Decision Content
R v Forrest, 2018 NWTSC 77 S-1-CR-2017-000065
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN
- v -
LACEY FORREST
_________________________________________________________ Transcript of the Reasons for Sentence delivered by The Honourable Justice V.A. Schuler, sitting in Yellowknife, in the Northwest Territories, on the 23rd day of November, 2018.
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APPEARANCES:
Mr. D. Praught: Counsel for the Crown
Mr. T. Bock: Agent for Mr. S. Fix,
Counsel for the Accused
(Charges under s. 465(1)(c), s. 354(1)(a) of the Criminal Code, s. 5(1) of the Controlled Drugs and Substances Act)
1 THE COURT: Lacey Forrest has pleaded
2 guilty and now stands convicted of a charge of
3 conspiring with four others between February 29,
4 2016 and March 17, 2016, to traffic in cocaine
5 and to possess cocaine for the purposes of
6 trafficking. It is now my duty to sentence
7 Ms. Forrest, a duty that is a solemn one and is
8 often described as one of the most difficult
9 duties a judge has.
10 The facts agreed on by the Crown and
11 Ms. Forrest are set out in the Agreed Statement
12 of Facts filed. I will summarize them and then I
13 will have some comments about issues relevant to
14 the facts on which the Crown and Ms. Forrest do
15 not agree.
16 The agreed facts include that Norman Hache
17 and Dolapo Bode-Harrison arranged to transport
18 cocaine from Alberta to the Northwest
19 Territories. They supplied cocaine to
20 Ms. Forrest, who was then a resident of Fort
21 Resolution. Her role was to distribute the
22 cocaine to street-level traffickers in the same
23 drug network and to collect money from those
24 street-level traffickers, primarily, in Fort
25 Resolution. She also made deliveries to dealers
26 in other communities, including Hay River and
27 Fort Smith.
1 The Agreed Statement of Facts, more
2 specifically, states that on March 3, 2016,
3 Ms. Forrest picked up at the Hay River Airport a
4 shipment from Mr. Hache of four ounces of crack
5 cocaine and eight ounces of powdered cocaine,
6 which she distributed to dealers in Fort Smith
7 and Fort Resolution. On March 8, 2016, she
8 arranged for $13,200.00 in cocaine trafficking
9 proceeds to be hand delivered to Mr. Hache by her
10 husband, who flew to Yellowknife for that
11 purpose.
12 Between March 15 and 16, Ms. Forrest and
13 Mr. Hache agreed that Mr. Herback, who was also
14 involved in this drug trafficking network, would
15 drive from Yellowknife to Fort Resolution and
16 deliver cocaine to her, and she would send back
17 with him money that she had collected for
18 Mr. Hache.
19 The police put Mr. Herback's vehicle under
20 surveillance, and when Mr. Herback arrived at
21 Ms. Forrest's home in Fort Resolution, both she
22 and he were arrested.
23 Items seized from her residence included
24 just over $8,000.00 in cash and some score
25 sheets, that is, lists of drug debts; 362.5 grams
26 of cocaine was located on the ground next to
27 Herback's vehicle, along with some other items in
1 and around the vehicle.
2 To maintain the integrity of the
3 investigation, both Mr. Herback and Ms. Forrest
4 were released, and then in April 2016,
5 Ms. Forrest was charged.
6 The Agreed Statement of Facts includes
7 transcripts of some intercepted communications,
8 mostly between Ms. Forrest and Mr. Hache.
9 Audiotapes of those intercepts were also played
10 at the sentencing hearing.
11 Ms. Forrest, through her counsel, sought to
12 expand on the admitted facts with what Crown
13 counsel objected to as new facts that are not
14 agreed to. These additional facts were that
15 Mr. Hache, whom Ms. Forrest had known for ten
16 years, asked her in February of 2016 to do him a
17 favour and pick up some money, that she agreed,
18 knowing that it was drug money, and then on March
19 3, she was asked to pick up, not just money, but
20 also drugs.
21 Later she was asked to deliver money to
22 Mr. Herback, but by the time he arrived at her
23 home, she had decided not to do anything more and
24 locked the door and was not going to let him in.
25 Ms. Forrest points to the fact that Mr. Herback
26 was arrested outside her residence while she was
27 arrested inside.
1 It may well be that Mr. Hache approached
2 Ms. Forrest with the request that she help him
3 out in his drug business. I do not think that
4 makes any difference in the larger scheme of
5 things. But the remainder of the additional
6 facts that were proposed are not consistent with
7 the Agreed Statement of Facts in many ways. They
8 ignore the fact that Ms. Forrest admits being
9 part of the conspiracy. They ignore the fact
10 that she delivered drugs to street-level dealers
11 in the communities.
12 Ms. Forrest submits that the initial
13 intercept, which is at tab 1 of the Agreed
14 Statement of Facts, shows that she was confused.
15 I have listened to and read that intercept, read
16 the transcript of that intercept, and I do not
17 see it as revealing any confusion. She does seem
18 somewhat nervous or anxious, but I would think
19 that is not unusual for someone who is picking up
20 a package of drugs at an airport.
21 The later intercepts make it clear that
22 Ms. Forrest was to deliver to various dealers,
23 that Mr. Hache was listening to her views about
24 the people she was dealing with, for example,
25 when she expressed frustration about the
26 individual called "Ryan," who led her on a bit of
27 a chase in Fort Smith. Those intercepts also
1 make it clear that she made arrangements to get
2 money to Mr. Hache. She did not wait for him to
3 do all of that.
4 The intercept of March 15 shows that she was
5 contacting Mr. Hache on that date, asking him
6 when he was going to send her more drugs because
7 she had people calling her, asking for them. She
8 also told him on that date that she had taken
9 $1,500.00 in pay for herself out of the
10 trafficking proceeds. She complains, at one
11 point, about her father "cutting my grass" by
12 delivering drugs to another dealer in Hay River,
13 in other words, that he is affecting her drug
14 business.
15 So the intercepts, in my view, show
16 Ms. Forrest very much in control of what she is
17 doing, not confused at all, and there is no
18 indication that she is trying to terminate her
19 involvement or is reluctant.
20 So I am unable to accept these new facts
21 proposed because they do conflict with what is
22 admitted in the Agreed Statement of Facts. I
23 also note that the Agreed Statement of Facts says
24 that Mr. Herback was arrested when he arrived at
25 the residence, so that does not necessarily
26 support a scenario where Ms. Forrest is refusing
27 to let him in. It may be, at that point, she did
1 not even realize he had arrived yet, but it is
2 clear from the intercepts that she knew he was
3 coming.
4 A second issue has to do with what
5 inference, if any, I should draw from the
6 intercept at tab 9 of the Agreed Statement of
7 Facts. In that intercepted call, Ms. Forrest is
8 talking to Mr. Hache about the fact that she and
9 Mr. Herback had been arrested the night that he
10 drove to her home in Fort Resolution, and as I
11 have said, they were arrested and then released.
12 And she talks about having told everyone that she
13 did not know anyone was in a truck outside her
14 door, and then she tells Mr. Hache that she
15 thinks it will all blow over because of other
16 events that have occurred or are going to occur
17 in the community: a carnival and two unfortunate
18 deaths.
19 Crown counsel says that I should infer from
20 this that Ms. Forrest had every intention of
21 continuing her involvement in the drug operation.
22 I am not completely satisfied that I can go that
23 far, but what I can tell from that intercept is
24 that Ms. Forrest certainly was not telling
25 Mr. Hache that she was finished or that she did
26 not want to be involved anymore. It is clear
27 that she wanted Mr. Hache to know that she had
1 denied to others any knowledge of Mr. Herback and
2 what he was doing, so it seems to me she wanted
3 Mr. Hache to know that she was not betraying him.
4 That suggests to me that she was at least
5 open to continuing her involvement. In that
6 sense, Mr. Forrest's new fact is not completely
7 consistent with the Agreed Statement of Facts,
8 but I would not draw the inference that she had
9 actually made up her mind or was intent on
10 continuing as described by Crown counsel. It may
11 well be that she wanted to see what the fallout
12 of the arrests would be before she really thought
13 about that.
14 Crown counsel has also pointed out that
15 Ms. Forrest minimized her involvement in the drug
16 operation when she spoke with the author of the
17 Gladue report. She told the author of the report
18 that all she did was pick up money for Mr. Hache
19 on two occasions but that she did not deal drugs,
20 and that is, plainly and clearly, not true. It
21 is completely contradicted by her admission in
22 the Agreed Statement of Facts that she was
23 distributing cocaine to dealers in the
24 communities.
25 Now, I have thought about that. That does
26 not lead me to doubt everything she told the
27 author of the report. I do find it surprising
1 that while Ms. Forrest told the author of the
2 report about an upbringing filled with addictions
3 and abuse, her parents, when interviewed, denied
4 any abuse and said that they only used alcohol on
5 special occasions. However, there is some
6 support for Ms. Forrest's version in the
7 interviews with her siblings.
8 On balance, and having considered the
9 report, I do accept that Ms. Forrest had a
10 difficult, unhappy upbringing in Fort Resolution
11 and that there was some violence and alcohol
12 abuse in the family home.
13 Ms. Forrest is a 35-year-old Métis woman.
14 On her mother's side of the family, there were
15 relatives who attended residential school, so
16 that legacy is part of her background. Despite
17 her difficult upbringing and her own abuse of
18 alcohol and drugs over the years, Ms. Forrest was
19 able to get into and attend nursing school,
20 although she withdrew, apparently, due to
21 financial issues in her third year.
22 She has taken a number of other courses
23 including bookkeeping. She has worked in a
24 number of different administrative and
25 finance-related jobs. With her current partner,
26 she is the co-owner of a trucking business and
27 works part-time for another such business. She
1 has also embarked on an aesthetics business out
2 of her home in Edmonton, where she and her
3 partner now live.
4 She has children ages 8 and 10 from her
5 previous marriage and helped to raise two
6 stepchildren from that marriage. In the Gladue
7 report, she describes that marriage as abusive
8 and unhappy and says it left her with financial
9 problems. She and her current partner have a
10 three-month old baby. She has no criminal
11 record.
12 Ms. Forrest indicates that she has abstained
13 from drugs for two years and alcohol for one
14 year. From the letters filed on this proceeding,
15 and I am referring to the letters from the Métis
16 Nation, the Deninu K'ue First Nation and the Fort
17 Resolution Métis Council, it appears that
18 Ms. Forrest is well regarded. She is considered
19 to be bright and capable and hard working and a
20 good mother.
21 Crown counsel characterizes the activity
22 that Ms. Forrest was engaged in as wholesale
23 trafficking, while defence counsel characterizes
24 it as commercial trafficking.
25 The distinction is important because the
26 law, as set out in the case of Lau from the
27 Alberta Court of Appeal and followed by judges in
1 this Court, is that wholesale trafficking means
2 the starting point sentence, which is then
3 adjusted up or down, is four and a half years in
4 jail whereas with commercial trafficking, the
5 starting point is three years.
6 Those starting-point sentences reflect the
7 seriousness of drug trafficking, as does the fact
8 that Parliament has set the maximum punishment at
9 life in prison for conspiracy to traffic. That,
10 of course, would be for the most serious example
11 of the offence.
12 In the Lau case, the Court said that
13 commercial trafficking cases that attract a
14 three-year starting point typically involve a few
15 grams of cocaine, with two ounces, or about 57
16 grams, at the high end of the scale. Wholesale
17 trafficking cases tend to be in the range of
18 hundreds of grams.
19 In this case, Ms. Forrest admits that she
20 received 4 ounces, in other words, 114 grams of
21 crack cocaine, and 8 ounces, that being 228
22 grams, of powder cocaine, so a total of 342 grams
23 of cocaine, from Mr. Hache, which she then
24 distributed to the street-level dealers. And on
25 March 15 to 16, Mr. Hache arranged a delivery of
26 cocaine to her via Mr. Herback, and the amount
27 then was approximately 362 grams. So she was
1 dealing in hundreds of grams.
2 Now, it is not simply the amount of the
3 drugs that makes the difference between wholesale
4 and commercial trafficking but also the role of
5 the person in the drug organization.
6 Ms. Forrest's role, as I have said, was to
7 receive drugs and distribute them to street-level
8 dealers in communities south of the lake, and as
9 seen from the intercepts, there were several
10 dealers that she was supplying. She distributed
11 almost 350 grams in that way. She was not at the
12 top of the organization or network, but she was
13 not a street-level dealer, either.
14 She sent a significant amount of money to
15 Mr. Hache from the drug dealing. She was a
16 trusted associate. That comes across very
17 clearly from the telephone intercepts. She made
18 arrangements for delivery of the money to
19 Mr. Hache. She did not wait for him or rely on
20 him to make the arrangements. As I have said,
21 she wanted to keep others from cutting in on her
22 business.
23 Although there is no evidence that she was
24 involved in the dial-a-dope operations that some
25 of her co-conspirators were, it is clear that she
26 dealt with cocaine in significantly greater
27 amounts than the accused in the case of Maskill,
1 who was found to be engaged in "a commercial
2 operation on more than a minimal scale," and in
3 that case, the drugs involved were marijuana and
4 17 grams of cocaine.
5 So I find that Ms. Forrest was involved in
6 wholesale trafficking. I note as well, although
7 my finding is based on what I have just
8 described, that her co-conspirators, Mr. Hache,
9 Mr. Bode-Harrison and Mr. Herback, were found at
10 their sentencings to have been engaged in
11 wholesale trafficking, and that in her decision
12 on Mr. Dunn's sentence, Justice Smallwood found
13 that the organization, in other words, this
14 network of conspirators, was engaged in wholesale
15 trafficking. And Ms. Forrest was clearly part of
16 that network.
17 The devastating effects of cocaine are well
18 known. The cost to society is high in crime and
19 family breakdown. We see this all the time in
20 the courts: people commit crimes to get money to
21 buy cocaine because they are addicted to it;
22 people who squander their good reputations,
23 squander money and their family's resources to
24 get cocaine; parents who do not look after their
25 children properly, or at all; people who commit
26 acts of violence because of their desire for
27 cocaine or when under its influence.
1 I do want to pause here to observe that it
2 is ironic that Ms. Forrest, who I believe is
3 sincerely concerned about her children because of
4 the situation she has put herself in, did not
5 show that same concern for the children of the
6 people who would end up buying the cocaine, and
7 using it, that she was supplying, and I think
8 that is a very sad comment.
9 It is because of the terrible consequences
10 of cocaine use that the Courts of the Northwest
11 Territories, as courts elsewhere, have repeatedly
12 said that the main principles of sentencing in
13 cases of trafficking in cocaine are denunciation
14 and deterrence. Significant sentences are
15 considered appropriate as a tool to deter those
16 who prey like vultures on those who are more
17 vulnerable by supplying them with cocaine in
18 order to make money.
19 Because Ms. Forrest is Métis, I must, and I
20 do, consider Section 718.2(e) of the Criminal
21 Code. That section requires that the Court
22 consider any sanctions available other than
23 imprisonment that are reasonable in the
24 circumstances, paying particular attention to the
25 circumstances of Aboriginal offenders.
26 In the Gladue and Ipeelee cases, the Supreme
27 Court of Canada spoke of that section as
1 recognizing the over-representation of Aboriginal
2 people in Canadian jails, and I have read the
3 Tobac case decided by Justice Smallwood, which
4 reviewed statistics illustrating that
5 over-representation.
6 The Court is to exercise restraint and to
7 give attention to the unique background and
8 systemic factors which may have played a part in
9 bringing the offender before the Court, and if
10 those factors have played a significant role,
11 they are to be considered in determining whether
12 imprisonment will actually be a deterrent.
13 Now, some of those factors are present in
14 this case. There is, as I have said, a legacy of
15 the residential school experience. There was
16 drug and alcohol abuse and family violence, so I
17 take that into account. But those
18 considerations, of course, have to be balanced
19 with the pressing need to deter people from
20 trafficking in cocaine, which is an
21 ever-increasing problem in the north.
22 I also have to consider what is
23 called "moral blameworthiness." As noted by
24 Justice Smallwood in Mr. Herback's case, the
25 moral blameworthiness of those who traffic in
26 cocaine is high, and it is particularly high in
27 Ms. Forrest's case because her trafficking was
1 not a spontaneous one-off action. She had time
2 to think about what she was doing and to decide
3 whether to get involved or whether to stop at any
4 point along the way. She could have looked for
5 other ways to deal with the financial problems
6 which she says were her motivation, but instead
7 she took on an important role in this drug
8 trafficking network.
9 I also have to consider the sentences
10 imposed on the others involved in this venture as
11 well as other cases so that parity is observed,
12 in other words, so that there is some
13 compatibility between sentences in similar cases,
14 some parity. I have reviewed all the cases
15 submitted by counsel, although I will not refer
16 to all of them.
17 Mr. Hache, who was the head of this drug
18 trafficking network, pleaded guilty and was
19 sentenced to five years' imprisonment less credit
20 for remand time. He had a criminal record,
21 including convictions, for drug trafficking.
22 Mr. Bode-Harrison, on his guilty plea, was
23 sentenced to four years in jail less remand time.
24 He supplied the cocaine from Alberta to the
25 Northwest Territories. He was on an equal level
26 to Mr. Hache as far as the hierarchy and the
27 direction of the network. He had a less serious
1 criminal record than Mr. Hache. Both he and
2 Mr. Hache were involved in dial-a-dope
3 operations.
4 Mr. Dunn was sentenced to three years in
5 jail on a guilty plea. He had no criminal
6 record. His role was to transport the drugs via
7 the airline he was employed with.
8 Finally, Mr. Herback was also sentenced to
9 three years' imprisonment. He was a street-level
10 dealer who also supplied other dealers and
11 collected money for the organization. He had a
12 limited and dated criminal record.
13 So, clearly, there are differences between
14 all of the co-conspirators. However, I find that
15 Ms. Forrest's role is more similar to the roles
16 played by Mr. Herback and Mr. Dunn than the roles
17 played by Mr. Hache and Mr. Bode-Harrison.
18 I also want to mention the case of Katrina
19 Stiopu. She was involved in a different drug
20 trafficking scheme, which dealt in cocaine,
21 marijuana and fentanyl. She arranged and
22 coordinated storage of drugs on her property, and
23 she involved some of her relatives in her work
24 with the drug network. She was an Aboriginal
25 woman who abused drugs and alcohol, and she had
26 no criminal record. She was sentenced to four
27 and a half years in jail less remand time.
1 That is a very recent case, and I do have to
2 observe that the starting point for trafficking
3 in fentanyl is higher than for cocaine.
4 There was also reference during the
5 sentencing submissions to the cases of Grandjambe
6 and Tobac. However, the facts of those cases are
7 so completely different from this case that the
8 short sentences imposed are completely
9 inappropriate in a case like this.
10 Crown counsel seeks a sentence of three
11 years in jail. Ms. Forrest, through her counsel,
12 asks that I impose a suspended sentence with
13 probation and conditions, or alternatively, an
14 intermittent sentence or one of several months.
15 It is acknowledged on behalf of Ms. Forrest
16 that I would have to find this to be an
17 exceptional case in order to impose a short
18 sentence. However, there is simply nothing
19 exceptional in the circumstances of this case.
20 Ms. Forrest takes the position that absent
21 exceptional circumstances, a sentence of two
22 years plus a day in a federal penitentiary is
23 sufficient.
24 To determine the appropriate sentence, I
25 have to look at the mitigating and aggravating
26 factors.
27 The guilty plea is a significant mitigating
1 factor. By pleading guilty, Ms. Forrest has
2 given up her right to a trial, and this case
3 would have required a lengthy and complicated
4 trial. She also waived the preliminary inquiry.
5 The guilty plea means that Ms. Forrest is taking
6 responsibility for her actions and it signifies
7 remorse, so it is a significant factor in her
8 favour.
9 It is also to Ms. Forrest's credit that she
10 has got her life back on track since being
11 charged. She has been working and looking after
12 her children and has given up drugs and alcohol.
13 She has not got into any further trouble with the
14 law. And, of course, her rehabilitation is a
15 goal in sentencing and must not be lost sight of.
16 However, with this type of charge, it is not the
17 paramount concern.
18 There is no pretrial custody to take into
19 account in her case.
20 As to aggravating factors, the fact that
21 Ms. Forrest was trafficking in crack cocaine,
22 which is known to be very dangerous and highly
23 addictive, is an aggravating factor. She was
24 also working in association with, and at the
25 direction of and for the benefit of, a criminal
26 organization, in other words, Mr. Hache's drug
27 dealing network, and that is specified to be an
1 aggravating factor in Section 718.2 of the
2 Criminal Code.
3 In the Gladue report, there is reference to
4 Ms. Forrest describing Fort Resolution as full of
5 substances, and the writer of the report also
6 received information that drug and alcohol misuse
7 is a major problem there.
8 It is an aggravating factor that
9 Ms. Forrest, who is well acquainted with the
10 social problems in Fort Resolution, and I would
11 assume in other communities but certainly Fort
12 Resolution, chose to distribute drugs to be sold
13 to vulnerable people in those communities. And I
14 would also observe that in that situation, it is
15 not just the vulnerable person to whom the
16 cocaine is sold and then who then has to deal
17 with the consequences, even though they have
18 willingly bought the cocaine, but it is not just
19 that person who, in a sense, is a victim because
20 they are being preyed upon, but it is the
21 community that is a victim of this type of
22 activity.
23 I have taken into account Ms. Forrest's
24 Métis heritage and the Gladue factors. I have
25 taken into account that she is a mother to three
26 young children. As I have said, there are no
27 exceptional circumstances here, and the law is
1 clear that a significant term of incarceration is
2 called for.
3 I will deal first with the ancillary orders
4 sought by the Crown, none of which were opposed.
5 First, there will be a DNA order. Although
6 not mandatory for this offence, DNA is an
7 important investigative tool, and this is a very
8 serious offence so, in my view, the order is
9 appropriate and will issue.
10 Second, a firearm prohibition order is
11 mandatory, so there will be that order, in the
12 usual terms, commencing today and expiring ten
13 years from Ms. Forrest's release from
14 imprisonment. Any firearms and other items
15 covered by the order that are in her possession
16 are to be surrendered to the RCMP forthwith.
17 Finally, there will be the mandatory victim
18 surcharge of $200.00, with the default time and
19 time to pay as set out in the statute. The
20 Crown's forfeiture application may be brought
21 forward at a later date.
22 Please stand, Ms. Forrest.
23 Ms. Forrest, you and your counsel have
24 emphasized the negative effect that a prison
25 sentence will have on your children and your
26 relationship with your children; and I am sure
27 that when you first got involved with this drug
1 dealing enterprise, you must have thought about
2 what would happen if you got caught and,
3 unfortunately, you decided to take that risk. I
4 hope, I sincerely hope, that it is a risk that
5 you will never take again. It gives me
6 absolutely no pleasure to send a young mother to
7 jail for a lengthy period of time.
8 Having considered and balanced all the
9 factors and recognizing the terrible problem that
10 cocaine is in the Northwest Territories and the
11 need to deter those who traffic in it, I sentence
12 you to three years in jail. You may sit down.
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Anything further, counsel? |
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MR. |
PRAUGHT: Counts 2 and 3 could be |
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stayed, Your Honour, and we will file papers |
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today. |
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THE |
COURT: All right. Anything from you, |
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Mr. Bock? |
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MR. |
BOCK: No, thank you, Your Honour. |
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THE |
COURT: All right. Thank you. We |
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will close court. |
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PROCEEDINGS CONCLUDED |
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1 CERTIFICATE OF TRANSCRIPT
2
3 I, the undersigned, hereby certify that the
4 foregoing transcribed pages are a complete and
5 accurate transcript of the digitally recorded
6 proceedings taken herein to the best of my skill and
7 ability.
8 Dated at the City of Sault Ste. Marie, Province
9 of Ontario, this 3rd day of December, 2018. 10
11 Certified Pursuant to Rule 723
12 of the Rules of Court 13
14
15
16 ________________________
17 Kerri Francella
18 Court Transcriber
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