R. v. Saker, 2022 BCPC 322

Citation: R. v. Saker 2022 BCPC 322 Date: 20220805 File No: 87719-1 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ALFRED JUNIOR SAKER BAN ON PUBLICATION – s. 539(1) C.C.C. ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R. LAMPERSON Counsel for the Crown: S. Bodnarek Counsel for the Accused: K. Waugh, K. Kerr-Donohue Place of Hearing: Nanaimo, B.C. Date of Hearing: August 3, 2022 Date of Sentence: August 5, 2022

[ 1 ] THE COURT: I understand that Mr. Saker has hoped for a prompt decision on his sentencing following the submissions that I heard on Wednesday. I am prepared to give an oral decision this morning and will do so momentarily. In the event that a transcript of my decision is ordered, I reserve the right to edit the transcript for grammar and syntax. I may provide a written decision in due course. If so, I may edit to some extent my oral decision.

However, I give my assurance that my decision as to the sentence will not change and the basis for my decision will not change. [ 2 ] Before the court for sentencing is Alfred Junior Saker. Mr. Saker pled guilty to two offences contrary to s. 5(2) of the Controlled Drugs and Substances Act , which he committed in Nanaimo, BC, on December 27, 2020. Both offences arise out of the same circumstances. The first offence, which is set out in Count 2 on Information 87719, is that he did possess a mixture of carfentanil and fentanyl for the purpose of trafficking.

The second offence, which is set out in Count 3 on the same information, is that he did possess a mixture of carfentanil, fentanyl, and methamphetamine for the purpose of trafficking. [ 3 ] Mr. Saker is 48 years of age, suffers from mental illness and addiction, and has no criminal record. The Crown seeks a jail sentence of four years to be served in a federal penitentiary.

The defence says this is a case with unique circumstances and submits that the court should impose a conditional sentence order for a period of 18 months up to two years less a day. [ 4 ] While there are now many sentencing decisions involving fentanyl, there are relatively few involving carfentanil. Counsel have not found a case such as the case before me in which carfentanil is possessed in trace amounts and mixed with other illicit drugs.

Counsel have advised the court that, unlike with fentanyl, there are no reported decisions which have set out a general range of sentence for trafficking in carfentanil or possessing carfentanil for the purpose of trafficking. [ 5 ] Counsel agreed that, in light of the decision in R. v. Chen , 2021 BCSC 697 , imposing a conditional sentence order is an option open to the court.

While acknowledging that, the Crown says that a conditional sentence order is not appropriate. [ 6 ] In determining the sentence to impose in this case, I will consider the circumstances of the offences, the impacts fentanyl and its analogues have on the community, the circumstances of the offender, the purpose and principles of sentencing contained in the Criminal Code and the CDSA , the aggravating and mitigating circumstances, and the case law provided. [ 7 ] I will now speak to the circumstances of the offences. [ 8 ] At approximately 9 p.m. on December 27, 2020, a police officer observed a vehicle driving somewhat erratically southbound on the Island Highway in Nanaimo.

The officer stopped the vehicle and found that the accused, Mr. Saker, was the driver and lone occupant. He was also the registered owner. The police officer made observations which caused him to believe that Mr. Saker's ability to drive may have been impaired by the consumption of drugs. In due course, Mr. Saker was tested by a drug recognition expert and failed. [ 9 ] In the course of the investigation, Mr. Saker was arrested and searched incidental to arrest. His vehicle was also searched.

In the course of the searches, the police located, among other things, about $1,100 in cash, two cellular phones, drug pipes, and suspected drugs. The drugs were tested and included cocaine and methamphetamine, in addition to drugs which were the subject of the two offences. [ 10 ] A container was found in Mr. Saker's left jacket pocket which held a mixture of fentanyl and carfentanil. The total weight was 27.9 grams. These drugs are the subject of Count 2. [ 11 ] A mixture of fentanyl and carfentanil and methamphetamine was found in another pocket. In total, that mixture weighed 4.8 grams.

These drugs are the subject of Count 3. [ 12 ] A qualitative and quantitative analysis was conducted of these drugs. The mixture weighing 27.19 grams was found to contain 2.5 percent fentanyl and 0.4 percent carfentanil. The balance included some amount of caffeine. The mixture totalling 4.8 grams was analyzed separately in two portions and was found to contain, in the first portion, 3.3 percent fentanyl and .08 percent carfentanil. The second portion was found to contain 2.9 percent fentanyl and again 0.08 percent carfentanil. [ 13 ] According to Mr.

Saker, he began selling drugs because he owed someone about $2,000 for drugs he had received but not yet paid for. He says he was told that he could sell the drugs for the person he owed the money to in order to pay off the drug debt or he would be beaten up. He says that he had only been selling drugs for a few days before he was arrested. He reports that he has not sold any drugs since the time he was arrested. There is no evidence to indicate otherwise. [ 14 ] According to the forensic psychology report prepared and provided in this case, Mr.

Saker told the psychologist that at the time he agreed to sell the drugs, he was not sleeping well, was not taking his prescribed oral medications, and was experiencing auditory hallucinations. [ 15 ] I will now speak about the impact of fentanyl and its analogues on the community. [ 16 ] On April 14, 2016, British Columbia's provincial medical officer declared a public health emergency in response to the rise of illicit drug overdoses and deaths.

Unfortunately, despite the efforts which have followed, the number of deaths caused by drug overdoses have continued to increase. [ 17 ] In this case, as it often does in cases involving fentanyl, the Crown relies on an expert report dated July 25, 2016, from Dr. James Kennedy. He is a physician with expertise in internal medicine, clinical pharmacology and toxicology. He states that fentanyl is a potent synthetic opioid drug with pharmacological effects that are similar to other opioids such as morphine, oxycodone, and heroin.

He notes that the difference between fentanyl and other common opiates is its high potency. It is about a hundred times more potent than morphine. Dr. Kennedy goes on to state that what is a lethal dose of fentanyl is highly variable and often unpredictable. [ 18 ] The Crown also provided the court with a Coroners Service report with respect to illicit drug toxicity deaths in BC for the period

January 1, 2012 to May 31, 2022. The report indicates that with the exception of 2018, during the 10-year period covered, that the number of deaths caused by illicit toxic drugs has continued to increase each year. The coroner's report also shows that for the period 2019 to 2022, 85.6 percent of the illicit drug toxicity deaths were caused by fentanyl and its analogues. [ 19 ] In its decision in R. v. Mann , found at 2018 BCCA 265 , the British Columbia Court of Appeal speaks of carfentanil. The court refers to expert evidence from a Sergeant Boechler.

The court notes that carfentanil is about a hundred times more potent than fentanyl, that its sole use appears to be as a large-animal tranquilizer, that there is no way to effectively and safely mix carfentanil for any sort of street-level distribution, and that a user of carfentanil will likely go into immediate overdose and require the administration of naloxone. [ 20 ] In the Mann case, Sergeant Boechler testified before the sentencing judge that Health Canada can detect carfentanil when it is represented at least at 0.05 percent of a substance, and that at that threshold detection point it is two and a half times the median lethal dose. [ 21 ] It follows that although the drugs which are the subject of the offences committed by Mr.

Saker contained only trace amounts of carfentanil, those drugs were very, very dangerous and could well have been lethal to any person who had taken them. [ 22 ] I will now speak about the circumstances of the offender. I will summarize the circumstances, relying on the information set out in the forensic psychological report dated March 3, 2022, and on the submissions of defence counsel. [ 23 ] Mr. Saker is 48 years old and has no criminal record. He was born in Edmonton on September 19, 1973. His parents broke up when he was very young.

His mother left his father because he was physically abusive and was stalking her. He moved with his mother to Burnaby when he was about three years old. He soon began living in foster care and group homes. He says that he lived in 22 different homes. He experienced emotional and physical abuse and neglect. He was also excluded from family activities. [ 24 ] He has never communicated with his father since his mother left his father. His mother died recently. [ 25 ] Mr. Saker began using drugs at a young age to escape his negative emotions and experiences.

He began using cannabis at age 15, cocaine at age 16 and methamphetamine in his forties. Methamphetamine, in most recent years, has been his drug of choice. [ 26 ] Mr. Saker did not do very well in school and was bullied. He dropped out after Grade 10. He later completed his high school equivalency. When in school, he believed he had attention deficit hyperactivity disorder, but it was not formally diagnosed until some years later. [ 27 ] Mr. Saker has a long history of mental illness. According to records from Island Health, he has been hospitalized several times for mental health concerns since the age of 16.

According to records from September 2021, his mental health is characterized by "a chronic psychotic disorder with comorbid major mood disorder characterized by affective instability, manic and depressive episodes." Records indicate that his current diagnoses are schizoaffective disorder, bipolar type, and severe stimulant disorder. He is prescribed and takes several medications for his mental health. One is by injection; the others he takes orally. [ 28 ] Interestingly, records from Island Health show that Mr.

Saker was admitted to hospital for a few days just over two weeks after committing the offences in question. He was admitted because he was experiencing increased auditory and command hallucinations. Medical records indicate that Mr. Saker has been diagnosed with ADHD and PTSD. The psychologist who authored the forensic report dated March 3, 2022, states that his current presentation is consistent with a diagnosis of PTSD. [ 29 ] Despite his difficulties, Mr. Saker has taken further education and has had a number of different jobs.

A few years ago, he completed some online college courses in the field of counselling and received a diploma in mental health studies. Since 2008, he has worked in various capacities as a community support worker for people with addictions and mental health difficulties. [ 30 ] According to records from Island Health, Mr. Saker has had difficulty retaining employment because of his mental health. Records show that he was often let go due to his symptoms of psychosis and depression. Mr.

Saker acknowledges that his addiction and tendency to become bored has also caused him difficulty maintaining employment. [ 31 ] Mr. Saker has been receiving Persons With Disability benefits for the past two to three years. He is interested in returning to work with people with addictions and mental health concerns, but does not know whether he will be able to do so with a criminal record. [ 32 ] For many years, Mr. Saker's drug of choice has been methamphetamine. He has attended residential treatment twice.

Most recently, on November 26, 2021, he completed a 60-day residential treatment program provided by Inner Visions Recovery Society in Maple Ridge, BC. His attendance is confirmed by a letter from the society. [ 33 ] While he found the treatment program to be beneficial, he was not able to remain abstinent of methamphetamine for very long afterwards. He has used methamphetamine off and on since. On a positive note, he reports that he has not used methamphetamine at all since mid-May 2022. [ 34 ] Mr. Saker presently has stable housing. He lives alone in an apartment in a subsidized housing building in Nanaimo.

Recently he began working as a food delivery driver for the business, [omitted for publication]. [ 35 ] Counsel for Mr. Saker provided the court with a letter dated August 1, 2022, from a registered psychiatric nurse with Island Health. The letter states that Mr. Saker is a current and active client of Nanaimo Mental Health and Substance Use Community Support Team where he receives treatment for schizophrenia and depression under the care of a psychiatrist, Dr. Wiggers. The letter also states that Mr.

Saker receives a long-acting injection of antipsychotic medication every 10 weeks and that he is compliant with all of his oral medications. The letter says that he has maintained his mental health stability for the last two years with the support of the team. [ 36 ] At the conclusion of the letter, the registered psychiatric nurse writes as follows:

It is our belief that jail time would be extremely detrimental to our client's mental health and we ask you to consider this upon sentencing. [ 37 ] I will now speak about the purpose and principles of sentencing. [ 38 ] The purpose and principles of sentencing are set out in ss. 718 to 718.2 of the Criminal Code , as well as in the CDSA . The purpose of sentencing is set out in 718, which reads as follows: 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

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

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

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

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [ 39 ]

Section 718.1 provides that: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 40 ] Pursuant to s. 718.2 , a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances. A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

An offender should not be deprived of liberty if less-restrictive sanctions may be appropriate in the circumstances, and all available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to victims or the community should be considered for all offenders with particular attention to the circumstances of Aboriginal offenders. [ 41 ] With respect to the principles of sentencing for offences under the Controlled Drugs and Substances Act , s. 10(1) reads as follows: 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. [ 42 ] I will now address the aggravating and mitigating factors. [ 43 ] First, the aggravating factors.

They are as follows: • The controlled substances which are the subject of the offences included mixed fentanyl and carfentanil. • The offences were committed during a declared public health emergency in response to the rise in illicit drug overdoses and deaths. • Prior to his arrest, the accused was driving a motor vehicle while under the influence of drugs and likely intoxicated by drugs. • Finally, the drugs possessed by the accused were varied in type and quite large in quantity. [ 44 ] I will now speak of mitigating factors.

They are as follows: • The accused has no prior criminal record. • The accused pled guilty to the offences following a preliminary inquiry. • The accused is very remorseful. • He suffers from mental illness and did so at the time he committed the offences. • The accused is a drug addict and, after being threatened, he committed the offences to earn money to pay off a drug debt. • Also, the accused had a difficult childhood and upbringing which included him living in over 20 different residences. [ 45 ] There are some other significant factors which may, strictly speaking, not qualify as true mitigating factors.

They are as follows: • The accused has not committed any further offences since he was arrested on December 27, 2020. • He recognizes and accepts that he has a drug addiction and has worked towards addressing it by attending for residential treatment and being actively involved with the Nanaimo Mental Health and Substance Use Community Support Team. • He recognizes and accepts that he suffers from mental illness.

• He is under the care of a psychiatrist as part of being a client of the Nanaimo Mental Health and Substance Use Community Support Team. • The accused is compliant with taking his prescribed medications and has been for a significant time now. • Also, he is presently employed and is interested if possible in returning to his work as a community support worker, helping others with addiction and mental health difficulties. [ 46 ] I will now speak of the case law. [ 47 ] Both Crown and defence counsel provided the court with several sentencing decisions. [ 48 ] The Crown provided the following cases: R. v.

Mann , 2018 BCCA 265 ; R. v. Tomczyk , 2019 BCSC 1313 ; R. v. Nelson , 2021 BCCA 192 . [ 49 ] The defence provided the following seven cases: R. v. Ali , 2022 BCPC 35 ; R. v. Ellis , 2021 BCPC 280 ; R. v. Flintroy , 2021 BCSC 1187 ; R. v. Hanson , 2021 BCPC 208 ; R. v. Hogan, 2022 BCPC 101 ; R. v. Howard , 2021 BCPC 167 ; and R. v. Webber , 2021 BCPC 296 . [ 50 ] I have reviewed and considered all of the cases provided by both the Crown and defence counsel.

As seems to be almost invariably the case, the decisions provided by counsel are somewhat helpful and provide some guidance, but are all distinguishable in one way or another from the case before the Court. [ 51 ] I will discuss the Crown's cases first. Like the case before me, all three of the cases relied upon by the Crown involved carfentanil. [ 52 ] In R. v. Mann , two brothers engaged in a joint enterprise that involved dial-a-dope drug trafficking in fentanyl and carfentanil. They were sentenced in Provincial Court in Abbotsford.

One brother, Karan-Jit, pled guilty to four offences, including an uttering a threat to cause death or bodily harm, occupying a vehicle knowing there was a non-restricted firearm in the vehicle, trafficking in fentanyl and heroin, and possession of fentanyl for the purpose of trafficking. [ 53 ] The other brother, Sarabjit, pled guilty to 12 offences, including six offences of trafficking in fentanyl and heroin, one offence of possession of fentanyl for the purpose of trafficking, one offence of trafficking in carfentanil, two offences of possession of carfentanil for the purpose of trafficking, one offence of possession of cocaine for the purpose of trafficking, and one offence for possession of a loaded restricted handgun. [ 54 ] The brothers were found to have used a mortar and pestle for mixing fentanyl with other substances.

Such crude mixing methods result in an uneven distribution of the fentanyl causing hotspots, significantly increasing the risk of death by overdose. The drugs sold by Karan-Jit on a particular day contained 14 percent fentanyl, a massively high concentration, far in excess of the ratio traffickers generally aim to achieve. The court notes that carfentanil is about a hundred times more potent than fentanyl. [ 55 ] The brothers' motivation for trafficking in drugs was to earn a large profit.

In a text message to an undercover officer posing as a buyer, Sarabjit stated, "I make more in a year than you [sic] whole life". [ 56 ] I will focus on Sarabjit because he was the one who was sentenced for offences involving carfentanil.

I note that his brother Karan-Jit was sentenced to four years' imprisonment concurrent on the two fentanyl offences. [ 57 ] Sarabjit was sentenced to concurrent sentences of four years' imprisonment on all seven counts relating to trafficking in fentanyl, and concurrent sentences of five years on the counts relating to trafficking in carfentanil and possessing carfentanil for the purpose of trafficking. The total sentence was eight years and it was reduced to seven years on application of the totality principle. [ 58 ] Both brothers appealed.

The Court of Appeal found that the sentences imposed upon the two brothers had not been shown to be demonstrably unfit, and accordingly upheld them. [ 59 ] I find that the Mann case is distinguishable from the case before me in that its circumstances are clearly more aggravated. [ 60 ] Unlike Mr. Saker, the Mann brothers did not suffer from mental illness and were motivated by large profits. They were not street-level traffickers as was Mr. Saker. They were involved in mixing fentanyl at very large concentrations with other substances for sale.

Accordingly, they were very aware of just how dangerous the drugs they mixed and sold were. Furthermore, they each possessed firearms. [ 61 ] The Court of Appeal specifically considered the sentencing of Sarabjit on the two carfentanil counts. At paragraph 73, the court noted that the appellant's counsel acknowledged in oral argument that the offence of trafficking in carfentanil is even more serious than the offence of trafficking in fentanyl.

The court stated: The fundamental principal of proportionality requires courts to craft sentences reflecting both the gravity of the offence committed and the moral blameworthiness of the offender . . . [Emphasis in original] [ 62 ] The court went on to state: . . . it is not surprising that the more serious of the offences committed by Sarabjit attracted a harsher penalty.

I see no error in principle in the judge's decision to distinguish, for sentencing purposes, between the offences involving carfentanil and those involving fentanyl. [ 63 ] I note again that Sarabjit was sentenced to four years for the offences of trafficking in fentanyl and to five years concurrent on the counts relating to trafficking in carfentanil and possessing carfentanil for the purpose of trafficking. I note that this equates to a difference

of 20 percent; that is, that the sentence imposed for the carfentanil offences were 20 percent higher than the sentences imposed on the fentanyl offences. [ 64 ] The second case relied upon by the Crown is Tomczyk . In that case, the accused was arrested following a few evenings of police surveillance, during which several dozen individuals, a number of whom were known drug users, entered and exited his motor home after brief periods of time. When Mr. Tomczyk was arrested, he had a total of 3.16 grams of carfentanil and 8.05 grams of methamphetamine in his possession.

These drugs had a street value of $310 and $640 respectively, depending on how they were sold. I note that while Mr. Tomczyk did possess carfentanil and methamphetamine, the quantities possessed are far lower than the quantities possessed by the accused before the court today. [ 65 ] At the time of sentencing, Mr. Tomczyk was almost 42 years old. He had had a difficult and turbulent upbringing. While there was some evidence that he had ADHD, he had no history of mental illness.

While he had used cocaine in the past, there was no evidence or suggestion that he suffered from any addiction at the time he committed the offences. Of significance is the fact that Mr. Tomczyk had an extensive criminal record including convictions for possession of a controlled substance, trafficking in scheduled substances, possession of a scheduled substance for the purpose of trafficking, and possession of narcotics.

In addition, he had convictions for assault, assault with a weapon, and uttering threats. [ 66 ] An additional aggravating factor in the Tomczyk case is that he admitted to continuing to sell drugs for a further year after he was arrested. In this case, Mr. Saker says that he had not sold drugs since he was arrested and there is no evidence to suggest otherwise. [ 67 ] In Tomczyk , Mr. Justice Voith considered earlier decisions of the BC Court of Appeal, including those of Mann , which I have referred to, R. v. Smith , found at 2017 BCCA and R. v. Lloyd , 2019 BCCA 128 .

He noted that the reason the courts have responded as they have to trafficking in fentanyl and carfentanil is because of the serious hazards associated with their use. [ 68 ] Justice Voith quoted from Smith , in which the Court of Appeal stated that denunciation and deterrence must generally be given primacy in sentencing in cases involving fentanyl, and suggested a normal range beginning at 18 months' imprisonment.

I note that the court in Smith did not specify the top end of the range, but said it might well exceed 36 months, depending on the circumstances, including whether the offender has a substantial record involving the sale of fentanyl. [ 69 ] Justice Voith noted that the Court of Appeal in Lloyd rejected the suggestion that the trial judge displayed "fentanyl hysteria" and found that the judge's concern about the fentanyl epidemic was well supported by the material. [ 70 ] Mr. Lloyd was convicted of several offences arising from a violent encounter with the police in which he pulled a knife.

He was found to be in possession of 25.7 grams of cocaine, 56.6 grams of methamphetamine, and 51.29 grams of heroin and fentanyl, for a total street value of $8,500. I believe the Crown counsel indicated that the street value of the drugs possessed by Mr. Saker were in the range of about $2,500 to $3,500. [ 71 ] Mr. Lloyd was 29 years of age and had a lengthy criminal record, including 10 convictions for possession for the purpose of trafficking. The judge found that there was no evidence to support Mr. Lloyd's assertion that he was an addict at the time he committed the offences.

The sentencing judge sentenced him to six years' jail for the offence of possessing heroin and fentanyl for the purpose of trafficking. [ 72 ] Mr. Lloyd appealed the six-year sentence. The Court of Appeal did not allow the appeal. At paragraph 45, the court stated: [45] In my view, the sentence imposed in this case is not demonstrably unfit. Appellate intervention is not justified. While at the higher end of the range, the sentence is within the range of sentences for similar offences and similar offenders. . . . [ 73 ] Before the sentencing judge, Mr.

Lloyd submitted that he did not know that the heroin he possessed contained fentanyl. I believe that was repeated before the Court of Appeal. The trial judge did not accept his assertion. The Court of Appeal stated as follows: [27] In my view, an offender assumes the risk of the presence of fentanyl when selling illicit drugs. I agree with the judge that whether Mr.

Lloyd specifically knew that the heroin he was selling contained fentanyl, either he should have known or he was wilfully blind and was willing to take the risk of selling fentanyl in the heroin. [ 74 ] I find that the Lloyd case is clearly distinguishable from Mr. Saker's case. The circumstances of the offence are considerably more serious and, most significantly, Mr. Lloyd had a very extensive criminal record which included 10 prior convictions for possession for the purpose of trafficking and convictions for violent-type offences. [ 75 ] The third and final case provided by the Crown is that of Nelson . Mr.

Nelson appealed an 11-year jail sentence imposed upon him on a charge of trafficking in carfentanil. Mr. Nelson, who at the time of sentencing was a 38-year-old father with no criminal record, engaged in a lengthy period of advertising and selling fentanyl and carfentanil over the dark web. [ 76 ] At the time of sentencing, his counsel described him as a "'functioning opioid addict' in that despite his opioid use, he enjoyed for the most part a productive work [life]".

The sentencing judge noted the following aggravating factors: • His trafficking was “highly sophisticated” in methodology and execution, and was international in scope; • He potentially exposed innocent Canada Post employees and his young son to “grievous harm”; • The purity and potency of the fentanyl and carfentanil sold by the appellant increased the likelihood of lethality; • His operations were ongoing, and “likely” extended to “about a year earlier” than the 2016–2017 period the appellant admitted to;

• He engaged in a highly lucrative criminal endeavour with indifference to human life and suffering; and • He was a mid-to-high level drug trafficker. [ 77 ] The sentencing judge noted certain mitigating circumstances, including Mr. Nelson's opioid addictions and efforts to overcome it, his relatively early guilty plea, his genuine remorse, and his good prospects of rehabilitation. [ 78 ] When considering Mr. Nelson's appeal to overturn the 11-year sentence, the Court of Appeal noted that while Mr.

Nelson's circumstances did not involve a related serious criminal record and/or the presence of weapons or other threats of violence, they did involve significant aggravating circumstances that were not present in many other cases. The court elaborated on the aggravating circumstances referred to by the sentencing judge and said that, and I will quote: • [Mr.

Nelson] [h]ad a long standing operation trafficking in substances that he knew could be lethal to his clients; • Knew full well the existence of an epidemic in British Columbia and elsewhere caused by fentanyl and carfentanil and nonetheless continued his operations; • Developed a sophisticated and intricate business model which used the dark web to promote and sell his products, resulting in sales of his illegal substances to customers not just in British Columbia, but elsewhere in Canada, the United States, Europe and Australia—that is, figuratively to the four corners of the world; • [He] [m]arketed his products using advertising which referred to same day delivery for orders received before 11:00 a.m. and included statements such as “one of the premium Fentanyl vendors in Western Canada”, “carfentanil … [w]hen used responsibly … is proven to be very safe”, and “we have the best stealth period”; • [Also, he] [o]perated his business from his home where he lived with his young son; . . . • [He] [e]xposed employees at Canada Post and courier companies to the potential danger of being exposed to these products. [ 79 ] The Court of Appeal concluded at paragraph 63 as follows: [63] When these facts are considered within the context of: • the deferential standard which applies to this ground of appeal; and • the appellant’s personal circumstances, and the other factors referred to by the judge in his Reasons; it cannot be concluded, in my opinion, that the 11-year sentence for trafficking in carfentanil was demonstrably unfit. [ 80 ] I find that the circumstances in the Nelson case are so different from those in Mr.

Saker's case that it does not provide any helpful guidance for me when determining the appropriate sentence to impose upon Mr. Saker. [ 81 ] I will now consider the cases relied upon by the defence. I note that of the seven cases provided, none involved carfentanil. All cases involved charges of possessing illicit drugs, including fentanyl, for the purpose of trafficking. I believe one case involved trafficking in fentanyl. [ 82 ] In six of the cases, the court imposed a conditional sentence order. In one case, the court imposed a suspended sentence. [ 83 ] I will refer briefly to each case.

The first case is that of Ali , a BC Provincial Court decision decided this year. In that case, the accused was sentenced for possession of fentanyl and cocaine for the purpose of trafficking. He had a bag which contained 66 packages of fentanyl with a total weight of 9.36 grams, 36 packages of cocaine with a total weight of 9.75 grams. He had $1,710 in cash. The value of the drugs at street level was estimated by an expert to be approximately $2,610.

I note that the street value of those drugs is close to the value of the drugs in the case before the court today. [ 84 ] The court considered the range set out in Smith of 18 months to 36 months or even higher, depending on the circumstances. The accused Ali was 31 years old. He was an addict.

He sold drugs for about three years over the period from 2014 to 2017. [ 85 ] One thing I note is that the judge in that case, Judge Jetté, stated that it is an error in principle to require offenders to demonstrate the existence of exceptional circumstances as a condition precedent to the imposition of a conditional sentence order. In that case, Judge Jetté imposed a 15-month conditional sentence order.

The order included most of the usual conditions, but also included house arrest for a period of 10 months, not to possess or consume alcohol, drugs, or other intoxicating substances, and attending counselling and programming. [ 86 ] The next case relied on by the defence is, I would say, a real outlier in this Province. It is the case of Ellis , a BC Provincial Court decision from 2021. In that case, Ms. Ellis, who was 43 years of age, pled guilty to one count of trafficking in fentanyl, one count of trafficking in fentanyl and cocaine. The Crown sought a three-year jail sentence.

It seems that the accused sold drugs with fentanyl in it multiple times to undercover police officers. [ 87 ] At the time of her arrest and search of her vehicle, the police found approximately $1,700 in cash, as well as a small amount of crack cocaine, a digital scale, and baggies. [ 88 ] Ms. Ellis was 43 years of age. She was an addict. The court notes that over the course of her life, Ms. Ellis had been sentenced and placed on numerous probation orders and conditional sentence orders and had received jail sentences ranging from three days to nine months. The court calculated that in the past, Ms.

Ellis had served approximately 240 days in custody in total.

[ 89 ] In the end, Judge Flewelling imposed a suspended sentence and placed Ms. Ellis on probation for a period of 12 months. My understanding is the Crown has appealed that decision. I understand that the appeal has been argued and that the Court of Appeal will be rendering a decision in due course. [ 90 ] The next case relied upon by the defence is that of Flintroy . Ms. Flintroy, along with her common law partner, Mr. Mak, were charged with offences relating to the possession of various drugs for the purpose of trafficking. Both entered guilty pleas.

In the end, while the court notes that within the timeframe between 2014 and early 2015, Ms. Flintroy possessed, for the purpose of trafficking, exceedingly large amounts of cocaine, methamphetamines, heroin, and fentanyl, she ended up pleading guilty to and being sentenced on counts that did not involve fentanyl. Of note, the court says that the total value of the drugs, the total street-level value of the drugs possessed by Ms. Flintroy and her common law partner was almost one million dollars. [ 91 ] Ms. Flintroy had a very, very tragic history, including sexual abuse, violence. She became addicted to drugs.

She was a person who had all kinds of challenges. Mr. Justice Crossin noted that despite the odds, Ms. Flintroy had made remarkable progress towards her own rehabilitation. [ 92 ] Justice Crossin imposed a 20-month conditional sentence order, followed by 12 months' probation. The terms were the usual terms and included a period of house arrest. Actually I should say not house arrest, but a curfew for a period. Also included was a term not to possess or consume alcohol or drugs and to take assessment and counselling. She was also ordered to complete 20 hours of community work service, amongst other things.

That 20-month conditional sentence order was followed by 12 months' probation, which included a term for further counselling. [ 93 ] I note Ms. Flintroy had been diagnosed with depression and PTSD, anxiety, and an organic brain disorder. She had an unrelated criminal record. I note, as well, that the court found that Ms. Flintroy's common law husband was really the main one behind the operation and that Ms. Flintroy sort of followed him. [ 94 ] The next case provided by the defence is that of Hanson , a 2021 decision of the BC Provincial Court. Ms.

Hanson pled guilty to one count of trafficking in fentanyl and methamphetamine. She sold a combination of fentanyl and methamphetamine to an undercover officer one time. It was a small amount, .66 grams. She had a history of mental health struggles. She believed that she had had PTSD, depression, and anxiety. The judge noted that she had a brief unrelated criminal record consisting of a couple of theft convictions. Interestingly, the court stated that it remained concerned about Ms.

Hanson's ability to comply with the terms of a court order. [ 95 ] However, ultimately Judge McQuillan, decided to give her a chance and imposed a conditional sentence order for a period of 22 months. It included house arrest for 12 months, the first 12 months, and a curfew for the balance. There was also a term of not to possess alcohol or drugs, and a term for counselling. [ 96 ] The next case provided by the defence is that of Hogan , a 2022 decision of the BC Provincial Court. The accused, Mr. Hogan, pled guilty to one count of trafficking in heroin, cocaine, and fentanyl.

He was involved in a dial-a-dope operation and sold drugs to an undercover officer at least twice. At the time of sentencing, he was 24 years of age and an addict. He had a criminal record for property offences, assault, obstructing a police officer, and breaching court orders. While there is an indication he had ADHD, there is no indication of mental illness. He had attempted treatment several times.

The court noted that he had a poor history of complying with court orders, but that he had been complying well in the past three years. [ 97 ] In the end, Judge McQuillan decided to impose a conditional sentence order. The duration was two years less a day. Again, the terms included house arrest for 12 months, a curfew for the balance, no alcohol or drugs, and counselling. The two-year CSO was followed by 12 months of probation. [ 98 ] The next case referred to by defence counsel is that of Howard , a 2021 decision of the Provincial Court of British Columbia. In that case, the accused, Ms.

Howard, pled guilty to possessing heroin, fentanyl, and cocaine for the purpose of trafficking. In her possession was found 65 spitballs of fentanyl, 155 counterfeit OxyContin pills that was later analyzed as fentanyl, the total weight was 51.47 grams. Also, she had 14 spitballs of heroin and fentanyl mix weighing 1.63 grams, as well as 235 baggies of cocaine weighing 115.39 grams. The judge notes in his decision that at the time, the drugs had an estimated street value of $14,320. That is far in excess of the value of the drugs possessed by Mr. Saker. [ 99 ] The judge noted that Ms.

Howard had a criminal record which ran from 2006 to 2014. Of note, she had a 2012 conviction for trafficking in a controlled substance. She received an eight-month conditional sentence order which she later breached. Later, the CSO was terminated. The court noted she had a troubled history. Throughout her life, she struggled with bouts of depression and as a teenager was diagnosed with bipolar disorder. The court noted that since the offence in November of 2016, she had made a series of positive changes which had brought about significant improvements in her life and the lives of her children.

She reported that she had stopped using drugs. [ 100 ] Judge Jetté imposed a conditional sentence order for a term of 22 months. The conditions, once again, included house arrest followed by a curfew, as well as counselling and a term not to consume alcohol or drugs or other intoxicating substances. [ 101 ] The final case provided by the defence is that of Webber , a 2021 BC Provincial Court decision. In that case, Mr. Webber pled guilty to an offence of possessing cocaine and methamphetamine for the purpose of trafficking. There was no fentanyl, except for one capsule which may have contained fentanyl.

The accused was 30 years old and had no record. The court imposed a 15-month conditional sentence order. During the first nine months, there was a curfew and the order included 75 hours of community work service. [ 102 ] Is everybody okay for a few more minutes? [ 103 ] CNSL S. BODNAREK: Yes. [ 104 ] CNSL K. WAUGH: Yes. Yes, thank you.

[ 105 ] THE COURT: Upon reflection, I place considerable importance on Mr. Saker's personal circumstances, and in particular on his mental health. [ 106 ] In R. v. Badhesa , found at 2019 BCCA 70 , the British Columbia Court of Appeal considered the weight to be given to mental illness in the assessment of an offender's moral culpability. The court states as follows at paragraph 42: [42] When mental illness causes or contributes to the commission of an offence, it is a mitigating factor and a sentence may be reduced because the offender's moral culpability is attenuated.

In these circumstances, general deterrence is a less weighty consideration because a mentally ill offender is not an appropriate medium for making an example to others: [the court relies on] R. v. Belcourt , 2010 ABCA 319 at para. 8 . . . . [ 107 ] I note that in the decision of Forner , 2020 BCCA 103 at paragraph 28 , our Court of Appeal recognized that mental illness may reduce moral culpability, even where it indirectly contributes to the commission of an offence. [ 108 ] I find that it is clear on the medical evidence that Mr. Saker suffers from mental illness.

It is also clear that as of late December 2020, when he committed the offences, he was experiencing the effects of that mental illness. [ 109 ] As indicated earlier, records from Island Health indicate that at the time Mr. Saker agreed to sell drugs in order to pay off a drug debt, he was not taking his oral medication, was sleeping poorly, and was experiencing auditory hallucinations.

The same records indicate that he was later extremely shocked by the serious nature of his offending. [ 110 ] I note, as well, that the records show that about just over two weeks after he offended, he was admitted to the hospital because of his mental health difficulties. [ 111 ] I find that, at the very least, Mr. Saker's mental illness contributed to his decision to sell drugs. He never did so before and has not done so since he was arrested within a few days of starting to do so. I find it very likely that at the time he could not appreciate the full seriousness and potential consequences of his offending.

Accordingly, I find that Mr. Saker's moral culpability is reduced by reason of his mental illness. [ 112 ] All things considered, but for the fact the drugs which Mr. Saker possessed for the purpose of trafficking contained traces of carfentanil, I would likely find that the appropriate sentence would be at or even below the bottom of the normal range suggested by the Court of Appeal in Smith. That is, I would likely impose a jail sentence of 18 months or less. [ 113 ] The fact is, however, that the drugs which are the subject of the offences committed by Mr. Saker did contain carfentanil.

It is clear that even though found in very small amounts, the presence of carfentanil would have made the drugs much more dangerous to anyone who used them. Anyone who used them would have a good chance of overdosing and dying. [ 114 ] The law is now clear that the offence of possessing carfentanil for the purpose of trafficking is more serious than that of possessing fentanyl for the purpose of trafficking and attracts a more significant penalty.

However, as I noted earlier, the courts have not suggested a general sentencing range for offences involving carfentanil. [ 115 ] As I noted earlier, the sentencing judge in Mann imposed a jail sentence for the carfentanil offences which were 20 percent longer than the sentences for the fentanyl offences. The Court of Appeal found no error in the judge's decision to do so. [ 116 ] Having decided that, in the absence of the presence of carfentanil, I would have imposed a jail sentence upon Mr. Saker of 18 months or less, I have decided that the appropriate sentence in this case is two years less a day.

I must now consider whether that jail sentence is to be served in a correctional facility or in the community by way of a conditional sentence order. [ 117 ] Until recently, there was a period of several years during which a conditional sentence order was not an available option for a person who committed serious drug-related offences. In 2012, amendments to the Criminal Code precluded the imposing of a conditional sentence order in cases where the maximum sentence for an offence was 14 years. [ 118 ] In April 2021, in the case of R. v. Chen , found at 2021 BCSC 697 , Mr.

Justice Schultes found this provision of the Criminal Code to be unconstitutional. Since the Chen decision was rendered, my understanding is that Crown counsel in British Columbia have been taking the position that conditional sentence orders are available as a sentencing option in cases such as this one.

I understand that the question of the constitutionality of the provision in question is now before the Supreme Court of Canada. [ 119 ] In accordance with s. 742.1 of the Criminal Code , a court that imposes a sentence of imprisonment of less than two years may order the offender to serve the sentence in the community in accordance with a conditional sentence order, if satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 . [ 120 ] As I stated earlier, defence counsel submits in this case the court should impose a conditional sentence order with a duration of 18 months to two years less a day.

Crown counsel acknowledges that if the court was to impose a sentence of less than two years, a conditional sentence order is available in the present case, but submits that it would not be appropriate. [ 121 ] The leading decision with respect to conditional sentences is that of the Supreme Court of Canada in R. v. Proulx , found at 2000 SCC 5 . At paragraph 127, Mr. Justice Lamer, writing for a unanimous court, summarizes the important aspects of his reasons in 13 points. I have considered all the point and will quotes points 1, 3, 8, and 12: 1.

Bill C-41 in general and the conditional sentence in particular were enacted both to reduce reliance on incarceration as a sanction and to increase the use of principles of restorative justice in sentencing. . . .

3. No offences are excluded from the conditional sentencing regime except those with a minimum term of imprisonment, nor should there be presumptions in favour of or against a conditional sentence for specific offences. . . . 8. A conditional sentence can provide significant denunciation and deterrence. As a general matter, the more serious the offence, the longer and more onerous the conditional sentence should be.

There may be some circumstances, however, where the need for denunciation or deterrence is so pressing that incarceration will be the only suitable way in which to express society's condemnation of the offender's conduct or to deter similar conduct in the future. . . . 12. No party is under a burden of proof to establish that a conditional sentence is either appropriate or inappropriate in the circumstances. The judge should consider all relevant evidence, no matter by whom it is adduced.

However, it would be in the offender’s best interests to establish elements militating in favour of a conditional sentence. [ 122 ] In assessing whether to allow Mr. Saker to serve his jail sentence in the community in accordance with a conditional sentence order, I must first consider whether permitting him to do so would endanger the safety of the community. Mr. Saker has lived in the community continually since he committed the offences over 19 months ago. During that time, he has not been charged with committing any further offences of any kind.

To my knowledge, he has not even come to the police's attention over that period. [ 123 ] Mr. Saker has stable housing, has been taking all of his medications as prescribed, and has been working with the community support team under the care of a psychiatrist.

All of these then suggest to the court that there is a strong likelihood that if he is to serve his sentence in the community, he would not pose a danger to others. [ 124 ] It follows that I am satisfied that the service of his sentence in the community would not endanger the safety of the community. [ 125 ] The question now becomes whether imposing a conditional sentence order upon Mr. Saker would be consistent with the fundamental purpose and principles of sentencing.

The case law makes it clear that the sentencing objectives of denunciation and deterrence are of primary importance in cases of possessing fentanyl and/or carfentanil for the purpose of trafficking.

Of course, rehabilitation is also an important consideration where there is some prospect of rehabilitation. [ 126 ] As I noted earlier, in Proulx the Supreme Court emphasizes that a conditional sentence order can provide significant denunciation and deterrence, but there are some cases where the need for denunciation and deterrence is so pressing that incarceration will be the only suitable sentence. [ 127 ] In assessing whether a conditional sentence order could adequately provide the denunciation and deterrence required in this case, I turn my mind to all of the aggravating, mitigating, and other factors I enumerated earlier.

Of all of the aggravating factors, the fact that fentanyl and specifically carfentanil are involved and pose so much danger and harm to members of the community are of greatest importance. Particularly aggravating in this case is the presence of carfentanil. [ 128 ] Of the mitigating factors, I find that Mr. Saker's mental illness is the most significant. The fact that I have found that Mr. Saker's moral blameworthiness is reduced because of his mental illness at the time means that the required emphasis on denunciation and deterrence is somewhat less than it would otherwise be.

In the long term, the community will be better off if Mr. Saker is able to continue to do well and not reoffend. [ 129 ] I was told during submissions by counsel that Mr. Saker would lose his housing if incarcerated. His relationship with his psychiatrist and the community support team would come to an end, or at least be disrupted. [ 130 ] After much thought, I have decided that a properly crafted conditional sentence order can be consistent with the purpose and principles of sentencing in this case. Given that the offences involved carfentanil, but for Mr.

Saker's mental illness and the other mitigating factors, I would almost certainly have decided that a period of incarceration was necessary to adequately address denunciation and deterrence. I would expect that, except in exceptional cases such as the case before the Court, those being sentenced for trafficking in carfentanil or possessing carfentanil for the purpose of trafficking would not be granted a conditional sentence order. [ 131 ] I have decided that a just and fit sentence to impose in this case is a conditional sentence order of two years less a day.

The sentence will apply to each of the two counts to be served concurrently. I impose that sentence now. [ 132 ] Subject to input from counsel, which I will seek, the conditions of the conditional sentence order are as follows: [ 133 ] You must keep the peace and be of good behaviour. You must appear before the court when required to do so by the court. You must notify the court or your conditional sentence supervisor in advance of any change of name or address, and promptly notify the court or conditional sentence supervisor of any change in employment or occupation.

You must remain in British Columbia, unless you have prior written permission from the court or your conditional sentence supervisor to leave the province. [ 134 ] You must report in person to a conditional sentence supervisor at Nanaimo Community Corrections office at 101 - 17 Church Street, Nanaimo, by 3 p.m. on Monday, August 8, 2022, and after that as directed by your conditional sentence supervisor. [ 135 ] For the first 18 months of this order, you must obey house arrest by being inside your residence 24 hours every day and must present yourself immediately at the door to your residence or answer the phone when any peace officer or conditional sentence supervisor attends or calls to check on you during the house arrest.

The exceptions are that you may be outside your residence during house arrest with the written permission of your conditional sentence supervisor. Such permission is to be given only for attending or travelling directly to and directly from places of employment, volunteering, education, counselling, meetings with your conditional sentence supervisor, or for other compelling reasons.

[ 136 ] Next, while at or going directly to or returning directly from a healthcare facility because of a medical emergency.

If asked, you must provide your conditional sentence supervisor with proof of attendance at the facility. [ 137 ] The next exception is for an additional eight hours each week for the purpose of attending personal appointments and doing personal errands at such time or times as approved of by your conditional sentence supervisor. [ 138 ] Upon serving 18 months of your conditional sentence order, you must abide by a curfew from 10 p.m. to 6 a.m. every day, except while at or going directly or returning directly from a healthcare facility because of a medical emergency.

If asked, you must provide your CSO supervisor with proof of your attendance at the facility, and except with the prior approval of your conditional sentence supervisor. [ 139 ] The next condition of the order is that you must not consume alcohol. [ 140 ] You must complete 80 hours of community work service at the direction of your CSO supervisor.

At the discretion of your conditional sentence supervisor, the community work may include volunteer work, employment, counselling, and programming. [ 141 ] Having consented in court, you must do the following: Forensic Psychiatric Services or elsewhere for any intake, assessment, counselling, or treatment as directed by your conditional sentence supervisor. Attend all scheduled appointments with the professionals in charge of your mental health care. Take all medications and medical treatment prescribed for you by these professionals. Give those professionals a copy of this order.

If you decide not to follow these directions, you must immediately report that fact to your conditional sentence supervisor. And you have consented in court to those professionals notifying your CSO supervisor if you fail to attend for an appointment or refuse to take the prescribed treatment or medication. [ 142 ] I will now address the ancillary orders. There will be a s. 109 weapons prohibition. I am not sure if counsel indicated -- that is mandatory, I am not sure if it is for life or 10 years. [ 143 ] CNSL S.

BODNAREK: Ten years. [ 144 ] THE COURT: That will be for 10 years. [ 145 ] In addition, I make a DNA order in the ordinary form. I believe that is pursuant to s. 487.051. Mr. Saker, you will have until Wednesday, September 14, 2022, to attend at the Nanaimo RCMP detachment for providing samples. [ 146 ] And finally, I make an order for forfeiture of the items seized. I am not sure whether there is an exhibit flowchart or whether it is just simply all items seized in the course of the investigation. [ 147 ] CNSL S. BODNAREK: I believe I suggested all items seized in the course of the investigation. [ 148 ] CNSL K.

WAUGH: That's agreed, thank you, Your Honour. [ 149 ] THE COURT: So I make that order. [ 150 ] Now, I would like to go back to the conditional sentence order and I am inviting input from counsel. You will note, I have not included a condition that Mr. Saker must abstain from possessing or using illicit drugs. The reason for that is I would like to set up Mr. Saker for success rather than failure. He acknowledges that he has not overcome his addiction. He says he has been abstinent of drugs since May of this year and that is to be commended.

But I know from my experience in the courts and from life that people make slips and there are relapses. [ 151 ] Having said that, and I am addressing you, Mr. Saker, I strongly, strongly suggest that you do whatever you can never to use methamphetamine again. If you do, your mental health will likely deteriorate and that would increase the chances of you getting in trouble again. [ 152 ] Ms. Waugh, I will hear from you as to whether there are any concerns about the exceptions or lack of exceptions and those sorts of things. [ 153 ] CNSL K. WAUGH: Yes, Your Honour.

I just had one concern with respect to the exceptions for the house arrest at the first -- [ 154 ] THE COURT: Right. [ 155 ] CNSL K. WAUGH: -- part of the order. I wondered if perhaps there ought to be an exception for if he is completing community work service as ordered? [ 156 ] THE COURT: Oh, let me just see what I said here.

Yes, so Madam Clerk, I said attending or travelling directly to and directly from places of employment, volunteering, education, counselling, meetings with your conditional sentence supervisor, and I will just add performing community work service -- performing community work service as ordered, and for other compelling reasons. [ 157 ] CNSL K. WAUGH: Yes, Your Honour, and then there was -- the following list of exceptions was for medical emergency, and I just -- Your Honour did speak quite quickly. I just wondered if, given that Mr.

Saker is actively engaged with the mental health community support team, they sort of -- it wouldn't necessarily constitute a medical emergency, but I think it might be beneficial to craft some sort of exception where, if he is attending medical appointments, even if it is not with a medical emergency. So if he's attending medical appointments or if he's attending a meeting with someone from -- [ 158 ] THE COURT: Right. [ 159 ] CNSL K. WAUGH: -- it's the Nanaimo Mental Health and Substance Use Community Support Team.

[ 160 ] THE COURT: All right. I did say employment, volunteering, education, counselling. I am going to say meetings with your conditional sentence supervisor, and I will add meetings with members of your community support team. [ 161 ] CNSL K. WAUGH: Yes, I think that's fine. Thank you, Your Honour. Those were my only comments. [ 162 ] THE COURT: And you see I have provided for eight additional hours that can be spent doing personal things that do not fall within any of the exceptions. I am wondering about whether that should be 10 hours.

I think eight hours over a week provides time for shopping and those sorts of things. I am sure he would like more, but -- [ 163 ] CNSL K. WAUGH: No, I understand, Your Honour. Eight hours is slightly more than one hour per day. I wasn't going to take any issue with that, Your Honour. [ 164 ] CNSL K. WAUGH: Thank you. [ 165 ] THE COURT: I will make it 10 hours per week. [ 166 ] CNSL K. WAUGH: Thank you, Your Honour. [ 167 ] THE COURT: All right. Mr.

Bodnarek, I appreciate that the Crown was opposed to a conditional sentence order, but now that I have imposed one, I am wondering if you have any suggestions as to conditions that I might -- other than no drugs, which I have turned my mind to and decided against, are there any other conditions that you think might be beneficial in terms of either advancing the accused's rehabilitation or protecting the community? [ 168 ] CNSL S. BODNAREK: Yes. It relates to the no drugs, with respect to Your Honour's ruling with regards to your decision not to impose a blanket abstinence clause.

However, given the fact, the circumstances of the events, he was found driving while intoxicated, I would ask for a -- to not be intoxicated in public by a non-prescription drug. I think that -- that also translates to his -- it's connected to his conduct. [ 169 ] THE COURT: Well, I will -- you know what, I just remembered, I will include a term, the standard one, and you mentioned that, about not going to bars and that sort of thing. [ 170 ] CNSL K. WAUGH: Yes, that's -- that's fine, thank you. [ 171 ] THE COURT: So I am just going to go back, Madam Clerk, to that.

So Madam Clerk, 3403, and this is for the full 24 months less a day: You must not enter any liquor store, beer and wine store, bar, pub, lounge, nightclub, beer garden, or any other business for which minors are prohibited any time by the terms of a liquor licence. [ 172 ] I think I will include a term, subject to further submissions, that you are not to be found in the driver's seat of any motor vehicle if you are under the influence of alcohol and/or drugs which are not prescribed to you. [ 173 ] CNSL K.

WAUGH: My submissions with respect to that term is that that's -- like the drugs, that's something that's illegal in any event, and that term isn't necessary in the circumstances. [ 174 ] THE COURT: It is illegal and so I will not include that term. [ 175 ] CNSL K. WAUGH: Thank you. [ 176 ] THE COURT: And Mr. Bodnarek, any other suggestions? [ 177 ] CNSL S. BODNAREK: No. [ 178 ] THE COURT: All right. [ 179 ] THE CLERK: Just a question, if I can, Your Honour. For the curfew, am I to include the attend at the door? [ 180 ] THE COURT: I read that. That is part of it.

I just ran it all together, I did not make -- [ 181 ] THE CLERK: Okay. [ 182 ] THE COURT: -- a separate term, but you can break those out, the attend at the door. [ 183 ] THE CLERK: And then for the community work service, it asks for a due date. Are we putting that in? [ 184 ] THE COURT: Oh, yes, I will say within the first 20 months, 80 hours within the first 20 months. [ 185 ] CNSL K. WAUGH: Thank you, Your Honour. [ 186 ] THE CLERK: And my last thing, just confirming, is DNA mandatory or discretionary? [ 187 ] THE COURT: Mandatory and -- I believe, is it not? [ 188 ] CNSL S.

BODNAREK: It's discretionary. [ 189 ] THE COURT: Oh, discretionary. The 109 order is mandatory. The DNA is discretionary, and I did not ask for submissions on that, but --

[ 190 ] CNSL K. WAUGH: No. No issues. No issues with the ancillary orders. I will invite my friend to deal with Counts 1 and 4 at this time. [ 191 ] CNSL S. BODNAREK: Direct a stay of proceedings. [ 192 ] THE COURT: All right. I am just going to say a couple of things to Mr. Saker. I spoke a lot and very quickly because of the limited time. I have to be in another court, I was supposed to be there already. [ 193 ] You clearly understand that you are not going to be going to jail today. Ms.

Waugh has no doubt explained to you the consequences of being found to have violated or breached a term of a conditional sentence order. I wish you all the best. Despite the fact that I did not include a term that you cannot possess or use non-prescription drugs, I am very firm in suggesting to you that you do whatever you can not to use methamphetamine again because of the potential consequences. (JUDGMENT CONCLUDED)