boxall of the Ontario Court of Justice. In particular, the provisions of paragraph 16 of that decision are apposite to the matter before me. The learned judge was dealing with the differences between a conditional discharge and an absolute discharge and said as follows: [16] There is no specific test for when a conditional discharge should be preferred to an absolute one. However, the following framework may be helpful: Are conditions necessary to achieve an appropriate sentence? If they are, the Court should grant a conditional discharge.

Otherwise, the discharge should be absolute. [ 67 ] The decision in R. v. Placek is also placed before this court. Again, there was an unusual set of circumstances surrounding the offence in that case. The accused had no criminal record. He had considerable support among his employers and former academic colleagues. There was a suggestion that there were circumstances giving rise to the offence, being unlawful production of marihuana contrary to s. 7(1) of the Controlled Drugs and Substances Act, and such unlicensed production was being done as part of some academic research being conducted.

At paragraph 9 of the decision, the court noted that it appeared there was little need to address the rehabilitative and restorative objectives of sentencing, and therefore granted a conditional discharge with 12 months' probation.

Consideration of aggravating and mitigating factors [ 68 ] In this particular case, there is not a large number of aggravating factors that are at play, other than the fact that that the Offender’s activities tend to undermine society's interest and confidence in having proper regulatory regimes for marihuana, whether or not they are administrative in nature, as appears to be the thrust of some of the new cannabis legislation and the regulations that are forthcoming. In this case the mitigating factors are more relevant. The fact that Mr.

Dicesare is before the court without any criminal record and has been a hardworking and contributing member of society are certainly mitigating factors that are at play. [ 69 ] He is also an individual who can be considered youthful in nature, with a bright future in front of him. He has undergone a fairly significant traumatic experience, in the sense of being very seriously embroiled in the criminal justice system without any prior familiarity, and that serious embroilment started right at the time of his arrest at gunpoint by the police force when they executed the search warrant.

Consideration of a discharge [ 70 ] The decision in Fallofield provides the required guidance of this court when considering whether or not this is an appropriate matter for a discharge. In my view, given the whole of the personal circumstances of Mr. Dicesare, clearly the first leg of the test is met.

It certainly is not contrary to his interest that he should receive a discharge. [ 71 ] I am also satisfied, having regard to and consideration of the various authorities put before the court by defence counsel, that it is not contrary to the public interest that this particular Offender, in these particular circumstances, should be granted a discharge. [ 72 ] There is no abundance of evidence before this court about the potential harm that could result from a criminal conviction, if the court accedes to Crown’s position.

However, as many of the cases cited have noted, the instant availability of information online and through the other cooperative agreements between governments about criminal convictions clearly paints a picture of some potential risk to Mr. Dicesare's future, both within his employment and also within the community, hence those identified potential risks assist this court in making a decision that a discharge is appropriate. [ 73 ] I must then determine whether or not the discharge should be a conditional discharge or an absolute discharge.

[ 74 ] I am satisfied on the various authorities that have been presented to me and on the present circumstances of this particular offender that an absolute discharge is warranted. He is seen by Dr. Williams as having a very low or negligible risk for any future involvement in the criminal justice system. He has been bound by and satisfied the terms of an undertaking for several months.

Therefore he has complied with all of those provisions that have placed certain restrictions on his freedoms, and have also brought him within the confines and jurisdiction of the criminal justice system. [ 75 ] The tests that have been outlined by the various authorities referred to me make it clear to me that probation conditions will not assist in any rehabilitation of Mr. Dicesare. In my mind, he is fully rehabilitated through his involvement in this criminal justice process.

I am very confident that he will not be back before these courts on charges similar to this or, for that matter, any other criminal charges. Conclusions and the Sentence [ 76 ] Therefore, the sentence will be an absolute discharge. [ 77 ] It does leave the issue of the victim surcharge, which I note is no longer required because of the most recent decision of our Supreme Court in R. v. Boudreault , 2018 SCC 58 which struck down the constitutionality of the mandatory victim surcharge, hence there is no victim surcharge applicable. [ 78 ] That leaves the issue of a DNA order.

Crown has indicated that they are not pressing for that. I do not intend to make that order. There is, in my view, no advantage and it would not be in the best interests of the administration of justice. There is a disadvantage to Mr. Dicesare, in so far as his privacy and security interests are concerned, if he is ordered to provide a DNA sample. [ 79 ] I think that leaves the issue that was being discussed by counsel and that was the forfeiture order. [ 80 ] MS. DOWN: Correct, Your Honour.

I have a copy of the major incident exhibit flowchart and I am asking for forfeiture of the circled items, and for clarity, those are Items 10, 11, 15, 21, 26 through 32, and that is all. You will notice there are a number of items that aren't circled. Some of them are to go back to the accused as they are not deemed offence-related property, and other items are contaminated by drugs and so they are automatically destroyed and don't need to be forfeited. [ 81 ] THE COURT: All right. [ 82 ] MS.

DOWN: I have canvassed those with my friend. [ 83 ] THE COURT: Okay, so again, just for the record, am I correct, it is the circled ones; just so we have it clear for the record, which numbers are they again? [ 84 ] MS. DOWN: It's the circled items being numbers 10, 11 -- [ 85 ] THE COURT: Yes, I have those. [ 86 ] MS. DOWN: -- 15, 21 -- [ 87 ] THE COURT: Yes. [ 88 ] MS. DOWN: -- and 26 through 32. [ 89 ] THE COURT: 26 through 32, all right, and then you mentioned that there are some other personal items. I am sorry, I may have misheard, those have been circled also? [ 90 ] MS.

DOWN: Those are not circled. [ 91 ] THE COURT: Not circled. [ 92 ] MS. DOWN: Those are -- since they are not circled, they will be returned. [ 93 ] THE COURT: All right, those will be returned; so then the forfeiture order which Crown will prepare will cover those matters. Is that correct? [ 94 ] MR. SANDERS: Yes, it is all by consent, Your Honour. [ 95 ] THE COURT: All right, thank you. Any further matters that I have to deal with? [ 96 ] MS. DOWN: Yes, the s. 109 weapons prohibition. [ 97 ] THE COURT: And is that mandatory? [ 98 ] MS.

DOWN: Mandatory for 10 years. [ 99 ] THE COURT: Any issue such is he a gun owner or was he a gun owner? [ 100 ] MR. SANDERS: Well, he is a gun owner and the -- and I think the -- so he will -- he would have to arrange and he will arrange for his father-in-law, who has a licence, to take possession of the firearm. And certainly I did look at this point. There is an interesting issue that is yet to be litigated in this country. This perhaps not the forum to do it, and so I am not taking a position on the application, unfortunately.

[ 101 ] THE COURT: All right, then the order sought under s. 109 for a period of 10 years, is that correct? [ 102 ] MS. DOWN: Yes. [ 103 ] THE COURT: That order will go. Anything further? [ 104 ] MR. SANDERS: Thank you. [ 105 ] THE COURT: All right. [ 106 ] THE CLERK: Is Your Honour going to make the exhibit flowchart Exhibit 3? [ 107 ] THE COURT: Oh, I am sorry, yes, I will make that the next exhibit. [ 108 ] MS. DOWN: Thank you. [ 109 ] THE COURT: Thank you, Exhibit 3. [ 110 ] MR.

SANDERS: And just so I'm clear, Your Honour, there was some discussion, just so I have my notes correctly, the -- the undertaking that I provided the court with, with respect to a thousand dollars that the -- and that was to the -- [ 111 ] THE COURT: Yes, and I will make that payable to the Cowichan Basket Society. [ 112 ] MR. SANDERS: Basket Society, yes. [ 113 ] THE COURT: Which is our local food bank, so -- [ 114 ] MR. SANDERS: Yes, actually, yes, I did see that and I -- even though they are closing in five minutes, I know I will be able to do that remotely soon.

I will look after that, it will be in the morning, I'll look after that. [ 115 ] THE COURT: Thank you, and if you would you just confirm, by way of a letter to the court registry, that the undertaking has been complied with? [ 116 ] MR. SANDERS: Yes, I will do that. [ 117 ] THE COURT: And a copy to your learned friend, please. [ 118 ] MR. SANDERS: Yes, thank you. I will do that. [ 119 ] THE COURT: Anything further? [ 120 ] MS. DOWN: Nothing, thank you. [ 121 ] THE COURT: All right, thank you. (REASONS CONCLUDED)