R. v. C.J.T. Date:, 2012 BCPC 433

Citation: R. v. C.J.T. Date: 20121030 2012 BCPC 0433 File No: 70794 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. C.J.T. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Crown: C. Gibson Counsel for the Defendant: P. Hertzberg Place of Hearing: Nanaimo , B.C. Dates of Hearing: June 5 & July 6, 2012 Date of Judgment: October 30, 2012

The Offences [ 1 ] On June 5, 2012, Mr. T entered guilty pleas to the following charges: a. possession of cocaine for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs & Substances Act ; b. possession of methamphetamine for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs & Substances Act ; c. possession of a Winchester Defender shotgun while he was prohibited from doing so, contrary to

section 117.01 of the Criminal Code ; d. possession of a Smith & Wesson .32 calibre handgun, knowing that he was not the holder of a license and registration certificate for that weapon, contrary to section 92(1) of the Criminal Code . Circumstances of the Offences [ 2 ] On April 14, 2010, the police obtained a search warrant, empowering them to search an apartment occupied by Mr. T.

In the apartment, they found: a. 48.2 grams of powdered cocaine; b. 142.3 grams of crack cocaine; c. 58 tablets of methamphetamine; d. 14 tablets of MDMA/Ecstasy; e. $3325 in cash; f. 5 rifles, 2 of which were semi-automatic weapons; g. 2 shotguns (including the Winchester Defender referred to above); h. 1 handgun (being the Smith & Wesson referred to above); i. a camera, which contained electronic copies of the photographs referred to below. The retail value of the cocaine was $3500 - $4500. The retail value of the crack was about $1400.

The retail value of the methamphetamine was $5000 - $8500. [ 3 ] The Winchester Defender and the handgun were loaded. Extra shotgun shells were stored in the bedside table. The Winchester Defender was found beside the bed. One of the semi-automatic rifles was found on the other side of the bed. It was not loaded. The handgun was loaded, and was found in a storage compartment built into the sofa in the living room. The remaining firearms were found in the bedroom closet. None of the firearms was stored in a locked storage area.

None of them had trigger locks in place. [ 4 ] The particular Winchester Defender in this case is an unusual shotgun, and may have been modified after it was purchased from the manufacturer. It has a short barrel and a pistol butt rather than a conventional stock. It is not a hunting weapon. Rather, it is designed, or has been modified, to be fired at people at close range. [ 5 ] Mr. T admits that: a. He knew about the shotgun in the bedroom beside the bed. b. He knew that there were shotgun shells, suitable for the shotgun, in the bedside table. c. He was wilfully blind as to whether the shotgun was loaded. d.

He knew that the handgun was in the storage compartment in the sofa, and was reckless as to whether or not it was loaded. Sentencing Positions [ 6 ] Mr. Gibson, for the Crown, submits that an appropriate sentence would be 30 months’ imprisonment. He also seeks a 10-year weapons ban under

section 109 of the Criminal Code , an order that Mr. T provide a DNA sample under

section 487.063 of the Criminal Code and forfeiture of the drugs and weapons mentioned above. Mr. Hertzberg, for Mr. T, submits that a conditional sentence order under

section 742.1 of the Criminal Code would be appropriate. Mr. T [ 7 ] At the time of the offences, Mr. T was 31 years of age. He is now 33. He has only one prior conviction, for common assault, arising from an incident on August 18, 2009. For that offence, he received a conditional discharge and one year’s probation,

commencing on August 18, 2009. That probation order was in effect on April 14, 2010, when he committed the offences described above. His probation terms included the following: a. to keep the peace and be of good behaviour; b. not to possess any weapons as defined by the Criminal Code , including firearms. [ 8 ] Mr. T is the father of a 9 year-old daughter. Although he and the mother no longer have an intimate relationship, they remain on good terms.

The mother has provided a letter to the court, in which she describes him as a loving father, who has been diligent in providing financial support to his daughter and whose love and guidance are important to the daughter’s well-being. Ms. B, with whom he now has an intimate relationship, has provided a similar letter. Since 2003, Mr. T has worked as a drywaller for a number of local construction companies, which employ him intermittently as needed. They describe him as a good worker. [ 9 ] Mr. Hertzberg informs me that Mr. T is not a drug addict. Mr.

Hertzberg describes him as a recreational user. [ 10 ] As noted above, a camera was seized from the apartment under the authority of the search warrant. On the camera were found two photographs of Mr. T. The electronic record created by the camera indicates that the photographs were taken on February 8, 2010, two months before the date of the offences in question and during the term of his probation order, which forbade him to possess weapons. In each photograph, Mr. T is holding the handgun later found in his apartment. In one photograph, Mr. T has his right arm, holding the pistol, draped around Ms. B’s neck.

Both are smiling into the camera. In the other, Mr. T has draped his left arm around the neck of an adult male, his left arm on the other’s shoulder. He holds the pistol in his right hand, pointed at the other’s face. Both men are smiling at the camera. Witness – Mr. H [ 11 ] When a combination of drugs and weapons of the kind described above are found in a dwelling, one would normally infer that the weapons are there to be used to deter or prevent other criminals from stealing the drugs. Recognizing the probability of such an inference in this case, Mr. Hertzberg called Mr. H as a defence witness. [ 12 ] Mr.

H and Mr. T have been friends since early childhood. Mr. H is a drug trafficker. He purchases drugs from traffickers higher up the food chain and sells the drugs to other traffickers who, in turn, sell them to consumers. Mr. H does not like to keep drugs or guns at his home because such items attract thieves and there is a significant risk of violence when people try to steal from a drug dealer. As a family man, Mr. H does not want guns and drugs around his wife and children. [ 13 ] In early 2010, Mr. H needed a place to store his drugs and his handgun, and Mr. T needed money and a place to stay.

Recognizing an opportunity, Mr. H agreed to pay the rent for the apartment and to provide Mr. T with some cash in exchange for Mr. T’s assistance in Mr. H’s drug trafficking enterprise. Mr. T’s role was to rent and occupy the apartment and to accompany Mr. H on some of his drug-dealing excursions. Mr. T is a man of imposing physique, which was no doubt useful in his role as Mr. H’s assistant. [ 14 ] The photographs mentioned above were taken in Vancouver in February, 2010. The other male in the photograph is a distant cousin of Mr. H. Mr.

H said that: a. the handgun was unloaded at the time of the photographs; b. he carried it on his drug-buying trips to Vancouver for the purpose of frightening off anyone who might intend him harm; c. he always kept it unloaded because a person at whom it was pointed would not know whether or not it was loaded; d. it was never his intention to fire it at anyone; e. he loaded the handgun before putting it in the storage compartment in the sofa because he needed a place to store the bullets. This is the first of several points in Mr. H’s evidence which cause me to doubt his credibility. I accept, as Mr.

H said, that it was unnecessary to load the handgun if it was only to be used as a threat. A person staring down the gun barrel would not know whether it was loaded or not. The only purpose of acquiring bullets would be to fire the gun as and when required. In Mr. H’s world, the only probable target was another drug dealer. Mr. H acknowledged that he acquired the bullets illegally, but was unwilling to provide details of the purchase. It follows that he went to some effort to acquire them. I infer that he acquired the bullets for the purpose of shooting someone if an appropriate occasion should arise. [ 15 ] Mr.

H said that: a. the long guns (i.e. all of the weapons mentioned above except the handgun) were delivered to him by someone in Vancouver whom (in the interests of his own safety) Mr. H declined to identify; b. the long guns were in a hockey bag; c. the person who gave him the long guns told him to take the guns to Nanaimo, where he would receive a telephone message within a few days, telling him where to deliver the guns; d. he was unhappy about being asked to do this, and did not want anything to do with the long guns - in particular, he didn’t want to handle them in any way;

e. he took the long guns to Nanaimo and put them in the spare bedroom in the apartment because he did not want them in his home; f. when he told Mr. T about the proposal to store the long guns in Mr. T’s apartment, Mr. T was “… sort of pissy about that …”because Mr. T planned to have his daughter come to stay at the apartment, and didn’t want his daughter around the guns; g. having learned from Mr. T that Mr. T’s daughter would be coming to stay, Mr. H moved the long guns from the spare bedroom(where the daughter would sleep) to Mr.

T’s bedroom and, as a joke, placed the Winchester Defender and one of the semi-automaticrifles beside Mr. T’s bed; h. he did not remember loading the Winchester Defender, but he might have. [16] I asked Mr. H why, in view of his expressed reluctance to handle the long guns, he removed them from the hockey bag. Hereplied that the person who gave him the long guns instructed him so to do, and to destroy the hockey bag, for fear of finger prints. Thisis simply incredible. The guns mattered. The bag did not. If there were fingerprints on the guns, they could easily be wiped off. Thesame is true of the bag.

If the concern was fingerprints, Mr. H would never have opened the bag. He would have placed it in a closet inthe apartment until he received instructions for delivery. If, as he said, Mr. H was worried about handling or storing the guns, he wouldnot have placed two of them in plain view in the apartment. Rather he would have concealed the bag, containing the guns, as best hecould somewhere out of sight. [17] Similarly, if Mr. H placed the shotgun and assault rifle beside the bed for the purpose of teasing Mr. T, there was no reason toput the shotgun shells in the bedside table.

Someone did that for a reason, and it can only have been Mr. H or Mr. T. The only apparentreason is to have ammunition available to reload the shotgun when necessary. Conclusions About the Guns [18] I observe that the Winchester Defender, which was loaded and standing beside Mr. T’s bed, was the weapon most useful forrepelling any invasion of the apartment, having been designed and manufactured, or modified, for exactly such a purpose. The weaponon the other side of the bed was a semi-automatic rifle, which, if loaded, would also be useful for that purpose. As Mr.

Hacknowledged, homes used for storage of narcotics are frequent targets of armed robberies (known in the profession as “rips”). Mr. Hsaid that the apartment was a place where his drugs would be safe. [19] In assessing Mr. H’s credibility, I apply the principle that “… the real test of the truth of the story of a witness … must be itsharmony with the preponderance of the probabilities which a practical and well-informed person would readily recognize as reasonablein that place and in those conditions …”: Faryna vs Chorny (BC CA), [1952] 2 DLR 354.

Faryna vs Chorny was acivil case, in which the requisite standard of proof is on a balance of probabilities. In criminal cases, including a sentencing hearing, therequisite standard of proof depends on who carries the onus on the point in issue. Where the Crown carries the onus, it must prove thepoint beyond a reasonable doubt: R vs Gardiner [1982] 1 SCR 368. Where the accused carries the onus, he must prove the point on abalance of probabilities.

In this case, I need not decide who carries the onus, because I am satisfied beyond a reasonable doubt that Mr.H’s evidence is false, and that the guns were in the apartment for the purpose of defending it from intruders. [20] If, as Mr. H said, he never intended to fire the handgun, there was no reason for him to incur the inconvenience, expense andrisk associated with his unlawful purchase of ammunition for it. If, as Mr.

H said, he was upset by the request to transport and deliverthe long guns and did not want to handle them, there was no reason for him to take the guns out of the hockey bag, to put the shotgunshells in the bedside table, to load the Winchester Defender or to place it beside Mr. T’s bed. On the contrary, the logical course wouldhave been to conceal the unopened hockey bag somewhere in the apartment until delivery could be effected. If Mr. H was really worriedabout possessing the long guns (as he said he was), he would not have left two of them in plain view. [21] I conclude that Mr.

H’s story is false and that the long guns were procured, either by Mr. H or by Mr. T, to be used by Mr. T todefend the apartment and its contents from other criminals. In particular, the Winchester Defender stood loaded and ready beside thebed because it was the weapon which would be most useful to repel invaders. Relationship Between the Offences [22] Unlawful possession of a firearm by a drug trafficker is a more serious offence, and should attract a greater penalty, thanunlawful possession of a firearm by an ordinary citizen.

That is because drug traffickers acquire and use firearms for the specificpurpose of shooting people, while few ordinary citizens do that. Similarly, possession of drugs for the purpose of trafficking by a personarmed with a firearm is a more serious offence, and should attract a more serious penalty, than similar possession by an unarmed drugtrafficker. That is because violence, often lethal, among drug traffickers is a common occurrence, and an armed drug trafficker is moredangerous than an unarmed one. [23] The observations in paragraph 22 raise the question whether the sentences for Mr.

T’s offences should be concurrent orconsecutive. The general principle was stated in the following terms R vs JLM [2003] NJ #204 at paragraph 135: When several offences are committed in relation to a single victim and those offences are distinct acts, committed at different times or indifferent places for instance, then the sentences imposed should be consecutive. However, when more than one charge arises out of asingle incident, then normally the sentences imposed should be concurrent.

A slightly different formulation was adopted by the Court of Appeal in R vs Barrick 2012 BCCA 83 at paragraph 18, where it was heldthat the question is “… whether the acts constituting the offence were part of a linked series of acts within a single endeavor …”. In Rvs Andall 2011 OJ # 3523, Kelly, J held at paragraph 34 that sentences in circumstances similar to those before me should beconsecutive because unlawful possession of firearms and possession of cocaine for the purpose of trafficking are “… invasions ofdifferent legally protected interests …”.

It will be noted that the principle articulated in Andall differs fundamentally from that

articulated in Barrick . I am bound to follow the latter. [ 24 ] In my view, the sentences in Mr. T’s case should be concurrent because of the interdependent nature of the offences. The guns were integral tools of the drug trafficking business. Without possession of the drugs, there would have been no purpose in possessing the guns. Without the guns, Mr. T might not have remained in possession of the drugs for long. While these grim facts illustrate the seriousness of the offences, they also indicate that they are so closely connected as to render concurrent sentences appropriate.

By contrast, if I had accepted Mr. H’s evidence, it would have been appropriate to impose consecutive sentences for the drug and weapons charges because, if Mr. H’s evidence were true, the two kinds of charges would have arisen from two independent criminal enterprises. Consistency in Sentencing [ 25 ] It is important to distinguish between two variables in the sentencing process. Every offender is an individual, whose individual circumstances must be considered in pursuit of the objectives identified in

section 718 of the Criminal Code . For that reason, one cannot say that two different individuals who commit substantially identical offences should necessarily receive the same sentence. By contrast, every judge comes to the bench with a unique life experience, and approaches sentencing with the baggage of her or his individual cultural and societal values and personal history. To the extent possible, a judge must put such matters aside, because the sentence imposed should not depend on the individual views and values of an individual judge.

Rather, a sentence should reflect a consensus of judicial opinion respecting appropriate sentences for similar individuals who commit similar crimes. The importance of this point is emphasized by the specific direction given by

section 718.2 (

b) of the Criminal Code , and by the constitutional right to equality before the law guaranteed by

section 15 of the Canadian Charter of Rights & Freedoms. [ 26 ] When pursuing consistency in sentencing, it is important to bear in mind that judicial consensus on appropriate sentences is, of necessity, an evolutionary process. Societal conditions and values evolve over time, and the judicial approach to sentencing must evolve with them. To take an example pertinent to this case, the incidence of shootings by, and of, drug dealers has increased steadily and significantly over the past 40 years. It is now an acute problem. Sentencing practices must address the increasing societal problem.

For that reason, recent decisions are more helpful than older ones as a guide to a sentencing judge. [ 27 ] Mr. Hertzberg urged me to give less weight to decisions from other provinces than to those from British Columbia. I am bound to apply the reasoning of decisions from the courts of British Columbia and from the Supreme Court of Canada. I am not bound to apply the reasoning of decisions from other courts. However, I think that the principle of consistency in sentencing must require consistency throughout the country. Criminal law is a federal power.

Section 15 of the Charter guarantees equality before the law without regard to province of residence. Generally, two citizens in similar circumstances who are convicted of similar offences should face similar sanctions regardless of the location of the offence. In some cases, it may be that local differences in circumstances may mandate different sentences in different locations.

For example, unlawful possession of weapons in a community plagued by gang violence may attract a more severe sentence than a similar offence committed in a community where shootings are rare, simply because the need for general deterrence may be less pressing in the latter community. However, that is not the case here.

Nanaimo is as badly affected by violence associated with drug trafficking as are communities in other provinces. [ 28 ] For those reasons, I think that I should begin the present inquiry by considering sentences imposed in previous cases in which the accused was found to be, simultaneously, in possession of: (

i) hard drugs for the purpose of trafficking; and (ii) firearms. I should then proceed to consider whether any aspect of Mr. T’s individual circumstances mandates a greater or lesser sentence than those imposed in other, similar cases. Sentences in Similar Cases [ 29 ] Mr. Gibson referred me to sentencing reasons rendered orally by Brooke, J of the Supreme Court of British Columbia on March 2, 2007 in R vs Ighani (Penticton Registry #34567). They do not appear to have been reported, or to have been assigned a neutral citation. Mr.

Ighani was convicted by a jury on 8 counts, including possession of cocaine for the purpose of trafficking, possession of a loaded handgun and breaches of a prohibition order and an undertaking which forbade him to possess firearms. He had two previous convictions for possession of narcotics and one previous conviction for possession of a firearm. At paragraph 16, Brooke, J referred to the breaches of undertaking and of the firearms prohibition, and said: The presence of the firearm in the circumstances I have set out takes the seriousness of the matter outside the range of provincial time.

He imposed separate sentences on each of the 8 counts, some of the sentences to run concurrently and some consecutively, for a total of 42 months imprisonment. Unfortunately, one cannot discern from the oral reasons which sentence pertains to which count. Relying on the Ighani decision, Mr. Gibson submits that I should sentence Mr. T to more than 2 years imprisonment. [ 30 ] Support for Mr. Gibson’s submission is found in Andall . Mr. Andall was convicted of possession of cocaine and ammunition for the purposes of trafficking and of unlawful possession of firearms similar to those found in Mr. T’s possession.

He had no criminal record. The quantities of drugs and the quantity and kinds of firearms in issue were similar to those found in Mr. Truckle’s possession. Kelly, J stated, in compelling terms, the need for denunciation and deterrence of the possession of firearms by drug dealers. He sentenced Mr. Andall to 4½ years for each of the weapons (concurrent), 6 months for trafficking in ammunition (consecutive) and 1 year for trafficking in cocaine (consecutive). In separate reasons, he sentenced Mr.

Andall’s co-accused, who had a significant criminal record, to 13 years for similar offences: R vs Lambert [2011] OJ #3389. [ 31 ] In R vs Ash 2009 BCSC 1934 ; affirmed @ 2010 BCCA 604 , Mr. Ash was convicted of possession for the purpose of trafficking of codeine, crack cocaine, powdered cocaine, temazepam, morphine and oxycodone, and of unlawful possession of a stun gun, bear spray and a baton, all of which were found in his vehicle. The weapons found in the possession of Mr. Ash were not firearms, and would rarely inflict fatal wounds. Mr. Ash’s criminal record was insignificant.

Crown counsel sought a 12-month prison sentence. Mr. Ash submitted that a conditional sentence would be appropriate. Martinson, J refused to order a conditional sentence and sentenced Mr. Ash to 12 months’ imprisonment. The Court of Appeal dismissed his appeal. [ 32 ] In In R vs Barnett 2011 BCPC 320 , Mr. Barnett was convicted of unlawful possession of a handgun and possession of

methamphetamine for the purpose of trafficking. The quantity of methamphetamine was relatively small and he was found in possession of only one firearm. Mr. Barnett had one previous drug trafficking conviction, one for impaired driving, several for property offences and many for breaches of undertakings, probation and the like. At paragraph 16, Raven, PCJ said: The range of sentence imposed on similar offenders for similar offences of possessing a prohibited firearm is three to four years of custody. Judge Raven sentenced Mr.

Barnett to 30 months on the weapons charge and one year concurrent on the trafficking charge. [ 33 ] In R vs Massey 2007 BCPC 340 , Ms. Massey entered guilty pleas to charges of possession for the purpose of trafficking of cocaine and ecstasy and unlawful possession of firearms. The quantities of drugs were much larger than, and the weapons were similar to, those found in Mr. T’s apartment. Ms. Massey had no criminal record. Ms. Massey received a conditional sentence, including house arrest. However, I observe that, at paragraph 46, Brecknell, PCJ concluded that a prison term would have been appropriate if Ms.

Massey had been actively engaged in the drug trade, rather than (as Judge Brecknell found) only a person who lived in a house in which weapons were unlawfully kept and drugs were sold. [ 34 ] Massey is the only case of which I am aware in which a conditional sentence was imposed for simultaneous possession of narcotics for the purpose of trafficking and firearms. The circumstances of Massey were fundamentally different from those before me. There was an affirmative finding of fact, to the effect that Ms.

Massey was not actively engaged in drug trafficking. [ 35 ] In R vs Ahmed 2001 BCCA 504 , Low, JA said at paragraph 8: In a case involving trafficking in hard drugs, there must be some significant factor or factors relating to the background of the offender, his underlying reasons for trafficking or his pre-sentence efforts at rehabilitation that would support the imposition of a conditional sentence.

In R vs Tofangchi 2009 BCPC 317 , Bowden, PCJ (as he then was) said at paragraph 40: … the following factors may influence a court to impose a conditional sentence in relation to the offence of trafficking in hard drugs as part of a dial-a-dope operation: firstly, the young age of the offender; secondly, the absence of any criminal history; thirdly, successful efforts by the offender at rehabilitation from the date of the offence until the time his sentence is imposed and the expectation that such efforts will continue; and fourthly, the offender's involvement in the dial-a-dope operation is at street level only and he or she had a minor role such as that of delivering drugs to a purchaser.

I would add the following observation. In order to justify a conditional sentence for a person convicted of trafficking in hard drugs, there must be evidence of concrete, and successful, steps taken by the offender since his arrest to alter his life and lifestyle in a useful way, and also evidence to support the inference that he will continue that process. The offender carries the onus on the issue. [ 36 ] Ahmed and Tofangchi were cases of trafficking simpliciter - no weapons were in issue. [ 37 ] Referring the factors identified in Tofangchi : (

i) Mr. T is of mature years; (ii) while Mr. T’s record consists of a single, relatively minor, offence, he does have a criminal record; (iii) while it is true that Mr. T is accused of no new offence during the 30 months which have elapsed since his arrest, there is no evidence of specific steps which he has taken to advance his rehabilitation; (iv) Mr. T’s possession of the guns indicates that his role was something more than minor. I conclude that a conditional sentence would be inappropriate. Mr. T’s Circumstances [ 38 ] Mr. T was 31 years of age at the time of the offences.

If youth is a mitigating factor in a case of this kind, which I doubt, it is not a factor here. [ 39 ] It is true that Mr. T’s criminal record consists of a single, relatively minor, offence. However, Mr. Ash’s record was similar and Mr. Andall had no record at all. Mr. Barnett’s record was significantly longer and more serious. [ 40 ] I conclude from Mr. H’s evidence that Mr. T was not a directing mind of the drug trafficking operation. Mr. H agreed that it would be appropriate to describe Mr. T as an employee. His duties were limited to guarding the stash house and escorting Mr. H on some of his rounds.

Despite that, I would not describe his role as minor. It was part of his job to possess the guns and to use them when necessary. [ 41 ] Mr. T was in possession of the Winchester Defender for the purpose of defending the safe house. The nature of that weapon is a serious aggravating factor. It would be difficult to discharge that weapon, particularly at close range, without inflicting a mortal wound. One does not load a firearm without the intention of firing it. I conclude that Mr. T’s intention was to fire it at anyone who entered the apartment for the purpose of robbing him.

If he had, the intruder would have been unlikely to survive. [ 42 ] Mr. T points out that he has been at liberty since his arrest in April, 2010, and that he is not accused of any crime committed during that 30 month interval. He says that he has continued to work in the construction industry, has been paying child support for his daughter and has put his criminal past and associations behind him. If that is true, there is hope for his rehabilitation. [ 43 ] I have considered the authorities summarized by Tysoe, JA in Barrick .

They lead me to the conclusion that 9 months’ imprisonment would be a fit sentence for the drug offences in this case, and I impose that sentence. [ 44 ] I think that the nature of the Winchester Defender mandates a longer sentence for the weapons offences in this case than the 12- month sentence imposed in Ash . While stun guns can kill, they do so rarely and unintentionally. By contrast, the Winchester Defender, if fired, is likely to kill. I think that the guiding authorities in relation to the weapons offences in this case are Andall and Barnett . They

would support a longer sentence than the 30 months proposed by Mr. Gibson. However, the fact that Mr. T has managed to stay out of trouble for two years indicates that there is some hope for his rehabilitation. Given his limited previous record, I think that a sentence of 21 months on the weapons charges, followed by a period of probation, will sufficiently serve the objectives of denunciation and deterrence while providing some assistance in Mr. T’s rehabilitation. [ 45 ] The sentences will run concurrently.

For that reason, I need not discuss the totality principle, as explained in Barrick . [ 46 ] In the result, I sentence Mr. T to 9 months imprisonment on the drug charges and 21 months imprisonment on the weapons charges, to be served concurrently.

Upon his release, he will serve a term of 2 years probation on the following conditions: a. to keep the peace and be of good behaviour; b. to appear before the court when required to do so by the court; c. to notify the court or his probation officer in advance of any change of name or address and to promptly notify the court or his probation officer of any change of employment or occupation; d. to report in person to a probation officer within 72 hours of his release from prison, and to report thereafter as his probation officer may direct; e. to reside in a place approved by his probation officer and not to change that place of residence without the advance written permission of his probation officer; f. to remain within his place of residence between the hours of 8:00 p.m. and 6:00 a.m. daily, and not to be absent from his place of residence during those hours without the written permission of his probation officer, or, in the event of a medical emergency, to attend at an emergency treatment facility; g. for the purpose of confirming his presence at his place of residence between the hours of 8:00 p.m. and 6:00 a.m., to present himself at the door of the residence within 5 minutes of a probation officer or peace officer knocking on the door; h. if he has written permission to be away from his place of residence between the hours of 8:00 p.m. and 6:00 a.m., to carry that permission with him and to show it to any peace officer who asks to see it; i. not to possess or consume any alcohol or any controlled substance as defined by the Controlled Drugs & Substances Act ; j. not to possess any weapon, as defined by the Criminal Code ; k. to have no contact, directly or indirectly, with Mr.

H. [ 47 ] I direct that Mr. T be the subject of a10-year weapons ban under

section 109 of the Criminal Code , that Mr. T provide a DNA sample under

section 487.063 of the Criminal Code , and that the drugs and weapons mentioned above be forfeit to the Crown. _______________________________ T Gouge, PCJ