Irwin's Case — Drug Trafficking — Sentenced

Between
Her Majesty the Queen, and
Irvin V.

[2001] O.J. No. 5996

Ontario Court of Justice
Toronto, Ontario
Judge August

Sentenced:  27 September 2001
(34 paras.)

AUGUST J. (orally): —

¶ 1     MS MATHEWS:  Counsel also has the matter of Irwin V. Is Mr. V. here?

¶ 2     MR. PENNEY:  Mr. V. is coming forward, Your Honour. It's Penney, initial C, again - P-E-N-N-E-Y. Mr. V. is to be - do you have just the one charge before the Court, Madam Clerk?

¶ 3     CLERK OF THE COURT:  Yes, there is.

¶ 4     MR. PENNEY:  Yes. He'll be pleading not guilty to that and guilty to the included offence of possession under.

¶ 5     THE COURT:  Then would you arraign him.

¶ 6     MS MATHEWS:  Yes. That's on consent of the Crown.

¶ 7     MR. PENNEY:  Yes.

¶ 8     CLERK OF THE COURT:  Irwin V. on or about the 3rd day of March in the year 2001, in the City of Toronto, in the Toronto Region, unlawfully did have in his possession a controlled substance for the purpose of trafficking to wit, Cannabis Sativa, it's preparations, derivatives and similar synthetic preparations, namely Cannabis marijuana, resin, Tetrahydrocannabinol, contrary to s. 5(2) of the Controlled Drugs and Substances Act, thereby committing an offence under s. 5(4) of the said Act. How does the Crown elect to proceed on this? Straight - summarily?

¶ 9     MS MATHEWS:  Yes. It's absolute jurisdiction.

¶ 10     CLERK OF THE COURT:  How do you plead to this offence, sir ...

¶ 11     MR. PENNEY:  Mr. V., Your Honour, pleads not guilty to the offence as read, but guilty to the included offence of possession under.

¶ 12     MS MATHEWS:  And that is on consent of the Crown.

¶ 13     MR. PENNEY:  That's correct, Mr. V.?

¶ 14     THE ACCUSED:  That's correct.

¶ 15     MS MATHEWS:  Possession of marijuana, under 30 grams.

¶ 16     THE COURT:  Facts?

¶ 17     MS MATHEWS:  Your Honour, the facts briefly are that on Saturday, the 3rd of March in the year 2001, Mr. V. attended at the L*** night-club and was searched, incident to his entry into the club, by the security guards there and was found to contain … to have in his possession a bag containing approximately 22 grams of marijuana.

¶ 18     THE COURT:  Does he agree with those facts?

¶ 19     MR. PENNEY:  Those facts are admitted as being substantially correct, Your Honour.

¶ 20     THE COURT:  Then I will accept his plea of guilty to the lesser offence.

¶ 21     MR. PENNEY:  Thank you.

¶ 22     THE COURT:  As to sentence?

¶ 23     MS MATHEWS:  There is no record and the Crown would seek a conditional discharge, six months of probation, with a term that he not be in possession of any drugs, just given the quantum of the drugs.

¶ 24     MR. PENNEY:  Your Honour, it's a joint submission with respect to the discharge. I'm going to be asking Your Honour to consider an absolute discharge in the circumstances.

¶ 25     He's 24 years of age, Your Honour. He works with a company called C*** S*** Limited. He works in construction. He tells me as well, he's just started his own business in carpentry construction, working on basements and that sort of thing. He works approximately 60 to 70 hours per week.

¶ 26     He has no dependents but is in a stable relationship with another person. He tells me he's been staying out of trouble since March. He's had no problems. He anticipates no future problems, Your Honour.

¶ 27     It's my submission, Your Honour, that probation is not to be given as punishment. It's to be given where somebody needs support and to supervise their conduct and it's my submission, that it's not necessary in this case.

¶ 28     I'd ask Your Honour to consider, as well, that this is a case where he's not pleading guilty because he's conceding the inevitable. There was a live issue in this case as to the search. He tells me that, when he went into the premises to enter, they asked to search him. He says, "No." He says, "I prefer to leave." He tries to leave and the officer says, "No, you can't leave. You have to subject yourself to a search" and he did do that.

¶ 29     That's a Charter issue that I'm not raising, and I'm not seeking to have any evidence excluded. He still is guilty, but I do want to raise it in mitigation on his part, to show Your Honour that it is a real demonstration of remorse for him to enter a guilty plea. I'd ask Your Honour to consider discharging him absolutely without the six months probation.

¶ 30     THE COURT:  He has no record?

¶ 31     MR. PENNEY:  No record, Your Honour, as I understand it.

¶ 32     THE COURT:  All right. I will grant him an absolute discharge.

¶ 33     MR. PENNEY:  I thank Your Honour. I thank my friend, as well.

¶ 34     MS MATHEWS:  Thank you, Your Honour.

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