2017 MBPC 3, 2017 MBPC 3

Cite # 2017 MBPC 3 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN Her Majesty the Queen ) Ms. Haley Hrymak, for the Crown ) - and - ) ) Dylan South ) Ms. Sarah Murdoch, for the Accused ) ) Judgment delivered: ) January 11, 2017 MCKENZIE, P.J. [ 1 ] On October 25, 2016 I accepted a guilty plea from Dylan South for the offence of possession of a controlled substance for the purpose of trafficking contrary to the Controlled Drug and Substances Act ( CDSA ) s. 5(2) to wit: shatter (cannabis derivative).

He also pled guilty to failing to comply with conditions of a recognizance for having a cell phone and a second count of failing to comply with conditions of a recognizance for failing to abstain from possessing illegal drugs. This is my decision on sentence. [ 2 ] The Crown argues two years of incarceration is the appropriate sentence. The defence argues a community based disposition such as supervised probation or a conditional sentence would be the appropriate disposition.

Offence Details [ 3 ] All three offences stem from the offence date of March 16, 2016 at which time police received information from a confidential informant that Mr. South would have a quantity of drugs at his residence at 188 Clyde Road in the City of Winnipeg, Province of Manitoba. The Winnipeg Police Service applied for and was granted a CDSA search warrant to search Mr. South’s residence. Mr. South and two women, who were also residing at the residence, were arrested for trafficking under s. 5(2) of the CDSA. Mr.

South ultimately took responsibility for all of the drugs and drug trafficking paraphernalia that were found in the residence. This included: - 1,120g of marihuana - valued at $6,500.00; - 89 – 1g envelopes of shatter - valued at $7,120.00; - 1oz of shatter - valued at $2,500.00; - $1,610.00 in cash; - score sheets; - a cellular telephone; and - packaging materials. [ 4 ] Mr. South was bound by a recognizance that prohibited him from having a cellular telephone and from possession of any illegal drug. [ 5 ] Unlike most guilty pleas in this jurisdiction, the Crown chose to call evidence at the sentencing hearing.

They did this because “shatter” is a relatively new drug and this is the first conviction in Manitoba for trafficking shatter. Counsel agreed that Constable Adam Hourde is a duly qualified expert in relation to shatter and shatter production. Evidence of Constable Adam Hourde [ 6 ] Over the course of his 10 year career with the Winnipeg Police Service he has participated in a number of drug related training courses and has been involved in multiple investigations into drug trafficking including several that had to do with shatter. He was personally in attendance at four labs where shatter was produced.

He has worked at the Winnipeg Police Clandestine Lab Unit and took a course where he was able to make the drug shatter. [ 7 ] Shatter is a cannabis resin where raw marihuana is processed with chemicals to produce a substance which contains 80-90 percent tetrahydrocannabinol, more commonly known as THC. THC is the active component in marihuana that gives users the effect of

the drug. Marihuana typically has 20-30 percent THC. Normal marihuana resin contains about 40 percent THC and is a dark brown molasses substance and is different from shatter. Shatter is usually sold in gram units on parchment paper or wax paper in small baggies referred to as “dime bags”. The production of one gram of shatter, depending on the quality of the marihuana used in production, requires about 8-9 grams of raw or “bud” marihuana. [ 8 ] Shatter is produced using solvents such as butane or pentane, for example.

Bud marihuana is placed into a dry tube with holes in it and then the solvent is released into the tube causing a chemical reaction resulting in “cooked shatter” dripping from the bottom of the container. [ 9 ] Shatter labs are notoriously dangerous because of the potential to explode. Butane is highly explosive because it can only be stored under compression. Butane is the solvent that is generally used to make shatter, but other similar pressurized solvents can be used as well. A butane explosion can cause walls to be blown out.

It is very dangerous to dismantle a shatter lab. [ 10 ] The drug shatter is currently on the rise in Canada and is relatively new in Manitoba. The Winnipeg Police Service only started dealing with shatter in the past 6-12 months (at the time of the hearing). [ 11 ] Shatter is consumed in a number of ways including in a vape or vaporiser pen. It can be placed on hot knives and the fumes ingested. It can be smoked on rolling paper. Or, it is put on hot steel where it shatters, which is where it derives the name. Users inhale the smoke that is produced. [ 12 ] The cost of shatter is between $50.00-100.00 per gram.

One ounce of bulk-shatter can be purchased between $1,500.00- 2,000.00 versus the gram level where it would be purchased at approximately $2,500.00 for the same amount. [ 13 ] Officer Hourde estimated the amount of shatter that was seized from Mr. South to be the equivalent of about one kilogram of bud marihuana. The police did not seize anything that would suggest the accused was producing shatter. Crown Submissions [ 14 ] The Crown argued that the accused should be sentenced to two years of custody, which is a penitentiary sentence, thereby precluding a conditional sentence order.

The Crown sought a Criminal Code s. 109 firearms prohibition, forfeiture of the seized items, and that a sample of his DNA be taken for the identification of criminals. [ 15 ] The main thrust of the Crown’s argument was that this is a dangerous drug given the higher levels of THC and due to the dangerous manner in which it is produced. She also argued that this is the first time this drug has been prosecuted in Manitoba and a strong clear message of denunciation and deterrence must be sent to the accused and others who are involved in trafficking and producing shatter. The Crown argued that while this is a

Schedule II substance it should be treated more like a

Schedule I substance because of the high level of THC. [ 16 ] The Crown distinguished the defence case of R. v. Defrancesco [2015] O.J. No. 6485 from Mr. South’s as that case dealt with a low level, unsophisticated operation where the accused made considerable efforts towards repairing the harm done to the community and towards his rehabilitation. Circumstances of the Offender [ 17 ] Mr. South at the time of the hearing was 23 years old. He comes before the court with no prior criminal record. Mr. South has support of family, including a number present at the hearing.

The court also received a number of letters of support. [ 18 ] For the past four years Mr. South has been employed for Nelson River Construction as a cement finisher. He has taken upgrading courses to complete his grade 12 which was scheduled to be completed by December of 2016. Mr. South has turned his mind from using drugs to his physical fitness and is hoping to obtain his “Certified Professional Trainer” designation, which is a shift in his priority. [ 19 ] When talking about how he got involved with shatter, Mr.

South said he was young and stupid, and got caught up with the wrong people and in the process, he became lost. Since his arrest, he has returned to living with his parents who support him in the community. [ 20 ] After Mr. South’s arrest he spent almost a month in pre-sentence custody which was a significant deterrent for him personally. Defence Submission [ 21 ] Defence counsel suggested that supervised probation is an appropriate sentence for this matter. In the alternative, if a custodial sentence is ordered that Mr.

South should be allowed to serve any custodial sentence in the community under a conditional supervision order. [ 22 ] In relation to the nature of this substance, the defence argued that while shatter does have a higher THC content than marihuana, it is still a

Schedule II substance and should be treated more akin to marihuana. Shatter has a higher quality which requires less of the substance to be ingested to obtain similar effects for users. [ 23 ] While the Crown submits that this drug is more serious than marihuana because of the dangers of how it was produced, Mr. South is not charged with production and can only be sentenced on trafficking. Analysis and Decision [ 24 ] The CDSA s. 5(2) prohibits trafficking of substances found in the various schedules of the CDSA . Mr. South has pled guilty to trafficking contrary to

Schedule II, a marihuana derivative known as shatter, a marihuana derivative which is an indictable proceeding

punishable for a maximum term of imprisonment of not more than five years. [ 25 ] The CDSA states under s. 10 (1): Without restricting the generality of the Criminal Code , the fundamental purpose of any sentence for an offence under this

Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community. [ 26 ] Parliament has confirmed that Canadians do not want individuals selling substances to its citizens unless those drugs are controlled by the state. This is so, even with drugs that may otherwise be legal to obtain, but especially so for drugs that are otherwise illegal, such as marihuana and marihuana derivatives, including shatter.

The premise being that society has a strong interest in knowing that what they are ingesting is safe, both in the short and long term, or at the very least they can make themselves aware of potential harm and make a decision based on the known side effects. [ 27 ] Further, both general and specific deterrence is a primary objective of sentencing drug traffickers.

A message has to be sent to both the offender and others in the community that if they decide to engage in this type of behaviour that the consequences will be so high that they change their mind. [ 28 ] Shatter contains a much higher level of the substance known as THC which is the active ingredient that causes users to become high or intoxicated by the drug. There has been no other prosecution of this drug in Manitoba and as such I have no binding precedent to rely upon. While provided with the case of R. v.

Defrancesco, neither counsel are suggesting that this case is within the appropriate range of sentencing for trafficking that Mr. South was engaged in. The outcome of that particular case seems to be fact specific involving a lower level dealer of shatter. Mr. South’s operation appears to be more sophisticated in nature as demonstrated by the labeled envelopes, score sheets, and amount of shatter in his possession. [ 29 ] The Court does not agree that this matter is akin to a

Schedule I substance. In R. v. Bercier (T.J.), 2004 MBCA 51 , Hamilton J.A. said, “The distinction in the maximum sentences imposed by Parliament for

Schedule III and

Schedule I drugs (ten years versus life imprisonment respectively) must be given meaning.” In my view, it would be an error to treat shatter like a

Schedule I substance. Nor does the Court find that the method and dangers of production are aggravating factors as there is no evidence that Mr. South was involved in production. However, the Court cannot overlook the high level of THC in relatively small amounts of the drug. Shatter has more concentrated THC than marihuana. While defence counsel asserts users will require less quantity of this higher quality drug to obtain similar effects, the danger of over use is substantially higher when using even small amounts. Therefore, shatter is more dangerous than marihuana.

Also aggravating is the large amount of shatter which is the equivalent of approximately a kilogram of marihuana before it is cooked into shatter. This would mean that each gram of shatter would be akin to selling a ¼ ounce of marihuana in each envelope. This attracts a higher sentence than a gram level dealer. [ 30 ] I must also consider the mitigating factor of a guilty plea which is an expression of remorse. Also, weighing in favour of a rehabilitative sentence, is Mr. South’s relative youthful age of 23. Further, while not a mitigating factor, Mr.

South has no prior criminal record although he was pending on other charges at the time of this offence as evidenced by the breach of recognizance charges. I have also considered that Mr. South has a tremendous amount of support in the community. [ 31 ] I am of the view that a probationary sentence is not appropriate for this level of trafficking, but neither is a penitentiary sentence as suggested by the Crown. Considering all of the facts in this case, balancing the aggravating, mitigating, and personal circumstances of Mr.

South, a fit and appropriate sentence for this level of trafficking in the marihuana derivative “shatter” is a sentence of 18 months of custody. As a result I must also consider whether the imposition of a conditional sentence would be appropriate. I am satisfied that Mr. South has sufficient support in the community and has had a significant change in his ideology that he is not a danger to the community if allowed to serve his sentence in the community.

Further, a conditional sentence order is not inconsistent with the fundamental principles and purposes of sentencing as set out in s. 718 to s. 718.2 of the Criminal Code . [ 32 ] A conditional sentence order allows an offender to serve their sentence in the community, but can also have a denunciatory and deterrent effect (see R. v. Proulx [2000] 2 S.C.R. 61 ). Mr. South will have to abide by conditions that will limit his activities in the community, he will have to face his friends and family each day with their knowledge of his offending behaviour and be bound by strict conditions.

It will also allow for rehabilitative conditions which are imperative to his further success. [ 33 ] The sentence is 18 months, less pre-sentence custody of one month which I will credit at a ratio of 1:1.5 for 1.5 months of pre- sentence custody to be noted on Mr.

South’s criminal record, which leaves 16.5 months incarceration to be served conditionally in the community under supervision with the following conditions: Mandatory conditions: - Keep the peace and be of good behaviour; - Appear before the court when required; - Report to your supervisor within two working days and thereafter as directed and in the manner directed; - remain in the Province of Manitoba unless written permission to travel outside the province is obtained from the court or your supervisor; - Notify the court or your supervisor in advance of any change of name, employment, or occupation; In addition to the mandatory conditions, Mr.

South is also ordered to: - Reside at his home address, to be provided by his counsel;

- Not move without prior written authorization of your CSO supervisor; - Abide by an absolute curfew. You must remain in your residence 24 hours a day, seven days a week, and for the purposes of this order your yard is included as part of your residence. The exceptions to this curfew include: ▪ In a medical emergency involving you or a member of your immediate family. Any medical emergency absence must be reported to your CSO supervisor within two days of the absence; ▪ To attend directly to and from work or school, but only upon providing a copy of your work or school

schedule to your supervisor prior to your absence; ▪ To attend scheduled meetings with your CSO supervisor; ▪ To attend any counselling, programming or assessments, treatment or such other programming as approved by your CSO supervisor; ▪ To seek employment, but only at times and in a manner approved by your supervisor in advance; ▪ To attend regular scheduled medical or dental appointments with the prior written approval of your supervisor; ▪ For personal business for four hours on Saturdays commencing at 1:00 p.m. and finishing at 5:00 p.m.; and ▪ With prior written authorization of your supervisor. - You must answer the door or your home telephone if the Winnipeg Police Service, your supervisor, or their designate conducts a curfew check; - You must carry a copy of this order on your person at all times when outside of your residence and present it to the police if you interact with them for any reason; - You are to abstain absolutely from the consumption or possession of alcohol or the possession or consumption of illegal drugs; - You are not to use any prescription drug unless you have a doctor’s prescription for that drug and are taking it in accordance with your doctor’s order; - You must not own, possess or carry any weapons. - You must not own or carry any cellular telephone, or similar device for mobile electronic communication unless you have obtained prior written authorization of your supervisor; - You must not subscribe to a call forwarding service; - You must not attend any business primarily engaged in the sale of alcohol; and - You must attend, participate and complete any counseling or programming as recommended by your CSO supervisor. [ 34 ] Mr.

South will be given a copy of these conditions. [ 35 ] Any breach of conditions of this order may result in Mr. South being brought into custody and he may be ordered to serve the balance of this sentence in jail. [ 36 ] Mr. South, from time to time your conditional sentence order supervisor has some discretion to make changes to some of these conditions. [ 37 ] In addition to the conditional sentence order, I must order that a sample of Mr. South’s DNA be taken. Within 30 days, Mr.

South shall report to 245 Smith Street in Winnipeg, Manitoba between the hours of 12:30 p.m. and 3:30 p.m. and attend to the Forensic Identification Unit where he shall provide a sample of his DNA for the identification of criminals. [ 38 ] Further, for a period of 10 years, pursuant to s. 109 of the Criminal Code , Mr.

South shall be prohibited from owning or possessing any firearm, crossbow, restricted weapon, prohibited device, ammunition or prohibited ammunition. [ 39 ] There will also be an order of forfeiture and destruction of the items seized by the Winnipeg Police Service. [ 40 ] On each of the breaches, I am imposing a fine of $100.00 plus victim surcharge of 30% and court costs of $2.00 for a total of $264.00. [ 41 ] Finally, there is a victim surcharge in the amount of $200.00 on the trafficking conviction. [ 42 ] In total the fines and surcharges are $464.00 for which Mr.

South will have six months time to pay. “Original signed by” MCKENZIE, P.J.