)) HER MAJESTY THE QUEEN – v. –, 2013 ONSC 5536

CITATION : R. v. Burnett, 2013 ONSC 5536 COURT FILE NO.: 11-90000564-0000 DATE: 20130906 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: )) HER MAJESTY THE QUEEN – and – DARREN BURNETT Defendant )) )) )) )) ) ) Christine Josic , for the Crown Paul Aubin , for the Defendant HEARD: August 26, 2013 SPIES J. REASONS FOR SENTENCE Overview [ 1 ] On June 18, 2013, following a trial with a jury, Darren Burnett was convicted of possession of cocaine for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act and possession of proceeds of crime contrary to s. 354(1) (

a) of the Criminal Code . He is now before me for sentence. The Facts (

a) Circumstances of the Offences [ 2 ] On April 28, 2010, undercover officers were watching Mr. Burnett in the parking lot of a Coffee Time donut shop in the west end of the City of Toronto. They observed him to be in conversation with an undercover officer who was there to purchase cocaine. No deal was done with the undercover officer and the surveillance officers decided to follow Mr. Burnett after he left the parking lot. The jury heard evidence from two officers who made separate observations of Mr.

Burnett stopping his car on two different occasions and interacting with another male for what they each believed was a drug transaction. As a result Mr. Burnett was arrested and 25.16 grams of crack cocaine was found hidden in his car. No drugs were found on Mr. Burnett’s person, however, $250 Cdn. and $200 U.S. was seized from Mr. Burnett's wallet. [ 3 ] Mr. Burnett testified at trial and denied knowledge of the cocaine in his vehicle. [ 4 ] The uncontested expert evidence at trial was that the weight of the crack cocaine found is in the range of a typical "8 ball" that would be sold on the street.

Its wholesale value was between $1,068.00 and $1,335.00. It could have been used to make 209 to 314 "hits" of $20 pieces each between 0.12 to 0.08 grams, for a total value between $4,192.00 and $6,290.00. [ 5 ] Ms. Josic submitted that implicit in the jury’s finding that Mr. Burnett was guilty of possession of the proceeds of crime, was that they must have believed that the two transactions that two of the officers testified to were in fact drug transactions. I instructed the jury that to find Mr.

Burnett guilty of Count #2 they must find that the Crown had proven beyond a reasonable doubt that he trafficked in cocaine as testified to by Officers Swart and/or Grekos. Accordingly it would not have been necessary for the jury to find that both of those transactions occurred. In any event, it is clear from both convictions that Mr. Burnett had a large quantity of crack cocaine in his possession for the purpose of selling it and that he was actively engaged in the trafficking of crack cocaine.

(

b) Impact on the Community [ 6 ] Crack cocaine is an extremely addictive drug and in addition to the severe harm its use inflicts on a user, there is an indirect impact on the community of even possession of crack cocaine in that the purchase of crack cocaine provides a market for it and keeps drug dealers in business. In my experience it can also be said that it encourages criminal activity. As Justice Hill said in R. v. Williams , [2002] O.J. No. 4927 (S.C.J.) , crack cocaine is a “hard and highly addictive drug commonly associated with consequential criminality in our community” (at para. 15). (

c) Circumstances of Mr. Burnett [ 7 ] I was not asked to order a Pre-Sentence Report and Mr. Burnett exercised his right not to speak to the court. In addition I did not hear from his spouse, any family members or friends about his background or personality. All of the information I received, with the exception of the few things Mr. Burnett testified to at trial, came from his counsel Mr. Aubin. Ms.

Josic did not object to any of the stated facts and I will therefore accept them as true, but I must say that having only the representations of counsel leaves me feeling that I do not know as much as I would like about what Mr. Burnett is really like. [ 8 ] Mr. Burnett is 30 years old. He was born in Edmonton and is the third oldest of six children. He was raised by his mother and did not know his father until he was 10 years old. At that time Mr. Burnett came to know his father, who is a truck driver in Alberta, and he has a good relationship with him. Mr.

Burnett’s siblings are all now working or going to school in the GTA and their relationship with Mr. Burnett is described by Mr. Aubin as stable and close. He has also been in a stable relationship with the mother of his six children for almost 15 years. His children range from the age of 12; the oldest to a six month newborn. His fiancée is an event planner who works part-time but less so now that she has a newborn to care for. Mr. Aubin advised that Mr. Burnett gets the children ready for school and brings them to school while his fiancée takes care of the newborn. [ 9 ] Mr.

Burnett’s mother and one of his sisters have operated a business for over ten years that performs cleaning for residential and commercial premises. Mr. Aubin advised that before these charges Mr. Burnett worked occasionally for his mother but that no position was available. Since these charges, Mr. Burnett has been working more or less full-time in the business, presumably because one of the terms of his bail required that he take reasonable efforts to find employment; his mother and sister are his sureties. Mr. Burnett has not been able to work night shifts as he could not go out at night alone.

His fiancée does not know how to drive. [ 10 ] Mr. Burnett has a criminal record including prior convictions for drug offences. In August 2005 he was convicted of possession of a

Schedule II substance for the purpose of trafficking (marijuana), attempting to escape lawful custody and obstruct peace officer. On the drug charge he was sentenced to 60 days intermittent which was in addition to 26 days pre-sentence custody plus probation for twelve months. A concurrent intermittent sentence was imposed on the other two convictions. In July 2006 Mr. Burnett was convicted of trafficking in a

Schedule I substance (cocaine), possession of a

Schedule I substance for the purpose of trafficking (cocaine) and possession of proceeds of property obtained by crime. For the trafficking and possession for the purpose of trafficking convictions he received an eighteen month conditional sentence and a mandatory prohibition order pursuant to

section 109 of the Criminal Code . A six month conditional sentence was ordered to be served concurrently on the remaining conviction. He completed his conditional sentence orders from 2006 and his earlier probation order from 2005 without any breaches. [ 11 ] According to Mr. Aubin, Mr. Burnett has been described as very focused since the birth of his most recent child and he is spending more time with his children and of course at work. Mr. Burnett has reported to his counsel that he is more mature now. Legal Parameters [ 12 ] Pursuant to s. 5(3)(i)(

d) of the Controlled Drugs and Substances Act , as it stood at the time of these offences, the conviction for possession of cocaine for the purpose of trafficking has a maximum sentence of life. The conviction for possession of proceeds obtained by crime has a maximum sentence of two years. There are no minimum sentences that apply. Positions of Crown and Defence [ 13 ] Ms. Josic submitted that the appropriate range for sentence in this case is somewhere between 24 and 30 months. It is her position that a penitentiary term in this case is required and she requested that Mr.

Burnett be sentenced to two years in prison. [ 14 ] Mr. Aubin’s position is that a fit sentence in this case would be a sentence as high as two years less a day to be served in the community and, if the court considered necessary, that sentence could be followed by a period of probation. Mr. Aubin submitted that probation was not necessary in this case given the time Mr. Burnett has spent on bail. He was released on August 28, 2010 after serving one day in custody and as such, to the present, has spent approximately 40 months on bail.

He has not breached any of his bail conditions which included curfew from 6 p.m. to 10 a.m. unless he was out with a surety. [ 15 ] Ms. Josic also requests an order forfeiting the drugs and cash seized at the time of Mr. Burnett’s arrest pursuant to section 491(1) of the Criminal Code , a DNA order pursuant to

section 487.051(1) and a lifetime weapons prohibition pursuant to

section 109 of the Criminal Code . Mr. Aubin did not object to the ancillary orders sought by the Crown.

Case Law [16] Both counsel provided cases to me dealing with sentencing in trafficking cases in support of their respective positions. No case ison all fours with the case before me. [17] Ms. Josic relied on the decision of the Court of Appeal in R. v. Woolcock, [2002] O.J. No. 4927, in support of her position thatthe appropriate range for this case is somewhere between 24 and 30 months. In my view this is not something that can be supported fromthe Woolcock decision.

In that case the Court of Appeal held that convictions for possession of cocaine for the purpose of trafficking andpossession of the proceeds from crime attract a range of sentence between six months to two years less a day. The court added that manyof the cases that fall at the higher end of this range involve either larger quantities of narcotics or offences committed while the accusedwas still on probation for a similar offence. In that case the court was dealing with 5.3 grams of crack cocaine, an additional gram of asubstance that appeared to be crack cocaine and a small quantity of marijuana.

The court found that the trial judge had erred in certainrespects although the court agreed that a conditional sentence was not suitable. The offender was 53 years old, he was selling crackcocaine as part of a business in a residential community, and he was not addicted to drugs. The offender had two prior convictions fordrug related offences two years prior for which he was sentenced to 30 days imprisonment. The Court of Appeal found that there was stilla possibility of rehabilitation and imposed a sentence of two years less a day incarceration. [18] As Mr.

Aubin pointed out, it is clear that the court in Woolcock did not limit the range in that case to just first offenders. Thecourt made no comment as to what quantity of cocaine would result in a sentence within this range but in support of this range the courtreferred to R. v. Madeiros, [2001] O.J. No. 5664 (S.C.J.) where the quantity was about 35 grams and R. v. Radassao, (ON CA), [1994] O.J. No. 1990 (C.A.) leave to appeal to SCC refused, [1995] S.C.C.A. No. 122) where the quantity was 14 grams. [19] The only other decision that Ms. Josic referred me to is R. v. Datta, [2011] O.J.

No. 2685, a decision of O’Connell J. In that casethe offender was sentenced to 54 months incarceration for possession of crack cocaine for the purpose of trafficking. Factually the case issimilar in that the offender did not plead guilty, had close to an ounce of crack cocaine in his possession and had a prior conviction forpossession of cocaine for the purpose of trafficking, a prior conviction for possession of a restricted weapon and also breach ofrecognizance. A significant distinguishing factor was that the offender was on probation at the time he committed the offences before thecourt. [20] Mr.

Aubin submitted that the Datta case is “on an island” and that it is grossly outside the appropriate range of sentence. Headvised that one of his colleagues was counsel in that matter and although they wanted to appeal the decision they could not get legal aidfunding to do so. The case certainly seems to be an outlier for trafficking cases involving in the range of one ounce of cocaine. In factO’Connell J. referred to three cases where the quantity of cocaine was approximately an ounce where the sentences imposed were allreformatory sentences; (R. v. Pham, 2003 Carswell Ont 6297 (S.C.J.); 18 months, R. v.

Kenyon, [2008] O.J. No. 2486 (S.C.J.); 19 monthsand R. v. Grant, (ON CA), [1997] O.J. No. 3172 (Ont. C.A.); 2 years less a day imposed by the trial judge for 21grams of cocaine was upheld. None of the offenders in these cases were addicts and it appears none had a prior drug conviction which isa distinguishing factor. [21] Mr. Aubin relies on a number of cases where the court imposed a conditional sentence for trafficking in cocaine. Ms. Josicsubmitted that all of Mr.

Aubin’s cases are distinguishable for one reason or another, either because they involved guilty pleas, smallerquantities of cocaine or first time offenders. It is true that most of the cases relied upon by Mr. Aubin involved significantly smallerquantities of crack cocaine. In many cases the offender had pleaded guilty which, of course, was a mitigating factor not present in thecase before me. There are, however, exceptions. In R. v. Bustos, [2009] O.J.

No. 4927, an offender who pled guilty to possession ofcocaine for the purpose of trafficking, who was found in possession of powdered cocaine weighing a total of 56 grams, was sentenced toa 21 month conditional sentence with seven months of house arrest. In that case the offender had no prior record for drug offences buthad a conviction for manslaughter and robbery for which he had received nine years. In R. v. Veljkovic, [2006] O.J.

No. 1327, the Courtof Appeal dealt with a case where the sentencing judge had rejected a joint submission for a conditional sentence of two years less a dayimprisonment following a guilty plea and instead imposed a $5,000 fine. None of the facts are known but the amount of cocaine was89.3 grams. The Court of Appeal substituted an 18 month conditional sentence since the fine had been paid. In R. v.

Salazar, [2000] O.J.No. 4964 (S.C.J.), the court imposed an 18 month conditional sentence in the case of an offender with significant mitigating factors whowas found guilty of possession of eight ounces of cocaine for the purpose of trafficking. [22] I do not propose to review any further the other decisions relied upon by Mr. Aubin. What they make clear is that presuming theother requirements for a conditional sentence are satisfied, there is no presumption against imposing one in this case either as a result ofthe nature of the offence nor the fact that this is the third time Mr.

Burnett has been convicted of possession for the purpose oftrafficking; once in marijuana and once in cocaine. The cases also make it clear that the circumstances of each individual offender andthe offence matter and that any range of sentence suggested by the Court of Appeal is to be considered only as a guideline. Principles of Sentencing [23] The principles of sentencing are set out in ss. 718, 718.1 and 718.2 of the Criminal Code and I am guided by those principles.Section 10(2)(

b) of the Controlled Drugs and Substances Act must also be considered in this case. That subsection provides that where aperson is convicted of a designated substance offence, the court imposing sentence on the person shall consider as an aggravating factorthat the person was previously convicted of a designated substance offence.

Determination of a Fit Sentence [24] I turn then to what is an appropriate sentence in this case. Clearly denunciation and deterrence, both general and specific, areparamount considerations given Mr. Burnett’s prior convictions and the fact that at the time of these offences he was trafficking in crackcocaine for profit. The importance of rehabilitation must also be considered. [25] There are a number of aggravating factors as follows: (

a) Mr. Burnett’s criminal record is a seriously aggravating factor as he has previously been convicted twice for having a controlleddrug; either marijuana or cocaine, in his possession for the purpose of trafficking. (

b) Mr. Burnett is not addicted to cocaine and so his purpose in trafficking was for profit. It may however, be as Mr. Aubin submitted,that he was not living in the lap of luxury but trying to support his large family. Even so, that of course is not a justifiable reason forcommitting this offence. Furthermore, I am not satisfied that prior to and around the time when he was charged with these offences thatMr. Burnett was doing what he could to secure lawful employment. His mother’s business existed then and there is no real explanationfor why he could not have been supporting his family that way. (

c) The quantity of cocaine is significant although consistent with a street level dealer. (

d) As Ms. Josic submitted there was some level of sophistication in this case given the fact that Mr. Burnett concealed the cocaine in acompartment in the dash of his car. This was not a spur of the moment crime. [26] Mr. Aubin argued that there was a seven year gap since the 2006 convictions. Ms. Josic submitted that Mr. Burnett committedthe offences in this case in April 2010 and his prior conviction was from July 2006 and as such the gap is only approximately four yearsand even less if you consider when Mr. Burnett completed his 2006 sentence. Ms.

Josic’s view of the gap is the relevant one as one ofthe purposes of sentencing is specific deterrence. Although it cannot be said that Mr. Burnett immediately returned to drug traffickingafter completing his 2006 sentence, the gap is not that significant. In any event it begs the question of what drew Mr. Burnett back totrafficking in cocaine. Clearly his sentence in 2006 did not deter this as was intended. Nor did the sentence in 2005; in fact his 2006convictions were more serious. [27] Mr.

Burnett cannot be penalized for insisting on his right to a trial and raising his defence of lack of knowledge, but he does notget the benefit of a reduced sentence because of a guilty plea. Similarly since he does not admit this conduct, Mr. Burnett has notexpressed any remorse. These are both neutral factors. [28] There is not much in the way of mitigating factors. I accept that Mr. Burnett has the support of his family and that he is nowworking. I am however concerned as I have already said, that it seems that he has only shown a willingness to work in the familybusiness after it was made a term of his bail.

He has six children and no doubt his income and help are important to his family and hisspouse’s ability to care for them. I accept that Mr. Burnett is more mature now than he was when he was 23 and committed his 2006offences. However, that does not account for these offences four years later. [29] Mr. Aubin advised that of the 18 month conditional sentence imposed on Mr. Burnett in 2006, he spent 12 months under housearrest. In considering his sentence now, it is relevant that he did not breach the terms of his earlier conditional sentence or probationorders.

It is also significant that he has been on bail for about 40 months with a curfew, without incident. [30] Mr. Aubin suggested that as a result of Mr. Burnett’s bail conditions and the fact that he has been on bail for 40 months, heshould get a least a six month credit in accordance with the principles in R. v. Downes, (ON CA), [2006] O.J. No. 555(Ont. C.A.) at para. 37. Although I agree that there should be some credit, I do not agree that it should be six months. Mr. Burnett wasnever under house arrest and there is no evidence that his curfew caused particular hardship.

It meant he could not work nights but I amadvised that he has been working, presumably during the day. His spouse does not drive but no evidence was provided of any seriousissues as a result of this. Many people live in this city without even owning a car. The credit then should be only a modest one. [31] Mr. Burnett’s crimes are the same as his earlier convictions. As such the jump principle that provides that successive sentencesshould be increased gradually is engaged. However, I agree with Ms. Josic that a two year prison sentence would not violate the jumpprinciple in that Mr.

Burnett received an eighteen month sentence in 2006 and spent time in jail the year before that. [32] In considering all of these factors and the submissions of counsel and the wide range of sentences imposed in the cases involvingtrafficking in cocaine, I could not conclude that the position advanced by Ms. Josic is unreasonable. A fit sentence for Mr. Burnett’sconviction for possession of cocaine for the purpose of trafficking is in the range of 24 months.

That leaves what I have alreadyidentified as the central issue namely whether that sentence should be served in prison, the reformatory or in the community under strictterms including house arrest. [33] In considering the submissions of counsel and in determining whether or not to impose a conditional sentence, I am guided by thedecision of the Supreme Court of Canada in R. v. Proulx, 2000 SCC 5 , [2000] 1 S.C.R. 61.

In that case the court confirmed thatconditional sentences were introduced by Parliament to reduce reliance on incarceration and to increase the use of restorative justiceprinciples in sentencing. (at para. 20) [34] As set out in

section 742.1 of the Criminal Code, the criteria for imposing a conditional sentence in this case, given that there isno minimum sentence, are: that a penitentiary term and probationary measures are inappropriate and that a term of imprisonment of lessthan two years would be appropriate; that permitting Mr. Burnett to serve his sentence in the community would not endanger the safetyof the community; and, that a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set outin s.718 to s.718.2 of the Criminal Code.

[35] As the Court of Appeal has made clear in R. v. Hayes, [2001] O.J. No. 684 and R. v. Kerr (ON CA), [2001]O.J. No. 5085, the fact that Mr. Burnett has been convicted of trafficking in crack cocaine does not mean that a conditional sentencecannot be imposed. I must not begin my deliberations with a rule that the circumstances of the case itself must be rare or unusual beforeimposing a conditional sentence. Ms.

Josic submitted that I ought to consider that there have been legislative changes which wouldprevent a conditional sentence from being imposed in the circumstances of this case but as they do not apply, I have decided to consideronly the guidelines in Proulx. [36] I turn then to a consideration of the prerequisites for imposing a conditional sentence and the evidence in this case. The first ismet as it does not matter whether or not the sentence is two years or two years less a day; both are fit in terms of length. With respect todetermining whether permitting Mr.

Burnett to serve his sentence in the community would endanger the safety of the community, thecourt in Proulx noted: …two factors should be taken into account: (1) the risk of the offender re-offending; and (2) the gravity of the damagethat could ensue in the event of re-offence. If the judge finds that there is a real risk of re-offence, incarceration should be imposed. Ofcourse, there is always some risk that an offender may re-offend. If the judge thinks this is minimal, the gravity of the damage thatcould follow were the offender to re-offend should also be taken into consideration.

In certain cases, the minimal risk of re-offendingwill be offset by the possibility of a great prejudice, thereby precluding a conditional sentence. (at para. 69) [37] Ms. Josic submitted that a conditional sentence ought not to be imposed in this case. She argued that despite a very lengthyconditional sentence in the past Mr. Burnett has committed the very same offence again and that this proves that he hasn’t changed hisways.

There is nothing in his current circumstances that are really different from his circumstances in 2006 in that he was in the samerelationship with his spouse and would have had at least three of his six children at the time. Both of these points raise valid concerns.Mr. Burnett clearly has not been deterred from recommitting this offence by his earlier sentences and there is no evidence of anysignificant change in his life that gives me any confidence that he will be otherwise deterred now, as a result of that change, from re-offending.

This is not the first time he has been responsible for a newborn. [38] However, it is significant, as I have said, that there are no prior incidents of Mr. Burnett disobeying a court. He completed earliersentences which included probation and a conditional sentence without incident. Furthermore, Mr. Aubin asked rhetorically what moreMr. Burnett could do since he is working and has been law-abiding for the past 40 months while on bail.

If he was not a danger to thecommunity for re-offending while on bail with only a curfew restriction why would he be now particularly if more stringent terms areimposed such as house arrest? [39] Turning to the gravity of the harm that would occur should Mr. Burnett re-offend, trafficking in crack cocaine is a very seriousoffence that can cause serious harm to the community. The gravity of Mr. Burnett re-offending would be great. [40] Although one can never rule out the possibility of re-offending, in all of the circumstances, I am satisfied that Mr.

Burnett doesnot pose any danger to the safety of the community that would preclude him from being a candidate to serve his sentence in thecommunity if this court supervision continues and strict supervisory terms are imposed on Mr. Burnett. I trust that Mr.

Burnett willappreciate, if a conditional sentence is imposed now, that he will have exhausted his chances for a conditional sentence should he everre-offend and that if he were to do so while serving a conditional sentence I would likely decide to order that he spend the rest of the timein jail. [41] The remaining question then is whether a conditional sentence would be consistent with the fundamental purpose and principlesof sentencing.

Dealing first with general and specific deterrence, which as I already stated warrant emphasis given the nature of theseoffences, as Chief Justice Lamer in Proulx stated: The stigma of a conditional sentence with house arrest should not be underestimated. Living in the community understrict conditions where fellow residents are well aware of the offender’s criminal misconduct can provide ample denunciation in manycases.

In certain circumstances, the shame of encountering members of the community may make it even more difficult for the offenderto serve his or her sentence in the community than in prison. … Incarceration, which is ordinarily a harsher sanction, may provide more deterrence than a conditional sentence. Judges should be wary,however, of placing too much weight on deterrence when choosing between a conditional sentence and incarceration. The empiricalevidence suggests that the deterrent effect of incarceration is uncertain.

Moreover, a conditional sentence can provide significantdeterrence if sufficiently punitive. (at paras. 105-107) [42] This was reiterated by Watt J.A. in R. v. Jacko, 2010 ONCA 452 , [2010] O.J. No. 2583 (Ont. C.A.) at para. 71, wherehe referred to this passage from Proulx and stated that depending on the severity of the conditions imposed a conditional sentence canachieve both punitive and restorative sentencing objectives. [43] Mr. Aubin suggested that I could increase the length of Mr.

Burnett’s sentence this time to two years less a day and even doublethe period of house arrest and add probation to make it more punitive. Ms. Josic on the other hand submitted that a custodial sentencecould address not only deterrence but also rehabilitation through programs available in the institution. Given the current situation ofovercrowding however, I am not satisfied that programs are available. Nor is there any obvious program Mr. Burnett should take if hewere incarcerated since he does not have a drug or alcohol addiction problem.

[ 44 ] The ultimate interests of both the community and the offender are best served by a sentence most conducive to eliminating the risk of re-offending and that in turn, may argue for a sentence that both acknowledges and facilitates the ongoing rehabilitation of the offender; Proulx at paras. 105, 107 . Although in this case a conditional sentence will not facilitate rehabilitation in the usual sense, for example requiring participation in a counselling program, it will permit Mr.

Burnett to continue to work, care for and be with his spouse and children which will hopefully ensure he does not return to drug trafficking. [ 45 ] This is a difficult and close case. On the one hand Ms. Josic’s submission that Mr. Burnett did not get the message the last time when he was given a conditional sentence is to be seriously considered particularly on the question of specific deterrence. Mr.

Burnett should have recognized when he was given a conditional sentence in 2006 that he could have been incarcerated and I can only assume that he knew he was taking a risk that he would be incarcerated when he decided to return to trafficking in cocaine. Although his incarceration would put a hefty burden on his spouse and children, that is something he must have known would likely result if he was caught. Arguably a real custodial sentence might be better at getting a message of deterrence through to Mr. Burnett.

There is also the question of general deterrence as a message must be sent to the community that these types of offences will be treated strictly by the court. [ 46 ] However, on the other hand, the most compelling factor in favour of a conditional sentence is the fact that Mr. Burnett has not had any conflict with the law for the past 40 months while he has been under court supervision. Similarly he had no issues in the past while under court supervision.

If he is given a lengthy conditional sentence and a term of probation and remains under this court’s supervision for another three years or so, it seems likely he would not re-offend. [ 47 ] On balance, in all of the circumstances, I have decided to impose a conditional sentence of two years less a day with a lengthy period of house arrest in addition to a term of probation for one year. I hope that by permitting Mr.

Burnett to remain with his spouse and children there is a greater likelihood that he will appreciate what he has and what his responsibilities are as a father and a partner and not put it all at risk by breaching any of the terms of my order or in future by falling back on this illegal activity in order to make money. [ 48 ] By imposing a conditional sentence, I in no way intend to minimize the seriousness of these offences. The fact Mr. Burnett will remain under court supervision for another three years will reduce any risk to the community of his re-offending.

Although a conditional sentence may be considered a more lenient sentence than an equivalent jail term, Mr. Burnett must appreciate that incarceration will likely result if any of the conditions are breached . I am confident that the lengthy period of court supervision and the stringent conditions I have decided to impose will deter not only Mr. Burnett but also others from committing these types of offences. [ 49 ] Ms. Josic suggested a global sentence for both convictions, focusing on the possession for the purpose of trafficking in cocaine, which she clearly considered to be the most serious.

However, a separate sentence for each conviction must be imposed. In my view an eight month sentence to be served in the community, to run concurrently to the other sentence is a fit sentence for the conviction of having proceeds of crime. Final Disposition [ 50 ] Mr. Burnett would you please stand. [ 51 ] With respect to Count #1 the conviction for possession of cocaine for the purpose of trafficking, I impose a sentence of two years less one day to be served in the community on the following conditions: (

a) The mandatory statutory conditions as set out in

section 742.3(1) of the Criminal Code ; (

b) In addition to the mandatory conditions, it is ordered that you comply with the following optional terms and conditions as permitted by

section 742.3(2) of the Code : 1. For the first 18 months of this order, you shall continue to reside in your current home with your spouse and remain in your home, under house arrest 24 hours per day, seven days per week, and not leave your home at any time except for the following reasons:

a) court attendances and reporting to your supervisor;

b) attendance at your place of employment or for employment purposes only provided it is not between the hours of 8:00 p.m. and 6:00 a.m.;

c) taking Latajha to the bus stop between 8:00 a.m. and 8:30 a.m. for the purpose of her going to Brandon Gate School and picking her up at the bus stop on her return from school between 3:30 p.m. and 3:45 p.m. and bringing her home;

d) taking Devon, Natajha and Khalajha to Marvin Heights School between 9:00 a.m. and 9:30 a.m. and bringing them home after school between 3:45 p.m. and 4:00 p.m.;

e) attendance at scheduled medical or dental appointments for yourself or your children;

f) dealing with any medical emergency affecting you or a member of your immediate family;

g) attendance at a religious institution for the purpose of worship not more than once per week;

h) a four hour period weekly, the precise time to be agreed upon by your supervisor during which time you may attend to personal matters such as banking, purchase of groceries and running household errands;

i) travel directly to or from any of these activities; and

j) at any other time with the prior written permission of the supervisor. 2. Permit police officers or your supervisor or designate, to knock at the door of your residence at any time between 6 a.m. and 12 a.m. midnight of any day throughout your sentence for the purpose of ensuring your compliance with the house arrest conditions of this order; 3.

For the remainder of your conditional sentence, not to be away from your place of residence each and every night between the hours of 11:00 p.m. and 6:00 a.m., subject to a medical emergency affecting you or a member of your immediate family or any special variation granted by your supervisor; 4. Abstain from the purchase, possession or consumption of any drugs or drug paraphernalia or other substances prohibited by law except in accordance with a medical prescription; 5.

Abstain from owning, possessing or carrying any weapon including any offensive weapon, ammunition, explosive substance or weapon as defined in the Criminal Code ; 6. Make reasonable efforts to maintain your employment with your family’s cleaning business or other employment; 7. Provide for the support and care of your dependents, namely your spouse and your children; and 8.

Do not have any contact with, or be in the company of, or associate with, anyone known to have a criminal record or who is the subject of criminal charges except for members of your family or fellow employees. [ 52 ] After your conditional sentence of two years less a day, there will be a term of probation of 12 months on the same terms that govern your conditional sentence save for the substitution of a probation officer for a supervisor, to whom you must report within two business days of the end of your conditional sentence order, and you will no longer be under house arrest and you will have no curfew. [ 53 ] With respect to Count #2, the conviction for possession of proceeds of crime from trafficking, I impose a conditional sentence of eight months to be served concurrently to your other sentence, and in the community on the same conditions. [ 54 ] In addition, there will be a mandatory weapons prohibition order pursuant to section 109(1) (

c) of the Criminal Code for life. [ 55 ] I also make a DNA order pursuant to

section 487.051(1)(

a) authorizing the taking of a DNA sample. [ 56 ] Finally there will be an order forfeiting the cash and cocaine seized at the time of your arrest pursuant to section 491(1) of the Criminal Code . [ 57 ] Mr. Burnett, a copy of this conditional sentence order will be given to you by the court officials. Along with your counsel, they will ensure that the substance of the relevant sections of the Criminal Code , which deal with the procedure for amending the non- statutory conditions and the procedure on any breach of condition are explained to you regarding the conditional sentence.

They will also give you a copy of the probation order and ensure that the relevant sections of the Criminal Code are explained to you. Please pay very careful attention to all of these conditions and this information.

[ 58 ] Mr. Burnett, I must tell you that breach of any of these conditions will be taken very seriously by this Court. Our courts have said that if there is a breach of a conditional sentence order, the judge should start with the presumption that you serve the rest of the time in jail. You must, therefore, appreciate that incarceration will likely result if any of the conditions of your conditional sentence are breached.

I hope that the conditions that I have imposed will bring home to you the seriousness of your conduct, and assist you in remaining a productive and law-abiding member of our community. ___________________________ SPIES J. Released: September 6, 2013 CITATION : R. v. Burnett, 2013 ONSC 5536 COURT FILE NO.: 11-90000564-0000 DATE: 20130906 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN - and - DARREN BURNETT REASONS FOR SENTENCE SPIES J. Released: September 6, 2013