R. v. Wray, 2018 ONCJ 438

CITATION: R. v. Wray , 2018 ONCJ 438 DATE: June 28, 2018 INFORMATION No.: 14-11149/ 14-234 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — ADAM MILLER WRAY AND MARC MIREAULT Before Justice S. Bondy S. Szasz ................................................................................... for the Crown R. DiPietro ........................................................................... for the Accused Sentence Delivered Orally: June 28, 2018 BONDY J.: REASONS FOR SENTENCE [ 1 ] This is the sentencing portion of the hearing involving two accused, Adam Miller Wray and Marc Mireault. [ 2 ] Mr.

Wray together with Mr. Mireault plead guilty to count 1 in Information 14–11149 of jointly conspiring to commit the indictable offence of trafficking in a

Schedule II substance, namely, cannabis marijuana, contrary to s. 5(1) of the CDSA and s. 465 (1) (

c) of the Criminal Code on or about January 31, 2014. Mr. Wray also plead guilty to count 2 in Information 14–234 of possessing a quantity of marijuana for the purpose of trafficking, contrary to section 5(2) of the CDSA . [ 3 ] I will briefly describe the facts. Mr. Wray was described as part of a conspiracy originally involving a Mr. Amante which involved a joint forces operation between the Ontario Provincial Police and Windsor Police called Project Helensburgh concerning drug trafficking.

The investigation and wiretaps that ensued ultimately involved the seizure of a kilogram of cocaine, multiple kilograms of marijuana and firearms. Mr. Amante was described as the ringleader of the operation. He and other accused all received lengthy periods of incarceration for their involvement. [ 4 ] Mr. Mireault and Mr. Wray’s charges are according to the Crown, a third conspiracy charge that arose out of Mr. Amante’s operations. Wiretap communications between Mr. Wray and Mr. Amante revealed that Mr. Wray owed Mr. Amante about $130,000.00 and Mr. Wray had shorted Mr.

Amante of three pounds of his stash of marijuana. Mr. Amante threatened Mr. Wray with bodily harm or that he would harm his family. The wiretaps eventually revealed that Mr. Wray conspired with Mr. Mireault to arrange for the purchase of a large quantity of marijuana so that Mr. Wray could pay back Mr. Amante. Mr. Mireault was apparently the “middle man” in the transaction. The evidence later revealed that Mr. Wray actually intended a theft or drug rip from Mr. Mireault with the assistance of other parties.

Intercepts revealed arrangements related to amounts to be purchased, pricing, proposed location of the transaction, availability of funds and testing of samples etc. On the day in question Mr. Wray was arrested and from his vehicle was seized 8,850 grams of cannabis marijuana (approx. 19 lbs. or 8.5 kilos), two boxes, four cell phones and a small quantity of marijuana in a third party’s car. Mr. Mireault, I repeat has only pleaded guilty in connection with the conspiracy to traffic in marijuana.

He does not face possession charges. [ 5 ] The issue in this matter is what is an appropriate sentence for these individuals? [ 6 ] A pre-sentence report on Mr. Wray reveals he was 23 years of age at the time of these offences. He has a previous criminal record for a mischief/obstruct property over $5,000 and causing a disturbance. He received a conditional discharge and 12 months’ probation including an order of restitution. His record also reveals a breach of probation resulting in three days’ custody (plus 2 days pre-sentence custody) and six months’ probation. He is not a first time offender then. [ 7 ] Mr.

Wray’s pre-sentence report is revealing for its revelations related to his background and character. He describes himself as coming from privileged circumstances. He was a gifted student excelling in school and a gifted athlete earning a spot on the Team Canada baseball team as a youth and later excelled in football and hockey. Eventually his parents separated but remained living in the same household.

He reports that at 18 years of age he became involved in trafficking in drugs, earning enough money to ease the family’s financial tensions (his father in the meantime became seriously ill) until his mother learned of his illegal activity. Mr. Wray then moved out of the family home, still attending school and living a “hectic” life in trafficking according to his self-report.

He eventually completed most of the course requirements to almost complete his Human Kinetics degree, and his involvement in the drug trade earned him enough money to support his tuition and living expenses and continue supporting his mother and father. Drug trafficking offered him more lucrative opportunities he opined. The pre-sentence report reveals he quit a legitimate job at a grocery

store, as he “looked ridiculous driving up to a low paying job in a brand new Lincoln.” [8] According to the defendant he moved to western Canada after being charged with these offences, has established a newlifestyle away from drugs, stabilized himself and he says he has matured. He describes himself in a development and consulting businessas a “legit millionaire.” Mr. Wray also has an interest in opening a gym. His partner in the development business has his own criminalhistory related to alcohol offences.

According to this partner the defendant is very ambitious and well-respected and described that “theyhave potential deals that should come to fruition soon.” The report does not elaborate what precisely the development business is. Hedescribed the defendant as “pretty broke” despite the defendant’s claim of being a millionaire. Mr. Wray now lives with a female partnerand her brother out West. She describes their financial situation as strained claiming that if he “goes to jail” she will not have sufficientmonies to pay her rent.

There are no reports of substance abuse or domestic violence and his partner and mother confirm this. Mr. Wraydoes not appear to suffer from alcohol or drug addiction but he has used performance enhancing substances in the past. Alcohol was afactor in a bar fight he had in 2011. [9] The Character/Behaviour portion of Mr. Wray’s pre-sentence report indicates he presents as self-assured and frank. Heaccepted responsibility, believes himself rehabilitated and is willing to make amends as “he has been giving back to the community.” According to the pre-sentence report author, Mr.

Wray engaged in a lengthy diatribe about potential incarceration and opined thatplacing him in jail does not do the community any good and that “mandatory minimums are a waste of tax dollars.” [10] Mr. Wray is physically active, no history of mental health or suicidal behaviour, thinks that the basis of his offendingbehaviour is that “he believed himself smarter than everyone at the time” and claims that he is actually addicted to work.

Apparently ingiving back to the community, he is involved with a community softball league, supports fundraising through the Canadian MilitaryVeterans and created an evacuation camp during the Fort McMurray fires. He also teaches at the Southern Alberta Institute ofTechnology where he educates students about industry innovations to eliminate carbon emissions. His response to one of his previousorders of probation appeared to be positive although his record notes a previous breach. According to the pre-sentence report author,Mr.

Wray appears to have a strong work ethic, appears to presently avoid criminality, his companions do not appear to be of concern butaccording to the pre-sentence report he is exaggerative of his financial status. A period of community supervision is considered suitable. [11] Mr. Mireault’s pre-sentence report findings paint a very different picture of different circumstances. He was older at thetime of his offence of conspiracy (32 years), raised by his mother who he clearly respects and a physically and emotionally abusivefather.

He was employed in the oil industry out West for seven years where he was the victim of an assault and stabbed numeroustimes. As a child he was diagnosed with ADHD and a learning disability. He engaged in disputes with his teachers and classmates whilein high school. He is employed as a welder and works at an automation manufacturing facility now in Windsor. He is a medicalmarijuana user and has abused alcohol to treat physical and mental problems as a result of being assaulted which include sleep apnea andpost-traumatic stress disorder. [12] As for analyzing Mr.

Mireault’s character and behaviour, his pre-sentence report reveals that he is polite andforthcoming; he reported that he was associating with a negative peer group at the time of this offence and he was arranging a “meet andgreet” between two people for the sale of marijuana. He described himself as going through a bad patch and he was desperate for moneyat the time of his offence. He advised that he saw the “conspiracy” as an opportunity to make “easy money.” He is described asremorseful. He appears to appreciate he made a poor decision to be the middle person in a drug exchange.

Overall, there do not appearto be any areas of risk or need for Mr. Mireault at this time, according to the pre-sentence report. He is described as suitable forcommunity supervision. [13] He too has a record of criminal activity. In 2005 he was convicted of a firearm storage offence resulting in a fine andprobation and firearms prohibition order. He also received fines for unlawful possession of a credit card and a failure to appear. He hasno previous drug convictions. [14] At this hearing, the Crown seeks an order of 15 months custody less a day for Mr. Mireault and a period of two years lessa day for Mr.

Wray together with a number of ancillary orders. The Crown maintains that these defendants were part of a large scaledrug trafficking operation and that deterrence and denunciation are important objectives with their sentencing. The Crown acknowledgeshowever the defendants’ guilty pleas and the fact that Mr. Mireault is an admitted marijuana user. The Crown also distinguishes Mr.Mireault’s antecedents from Mr. Wray. Mr. Wray, for example, the Crown asserts is an admitted drug trafficker. Mr. Mireault is not.

The Crown argues however, that what is aggravating about this offence is that the defendants’ activity was planned and deliberate andfinancially motivated, involving a larger quantity of marijuana. The Crown concedes that Mr. Mireault has matured since the time of hisoffence. [15] As for Mr. Wray the Crown asserts that his arrogance obscures what is a serious lack of awareness about his actions andbehaviour. His self-claims of rehabilitation and financial successes are largely uncorroborated and unverified says the Crown. TheCrown also seeks an elevated sentence for Mr.

Wray due to his more extensive involvement with Mr. Amante and the drug operation hewas running. [16] The defence maintains that neither Mr. Wray nor Mr. Mireault were the source of the marijuana involved in this offencenor did they receive any actual funds in connection with their involvement. The defence asserts that with this type of offence and itsresulting sentencing that the “landscape” has changed dramatically, arguing that marijuana will now be “trafficked” by the governmentdue to proposed legislative changes recently announced by the Federal government.

The defence argues that an appropriate sentence forboth offenders is either a fine and probation or a fine with custody at no more than 90 days so that their sentences can be servedintermittently and neither offender will lose their job. Under the previous regime of conditional sentences the defence claims that bothMr. Wray and Mr. Mireault would have been the subject of conditional sentence orders. [17] The Crown relies on the following cases with respect to this sentencing. R. v. MacDiarmid (2003), (ON CA), 177 O.A.C. 33 (O.C.A.); R. v. Cavan (1999), (ON CA), 139 C.C.C. (3d) 449 (O.C.A.); R. v.

Nguyen(2004), O,.J. No. 6102 (O.C.J.) aff’d on appeal [2006] O.J. No. 796 (O.C.A.); R. v. Lister, [2003] B.C.J. NO. 1078 (B.C.C.A.); R. v.Nickerson, 1997 CarswellMan 503 (Man.C.A.); R. v. Pellerin, [1995] O.J. No. 4166 (Ont.Gen.Div) aff’d. on appeal 1996 CarswellOnt

478 (O.C.A.); R. v. Purkis, 2009 ONCA 872; R. v. Field, [2013] N.S.J. No. 330 ((N.S.P.C.); R. v. Pham, an unreported decision ofJustice C.D. Andersen of Ontario Court of Justice at Brockville December 17, 2014 aff’d. on appeal 2016 ONCA 258; R. v. Bentley,2017 ONCA 982; R. v. Caporale, unreported reasons for judgment of Justice G. King, Superior Court of Justice at Windsor, April 14,2016. [18] The defence relies on the following decisions: R. v. Shine, unreported decision of Justice J. George of Ontario Court ofJustice at London, Ontario April 6, 2016; R. v. Worsley, an unreported decision of Justice R.

Raikes of Superior Court of Justice atSarnia, January 4, 2016; R. v. Herta, [2016] O.J. No. 5029 (Ont. S.C.); R. v. Minnis, an unreported decision of Justice M. Rawlins ofOntario Court of Justice at Windsor, March 26, 2012; R. v. Morris, [2016] O.J. No. 3174 (Ont. S.C.); R. v. Neary, [2016] S.J. No. 368(Sask. Q.B.); R. v. Zhou, 2016 ONSC 3233 (Ont. S.C.); R. v. Stevens, an unreported decision of Justice P. Hennessy of Superior Court ofJustice at Sudbury February 18, 2009 and February 25, 2009; R. v. Mayers, [2014] O.J. No. 1598 (O.C.J.); R. v. Gorcsi, [2011] O.J. No.4862 (O.C.J. ); R. v.

Emonts, 2011 ONCJ 544 9 (O.C.J.); R. v. Jones, [2015] O.J. No. 3756 (O.C.J.); R. v. Andriano, [2006] O.J. No. 826(O.C.J.); R. v. Giulioni, (NLSC); R. v. Wood, [2005] S.J. No. 453 (Sask. Q.B.); R. v. Gerow, [2006] B.C.J. No. 3006(B.C.P.C); R. v. Bao, unreported decision of Justice F. O’Donnell of Ontario Court of Justice at St. Catharines, Ontario March 2, 2018. [19] As one can see from the listing of cases a veritable boatload of authorities was filed with the Court. A few involveconspiracy charges to trafficking in marijuana.

They all reflect a broad range of approaches and sentences relating to marijuana offencesincluding conspiracy to traffic, possession for the purposes of trafficking, trafficking and production/cultivation of marijuana. As theSupreme Court has said in R. v.

M.(C.A.) (1996), (SCC), 105 C.C.C. (3d) 327 “the search for a single appropriatesentence for a similar offender and similar crime will frequently be a fruitless exercise of academic abstraction.” [20] A review of the cases reflects that sentences imposed have ranged from suspended sentences for social traffickers(Morris) or commercial weight traffickers (Neary), large fines (Worsley) or short terms of custody (Minnis, Shine, Zhou, Stevens andMayers) and when it was available, conditional sentence orders (Gorsci, Emonts, Jones, Adriano, Giulioni, Wood and Gerow).

A reviewof the cases reflects that factors include quantity and quality of marijuana involved, the nature of the operation (i.e. personal use or thecommercial gain and profit), whether the sentencing occurred following plea or trial/preliminary hearing or pursuant to joint submission,youthful or first time offender status, immigration consequences and the personal circumstances of each offender (i.e. financial ruin,mental health, childcare consequences etc.).

Other factors impacting sentencing have included passage of the Safe Streets andCommunities Act, SC 2012 C.1 which came into force and effected amendments to s. 742.1(

c) and (

d) of the Criminal Code, RSC 1985,C.46 with elimination of the conditional sentence options and jurisprudence on the constitutionality of mandatory minimum sentences. [21] Justice O’Donnell’s 2018 decision in Bao was referred to by defence as authority for the proposition that sentencing fortrafficking and possession for purposes of trafficking in marijuana are declining especially with the prospect of reform on the horizon. Frankly, I do not find support for this argument in Bao.

What Bao does represent is a careful balancing of the many sentencing factorsunder consideration including the comment that “members of the public are not free to select which laws they wish to obey, even withthe prospect of reform on the horizon.” See R. v. Strong, 2017 ONSC 3162; R. v. Tran, 2016 ONSC 3225. [22] The facts in Bao show that the accused was found guilty after trial of being in possession for the purposes of traffickingwhen his van was stopped after his breach of a police roadblock containing 169 pounds of marijuana.

His pre-sentence report waspositive; his criminal record was dated, including a conviction some 11 years earlier for simple possession of marijuana. His role in thepossession for purposes of trafficking offence was unresolved; all the judge could conclude was that he was driving the van with themarijuana inside it. As for the claim of being in possession of 169 pounds of marijuana, the Court found that they could not bepersuaded with any precision that it amounted to actually more than 40 pounds.

Immigration consequences were factored as a sentenceexceeding six months would have resulted in serious implications for the defendant’s wife, children, family and three sisters. The Courtmade it clear that reform on the horizon for simple marijuana possession was not a factor for consideration and that deterrence anddenunciation were the primary objectives in what was described as an activity that resulted in a criminal accumulation of wealth. [23] In Bao the Crown sought a 12 month sentence.

In the end result, the Court imposed a 90 day sentence to be servedintermittently, three years’ probation with 240 hours of community service, a $5,000 victim fine surcharge that the judge found would“sting” financially and other collateral orders. The Court noted that cannabis trafficking is a profit-driven venture which can still causesignificant and even permanent damage when used by teenagers; it posited that an unregulated market is not likely to concern itself withthe age of its customers. The Court also factored the amount of marijuana seized, a positive pre-sentence report, Mr.

Bao’s specific rolein the transaction and the issue of immigration consequences. See R. v. Pham, 2013 SCC 15. In the end the Court said that Mr. Baomust be sentenced in light of the law as it is – not what the law will be “which arguably connects the regulation of cannabis in Canadafrom purely criminal law model to a model with many of the characteristics of the alcohol and tobacco regulation.” See p. 11 of Bao. [24] The cases referred to by the Crown also merit detailed analysis. Cavan however, was decided in 1999 prior to the releaseof R. v.

Proulx, 2000 SCC 5 , [2000] 1 S.C.R. 61 and the conditional sentence regime. In Cavan, the Ontario Court of Appealconfirmed the trial judge’s order of 15 months’ incarceration for trafficking in four kilos or nine pounds of hashish after trial and rejecteda conditional sentence order. Each defendant in Cavan had no criminal record and the Court found the quantity and the value of the drugwas well above street level. Their offence was considered purely a commercial venture.

In Pellerin, the offender was up on possessionfor purposes of trafficking charges for a second time following imposition of a conditional sentence order. What is important in Pellerinis the statement or finding by the trial judge that “the general jurisprudence with respect to sentencing in drug cases indicates that in theabsence of exceptional circumstances, a period of incarceration should generally be imposed where trafficking or possession for purposeof trafficking is involved. See para 5 of Pellerin.

General deterrence objectives prevailed and a term of two years less a day wasordered. [25] In Field, the offender was charged with possession for the purposes of trafficking in marijuana and conspiracy to traffic incocaine. At the time of commission of these offences, the accused was on release conditions for other drug charges and had a priorsimple drug possession charge. The defendant was a drug supplier who sold to a distributor who then sold the drugs to purchasers forpersonal use and further sale.

He was not the “middleman” and yet his rehabilitation prospects were good and he did not try to minimizeor justify his actions. Considering general and specific deterrence and totality principles, he was given five years custody on the drugconspiracy charges, five years concurrent on the cocaine drug charges (1.404 kgs. and 147 grams) and four years on possession for

purposes of trafficking (4.995 kgs.) of marijuana in excess of three kilograms. His stash house also revealed drug paraphernalia such as a hydraulic press, cutting agents, digital scales, baking soda, plastic bags etc. The Court noted the harm done to by traffickers to community and addicts when their activity maintains or even worsens addictions and its resultant impact on family and friends. [ 26 ] In MacDiarmid , a charge of counselling to commit the indictable offence of trafficking with 16 grams of marijuana where the drugs were for personal use resulted in six months’ custody.

MacDiarmid is a post Proulx decision by the Court of Appeal. The Court of Appeal reduced the trial judge’s order of two years less a day to six months custody saying the appropriate range was 6 to 12 months incarceration given that the drug was marijuana, the quantity was 16 grams only and the drugs were for the accused’s personal use. In Nguyen , the offender was found guilty of conspiracy to traffic in marijuana. He arranged to sell marijuana in amounts that varied from ounces to pounds and was described as the middle-man.

He had an unrelated record and there was no expression of remorse which affected his prospects for rehabilitation. He was sentenced to nine months’ custody with two years’ probation. Nguyen stands for the proposition that a lack of remorse was appropriate for sentencing considerations. He was not a casual trafficker dealing in grams but pounds the Court found. In Lister , possession for purposes of trafficking in 30 pounds of marijuana yielding a street value of $75,000.00 resulted in a sentence of nine months’ incarceration.

The offender had a prior criminal record and had attempted to “import” the drugs from one province to another. In Nickerson , a 1997 decision, a repeat drug offender received a sentence of 18 months relating to possession for the purposes of trafficking in 25 pounds of marijuana with a street value of around $170,000.00. [ 27 ] Herta was referred to by the defence as indicating the “changing tide” where Justice Carey mused over whether Canada’s changing attitude towards marijuana use with its announced intention to legislate marijuana possession and pondered over its impact on the sentence he was to impose.

His Honour noted the psychoactive features of marijuana which cause health issues and the criminality associated with its illegal sale and purchase. Mr. Herta was on probation during the commission of his offence which was a charge of trafficking in 10 kilograms of marijuana in his car and half a kilogram from his house. He had a criminal record for trafficking and was on probation at the time of his offence. He was addicted to marijuana and had a problem with prescription drugs. His opportunities for rehabilitation however were good.

In Herta , the defendant was sentenced on two counts of trafficking to a total period of nine months custody with two years’ probation and collateral orders. Mr. Herta’s trafficking was described as “small level” and took place from his house. [ 28 ] One case not referred to by either Crown or defence but referenced in Bao is R. v. Houang , 2012 ONSC 995 aff’d 2013 ONCA 30 .

The Ontario Court of Appeal confirmed the trial judge’s sentence of nine months’ “real” custody when the car the accused was driving was stopped on a highway containing “raw marijuana.” The accused’s motive for trafficking was to obtain money for his daughter’s eye injury. He was financially strapped, unable to work due to child care responsibilities and his wife had died leaving him the single parent of three children, aged 6, 11 and 15 years. Mr.

Hoang was a repeat offender, had previously received a conditional sentence for a similar drug offence and the marijuana in question had a street value of $100,000.00. [ 29 ] Other direction is derived from R. v. Pham , an unreported decision of Justice C.D. Anderson of the Ontario Court of Justice made December 17 2014 at Brockville, Ontario. Pham was affirmed on appeal by the Court of Appeal at 2016 ONCA 258 and the trial judge’s sentence of six month’s custody order was reaffirmed. In Pham the accused chose to deliver 48 pounds of marijuana to Toronto in exchange for the sum of $5,000.00.

The trial court had considered the facts at trial, the quantity involved and the motive of fast and easy money. The Court of Appeal supported the trial judge’s rejection of a conditional sentence. There was no allegation of conspiracy in Pham but the Court says at p. 7 of the ruling that sentences imposed must be sufficient to provide a deterrent to the large sums of easy money available through involvement in the drug trade. In Pham the accused I would note was a transporter or courier only and the Crown sought a custodial sentence of 6 to 15 months. [ 30 ] In R. v.

Bentley , 2017 ONCA 982 , after plea the defendant was convicted of production of marijuana and fraud by consuming electricity with a grow operation at a rental house. Police located 3,618 marijuana plants and 7 pounds of processed marijuana. The accused had a dated but related offence for production of a

Schedule II substance for which he was provided a conditional discharge. On appeal the Appeal Court imposed an 18 month sentence but stayed the execution of sentence at the time of rendering the appeal decision given the progress demonstrated by the accused and health concerns. The Court expressly rejected the trial judge’s 90 day intermittent sentence calling it unfit given the high number of plants seized, the antecedents of the respondent and pre- existing sentencing jurisprudence.

As indicated earlier, the Court expressly rejected the prospect of reform on the horizon as entitling the sentencing judge to disregard the rule of law as he had suggested that such reforms “cut the legs out from under all the traditional sentencing laws in the area.” See para 6 of Bentley . [ 31 ] The facts reveal that both Mr. Wray and Mr. Mireault were involved in a conspiracy to traffic in marijuana. Both were engaged in this entrepreneurship for different reasons. The facts reveal that Mr. Mireault was the “middleman” to facilitate a drug deal. He acknowledges so himself in his pre-sentence report.

Middlemen make trafficking possible. Part of his motivation is that he abuses alcohol and marijuana in order to deal with a previous vicious assault upon him. He is a welder by trade but at the time of this offence he was looking for easy money and financially strapped. He acknowledges his foolishness and has matured since this incident. He was abused as a child and as he put it, he was at a bad stage in his life, when he agreed to participate in the conspiracy. Defence asserts that he received no monies for his

part in the transaction. There is no evidence supporting this submission. I simply have no evidence as to what financial reward his participation provided but money is a powerful inducement to criminal and illegal behaviour. Mr. Mireault has a criminal record for unrelated offences but no drug offences. He was in his 30’s when this offence was committed. He is described as remorseful and having turned his life around since these events now working as a welder and realizing the error of his ways. [ 32 ] Mr. Wray’s story is a complicated one marked with what appears to be grandiose claims and boasts.

He describes himself now as residing out West as a legitimate millionaire waiting to start up a development company however, no one could precisely elaborate what was being “developed.” He is interested in starting up a gym. His partner out West says he’s broke. The conspiracy to traffic before me arose from big money that he owed the ringleader of a major drug operation and what appeared to be Mr. Wray’s theft of the ringleader’s three pounds of marijuana. The wiretaps reveal his extensive involvement in the conspiracy to purchase marijuana with Mr. Mireault’s assistance. They also reveal Mr.

Wray’s role with other accused attempting to rip off Mr. Mireault. What generated this conspiracy was the fact that Mr. Wray was being threatened by the ringleader, Mr. Amante. The facts agreed to and read in by the Crown reveal his involvement in Mr. Amante’s operation – eventually revealing the purchase and sale of one kilogram of cocaine. I would note I have considered these facts as aggravating factors only as Mr. Wray has not been charged before me on the larger

conspiracy with Mr. Amante. [33] Mr. Wray describes himself as a successful past drug trafficker, living a lavish lifestyle, supporting his family and all thewhile still attending and nearly completing university. He is clearly very bright and talented. He says that he accepts responsibility, butI am not entirely convinced so merely on his say so. Much of what he claims to have achieved out West is largely uncorroborated. Hehas strong opinions regarding the use of custody in criminal sentencing for drug offenders and a cavalier attitude about mandatoryminimum sentences.

He thinks they are a waste of money and resources. [34] At the same time while on release Mr. Wray appears to be have participated in a number of community activities andcharities including assistance to persons affected by the Fort McMurray fires. How much of his self-reporting is accurate and dependableremains to be seen. He has an unrelated criminal record, was a youthful offender at the time of these offences and considers himselfrehabilitated. At the time of his arrest he was found in possession of a sufficient quantity of marijuana that it constitutes possession forthe purposes of trafficking.

He had on him 19 pounds or 8.75 kilograms of marijuana with the intention to participate in its sales so thathe could pay back Mr. Amante the $130,000 he owed him. There is considerable debate over what that amount of marijuana is worth –ranging from $36,000 to $80,000. One thing is clear, he was intending to make enough profit from its sale to satisfy his debt to Mr.Amante. [35] The facts before me do not reveal what type or quality of marijuana was seized. Neither Messrs. Wray nor Mireaultappear to be the actual source of the marijuana in question.

They are both clearly actors in a marijuana trafficking organization with Mr.Wray’s role higher up the ladder of actors and players in this operation. They both have their own motives and justifications for theillicit commercial activity they were involved in. The facts reveal that threats were exchanged and there is clearly no honour amongthieves as the saying goes; Mr. Wray intended to “rip off” Mr. Mireault during their exchange. This generated more threats from Mr.Mireault to Mr. Wray when he realized he had been “shorted” by Mr.

Wray. [36] There is no question that the activities of both these persons affect the Windsor community and its addicts, their familiesand friends. The facts reveal that Mr. Mireault was financially strapped and Mr. Wray appeared to be motivated by a lavish lifestyle,financial success with this illicit activity and a sense that he was smarter than everyone else around him.

Both players reveal awillingness to become involved with amounts of drugs with a view to financial betterment. [37] At the time these offences were committed the “landscape” relating to a dramatically different approach to simplemarijuana possession was not even considered. As Justice O’Donnell has remarked, as of 2014 Messrs. Wray and Mireault committedtheir offences under a federal government that took an ever-more-strict approach to street drugs.

Quoting from p. 11 of JusticeO’Donnell’s ruling in Bao: “It…bears noting that one of the express rationales for changing the way in which cannabis is regulated in Canada is to deprive criminalorganizations of the massive revenue streams they have derived over the years from cannabis sales. However limited his role may havebeen, Mr. Bao was a participant in that very activity of criminal accumulation of wealth.” [38] The same can be said for Messrs. Wray and Mireault. How much wealth they accumulated remains to be seen, however,Mr. Wray boasts of his accomplishments.

Each of these offenders must be punished with a primary view to denunciation and deterrenceand to use the language in Pham and Bao, sentences imposed must be sufficient to provide a deterrent to the large sums of easy moneyavailable through involvement in the drug trade. Moreover, the need for deterrence and denunciation justifies the imposition of a jailsentence, so long as sentencing objectives are factored and a just and fit sentence is achieved. [39] My

summary and analysis of the “boatload” of cases reflects that there is little in the way of specific direction to addressthe issue of a fit and proper sentence as sentencing of course is an individualized process. Each case can be distinguished on its ownmerits and each offender presents with their own peculiarities, attributes and circumstances. Proportionality is the most importantobjective in sentencing. Proportionality balances the moral blameworthiness or degree of responsibility of an individual with the gravityof an offence so that in the end a fit and just sentence is imposed.

Other objectives include specific and general deterrence, retribution,parity, restraint in incarceration, mitigating and aggravating circumstances, rehabilitation prospects and restorative objectives.

Section 10of the CDSA and Sections 718, 718.1 and 718.2 of the Criminal Code must be considered. All of these objectives and principles must beweighed and balanced. In the end the fundamental purpose of sentencing as set out in

section 718 is to: “contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society byimposing just sanctions that have one or more of the following objectives…” [40] Although marijuana is considered a “soft” drug it still contains psychoactive features that cause health issues and obviouscriminality associated with its sale. Illicit conspiracies to develop its distribution and sales are not a victimless crime.

Any judge sittingin this criminal court or presiding over family and child protection proceedings as I have, sees its ravages day after day for those whowould be more severely compromised or addicted to its affects, and its impact on public health and resulting illicit criminality. In R. v.Dylan South, 2017 MBPC 3 , the Court said the following of paragraph 20 of the judgment: “There is a reason Parliament doesn’t want individuals selling substances to its citizens unless those drugs are controlled by the state.

The premise is that society has a strong interest in knowing that what they are ingesting is safe, but in the short and long term, or at thevery least [Canadians] can make themselves aware of potential harm and make a decision based on the known side effects.” [41] For Mr. Mireault the mitigating factors are that he provided a guilty plea, this is his first drug offence, his involvement inthe chain of command appears to be limited to being the “middleman” but nonetheless he was motivated by financial gain and there wasplanning and deliberation with the conspiracy.

He is remorseful, his background and youth were marred with abuse and an assault thatled him to abuse alcohol and marijuana and seek relief for pain and emotional difficulties. He has matured since this offence and appearsto be leading a better life and lifestyle with good prospects for rehabilitation and restoration as an active member of society. I accept thathis expressions of remorse are genuine. The aggravating features are the facts and offence of conspiracy itself, his specific

part in theconspiracy, the harm that his involvement generates, his criminal antecedents and his moral culpability.

[ 42 ] For Mr. Wray, the mitigating factors are that he provided a guilty plea, this is his first drug offence, he expresses responsibility, he was a very youthful offender at the time of his offences, he appears to be improving his lifestyle with a new business enterprise out West with community participation and support, he has the ability, means and talent to be rehabilitated and he expresses that he wants to be a “legit” millionaire through hard work. I have serious reservation with the genuineness of his remorse when one considers his cavalier attitude about the law and his boasts and claims.

He has not re-offended though. Aggravating features include that he has plead guilty to two serious drug offences, namely conspiracy to traffic in a

Schedule II substance, namely marijuana and possession for the purposes of trafficking in marijuana, the amount of marijuana involved, the facts of his involvement in the drug operation itself, his self-admitted lifestyle of drug trafficking, his participation in this venture for financial gain and profit, the degree of planning involved and what appears to be his limited appreciation of the harm and consequences that illicit conspiracies and drug trafficking creates.

I consider his moral culpability high; however, this is tempered by his young age at the time of his offences and his consequent lack of insight and reflection. [ 43 ] Messrs. Wray and Mireault and other like offenders who conspire to traffic in marijuana and in the case of Mr. Mireault who possess sufficient quantities of marijuana for the purposes of trafficking, must suffer the consequences of their troubling choices. Sentencing objectives must serve as an important deterrent to them and others who want to engage in the same behaviours.

Parliament’s decision to reduce the criminal sanctions involved with possession of minor and insignificant quantities of marijuana do not in any way justify unregulated and unsafe drug operations and support illicit revenue schemes. There is a need to deter, denounce and promote a sense of responsibility and acknowledgement of the harm done, if not to specific victims, to the community at large. [ 44 ] In the case of Mr. Mireault, I think this is a proper case for a period of custody for six months followed by two years’ probation in connection with the conspiracy count.

This period of time reflects his guilty plea, his particular role in this offence, the drug in question (i.e. marijuana), his personal circumstances and antecedents, his efforts at rehabilitation, that he has not re-offended, is now gainfully employed but at the same time a period of real custody should act as a powerful deterrent to others that there is no profit and no gain to be achieved in this type of mutual criminal objective.

I do not believe that a hefty fine in the amount proposed by defense, namely $10,000.00 acts as to deter or denounce others who would seek to profit through illegal enterprises and the illicit trade in drugs. A period of custody is required for all of the reasons I have previously elaborated. [ 45 ] Mr. Wray’s circumstances are different from Mr. Mireault’s. First are the facts of his involvement in the conspiracy. He was attempting to negotiate the purchase and sale of marijuana as a result of his involvement with Mr. Amante’s operation.

The fact that he was being threatened does not diminish his moral culpability that he engaged in a criminal conspiracy to traffic in marijuana. He requires time for rehabilitation and reflection on his poor choices. He is to be credited with his guilty plea and the tentative efforts at improving his lifestyle after moving out West, but I am not satisfied that such efforts are so herculean that they displace the primary objective of sentencing for those who would participate in illicit and illegal enterprises and then possess sufficient quantities of marijuana that would be capable of trafficking.

Deterrence and denunciation objectives prevail but in crafting this sentence I am attempting to balance the law as it was at the time of the commission of these offences with the new landscape now before me that contains many characteristics found in alcohol and tobacco regulation. Second, as for consideration of a substantial fine – it simply does not and will not satisfy the objectives of a fit and just sentence consistent with traditional sentencing principles of deterrence and denunciation which are required in these circumstances. [ 46 ] On the count of conspiracy, Mr.

Wray shall serve a period of custody of nine months followed by two years’ probation. This recognizes his particular

part in the conspiracy. There is justification for an enhanced period of custody given his involvement which is different from Mr. Mireault’s. He shall also serve a period of custody for four months in connection with the possession charges. These periods of custody are to be served concurrently so that principles of totality, restraint in incarceration and rehabilitation objectives can be balanced and satisfied with objectives of deterrence, denunciation and promote a sense of responsibility in him.

I have considered his guilty plea, his youthful indiscretion, his immaturity and impulsivity at the time of these offences, the time that is required for him to engage in rehabilitative efforts and restorative objectives AND the powerful message that the law will not tolerate nor condone illicit mutual criminal objectives by way of conspiracies to traffic in marijuana nor condone its illegal possession for financial gain and profit. Hopefully this period of time will deter him from future endeavours of this sort.

I am also mindful that combined with this period of custody is the forfeiture of his 2007 GMC Yukon Vehicle to Her Majesty the Queen in Right of Canada. [ 47 ] Terms of the order of probation shall include: Adam Wray 1. Report as directed and in any event, within two working days of release; 2. Not to associate or communicate directly or indirectly with the co-accused: Matthew Athanasopoulos, Marc Mireault, Haysem Saleh, Rabih Saleh, Michael Jones, Anthony Amante, Kevin Lauzon, Kyle Greening and Frank Molle; 3.

Not to purchase, possess or consume any non-medically prescribed drugs, except with a valid prescription; 4. To sign all releases of information so that probation can monitor his progress and he shall provide proof of attendance at all programs, compliance with conditions etc., that he is directed to attend/complete; 5. Attend for counselling, rehabilitation and treatment as directed by probation officer. Marc Mireault 1. Report as directed and in any event, within two working days of release; 2.

Not to associate or communicate directly or indirectly with the co-accused: Matthew Athanasopoulos, Adam Wray, Haysem Saleh, Rabih Saleh, Michael Jones, Anthony Amante, Kevin Lauzon, Kyle Greening and Frank Molle; 3. Not to purchase, possess or consume any non-medically prescribed drugs, except with a valid prescription;

4. To sign all releases of information so that probation can monitor his progress and he shall provide proof of attendance at all programs, compliance with conditions etc., that he is directed to attend/complete. 5. Attend for counselling, rehabilitation and treatment as directed by probation officer. [ 48 ] A s. 109 prohibition order for 10 years shall issue on all counts for Messrs. Wray and Mireault; [ 49 ] DNA orders shall issue on all counts for Messrs. Wray and Mireault; [ 50 ] A victim fine surcharge of $200.00 shall issue on all counts. [ 51 ] Under

section 16 of the Controlled Drugs and Substances Act orders of forfeiture shall issue forfeiting to Her Majesty the following property of Mr. Wray: 1. $50.00 CND currency 2. White Apple Iphone 3. Two Blackberry Curves 4. Blackberry Bold 5. 2007 GMC Yukon vehicle Released: June 28, 2018 Original Signed and Released Justice Sharman Bondy