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Abstract: Transcript of the Reasons for Sentence
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R. v. MacNearney, 2014 NWTSC 22 S-1-CR-2009-000117 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF: HER MAJESTY THE QUEEN - v - CRAIG MacNEARNEY and KIM MacNEARNEY Transcript of the Reasons for Sentence delivered by The Honourable Justice V. A. Schuler, in Yellowknife, in the Northwest Territories, on the 16th day of January, 2014. APPEARANCES: Mr. R. Carrier: Counsel on behalf of the Crown Mr. J. Martin: Ms. A. Crowe: Counsel on behalf of the Accused ------------------------------------- Charges under s. 5(2) CDSA and s. 7 CDSA 1 THE COURT: The purpose of today's session 2 is to deal with the sentencing of Craig and Kim 3 MacNearney. They have each been found guilty by 4 a jury of simple possession of marihuana and 5 production of marihuana. 6 The basic facts are as follows: 7 In February 2009, Social Services received 8 an anonymous report that there was a marihuana 9 grow-op in the MacNearneys' home in a residential 10 neighbourhood here in Yellowknife. Social 11 workers went to the home to check on the welfare 12 of the MacNearneys' two children and, as is their 13 practice, they went with a police escort. 14 Sergeant Landry testified that as soon as he 15 entered the home after the door was opened by 16 Craig MacNearney in response to a knock, he could 17 smell fresh marihuana. The police conducted a 18 search and found 729 grams of harvested marihuana 19 and also 20 marihuana plants. The plants were in 20 a locker or closet set up for the purpose of 21 growing marihuana. The harvested marihuana was 22 in various containers in the bathroom of the home 23 and on the shelf in a storage area. There was 24 also a large bag of harvested marihuana sitting 25 on the bathroom counter. 26 The MacNearneys were arrested the same day, 27 February 19, 2009. Official Court Reporters 1 1 At trial, Kim MacNearney testified that she 2 has had back pain for many years. She had 3 surgery in 1996 and over the years was on various 4 medications - Tylenol 3 and 4 and Naproxen - to 5 alleviate the pain from her condition. She 6 testified that she had trouble with the 7 side-effects from the medications. She found 8 some improvement with the pain by a change in 9 diet and exercise regime, and in 2002 or 2003 she 10 began to smoke marihuana and found that it helped 11 alleviate the pain. She did not take any steps 12 to obtain an authorization to possess marihuana 13 under the Marihuana Medical Access Regulations 14 which first came into effect in 2001 and pursuant 15 to which authorizations were issued in the 16 Northwest Territories beginning in 2002, as shown 17 in the Agreed Statement of Facts filed as Exhibit 18 1 at the trial. 19 Kim MacNearney testified that in 20 approximately 2008 she and her husband Craig 21 decided to grow marihuana in their home, a small 22 trailer home where they reside with their young 23 children. I accept that they did this so that 24 Kim MacNearney would have a readily available 25 supply of marihuana and would not have to buy it 26 of unknown quality from drug dealers. They built 27 a partition wall in their home so as to convert Official Court Reporters 2 1 part of a small room into a growing room. They 2 bought supplies and began to grow marihuana in 3 early 2008, trying different strains and tracking 4 the growth. Both Sergeant Adamitz and Eric Nash, 5 the expert witnesses, gave the opinion that it 6 was a small, unsophisticated operation. 7 Although the MacNearneys were charged with 8 possession of marihuana for the purpose of 9 trafficking, the jury convicted them of 10 possession only on that count, meaning that the 11 jury was not satisfied that the MacNearneys were 12 growing the marihuana for other than personal 13 use. I accept that finding. However, part of 14 the context of this case is that, as admitted by 15 Kim MacNearney and heard in the evidence at 16 trial, they did share the marihuana with friends, 17 and Craig MacNearney also smoked it. 18 After their arrest, Kim MacNearney took 19 steps to obtain an authorization to possess and 20 was granted one on February 1st, 2010. Her 21 authorization to possess has been renewed yearly 22 since then. She is currently entitled to possess 23 at any time 360 grams of dried marihuana. 24 Craig MacNearney obtained a production 25 licence in October 2013 and pursuant to that 26 licence is entitled to have a maximum of 59 27 plants under production and a maximum of 2,655 Official Court Reporters 3 1 grams stored at the residence at any time. The 2 amounts that he is now entitled to have exceed 3 the amounts seized by the police in 2009. 4 The MacNearneys admitted at the jury trial 5 that they were in possession of marihuana and 6 that they produced marihuana. They sought to 7 avail themselves of the defence of necessity, 8 however I ruled that, based on the evidence, 9 there was no air of reality to that defence and 10 so it was not put to the jury. 11 Kim MacNearney is 39 years old. She 12 attended university and has a B.A.. She and 13 Craig MacNearney have been married for 12 years 14 and have lived in Yellowknife for 11 of those 15 years, having moved here from Nova Scotia. She 16 worked in Human Resources in the Government of 17 the Northwest Territories for approximately five 18 years but was demoted and moved to the Department 19 of Finance as a result of the charges. Since 20 late 2011, she has stayed at home looking after 21 the couple's three children, now ages seven, six, 22 and one year. 23 Craig MacNearney is 45 years old. For the 24 past 16 years he has worked as a delivery driver 25 for various companies, and for the last four 26 years of that for a local pizza restaurant as a 27 driver. He has also stayed at home looking after Official Court Reporters 4 1 the children when Kim MacNearney is working. 2 Two of Kim MacNearney's work colleagues 3 testified that she was a very good employee, 4 innovative, and caring. One of them described 5 her as a well-liked member of the community. 6 A next door neighbour described the 7 MacNearneys as quiet neighbours who did not have 8 many people coming and going from their home, and 9 he also observed them to be caring and concerned 10 parents. 11 The children's kindergarten teacher 12 described the MacNearneys as very interested, 13 active, and involved parents who have worked well 14 with their children's teachers. 15 A friend from Nova Scotia who has known the 16 MacNearneys for some time and has discussed the 17 charges primarily with Kim MacNearney, testified 18 that, from her observations, they understand that 19 what they did was wrong and they regret it. 20 The MacNearneys come before the court as 21 first-time offenders. 22 There is of course no victim impact 23 statement in this case and the facts of this case 24 are not what this court usually sees in drug 25 cases. But, we all know that drugs are a problem 26 in this community and that they lead to family 27 problems, violence, and other crimes. It is fair Official Court Reporters 5 1 to say that cocaine is the biggest drug problem 2 in this community, and courts generally treat 3 marihuana, being considered a soft drug, more 4 leniently, so I do take that into account. 5 It is clear to me from the testimony she 6 gave at the trial that Kim MacNearney sees 7 herself as somewhat of a victim in this case. I 8 do not see it that way at all. She and her 9 husband are adults and they chose to do what they 10 did. They made no attempt prior to being 11 arrested to comply with the law. Instead, they 12 very deliberately broke the law. That led to a 13 number of I would say predictable events, 14 starting with someone complaining that they had a 15 grow-op in their home, then Social Services and 16 the police coming to investigate, Social Services 17 getting involved and, sadly, the MacNearneys' 18 children being taken into care for two weeks. 19 Although there was evidence at the trial 20 from Sergeant Adamitz that there are certain 21 health risks associated with a grow-op and other 22 risks such as home invasion, there is no evidence 23 that the MacNearneys' children were not otherwise 24 well-cared for, and the Agreed Statement of Facts 25 of Dr. Mattas' evidence is that they were well 26 cared for. 27 The children being taken into foster care Official Court Reporters 6 1 was obviously traumatic for the MacNearneys and 2 for the children, but it has to be said that it 3 happened because the parents decided to break the 4 law. The children are really the victims in this 5 case, and I am sure that the MacNearneys regret 6 that. 7 I accept that Kim MacNearney suffered from 8 pain and that marihuana helped her deal with it. 9 The fact that she was subsequently granted an 10 authorization to possess marihuana for medical 11 purposes and that it has been renewed over the 12 years corroborates that. However, I find that 13 there is no logic at all in what she says was her 14 thinking at the time - that she and her husband 15 decided to grow marihuana illegally in their home 16 rather than admit to her doctor that marihuana 17 had helped her and that she would like to be able 18 to possess it legally. I find it incredible that 19 she would think that the same severe consequences 20 that flow from illegally growing marihuana in her 21 home would flow from legally possessing it or 22 just asking about how to possess it legally. I 23 think that Kim MacNearney has perhaps convinced 24 herself of that after the fact in an attempt to 25 justify the fact that she and her husband broke 26 the law and did not make any attempt to comply 27 with it until after they were caught. Official Court Reporters 7 1 The Criminal Code provides that for the 2 crime of possession of less than three kilograms 3 of marihuana in 2009 when the events occurred, 4 the maximum sentence is five years less a day in 5 jail. For the crime of production of marihuana, 6 the maximum sentence is seven years in jail. I 7 emphasize that those are the maximum sentences. 8 The Criminal Code also directs that the 9 court must consider the various purposes and 10 principles of sentencing, such as denunciation, 11 that is, showing society's rejection of the 12 criminal conduct, general and specific 13 deterrence, public safety, rehabilitation, 14 restoration, proportionality, disparity, 15 totality, and restraint. 16 Aggravating and mitigating factors must also 17 be taken into account. 18 The additional considerations that come into 19 play when the subject of the offence is 20 controlled drugs, the use of weapons or violence 21 are not relevant in this case. 22 I accept that it is a mitigating factor in 23 this case that the marihuana was grown for Kim 24 MacNearney's use to alleviate the pain from her 25 back condition. However, it is also a fact that 26 it was shared with others, including Craig 27 MacNearney. There is no evidence before me that Official Court Reporters 8 1 any of the others with whom it was shared had a 2 medical reason for using it, so that tempers the 3 mitigation somewhat. 4 I also consider it a mitigating factor that 5 the MacNearneys now have licences, she to 6 possess, and he to produce and possess. This is 7 more of a mitigating factor in the case of Kim 8 MacNearney, since Craig MacNearney's licence was 9 not obtained until over four years after the 10 events in question. 11 The decision to grow marihuana in their home 12 illegally is something the MacNearneys thought 13 about and planned albeit, as conceded by Sergeant 14 Adamitz, it was not a sophisticated attempt and 15 it was really "try as you go". However, the 16 evidence is that by the time they were arrested 17 they had been doing it for a year and there had 18 been multiple crops, so that is an aggravating 19 factor. 20 It is also an aggravating factor that the 21 MacNearneys carried out their illegal activity in 22 their home exposing their young children to it 23 and to the various risks associated with a 24 grow-op; for example, mold, and traces of 25 fertilizer and the drug itself in the home. I 26 emphasize that those were risks because, 27 fortunately, the home was not found to be Official Court Reporters 9 1 contaminated, nor were the children found to have 2 suffered any ill effects. I also note that 3 although Kim MacNearney testified that the 4 children were kept from the grow room by a 5 baby-gate, there was evidence of scribbling on 6 the lower part of the walls, suggesting that the 7 older child was in the room at some time. There 8 was also marihuana found by the police in a bag 9 and in open sight in the bathroom. So the 10 children were exposed to potential risks, and of 11 course the risk that they were exposed to that 12 did materialize was that when the illegal 13 activity was discovered, their lives were 14 disrupted and adversely affected by being taken 15 away from their parents. The children were 16 young, too young to understand what was going on, 17 but carrying on an illegal activity in the home 18 is a terrible example for any parent to set. 19 The fact that their children were taken into 20 care and the traumatic effect that also had on 21 Kim and Craig MacNearney is the main reason why 22 it is unlikely that they would engage in this or 23 other illegal activity again. They have now 24 taken the legal route and obtained 25 authorizations, so that is another reason to 26 think that it is unlikely that they would go back 27 to acting illegally. Deterrence of the Official Court Reporters 10 1 MacNearneys themselves is not a significant issue 2 on sentencing in this case, but deterrence of 3 other people has to be one of the goals of the 4 sentences I impose, as does denunciation, to 5 signal to others that this kind of activity will 6 not be dealt with lightly. 7 In terms of proportionality, the crimes are 8 serious. The fact that there is a way to possess 9 and produce marihuana legally does not make doing 10 so illegally less serious. When one makes a 11 deliberate, reasoned choice to act illegally, the 12 moral blameworthiness, the responsibility of the 13 offender, is high. It is not a case of spur of 14 the moment actions or being overwhelmed by 15 emotion or urgency. 16 Crown counsel seeks a jail term of four to 17 six months concurrent on each count for Kim 18 MacNearney, and six to eight months concurrent 19 for Craig MacNearney, and does not oppose the 20 sentences being served in the community rather 21 than in prison. Defence counsel seeks 22 conditional discharges, which would mean that if 23 periods of probation are served without incident, 24 neither of the accused would have a criminal 25 record. 26 I have reviewed all of the cases submitted 27 by counsel. Many of the cases are from British Official Court Reporters 11 1 Columbia where grow-ops are a significant 2 problem. From the cases one can conclude that a 3 significant factor in determining sentence is 4 whether the marihuana was produced or possessed 5 for commercial purposes - to make money - or for 6 personal reasons; and if the latter, for medical 7 issues. 8 There are a number of cases that fall into 9 the last category where conditional discharges 10 were granted. For example, R. v. Hogan, [2003] 11 B.C.J. No. 3196, a Provincial Court decision 12 which involved simple possession of 26 marihuana 13 plants by an individual with no record who was 14 willing to plead guilty to that charge. The 15 individual grew the marihuana for his own use due 16 to chronic pain from a knee injury. He was 17 granted a conditional discharge with probation 18 for one year and community service work. 19 Another case is R. v. McPherson, 2011 BCPC 20 482, also a Provincial Court decision which 21 involved a guilty plea to production of 673 22 plants grown because of chronic pain from 23 numerous motor vehicle accidents. The accused in 24 that case subsequently obtained a licence but for 25 less than he had been growing. He was given a 26 conditional discharge. 27 R. v. Placek, 2012 BCSC 1660, is a case Official Court Reporters 12 1 where the accused pled guilty to growing 2 marihuana, and it was accepted that he did so for 3 research purposes out of scientific curiosity. 4 So that was a unique set of circumstances. He 5 was granted a one year conditional discharge. 6 In R. v. Young, 2008 MBPC 50, a Manitoba 7 case, the accused pled guilty to production of 80 8 to 90 plants on a rural property where his 9 teenage daughter also lived. He used the 10 marihuana for pain from a back injury. He was 11 granted a two year conditional discharge. There 12 were potential immigration issues for the 13 accused, who was a long time resident but not a 14 citizen of Canada. 15 In R. v. Reed, 2012 ABCA 272, a decision of 16 the Alberta Court of Appeal, the accused acted as 17 a crop-sitter for a medical marihuana grower who 18 had a licence for a certain number of plants but 19 more were being grown. On the charge of 20 cultivation the accused was given a six month 21 conditional discharge, which was upheld by the 22 Court of Appeal which described it as "lenient 23 and borderline but not demonstrably unfit". The 24 trial judge had found in that case that the 25 accused was naive and was misled by the licence 26 holder. 27 The remaining cases referred to me involve Official Court Reporters 13 1 commercial operations or personal use that was 2 not medical, or as in R. v. Flahr from the Yukon 3 Court of Appeal, 2009 YKCA 13, an individual who, 4 although he claimed to use the marihuana because 5 of pain from amputation of his leg, also had an 6 extensive, though somewhat dated, record. His 7 jail term was changed to a conditional sentence, 8 not a conditional discharge, on appeal. 9 The Provincial Court cases are, of course, 10 not binding on this court nor are the cases from 11 other jurisdictions, although cases of the 12 Alberta Court of Appeal are quite persuasive. I 13 note that in all but one of the cases where a 14 conditional discharge was given there was a 15 guilty plea. The exception is the Reed case, but 16 that can be distinguished on the basis that the 17 accused was acting for and apparently misled by 18 someone who had a licence. 19 The fact that the MacNearneys did not plead 20 guilty in this case does not mean that they are 21 to be treated more harshly, but a prompt guilty 22 plea is almost invariably a significant 23 mitigating factor because it indicates that the 24 offender is remorseful and is taking 25 responsibility for what he or she did. Any 26 individual has, of course, the right to plead not 27 guilty, but they do not then receive the Official Court Reporters 14 1 mitigating effect that the guilty plea would 2 bring. 3 Defence counsel emphasized that the 4 MacNearneys admitted that they were in possession 5 of marihuana and that they produced it, and they 6 did admit that and a number of other facts at the 7 trial. There are reasons, however, why I do not 8 view that as equivalent to a guilty plea or 9 worthy of the same mitigation. 10 The MacNearneys made several applications 11 over the four years since they were charged in 12 2009 to have evidence excluded and to have these 13 proceedings stayed. They were entitled to bring 14 those applications; I do not criticize them for 15 that. But having decided to proceed that way and 16 considering the effect that those applications 17 had on getting this case to trial, and I do 18 acknowledge that they are not the only reason 19 that it took as long as it did for the case to 20 get to trial, I do not feel that I can give much, 21 if any, mitigating effect to the fact that four 22 years after the events in question, the 23 MacNearneys admitted most of the Crown's case. 24 That is what, to my mind, distinguishes this case 25 from the cases where a conditional discharge was 26 granted. As I said, in those cases there were 27 guilty pleas; there was a clear taking of Official Court Reporters 15 1 responsibility by the individuals charged. 2 In this case, although they admitted 3 possession and production, the MacNearneys 4 throughout the proceeding sought to justify why 5 they broke the law and sought to have the jury 6 accept that they were justified and to absolve 7 them of responsibility. The justification put 8 forward included the surprising suggestion, 9 without any foundation, that their family doctor 10 might breach doctor/patient confidentiality and 11 tell others about Kim MacNearney's past and 12 proposed marihuana use. It also included the 13 suggestion that because the police or the fire 14 department made a mess when they were in the 15 MacNearney's home, that that justifies their 16 illegal actions. Those were among the 17 consequences identified by Kim MacNearney as 18 being what she feared when she decided not to 19 take the legal route. I have already said that I 20 find that thinking illogical. In my view, it 21 amounts to an attempt to deflect blame rather 22 than take responsibility for having broken the 23 law and the consequences of that. I accept that 24 the MacNearneys are sorry for the consequences to 25 their family, but I do find that there has been a 26 refusal on their part to take responsibility for 27 their actions. That does not provide any Official Court Reporters 16 1 mitigation, and it differentiates this case from 2 the cases that counsel submitted where 3 conditional discharges were granted. 4 The only other case I am aware of from this 5 jurisdiction that bears any similarity to this 6 one is the case of R. v. Mair, 2006 NWTSC 46, in 7 which the accused had an arthritic condition and 8 used marihuana to help him sleep. He was charged 9 with possession and production involving nine 10 plants and an unspecified amount of harvested 11 marihuana. His underage son lived in the home 12 and was found to have some marihuana, although 13 there was no evidence that the father supplied 14 it. The accused was given one day in jail for 15 production and a $2,000 fine for possession. 16 That is, as I have said, apparently the only case 17 of production in this jurisdiction so it cannot 18 be said that there is a specific sentencing 19 practice for cases of this nature. 20 Each case is, of course, different and the 21 court has to look at every individual 22 individually, while bearing in mind parity, so 23 that offenders who commit similar crimes in 24 similar circumstances should not be treated 25 differently without good reason. 26 I have considered whether there should be a 27 conditional discharge for either or both of the Official Court Reporters 17 1 MacNearneys. In order to grant a conditional 2 discharge, the court has to be satisfied that it 3 would be in the best interests of the accused and 4 that a discharge would not be contrary to the 5 public interest. I have considered the case of 6 R. v. Fallofield, [1973] B.C.J. No. 559, which 7 expanded on those requirements. It will almost 8 always be in the best interests of an accused 9 individual who has no previous record to be given 10 a discharge so that they do not now have a 11 record. One of the considerations is whether the 12 entry of a conviction against an accused may have 13 significant adverse repercussions. Travel and 14 work are often cited, as here, and that would 15 apply to any individual. The only repercussions 16 specific to the MacNearneys is that if they have 17 a criminal record they will not be eligible to 18 volunteer at their children's school. That would 19 be unfortunate, but I do not think it qualifies 20 as a significant adverse repercussion in the way 21 that, for example, deportation for a long-time 22 resident of Canada would. 23 The requirement that a discharge not be 24 contrary to the public interest is of greater 25 concern in this case. As we who sit in the 26 courts see almost every day, there are people in 27 this community who are extremely vulnerable to Official Court Reporters 18 1 drugs and drug abuse. We need to discourage 2 people from using, possessing, and producing 3 drugs unless they are legally entitled to do so. 4 We need to discourage people from setting up 5 illegal grow-ops in the neighbourhoods of this 6 community, whatever their reason for doing so. 7 We need to discourage people from deliberately 8 breaking the law. In my view, a discharge in the 9 circumstances of this case is unlikely to serve 10 those aims and may in fact send a signal that one 11 can break the law without incurring consequences 12 of any real significance, such as a criminal 13 record. 14 I also take into account that the context of 15 this case includes use of the marihuana not 16 solely by Kim MacNearney but also by Craig 17 MacNearney and by sharing it with others, that 18 context detracting somewhat from the mitigating 19 effect of the reason they decided to grow the 20 marihuana in the first place, in other words the 21 medical reason. 22 For those reasons, I am not persuaded that a 23 conditional discharge is appropriate in this case 24 for either of the MacNearneys. 25 Because the Crown is seeking sentences of 26 less than two years, which I think is reasonable, 27 in other words I think it is reasonable for the Official Court Reporters 19 1 Crown to be seeking sentences of less than two 2 years, a conditional sentence is available. It 3 is not opposed by the Crown. A conditional 4 sentence is one served in the community rather 5 than in a prison. It does result in a criminal 6 record. One of the requirements for a 7 conditional sentence is that the court be 8 satisfied that there will be no danger to the 9 community if the accused serve their sentence in 10 the community. I am satisfied of that. For the 11 reasons I have already given, I do not think it 12 is likely that the MacNearneys will re-offend. 13 I also have to consider whether a 14 conditional sentence would be consistent with the 15 fundamental purpose and principles of sentencing, 16 and the principles that are of most concern here 17 are denunciation and deterrence. I am satisfied 18 that conditional sentences will serve those 19 principles in the context of this case, 20 considering that the marihuana grow-op was 21 undertaken for a medical reason and that the 22 MacNearneys did, albeit after the fact, take 23 steps to be able to do legally what they had been 24 doing illegally. I am satisfied in the 25 circumstances of this case that there is no need 26 to have the MacNearneys serve their sentence in 27 jail, but others will be aware that this is not a Official Court Reporters 20 1 matter the court is treating lightly. 2 As far as the ancillary orders requested, 3 each of the MacNearneys will be subject to a 4 firearms prohibition order because that is, and 5 was, mandatory under section 109(1)(c) of the 6 Criminal Code prohibiting them from possessing 7 the items specified in that section for a period 8 of time that commences today and continues for 9 ten years. Any such items are to be surrendered 10 forthwith to the RCMP. 11 Also, the items seized by the RCMP in the 12 investigation will be forfeited to the Crown at 13 the expiry of the appeal period, or if an appeal 14 is taken, when all appeals have been determined. 15 Stand up, please. 16 Mr. and Mrs. MacNearney, since you both 17 embarked on the grow-op for the same reason and, 18 as I said, I accept that that was because of 19 Mrs. MacNearney's medical issues, I am going to 20 treat you the same as far as sentencing goes. 21 You are each sentenced to five months to be 22 served in the community on a conditional sentence 23 order. 24 You may sit down while I tell you what the 25 conditions are because that will take some time. 26 Each of the MacNearneys will have a 27 conditional sentence order. I am directing that Official Court Reporters 21 1 the clerk prepare two separate orders. The 2 conditions, however, will be included in both of 3 the orders. 4 First, there are mandatory conditions that 5 must be in every conditional sentence order, and 6 they are: 7 1. You will keep the peace and be of good 8 behaviour. 9 2. You will appear before the court when 10 required to do so. 11 3. You will report to a conditional 12 sentence supervisor here in Yellowknife within 13 two working days after the making of this order, 14 and thereafter when required by the supervisor 15 and in the manner directed by the supervisor. 16 4. You will remain within the jurisdiction 17 of the court, in other words within the Northwest 18 Territories, unless written permission to go 19 outside the Northwest Territories is obtained 20 from the court or the conditional sentence 21 supervisor. 22 5. You will inform the court or the 23 supervisor in advance of any change of name or 24 address, and promptly notify the court or the 25 supervisor of any change of employment or 26 occupation. 27 In addition to those mandatory conditions, I Official Court Reporters 22 1 have decided to impose the following conditions: 2 Each of you will perform 100 hours of 3 community service work within the five months to 4 the satisfaction of the conditional sentence 5 supervisor and at a rate satisfactory to the 6 supervisor. You will also provide proof of 7 completion of the community service hours at such 8 times and in such form as directed by the 9 supervisor. 10 As with any conditional sentence order there 11 has to be a punitive effect to the sentence, so I 12 am going to add a condition for house arrest. I 13 have decided to keep it to a shorter period of 14 time so as to affect your children's lives as 15 little as possible. For the first three months 16 of the conditional sentence order you will remain 17 in your residence or on its grounds at all times 18 except for the following, and I will now list the 19 exceptions to that: 20 If employed outside the home, when at your 21 place of employment or at any location where your 22 employment requires you to be. 23 For purposes of work, and for travelling 24 directly to and from work. 25 For performing your community service hours, 26 and for travelling directly to and from your 27 residence for that purpose. Official Court Reporters 23 1 When authorized by your supervisor to be 2 absent from your residence. 3 When attending court, as required. 4 When attending to medical emergencies 5 involving yourself or your immediate family. 6 When reporting to your supervisor. 7 When accompanying your children to or from 8 school, and when attending activities at their 9 school. 10 When accompanying your children to medical 11 appointments. 12 A further exception to the house arrest 13 condition is that you may attend with one or more 14 of your children, a children's activity outside 15 your home once per week, for no more than three 16 hours. I just want to make it clear that each of 17 the MacNearneys is entitled to do that. So, in 18 effect, what it means is the children can be with 19 the parents outside the home for no more than 20 three hours, twice a week, because they each have 21 three hours. Whether the parents do the activity 22 together or whether they do it separately, they 23 only have three hours. So if they together go 24 with the children and they are out for three 25 hours, that uses up three hours for each of them; 26 in other words, it is not added on to become six 27 hours. Official Court Reporters 24 1 Also, you may attend a store for groceries 2 and other necessities of life for you and your 3 children for a total of no more than three hours 4 each week. 5 You will provide a copy of your work 6 schedule to your supervisor and notify the 7 supervisor immediately of any changes to that 8 schedule. 9 Those house arrest conditions apply for the 10 first three months. 11 The condition regarding providing a copy of 12 the work schedule will apply throughout the 13 entire five months. 14 Also, the following conditions will apply 15 throughout the full five months: 16 You will not permit other people to use or 17 possess marihuana in your home unless they are 18 legally permitted to do so under the Marihuana 19 Medical Access Regulations. 20 You will facilitate the supervision of your 21 compliance with the preceding conditions of this 22 order when you are in your residence as required 23 by this order, by presenting yourself at the door 24 of your residence when requested to do so, and by 25 answering or coming to the telephone when the 26 supervisor calls. 27 You will carry on your person at all times Official Court Reporters 25 1 when not in your residence a copy of this 2 conditional sentence order. 3 In the case of each of the MacNearneys, the 4 conditional sentence will apply on each of the 5 two counts for which they were convicted, 6 concurrent. 7 Do you understand the conditions? 8 THE ACCUSED CRAIG MACNEARNEY: Yes. 9 THE ACCUSED KIM MACNEARNEY: Yes. 10 THE COURT: All right. 11 Now, in accordance with section 742.3(3), I 12 direct that a copy of the conditional sentence 13 order be given to each of Kim and Craig 14 MacNearney, in other words, that they each 15 receive a copy of their order. 16 I also have to advise them that under 17 section 742.4 of the Criminal Code, your 18 supervisor may, on notice to you and the 19 prosecutor and under certain conditions, request 20 a change to the conditions other than the 21 mandatory ones, and if that happens there are 22 procedures for a hearing. I am talking about 23 changes to the conditions that I impose that are 24 not included in every conditional sentence order 25 that is made by a court. 26 Under section 742.6 of the Criminal Code, a 27 breach of any of the conditions of the Official Court Reporters 26 1 conditional sentence order may result in your 2 arrest and you may be ordered to serve the rest 3 of your sentence in jail, so you have to be aware 4 of that. The clerk will explain that further to 5 you and will also explain to you the procedure by 6 which you may apply under section 742.4 to 7 request a change to the conditions that I have 8 imposed. 9 I am not going to waive the victim surcharge 10 in this case, so there will be a $100 surcharge 11 payable by each within three months. 12 I think that covers everything, counsel. If 13 I have omitted anything, please let me know. 14 MR. CARRIER: Your Honour, on the last date 15 the Crown submitted a copy of the forfeiture 16 order. I've spoken with my friend yesterday and 17 this morning. There were three items on the list 18 of items to be forfeited that my friend has asked 19 be returned to the MacNearneys. I've spoken with 20 the RCMP, they don't take issue with that. I 21 could list them by number and just identify them, 22 Your Honour. 23 THE COURT: Sorry, did you say that you 24 had submitted a copy, because I don't remember 25 that. 26 MR. CARRIER: I think we raised the issue. 27 I can submit it now, I have copies. Official Court Reporters 27 1 THE COURT: All right, that's fine. I'll 2 have a look at it. 3 MR. CARRIER: I provided a copy to my friend 4 as well. 5 The items, Your Honour, that would be struck 6 from appendix -- the attached schedule are 7 numbers 64, which is horticultural books; number 8 66, magazines also related to horticulture 9 apparently; and number 68, which is a Blackberry 10 telephone. The RCMP don't have any issue with 11 returning those items. They're in RCMP 12 possession now. 13 THE COURT: All right, so are you simply 14 asking that they be deleted from this draft 15 order? 16 MR. CARRIER: Yes, Your Honour. 17 THE COURT: All right, that's fine. I 18 will delete items 64, 66, and 68, and I will sign 19 the order once we are finished here. 20 MR. CARRIER: That's all, Your Honour. 21 MS. CROWE: I do have an application, Your 22 Honour. 23 Your Honour, at the beginning of your order 24 you ordered that all items seized would be 25 forfeited and so that's been amended somewhat by 26 that order. There are a number of items seized 27 that were completely unrelated to the issue at Official Court Reporters 28 1 bar and they're not listed in my friend's 2 appendix, including a journal that was kept by 3 Mr. MacNearney which had nothing to do with the 4 grow-op. And so I would ask that the court order 5 simply, that is that the court order forfeiture 6 pursuant to the document that my friend has 7 tendered and that items not on that document or 8 not removed from the document be returned to the 9 MacNearneys. 10 THE COURT: So you're simply seeking an 11 additional clause that any other items be 12 returned to the MacNearneys. 13 MS. CROWE: That's correct, Your Honour. 14 THE COURT: At the expiry of the appeal 15 period. 16 MS. CROWE: That's correct, Your Honour. 17 MR. CARRIER: The Crown takes no issue with 18 that, Your Honour. We've checked with the RCMP 19 whether there were other items. As of yesterday 20 they looked through what they had and they didn't 21 find anything else, but Crown's happy to ask them 22 to look again if there's any items that the 23 MacNearneys think the RCMP might have. 24 THE COURT: Well if you're satisfied to 25 add the clause that I've just referred to, what 26 I'm going to do is I'm going to have the clerk 27 return this to you and you can add that clause. Official Court Reporters 29 1 MS. CROWE: And I can sign off on it, Your 2 Honour, if my friend wishes me to. 3 THE COURT: If you want to sign off on it, 4 that's fine. Otherwise if it's resubmitted, I'll 5 assume that you're both content with the order. 6 MR. CARRIER: Yes, Your Honour. 7 MS. CROWE: Your Honour, one other point. 8 With respect to the issue of the house arrest, 9 the house arrest means inside the dwelling or on 10 the property; is that correct, Your Honour? 11 THE COURT: Correct. 12 MS. CROWE: So that every day they can 13 have some fresh air essentially. 14 THE COURT: Yes. I think what I said was 15 "in the house or on its grounds", meaning within 16 the property of the house. 17 MS. CROWE: If I can just consult with my 18 clients briefly, Your Honour. 19 Thank you very much, Your Honour. 20 THE COURT: All right. If there's nothing 21 further then, there is going to be another matter 22 proceeding when we adjourn here and so the clerk 23 will be dealing with that or she'll be here in 24 court for that, so I'm going to direct that your 25 clients return at two o'clock this afternoon to 26 sign the conditional sentence order. 27 MS. CROWE: Certainly, Your Honour. Official Court Reporters 30 1 THE COURT CLERK: Thank you, Your Honour. 2 THE COURT: Thank you, counsel. We'll 3 close court. 4 .............................. 5 6 Certified to be a true and accurate transcript pursuant 7 to Rule 723 and 724 of the Supreme Court Rules of Court. 8 9 ______________________________ 10 Annette Wright, RPR, CSR(A) Court Reporter 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Official Court Reporters 31
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