R. v. Fraser, 2019 NSSC 368

SUPREME COURT OF Nova Scotia Citation: R. v. Fraser , 2019 NSSC 368 Date: 20191129 Docket: CRH475634 and CRH475654 Registry: Halifax Between: Her Majesty the Queen v. Robert Victor Fraser SENTENCING DECISION Judge: The Honourable Justice Patrick J.

Duncan Heard: November 29, 2019, in Halifax, Nova Scotia Oral Decision: November 29, 2019, in Halifax, Nova Scotia Counsel: Scott Morrison, for the Crown Laura McCarthy, for Robert Victor Fraser By the Court (Orally): Introduction [ 1 ] Robert Fraser is charged that: • He did, on or about the 8 th day of November 2017, at or near Halifax, Nova Scotia, possess a loaded restricted or loaded prohibited firearm, to wit, a handgun, without being the holder of an authorization or licence under which he may possess the firearm in that place, and the registration certificate for the firearm, contrary to section 95(1) of the Criminal Code ; and further that • On the same date and in the same place he did unlawfully have in his possession for the purpose of trafficking, cocaine, a substance included in

Schedule I of the Controlled Drugs and Substances Act , and did thereby commit an offence contrary to section 5(2) of the CDSA ; Circumstances of the Offences [ 2 ] There is an Agreed Statement of Facts: Robert Fraser admits the following facts for the purpose of sentencing: 1. On November 8, 2017, Detective Constable Robbie Baird was in an unmarked police vehicle and involved in surveillance in the area of Uniacke Street in Halifax, Nova Scotia. 2. D/Cst. Baird had recently received source information about a possible feud for control of the drug trade in Uniacke Square. 3.

Specifically, a source had told Baird the following: a. Raeheem Munroe and his crew were trying to take over the drug trade in Uniacke Square. b. Robert Fraser sells crack for Raheem Munroe and is his right hand man. c. Robert Fraser always carries a strap. d. Robert Fraser had a 9 mm on him within the previous 48 hours. e. Robert won’t be out in public without his gun on him because of the beefs that are going on in Uniacke. 4. At about 8:00 p.m., D/Cst. Baird observed a taxi leaving Aukland Place. In the back seat of the cab, he observed Robert Fraser and an unknown female.

Police later identified her as Kierra Pye.

5. D/Cst. Baird followed the taxi. He radioed patrol officers to assist him in arresting Mr. Fraser. 6. The taxi took a winding route through the North End of Halifax, eventually stopping in the parking lot of the Burger King located on Young Street. 7. Baird pulled into the parking lot. Mr. Fraser exited the taxi, looked in Baird’s direction and walked into the Burger King while texting on his phone. 8. The taxi began to leave the parking lot. Kierra Pye was still in the cab. 9. Baird exited his vehicle to enter the Burger King and arrest Fraser.

While doing so, he radioed his backup and asked them to stop the taxi. At this point, Baird was concerned that Fraser had recognized him. 10. Baird approached Fraser in the Burger King and identified himself as a police officer. Fraser responded “I know who you are.” 11. Baird arrested Mr. Fraser for possession of a firearm. He provided Mr. Fraser with his Charter Rights and read the Police Caution. 12. Baird conducted a pat-down search of Mr. Fraser. He located: a. $1,870 in Canadian currency b. $500 in American currency, and c. Two cell phones 13.

Patrol officers stopped the taxi while Baird was arresting Fraser. They identified Kierra Pye as the passenger. She was seated behind the driver. 14. Ms. Pye was Mr. Fraser’s partner. She was pregnant at the time. 15. In the taxi, officers located a loaded 9-millimetre semi-automatic handgun in a duffel bag on the back seat. They also found three Ziploc bags containing 62.7 grams of crack cocaine and a functioning digital scale in the footwell beneath Ms. Pye’s feet. 16. Forensic analysis later determined that DNA profiles on two of the bags of crack cocaine located in the vehicle matched Mr. Fraser’s DNA.

The probability of selecting an unrelated individual at random from the Canadian Caucasian population with the same profile is 1 in 4.9 quintillion. 17. Officers transported Mr. Fraser to the Gottingen Street station. They conducted a strip search of Mr. Fraser in private. During that search, Mr. Fraser reached into his underwear and removed a Ziploc bag containing an additional 23.6 grams of crack cocaine. 18. Mr. Fraser admits the handgun, scale and crack cocaine belonged to him. 19. At the time, Mr. Fraser was subject to two different firearm prohibition orders. 20.

The crack cocaine was worth approximately $4,900 to $6,300, as packaged. [ 3 ] Mr. Fraser has entered guilty pleas to the two charges before me today. Circumstances of the Offender [ 4 ] I have had the benefit of reading a Gladue Report. [ 5 ] Mr. Fraser was a few weeks short of 25 years of age at the time of the commission of the offences and is now 27.

He has both aboriginal and African Nova Scotia ancestries. [ 6 ] His parents separated when he was six years old and he was raised primarily by his mother. [ 7 ] The report outlines the family history as described by his maternal grandfather, Victor Kelsie, whose family had roots in Hammonds Plains. He is the member of the family through which the aboriginal ancestry is identified. His own circumstances were described at length and portrayed a difficult upbringing in a large family of meagre resources with an abusive father.

He acknowledged that he came into conflict with the law at an early age but after having served a three-month sentence in custody, he pursued a career and avoided further conflict with the law. [ 8 ] His daughter, Vicki Kelsie, is the offender’s mother. While her father had an alcohol abuse problem at one time, he overcame it. She describes her parents as being involved in their children’s lives. She met the offender’s father, Robert Fraser Sr, an individual raised by his grandmother in North Preston.

As indicated, the couple separated when the offender was quite young. [ 9 ] Robert Fraser Jr. and his family initially lived in Uniacke Square, then moved to another public housing project in Mulgrave Park. These areas have been described as one of the worst places to live due to the prevalence of drugs, guns and violence. The offender indicates that he saw someone stabbed when he was just five years old. Notwithstanding these conditions, he describes his mother as having done her best for the children.

Eventually they moved to Spryfield. [ 10 ] To try to keep her children out of trouble, his mother accessed various sports activities for them. Unfortunately, the offender ran

into conflict with people in these programs and was unable to continue. [ 11 ] The offender described his exposure to the drug trade at a very early stage in his life. Crime, in particular drug trafficking, was normalized for children such as himself, as they observed adults in Uniacke Square and Mulgrave Park engaging in criminal activity regularly. His counsel notes that for young males without a father figure in the home, the influences of older males already engaged in criminal activity could be pervasive for susceptible persons, as Mr. Fraser appears to have been. Mr.

Fraser began experimenting with various substances given to him by older people in the neighbourhood. [ 12 ] He went to a series of schools, but during his teenage years he was expelled for having a knife at school. The offender’s behavioural issues were also described by his mother in the report. She described him as getting in more trouble with the law and also at school during his early teenage years. She acknowledged that he began associating with older guys who would give him money. [ 13 ] Mr. Fraser’s mental health as a teenager was seen as sometimes fragile as he attempted suicide at age 13.

His mother tried to get him mental health treatment but was unsuccessful. [ 14 ] By age 14 he was out of the house and living on his own. [ 15 ] The offender acknowledges that he began selling drugs in his early teenage years as a way to support himself. While his mother provided all of the necessities, he observed other people with nice things that he did not have. Selling drugs was seen as a natural way in which to earn money to obtain these items. [ 16 ] He was first incarcerated as a youth. [ 17 ] When he got older, family members taught him how to install flooring – this was kind of a family trade. Mr.

Fraser says he attempted from time to time to leave the world of drug trafficking but that it is an “addictive lifestyle”. [ 18 ] Mr. Fraser is the father of four children, the oldest being eight years of age. Three of the children are in Halifax, one of whom is not his biological child but has been raised with the other children by Ms. Pye. [ 19 ] He has been participating in some programming while incarcerated. [ 20 ] There is a history of alcoholism in his family. While he began consuming alcohol at age 13 and later began mixing it with drugs, he does not claim an alcohol abuse problem now.

He began experimenting with drugs at the age of 14, some were prescribed medications, and some were illegal. Over the years he became addicted to prescription medication, but attempts to get medical assistance were unsuccessful. Attempts to stop using drugs without medical assistance left him struggling with withdrawals. He says eventually he was successful, with the urging of his girlfriend, to eliminate his drug consumption and there is no suggestion before me today that he currently has a substance abuse problem. [ 21 ] Mr. Fraser described a number of negative interactions with the police.

He recounted a history of violence in the various neighbourhoods that he has lived in, and his own personal exposure to that violence both when on the street and as an inmate while serving sentences. [ 22 ] He acknowledges that he would benefit from mental health supports and indicates that he is open to counselling, provided that he is able to connect with the counsellor and to have consistent access. [ 23 ] In his interview with the Gladue report writer, the offender acknowledged the seriousness of his current charges and in particular, the negative effects that illegal drugs have in society.

He knows of the addictive qualities of the drugs he has been selling and as a result, he avoided selling to younger people for that reason. He reiterated his history of exposure to criminals and criminal activity in the neighbourhoods that he grew up in and how it influenced him to enter into the same life. [ 24 ] He described the violence and distrust that exists in the drug trafficking trade and candidly acknowledged that the world of drug trafficking is one that usually results in either death or jail. [ 25 ] Mr.

Fraser expressed an interest in returning to a life in which he works in the flooring industry and is engaged as a parent and positive role model. He says he wants to be a “good father” and is motivated to do better for his children. He describes his mother as a “super mom”. [ 26 ] He would like to learn more about his aboriginal ancestry and have the benefit of access to programming and services that would be available to him, both while incarcerated and after release. [ 27 ] Mr. Fraser acknowledges responsibility for his actions and says he is motivated to change his lifestyle.

He notes that he has the benefit of family to provide support for him on release. [ 28 ] The report writer concludes with the following recommendations: 1. That the court consider referring Mr. FRASER to Cognitive Programs available to offenders who are incarcerated such as Controlling Anger and Learning to Manage it, Life Skills, and Respectful Relationships; 2. That the court consider referring Mr. FRASER to Community Employment Services which is available to offenders who are incarcerated and assists them with obtaining employment.

Impact on the Victim and/or Community [ 29 ] In this case there is no victim impact statement or community statement. However, it is well understood that cocaine is a dangerous drug that has ruined the lives of many people who have otherwise enjoyed law-abiding and successful lives. It is insidious in

its addictive qualities; and the damage it does extends beyond the user to their families and friends, and sometimes co-workers. Loved ones are often victimized, not just emotionally but materially, as it is common for addicts to steal and cheat to obtain money to buy more cocaine. [ 30 ] There are many judicial statements emphasizing that, where cocaine is involved, significant periods of incarceration are indicated. [ 31 ] It is noteworthy that Mr. Fraser candidly acknowledges these effects. He is to be give credit for having that insight.

At the same time, it shows how strong the draw of the money that is available from trafficking is – that knowing of the damage caused, Mr. Fraser was not motivated, or otherwise unable, to stop until he was arrested. [ 32 ] Gun violence has increased in our society particularly among young people engaged in the drug trade. It seems increasingly commonplace to hear of the use of firearms, especially handguns, in public places where residents and visitors alike frequent. Injuries from gun violence are not restricted to warring factions in the criminal element.

Because of the presence and use of weapons in populated areas, innocent bystanders are at risk of being injured. The location where Mr. Fraser was apprehended is in the middle of a busy commercial and residential area. He may have seen the weapon as necessary for his self defence, but he puts others in danger by his armed presence there. [ 33 ] These crimes impact on the safety of the community and on our sense of security as we go about our daily lives in the city. These are not victimless crimes.

Bringing drugs and guns back into a community such as Uniacke Square perpetuates the cycle of addiction and lost potential for the youth of that community. It represents the same lifestyle that drew Mr. Fraser into the trade and put him here today.

Position of the Prosecution [ 34 ] The Crown submits that the combination of possessing cocaine for the purpose of trafficking while in possession of a loaded handgun in a public place, by a person with a lengthy and related criminal record, merits a period of incarceration of between five and six years in total, together with certain ancillary orders. [ 35 ] The Crown finds few mitigating circumstances beyond the acceptance of responsibility reflected by the guilty pleas.

The prosecution has referred me to statements of various courts, highlighting the dangers of such activity and the need to ensure the protection of the public by sentences that emphasize deterrence and denunciation. [ 36 ] The Crown recommends structuring the sentence as five to six years of incarceration in relation to the firearms offence, and three to four years concurrent in relation to the drug offence. These sentences would be reduced by a credit for time spent on remand. Position of the Offender [ 37 ] Counsel for the offender submits that Mr.

Fraser has, by his admission of guilt, demonstrated an acceptance of responsibility which is consistent with remorse for the commission of the crimes. She notes, correctly, that public resources were not required to prosecute the trial of the matter and further that by pleading guilty he has relieved witnesses from the inconvenience and stress of having to appear to give evidence in a trial. [ 38 ] Ms. McCarthy cites various authorities in relation to the well understood sentencing principles set out in ss. 718 , 718.1 , 718.2 of the Criminal Code . [ 39 ] She points to Mr.

Fraser’s cultural background as a black Nova Scotian submitting that the principles of sentencing: “… provide broad latitude to the court in determining the appropriate sentencing for an individual which also may consider both the systemic and background factors impacting Mr.

Fraser… It is widely accepted by the courts that there is an overrepresentation of black persons in custody in Canada as a result of systemic forms of discrimination…” (Brief, at paragraph 19) [ 40 ] I have been provided with a number of cases which comment on the individualization of sentencing, which must take into consideration the historical and social context for the lived experiences of a black Canadian. I note the cited comments from R. v. Jamal Jackson, 2018 ONSC 2525, at paras. 82 , 85, 87, 97, and 105-113. [ 41 ] Counsel submits that rehabilitation of Mr.

Fraser should be considered in assessing a fit and proper sentence, and asks the court to consider recommendations for cognitive programming and community employment services as suggested by the Gladue report writer. [ 42 ] Ms. McCarthy reminded the court of the impact that environment has in shaping people’s choices. The point is well taken that the environment Mr. Fraser was in during his formative years, was very negative – an environment that emanates from a history of a community uprooted and resettled into Uniacke Square where the social fabric broke down.

Counsel acknowledges that while individual choice exists, it is important to understanding the special circumstances Mr. Fraser experienced. [ 43 ] The defence argues for a global sentence, taking into account the principal of totality, of three years incarceration less credit for time spent on remand, with the sentences for the two offences being concurrent one to the other. Legal Parameters [ 44 ] Section 95(2) of the Criminal Code stipulates that the commission of an offence contrary to s. 95(1) carries a maximum possible sentence of ten years imprisonment. Statutory minimum punishments set out in s. 95(2) (

a) have been held to be unconstitutional. See, R. v. MacDonald , 2014 NSCA 102 .

[ 45 ] It is worth noting that those minimums continue to be a clear expression of Parliament’s concern about illegal gun possession, though they are no longer mandatory. Those minimums were: 95(2) Every person who commits an offence under subsection (1) (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years and to a minimum punishment of imprisonment for a term of (

i) in the case of a first offence, three years, and (ii) in the case of a second or subsequent offence, five years; [ 46 ] As I will note later, this is the third time in the past five years that Mr. Fraser has been convicted of offences in relation to unlawful possession of firearms. [ 47 ] An offence contrary to s. 5(2) of the CDSA involving cocaine, being a

Schedule I drug, has a maximum possible sentence of imprisonment for life. Case Law [ 48 ] These statutory provisions set out the maximum punishments that can be imposed. However, the circumstances of each offence and of each offender, vary and so when deciding upon a sentence, judges have to look to the ranges of sentences where the circumstances are similar. [ 49 ] These sentencing decisions from previous cases are used simply as a guide for judges in fashioning an appropriate sentence.

The purpose of the range is to encourage greater consistency between sentencing decisions, in accordance with the principle of parity prescribed by the Criminal Code . [ 50 ] The prosecution relies on a variety of precedents to assist this court in determining what the range of sentences are in this case and where, within that range, Mr. Fraser’s circumstances place him.

Section 95 Criminal Code of Canada [ 51 ] In R v. Nur , 2013 ONCA 677 , the offender was 21 years old with no prior record of criminal activity. He was acting in a threatening manner outside of a youth centre. He fled once the police arrived. The police caught him and arrested him, finding in the process, a prohibited firearm with an oversized ammunition clip. The Ontario Court of Appeal agreed that the range of sentences in this type of case would be from two years less a day, up to three years. [ 52 ] In R v.

MacDonald , 2014 NSCA 102 , the Nova Scotia Court of Appeal determined that the two-year range was appropriate for this first-time offender, who was gainfully employed, and in a case where it was regarded as being similar to a regulatory offence, as opposed to a possession in a “true crime”. [ 53 ] R. v. Racett , 2016 BCCA 275 , has been provided to me as one that has a number of similarities to Mr. Fraser’s circumstances. [ 54 ] Mr. Racett was an aboriginal who possessed a loaded sawed-off shotgun in a parking lot outside a Tim Hortons coffee shop. He also possessed a small amount of methamphetamine. Mr.

Racette was bound by a firearms prohibition order at the time and had a lengthy criminal record. He entered a guilty plea after preliminary inquiry. The court said that a five-year jail sentence was appropriate, even accounting for the offender’s aboriginal heritage.

After reviewing his extensive criminal history and other aggravating factors the court concluded: [24] …The impact of his aboriginal heritage on his moral blameworthiness goes only so far in helping to explain his decision to arm himself with a loaded sawed-off shotgun and carry it into a busy public place while in possession of methamphetamine for the purpose of trafficking. Further, in its absence, the circumstances combined with such an extensive criminal history and a firearm prohibition, would justify an even weightier custodial sentence.

All things considered, in my view, a five-year sentence appropriately balances the aggravating and mitigating circumstances and properly accounts for Mr. Racette’s background and aboriginal heritage. [ 55 ] In R. v. Holland , 2017 NSSC 148 , a joint recommendation of five years was made for an offender who pleaded guilty to possessing cocaine for the purpose of trafficking and for a s. 95 firearm offence. He had a positive presentence report, but also had a record of two prior convictions for firearms related offences and two prior convictions for possession for the purpose of trafficking contrary to the CDSA .

Controlled Drugs and Substances Act [ 56 ] Turning to the cases involving cocaine possession – as I indicated previously, the courts have consistently maintained that deterrence is a primary consideration for sentencing in relation to drug offences, particularly where it involves trafficking in cocaine. While rehabilitation of the offender is always a factor, that must be weighed in balance with other factors. Ultimately, denunciation and deterrence play a more central role in resolving charges where dangerous drugs are involved. I have been referred to two cases - R. v. Chase , 2019 NSCA 36 , and R. v.

Forward , 2017 NSSC 190 , and I have considered the principles outlined in them. [ 57 ] In

summary, the cases make it clear that while there are some circumstances where a federal penitentiary term is not imposed, it would require exceptional circumstances to consider a sentence less than two years for trafficking in cocaine. [ 58 ] When one considers the combined effect of a firearms charge with a drug charge, the courts have generally said that “exemplary sentences of incarceration” are required.

Principles of Sentencing [ 59 ] In arriving at my conclusion today, I have turned my mind to the principles of sentencing as set out in the provisions of ss. 718 , 718.1 and 718.2 of the Criminal Code , as well as s. 10 of the Controlled Drugs and Substances Act . [ 60 ] Both counsel acknowledge that the circumstances in this case require an overall sentence, prior to applying remand credit, of what would be incarceration in a federal institution. The issue I must address is the length of that sentence. Reasons [ 61 ] The mitigating circumstances in this case are the guilty pleas, as both counsel acknowledge.

That is a significant, though not determinative factor in arriving at a fit and proper sentence. It does reflect acceptance of responsibility which is a part of the foundation necessary for an offender to rehabilitate themselves. [ 62 ] Mr.

Fraser’s steps, undertaken while in jail, to participate in programming to address some of his personal issues is also a positive sign, as is his willingness to engage in future counselling and to participate in the programs recommended by the report writer. [ 63 ] I fully support the two recommendations offered at the conclusion of the Gladue Report, which I have set out earlier in this decision. When the transcript of today’s proceedings is transmitted to Correctional Services, together with the Gladue Report, they will be made aware of the court’s view, which is that Mr.

Fraser should be given opportunities to engage in these and any other appropriate programs to assist him in pursuing his goal of a law-abiding life with his family upon release from custody. [ 64 ] Regrettably there are a number of aggravating circumstances here, as outlined by the prosecution. [ 65 ] It is self-evident that the combination of possessing guns and cocaine intended for sale, is consistent with a person who is fully immersed in serious criminal activity. Mr.

Fraser has candidly acknowledged that this is a life he fell into at an early age and that the life itself became an addiction he has not been able to give up. Mr. Fraser’s criminal record is further evidence of this fact. [ 66 ] Unlike cases such as Nur and MacDonald , referred to previously, Mr. Fraser is not a first-time offender. He has engaged in this activity for profit and material gain.

He has done so knowing it is dangerous to himself, and to those he sells drugs to, and as I have pointed out previously, to others who are not involved in the drug trade or usage of drugs. [ 67 ] He was born on November 16, 1992, and so became an adult for criminal law purposes at age18 on November 16, 2010. In total he has 51 convictions since 2007. [ 68 ] As a youth, Mr.

Fraser had numerous criminal charges including robbery, assaults, failures to comply with court orders, possession of a firearm contrary to s. 94(1), and possession of drugs for the purpose of trafficking. [ 69 ] In total he has eight convictions for offences contrary to the CDSA , including three for trafficking and two of possession for the purpose of trafficking, as well as three of simple possession. These offences occurred in Halifax, Nova Scotia; London, Ontario; and Prince Rupert, British Columbia.

He has a total of 34 breaches of court orders. [ 70 ] At the time of the commission of this offence he was subject to two prior prohibition orders made pursuant to s. 109 – one from Prince Rupert, British Columbia, made in 2016, and one from London, Ontario, made in 2014. In other words, when arrested in these matters he had been convicted of similar offences in similar circumstances within three years of his apprehension here. [ 71 ] Mr. Fraser is still a young man who may at some point decide that spending most of his life in prison is too big a price to pay for the money he earns from crime.

He says that he now accepts that, as he said, its go to jail or end up dead. So, he says he is motivated to do his time and return with the support of family to a life without crime. I hope that he succeeds in that. [ 72 ] Unfortunately, to this point, he seems to have been conditioned to accept that supporting himself and his family through crime is still worth the price of getting caught and sent to jail, even after having been caught multiple times within a short period.

Maybe this time will be the one that convinces him to leave this life behind. [ 73 ] What struck me, is that his maternal grandfather overcame some early challenges in his life to go on to be a good parent and grandparent who supported his family through honest and, no doubt, hard work. His mother made every effort to direct him to positive activities and away from the life that he ultimately chose. [ 74 ] It speaks to the failures for too many of the children brought up in Uniacke Square. Mr. Fraser was born 25 years after it was developed, yet the negative aspects of the culture ensnared him.

The question for him to answer now is whether he has it within himself to break free of his criminal culture to make the life that others in his family have made for themselves as law abiding citizens. Until that happens, the chances for rehabilitation are in doubt. [ 75 ] In passing sentence I have considered the principle of totality and note especially, that he has not served time in a federal institution to this point. It is always a factor to consider in weighing the potential for rehabilitation and the deterrent effect that a first- time federal imprisonment can have on some people.

Perhaps that experience will provide an incentive to improve his situation through programming and also to realize that future offences will simply result in longer and longer prison sentences. [ 76 ] These are difficult cases. There are no options available to a court except a term in a federal prison. Mr. Fraser’s own conduct has made that the case, and he acknowledges this to be true. [ 77 ] In this case the sentence is intended to deter him from continuing on the path he is on.

It is also intended to send a message of deterrence to others who are in similar circumstances, that the price in jail time, is significant when your trade is guns and drugs. [ 78 ] Having regard to all these circumstances, I note first of all that the Crown’s recommendation for five to six years was an

entirely reasonable one given the cases that have been presented to me. I really have no authorities that go very much below that in these types of circumstances. I accept that the Crown has made a reasonable representation or submission in this case. [ 79 ] Two of the factors that influenced me in your case Mr. Fraser – because your past is bleak, and if that is what is going to be your future then you will be back and we both understand that, unless somebody kills you first, and hopefully that never happens – but you are still young as Mr. Morrison says.

You are young, and you hopefully have a lot of life ahead of you. You also have good supports, which you haven’t been able to take advantage of to this point, but it’s two generations of people who have struggled against the odds and have succeeded, being your mother and your grandparents. There is something you have that so many people I see do not have available to them. So you actually have something to come back to the street to. It appears that Ms. Pye has stood by you in this as well.

I do not know very much about her, but you have children with her. [ 80 ] There are incentives for you to do well when you come out, but clearly there are things that you have to address first which include, among other things, mental health issues, I’m told, and somehow finding a way to break out of the culture that you have been in. In a sense, you have another addiction to break.

You told us in the Gladue Report that you were successful and, on your own, in getting past your drug addiction, well you have another addiction, it’s to trafficking and drugs, and carrying guns that you feel are necessary to that trade. So that is another addiction you are going to have to find a way to break, and I know it is not going to be easy while you’re in an institution with other people who are there for similar or worse crimes.

The Sentence of the Court [ 81 ] For all of those reasons I am going to impose a sentence in relation to the charge contrary to s. 95(1) of the Criminal Code of four years plus nine months, less 250 days served on remand credit. [ 82 ] In relation to the s. 5(2) Controlled Drugs and Substances Act offence of cocaine, a serious offence, for which you have been convicted before, three years concurrent to the sentence I have just imposed in relation to the s. 95(1) , the firearms offence. [ 83 ] As the sentences are concurrent the remand credit will apply to both sentences.

Ancillary Orders [ 84 ] In addition, there will be the following ancillary orders: • A firearms prohibition for a period of 10 years, made pursuant to s. 109 of the Criminal Code ; • An order to forfeit the firearm seized in this case, pursuant to s. 491 of the Criminal Code ; • An order to forfeit the cocaine seized in this case, pursuant to s. 16 of the CDSA ; • An order pursuant to s. 487.051 of the Criminal Code to provide a DNA sample. Section 5(2) of the CDSA is a secondary offence and so there is discretion as to whether to make such an order.

Having regard to the circumstances of the offence and of your own background including your criminal record, I conclude that such an order is appropriate. I note in particular that in this case, Mr. Fraser’s DNA was used to prove that he had been in possession of the cocaine left behind in the vehicle. It may have been a factor in assessing the comparable culpability of him as compared to that of Ms. Pye. Mr.

Fraser has previously provided DNA samples so his privacy interest is not impacted the same as it might have been if this was a first offence. [ 85 ] With respect to the victim fine surcharge, I have been asked to waive that. I am prepared to do that. You have already been incarcerated for a considerable period of time and will continue to be incarcerated for a lengthy period of time. There are no apparent means that I am aware of for you with which to pay the surcharge. It’s a matter where I do not believe that it serves the public interest to have that waiting for you when you get released from jail.

You have enough issues to deal with when you get out. Duncan, J.