Court File and Parties
Court File No.: Kitchener 6461-14 Date: 2016-04-27 Ontario Court of Justice
Between: Her Majesty the Queen — and — Sarah McArthur
Before: Justice G. F. Hearn
Heard on: December 10, 2014, January 23, 2015, March 12, 2015, April 21, 2015, May 13, 2015, August 27, 2015, September 10, 2015, November 27, 2015, December 22, 2015, January 6, 2016, January 18, 2016, February 1, 2016, February 24, 2016 and April 1, 2016
Reasons for Sentence released on: April 27, 2016
Counsel:
- K. Nolan, counsel for the Crown
- M. Parrott/B. Cummins, counsel for the defendant Sarah McArthur
HEARN J.:
BACKGROUND
1Sarah McArthur came before the court on December 10, 2014 and at that time entered pleas of guilty to counts said to have taken place between January 2, 2012 and August 7, 2014. The charges involve a count of uttering a forged document, namely prescriptions as if they were genuine, a count of theft involving the theft of prescription paper from St. Joseph's Health Care, a count of possession of a controlled substance, to wit, hydromorphone for the purpose of trafficking and finally a count of fraud involving the defrauding of funds from the Ontario Drug Benefit Program by seeking reimbursement for fraudulently obtained prescription medication.
2At the time of her pleas the facts were not read in but a pre-sentence report was ordered with the matter to return in March of 2015. The accused at the time was taking part in various counselling and seeking to deal with an addiction issue through residential treatment programs.
3The matter was adjourned on numerous occasions in 2015 to allow that process to take place. Material was filed from time to time by counsel for Ms. McArthur setting out the progress or, in some cases, the lack of progress with respect to the efforts of the accused to deal with various issues, one of which was her drug addiction.
4In December of 2015 as a result of Ms. McArthur's counsel leaving the practice of law new counsel appeared on behalf of Ms. McArthur and Mr. Cummins has been dealing with this matter as her counsel since December of 2015.
5An updated pre-sentence report was ordered and came before the court on January 18, 2016. At that time the court heard evidence called on behalf of Ms. McArthur as well as receiving the updated report, further documentation and submissions. During the course of submissions counsel for the Crown took issue with some of the contents of the pre-sentence report and the matter was adjourned to a further date to allow counsel to consider their positions and explore the necessity for calling further evidence.
6Ultimately that issue was resolved between counsel and on April 1, 2016 final submissions were received on sentence. The court at that time also had an opportunity to hear from Ms. McArthur. Following the hearing on that date the matter was then adjourned to today's date in order to permit the court to consider submissions and pronounce sentence.
CIRCUMSTANCES OF THE OFFENCES
7Filed as Exhibit #2 is an Agreed Statement of Facts. Attached to that statement and adopted as agreed-upon facts is various documentation. That documentation includes correspondence relating to the charges of forgery and theft from Dr. P. L. Hooper whose signature was forged on documents uttered by the accused on prescription forms that had been stolen from his office. Those forged documents were uttered by Ms. McArthur to enable her to obtain various quantities of hydromorphone and fentanyl. Also attached is a copy of the report of Det. Ian Young and the Crown synopsis with respect to the circumstances of all of the offences including the offence of possession of hydromorphone for the purpose of trafficking.
8Briefly stated, the facts agreed to set out that the accused Sarah McArthur is a family physician and a registered member of the College of Physicians and Surgeons, although currently not an active member. The accused unfortunately developed a very significant and tragic chemical substance addiction which she has, for many years, and continues to battle.
9That addiction led her to cease practising medicine in 2012 and she in fact had relinquished her ability to write narcotic prescriptions in 2010. As I understand it, she is still currently a member of the Fitness to Practice Committee, a program designed to assess physicians with mental health or substance abuse issues and determine their capability to practise in their chosen field.
10With respect to the theft of the prescription forms, Ms. McArthur was a registered patient of Dr. Hooper, as well as Dr. Moore, concerning ongoing issues with respect to ocular inflammation. While seeing these doctors the accused would steal numerous blank prescription forms from different examination rooms in the hospital where the doctors practised. The accused would then forge the various prescription forms and submit them to be filled at a number of pharmacies.
11Between January 2012 and November 2013 the accused attended a pharmacy situated in the village of St. George where she had filled 33 forged prescriptions for hydromorphone. Between January 2012 and April 2014 at a Shopper Drug Mart pharmacy situated in Cambridge she had 59 false prescriptions filled including 38 for hydromorphone and 21 for fentanyl.
12During a six-week period in the spring of 2014 Ms. McArthur attended the Zehrs Pharmacy in Cambridge on three occasions and had false prescriptions filled in her mother's name. On each occasion she secured 200 hydromorphone pills and 20 fentanyl patches for a total of 600 pills and 60 patches. During a two-week period in the summer of 2014 while facing charges of a similar nature, the accused attended at another pharmacy in Cambridge where she once again had two false prescriptions filled, again in her mother's name. As a result of uttering those forged prescriptions, she was able to obtain 200 hydromorphone pills and 20 fentanyl patches.
13With respect to the false prescriptions in the name of her mother, the accused claimed reimbursement for those prescriptions from the Ontario Drug Benefit Plan and the Trillium Drug Plan. The Ontario Drug Benefit Plan is a program provided by the Ontario government to enable seniors over the age of 65 to be reimbursed for certain prescriptions. As a result of the claim made on behalf of her mother, Ms. McArthur was reimbursed in the amount of $1,089.26. A similar program, the Trillium Drug Program, provides reimbursement for prescriptions to low income individuals. Claims were submitted with respect to that program by the accused on her own behalf for fake prescriptions resulting in a reimbursement to the accused of $2,312.78.
14Finally, upon her arrest a search warrant was executed at the accused's residence where various documents were obtained leading the police to believe, and the accused to acknowledge, that she was trading hydromorphone pills for more fentanyl. She admitted as well during the course of her statement to the police she had provided hydromorphone pills to others in addition to using them herself. From the information received and seized it would appear that over the period set out in the information the accused received in excess of 12,210 hydromorphone pills.
15During an interview with the police Ms. McArthur acknowledged her addiction, how that addiction commenced and the type of drugs that she used. In addition to using hydromorphone herself she would provide that to others in exchange for fentanyl and other compensation. Ms. McArthur advised the police she had given hydromorphone away and at one point when asked by the police if she owed any money to anyone, the accused stated that "people owe me". The information provided during the course of a second interview indicated that Ms. McArthur was using both fentanyl and hydromorphone herself on a daily basis, with her use of hydromorphone pills sometimes being up to 15 pills a day. As noted in the report of Det. Young, he was of the view that the hydromorphone obtained by Sarah McArthur was in her possession for the purpose of trafficking to support a fentanyl addiction and her own personal use as well. Upon the search of her residence quantities of fentanyl and hydromorphone as well as other substances were seized.
16With respect to the uttering of the forged prescriptions, marked as Exhibit #4 is a summary of the various transactions completed by Ms. McArthur using the forged prescription forms.
CIRCUMSTANCES OF THE OFFENDER
17A pre-sentence report has been prepared which sets out the background of Ms. McArthur as well as her current circumstances. Given the length of time this matter has been before the court, an updated pre-sentence report was requested and received on January 18, 2016. Both the original pre-sentence report as well as the updated report have been marked as exhibits (see Exhibits #3 and #7).
18In addition to the pre-sentence reports, there have been a number of letters filed on behalf of the accused setting out in detail the journey that she has been on for the past number of years in an effort to deal with the tragic circumstances of her life. These include her efforts to deal with addictions both to alcohol and drugs.
19Further, the defence called Jim Henderson, an addictions counsellor situated in the London area where Ms. McArthur currently resides. Mr. Henderson spoke of his involvement with Ms. McArthur and her efforts, both past and ongoing, to deal with her issues within the community where she resides. He also spoke of the supports that are in place within that community that are both available and utilized by Ms. McArthur.
20The pre-sentence reports that have been prepared are thorough and provide details of Ms. McArthur's past as well as her current circumstances.
21Ms. McArthur is 44 years of age, having just turned 44 this month. She was adopted by her parents when she was just ten days old and appears to have been raised in a loving and nurturing environment. Her parents have remained supportive and caring and have appeared with their daughter on virtually every court appearance.
22Her mother describes Ms. McArthur as an amazing and bright child who excelled in school and otherwise. She lived with her parents until she was 24 and then moved from their home in Alberta to Hamilton to pursue her medical career.
23She married in 1999 during her medical residency and that union resulted in the birth of two sons. That marriage is described as "fairly good" but broke down in 2009. The circumstances of that breakdown are set out in the pre-sentence report as reported by Ms. McArthur and with which the Crown takes no issue.
24The breakdown of the marriage, however, resulted in emotional health issues for the accused including bouts of anxiety and depression. The children were ultimately placed in the care of the father with access initially to Ms. McArthur but that access has been curtailed on occasion and currently has been absent for the past two years.
25Following the breakdown of her marriage, as noted in the pre-sentence report, Ms. McArthur sought escape through the use of alcohol and painkillers. The author of the pre-sentence report states that drugs appear to have been used to "lessen or dull the pain of what had become Ms. McArthur's reality". Somewhat insightfully, the pre-sentence report sets out that Ms. McArthur struggled "with the drastic shift going from being a caretaker of others to realizing her own limitations and desperations".
26She became involved in a relationship with another male who abused painkillers as well and when that relationship broke down Ms. McArthur made efforts to deal with her addictions. Unfortunately, she was unsuccessful despite efforts on her part and she "hated herself" to the point where in August 2012 she attempted to take her own life by an overdose of medication.
27Following that, she still made efforts to deal with her addiction again, unfortunately, with limited success. She suffered further trauma in her life as a result of another relationship which undermined her recovery as well as her well-being. In November 2014 she was the victim of a sexual assault as set out in the pre-sentence report. It should be noted that the Crown initially wished some substantiation of that particular incident but ultimately accepted Ms. McArthur's account of that incident and, indeed, Ms. McArthur has been seeking additional counselling and support for the trauma occasioned by that event.
28There have been a number of letters filed tracing the history of Ms. McArthur's attempts to deal with her issues appropriately. The letters are supportive and chronicle Ms. McArthur's "difficult life situations". She has sought relief in the support of a number of groups as well as in her faith. The letters speak of her efforts and her potential but she still struggles. She is a prime example of individuals trying to deal with a significant addiction to alcohol and/or drugs as well as other traumatic circumstances in their lives where efforts are made but are not always initially successful.
29The important point I find is that efforts are still being made. Getting over an addiction is not an event but a process, a process in which Ms. McArthur seems to be taking part.
30She is currently residing in London. Her income is comprised of a disability pension. She has supports in the community where she resides and those supports are set out in the letters that have been filed by counsel.
31Ms. McArthur spoke to the court during the course of sentencing in a very passionate and emotional manner. She has insight into her conduct and acknowledges there is no excuse, particularly given her professional training for her actions. She stated to the court that she is "trying very hard to be me now, to stand up for what I know is right". She is engaged with the Canadian Mental Health Association, receiving medication from her doctor and utilizing community resources. She has joined a community church group and takes part in counselling including counselling with a group of health professionals who experience similar issues.
32Ms. McArthur advises she is ashamed of what she has done but noted her conduct "does not reflect what I believe in and what my core values are and I really don't know what's going on with me right now". She states she is no longer willing to behave as she has in the past.
POSITION OF THE PARTIES
33The positions of the Crown and the defence are distances apart. The Crown stresses the aggravating factors of the offences before the court, such as an alleged breach of trust and possession of hydromorphone, a dangerous, insidious drug for the purpose of trafficking. The Crown seeks a period of imprisonment of five years.
34Defence counsel acknowledges the aggravating factors but emphasizes the efforts that Ms. McArthur has made to right the wrong she has done. She is attempting to deal with her issues within the community in an appropriate manner and although not always successful, she continues to make efforts. She has supports in the community and defence counsel submits rehabilitation and other principles of sentencing can be properly addressed by way of a conditional sentence followed by a period of probation to permit Ms. McArthur to continue to advance her recovery, all the while being subject to strict conditions and supervision within the community. Both counsel acknowledge that a conditional sentence is a sentencing disposition available to the court given the timeframe of the charges to which Ms. McArthur has pled.
PRINCIPLES TO BE APPLIED
35The sentencing of an individual is not an exact science and the court retains the flexibility needed to do justice in individual cases. Each case that comes before the court is conducted as an individual exercise. As the Court of Appeal has often stated sentencing is a human process and the fit sentence to be imposed by this court is the product not only of the circumstances of the various offences to which Ms. McArthur has pled guilty, but also the circumstances of Ms. McArthur herself. At the end of the day the sentencing of an individual such as Ms. McArthur is a difficult exercise.
36The purpose of sentencing under the Controlled Drugs and Substances Act is set out in s. 10 of that legislation. Section 10 reads as follows:
Sentencing
Purpose of sentencing
10. (1) Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community.
37Principles of sentencing are also set out in s. 718 to 718.2 of the Criminal Code. Section 718 as of the date of the conduct engaged in by Ms. McArthur read as follows:
718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
38Section 718.1 states a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
39The issue of proportionality is a principle rooted in notions of fairness and justice. The sentence must reflect the seriousness of the offence and the degree of culpability of the offender and the harm occasioned by the offence. The court must consider both aggravating and mitigating factors, look at the gravity of the offence and the blameworthiness of Ms. McArthur and the sentence ultimately imposed must properly reflect in terms of gravity that which the offences generally bear to other offences.
40Section 718.2 as of the date of the conduct forming the subject matter of the charges sets out other principles to be considered including the principles that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances and where consecutive sentences are imposed the combined sentence should not be unduly harsh or long. Also, if there are less restrictive sanctions appropriate the offender should not be deprived of liberty and all available sanctions other than imprisonment are to be considered. This is commonly referred to as the principle of restraint.
41Section 718.2 also requires a court that imposes a sentence to consider the principle that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. One of the considerations in that regard relevant to the Crown's argument is evidence that the offender in committing an offence abused a position of trust or authority in relation to the victim.
42In this particular case clearly the principles to be considered as primary factors are those of general deterrence and denunciation. Still, the court must show restraint and recognize that rehabilitation of Ms. McArthur is a factor to be considered as is the issue of totality given the number of charges pled to. Any sentence imposed on Ms. McArthur, who has never been in difficulty before nor served any period of imprisonment (save and except for three days pre-trial custody), must not crush her.
43In Regina v. M.(C.A.), (1996) 105 C.C.C. (3d) 327, the Supreme Court of Canada indicated when dealing with the issues of retribution and denunciation at page 369 as follows:
The relevance of both retribution and denunciation as goals of sentencing underscores that our criminal justice system is not simply a vast system of negative penalties designed to prevent objectively harmful conduct by increasing the cost the offender must bear in committing an enumerated offence. Our criminal law is also a system of values. A system which expresses denunciation is simply the means by which these values are communicated. In short, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instils the basic set of communal values shared by all Canadians as expressed by the Criminal Code.
44The purpose of general deterrence in a sentencing is to protect the public from the commission of such crimes as before the court by making it clear to Ms. McArthur and to other persons with similar impulses that, if they yield to them, they will be met with severe punishment.
45Dealing with the issue of a conditional sentence as advocated by the defence, initially I note the Crown has conceded that such a sentence is open for the court to consider. The Crown, however, submits that such a sentence would be entirely inconsistent with the fundamental principles of sentencing and would be unavailable in any event given that a penitentiary sentence is warranted. The Crown ultimately submits that a conditional sentence is not a fit disposition.
46With respect to a conditional sentence, I note the provisions of s. 742.1 of the Criminal Code and the case law that has developed since Regina v. Proulx, (2001) 140 C.C.C. (3d) 449. That case law indicates that the conditional sentence regime was enacted to reduce both reliance on incarceration as a sanction and to increase the use of the principles of restorative justice in sentencing. Restorative justice is concerned with the restoration of the parties that are affected by the commission of the offence.
47The case law supports the principle that each case must be decided and considered individually and even with the presence of aggravating factors which might indicate the need for denunciation and deterrence a conditional sentence can still provide sufficient denunciation and deterrence even where restorative objectives are of diminished importance. A conditional sentence is a sentence that is capable of achieving the objectives of denunciation and deterrence, particularly in circumstances where the offender is forced to take responsibility for his or her actions and make reparations both to the victim and the community all the while living in the community under tight control. It is, however, also apparent from the cases there are situations where the principles of general deterrence and denunciation cannot adequately be met except by a period of imprisonment in a traditional setting. Further, a conditional sentence is not available if the court imposes a sentence of imprisonment of two years or greater. That is, if a penitentiary term is the appropriate disposition a conditional sentence would be unavailable under the terms of the Criminal Code.
48Crown counsel has provided a case book and I have reviewed the cases provided by the Crown. The defence has provided one case where a conditional sentence was imposed on an individual who had pled guilty to four counts of trafficking in small quantities of heroin. The accused in that particular case was a heroin addict and his drug dealing was done mainly to meet the demands of his addiction. He, as with Ms. McArthur, was attempting to take significant steps to deal with his addiction. Ultimately, in that case the court granted a conditional sentence. (See Regina v. Azeez, [2014] O.J. No. 3091.)
49In the cases provided by the Crown various periods of custody were imposed for cases involving trafficking and possession for the purpose of trafficking in fentanyl and hydromorphone. The Crown's cases would indicate that a penitentiary term is imposed more often than not. (See Regina v. Baks, 2015 ONCA 615; Regina v. Baks, 2015 ONCA 560; Regina v. Baks, May 16, 2014; Regina v. Rak, 2015 ONCJ 543; Regina v. Barnham, 2014 ONCA 797; Regina v. Griffith, [1996] O.J. No. 4797; Regina v. Turner, [2003] O.J. No. 685; Regina v. Rhonda McMahan and Neil Edwards, December 18, 2014.)
50In reviewing the case law I keep in mind, as noted previously, that sentencing is an individual exercise and the antecedents of the accused noted in the various cases differ from those of Ms. McArthur, as do the facts which involve often greater degrees of culpability and other aggravating factors, as well as differing mitigating circumstances.
51The Crown submits it would be an error in principle to impose anything less than a significant penitentiary term and stresses the range of sentences that have been previously imposed. I keep in mind, however, the comments in Regina v. Nasogaluak, [2010] S.C.R. No. 6, where Justice Moldaver stated at para. 44 as follows:
The wide discretion granted to sentencing judges has limits. It is fettered in part by the case law that has set down, in some circumstances, general ranges of sentences for particular offences, to encourage greater consistency between sentencing decisions in accordance with the principle of parity enshrined in the Code. But it must be remembered that, while courts should pay heed to these ranges, they are guidelines rather than hard and fast rules. A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit. Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community in which the offence occurred.
AGGRAVATING FACTORS
52The aggravating factors in this matter are as follows:
1. Although no expert evidence has been called, it is clear from the case law that has been provided and the submissions of counsel that hydromorphone, the controlled substance possessed by Ms. McArthur, is a dangerous and insidious drug, as is fentanyl, which she has acknowledged she also had in her possession. Hydromorphone is a synthetic heroin substitute and the case law suggests, for example, that trafficking in heroin or possession for the purpose of trafficking in that substance, even in small amounts, often results in penitentiary sentences.
2. The quantity of hydromorphone which passed through the hands of Ms. McArthur and was found in her residence at the time of her arrest is substantial, approximately 12,000 pills over the timeframe set out in the information. Notwithstanding that Ms. McArthur was an addict herself and appears to have been, and accepted to have been, trafficking the hydromorphone to others in exchange for fentanyl, it appears she as well on occasion would traffic in the substance and be paid money as evidenced by her comments to the investigating officers at the time of her arrest. So, although her own use of hydromorphone and fentanyl appears to have been rather prolific, there is a commercial nature to her conduct, although, I find, very minor in comparison to the main reason why she was trafficking which was to make sure her supply of fentanyl was maintained by exchanging hydromorphone for that substance.
3. The Crown argues there is a breach of trust. To be candid, as I noted to counsel for the Crown, I have a hard time understanding where the breach of trust exists, but I do accept that given Ms. McArthur's background as a medical doctor she was aware of placement of prescription forms in doctors' offices and how to write the appropriate scripts. However, at the time she obtained the forms I find that she was in fact a patient herself. If taking the prescription forms from medical offices where she was attending to be treated is a breach of trust, that does not seem apparent to me. Nor does the fact that forms were taken from various pads allegedly to avoid detection so the prescription forms would not be numerically sequential when presented. The defence does not acknowledge that aggravating factor and it seems more likely Ms. McArthur was simply taking the forms from wherever she could find them in the doctors' offices when she attended for appointments. Indeed, one of the consequences of her doing that was to have the doctors terminate their relationship with her as evidenced by the letter from Dr. Hooper. Still, it is a disturbing course of conduct for even a patient to steal such forms, and perhaps even more so given Ms. McArthur's medical background.
4. The course of conduct of Ms. McArthur took place over an extended period of time. There were multiple transactions where prescriptions were presented and some of the prescriptions were presented after her initial arrest. The conduct did not cease voluntarily but only upon her ultimate arrest and Ms. McArthur, who by all accounts was a bright and respected doctor, would have had many opportunities to step back, deal with her addiction appropriately and cease her conduct but she did not.
5. Ms. McArthur not only wrote scripts in her own name and then applied for reimbursement for some of those amounts through the Trillium Fund, she also wrote scripts in the name of her mother. She then compounded her criminal conduct by seeking reimbursement on behalf of her mother for the false prescription forms that she had uttered from the Ontario Drug Benefit Plan. Rather egregious conduct which speaks to perhaps something more than simply conduct to feed an addiction.
MITIGATING FACTORS
53The mitigating factors in this matter are as follows:
1. Ms. McArthur has accepted responsibility, fully appreciating the jeopardy and the consequences that will follow. By her pleas she has eliminated the need for a preliminary hearing and/or a trial, either of which would be lengthy, time consuming and require numerous witnesses to be called.
2. She is a first-time offender. She has never been involved in the criminal justice system previously. She spent three days in custody at the time of her arrest and upon release has been able to comply fully with the terms of her recognizance. I am unaware of any breaches of that recognizance.
3. I accept that Ms. McArthur is remorseful, as evidenced not only by the pleas of guilty having been entered, but also by the comments that she made both to the author of the pre-sentence report and to the court. I accept her remorse is genuine and sincere. I am also advised that she has made a realistic effort to pay a good portion of the monies defrauded from the two drug plans. Further, I accept that she has insight into her conduct and is trying desperately to change.
4. Ms. McArthur presents as an addict-driven criminal. Her conduct was entered into, not with the motive of greed or evil intention. Her conduct was driven by her addiction. There is no profit motive of any great extent and she relies primarily on a disability pension as her sole source of income. There is nothing to indicate there was an accumulation of wealth or assets and she has made significant efforts to deal with her addiction. There have been struggles and failures but she continues to sincerely wish to address her addictions and that goes to her credit.
5. In the community she has sought out supports and engaged with those supports when available. She is not a lost cause, rehabilitation is a factor and she presents in many ways as a victim herself, not only as a result of her addictions but because of her own life circumstances as set out in the reports. She struggles with mental and emotional health issues and sometimes that struggle appears to be at the point of overwhelming Ms. McArthur. She was a gifted child and a respected physician who has experienced, as a result of her conduct, shame, embarrassment and a substantial fall from grace. Numerous consequences for her conduct have already been imposed. I accept that her criminal conduct is not indicative of her true character or, as she put it"it's not me".
SENTENCE TO BE IMPOSED
54The sentencing of Ms. McArthur is a very difficult task. Clearly, her conduct speaks out for a denunciatory sentence and a sentence which addresses general deterrence. On the other hand, there are mitigating factors here that would clearly indicate rehabilitation and restraint are to be considered.
55The Crown relies a good deal on various case law to support a range of sentences for similar conduct. Still, even the cases where such ranges are discussed, recognize that those ranges are for consideration only and not necessarily applicable where exceptional circumstances exist. Further, sentencing ranges are not immoveable or immutable and to consider a range of sentence as creating a de facto minimum sentence misses the point and ignores the fundamental principle of proportionality. Individual circumstances matter. (See Regina v. Jacko, (2010) 101 O.R. (3d) 1 at para. 90.)
56In sentencing Ms. McArthur I consider all of the above and I also consider the wording of s. 10 of the Controlled Drugs and Substances Act. That section, in addition to noting a fundamental purpose of a sentence for a drug offence to be such that it contributes to respect for the law and the maintenance of a just, peaceful society, also encourages rehabilitation and treatment in appropriate circumstances of offenders and acknowledging the harm done to victims and the community.
57In Regina v. N.H.(C.), (2002) 170 C.C.C. (3d) 253, at para. 31 Justice Rosenberg noted s. 10 of the Controlled Drugs and Substances Act and stated as follows:
...the importance of s. 10 is to encourage courts to recognize the particular problem that in many cases persons convicted of drug offences are themselves victims of the drug culture and dependent upon drugs as addicts or users. I think s. 10 recognizes a view that had become increasingly prevalent that, especially for the addict trafficker, the public interest -- including the protection of the public -- is best served by the treatment and rehabilitation of the offender.
58Ms. McArthur has not been completely successful in treating her addictions. She has had ups and downs and currently is in a situation, as I understand it, where she has had some success. Although complete success has eluded her up to now, she is at least taking some steps to address her addictions. I am of the view given the material that is before me that those efforts to deal with her addictions are genuine and given her persistence in continuing with those efforts I am hopeful that there is a good possibility she will ultimately be successful.
59All that said, I am at the end of the day still struggling with defence submissions that a conditional sentence is appropriate. Ultimately, I find that such a sentence would be contrary to the principles that must be addressed given the nature of the substance involved in this matter as well as the other criminal conduct leading to the charges before the court. I am also of the view that the length of sentence necessary in this matter would effectively eliminate the possibility of a conditional sentence being in place. In my view, there must be a period of imprisonment in a traditional setting. The question really is what is the length of that imprisonment.
60After considering the aggravating and mitigating factors, the principles to be applied and fully appreciating the efforts Ms. McArthur has made I am satisfied that a sentence of two years to be followed by three years' probation is a fit and proper disposition.
61Such a sentence will allow her an opportunity to seek some treatment while in custody for a period of time in a controlled setting and the period of probation to follow will allow her to continue what I hope will be a successful rehabilitation with some supervision and direction in the community. The period of probation will afford her an opportunity to have available, if she wishes, various supports in addition to those already in place.
62I appreciate this is a penitentiary sentence but I consider two years appropriate and as short a sentence as is reasonable in the circumstances. This sentence has been arrived at by directing myself to not only the circumstances of the various offences but also the circumstances of Ms. McArthur and the principles to be applied. It is also to be remembered that the period of probation to follow is part of that sentence which I am of the view also adds a deterrent aspect to the sentence.
63The sentence therefore will be two years' imprisonment to be followed by three years' probation and the information will note as follows:
- Uttering forged documents: six months' imprisonment to be followed by three years' probation;
- Theft of the prescription forms: six months' imprisonment concurrent, three years' probation concurrent;
- Possession of the hydromorphone for the purpose of trafficking: eighteen months' imprisonment consecutive, three years' probation concurrent; and
- Defrauding the Ontario Drug Benefit Plan: three months' imprisonment concurrent, three years' probation concurrent.
64There will also be an order for a DNA sample to be taken in accordance with the Criminal Code with regard to the secondary designated offence under the Controlled Drugs and Substances Act and as well on that count there will be a s. 109 order under (2)(a) for a period of ten years and (2)(b) for life.
65The terms of the three year probation order will be as follows:
- You will keep the peace and be of good behaviour.
- You will notify the court or the probation officer in advance of any change of name or address or employment or occupation.
- You will report within two working days of your release from custody to a probation officer and thereafter as directed and be under the supervision of the probation officer.
- You will not possess or consume alcohol or other intoxicating substances.
- You will not possess or consume any drugs except in accordance with a medical prescription.
- You will not have in your possession any weapon, including any offensive weapon, ammunition, explosive substance or weapon as defined in the Criminal Code.
- You will attend and take part in any counselling or programming that may be recommended by your probation officer for any area identified by your probation officer and specifically with respect to substance abuse and alcohol abuse. You will provide your probation officer with proof of your participation in such programs if requested and you will also provide your probation officer with an authorization to permit your probation officer to liaise with any counsellor under whose care you might be to monitor your course of counselling.
- You will have no contact, association or communication directly or indirectly with anyone specifically named by your probation officer.
66The probation order, Ms. McArthur, is directed at your continuing hopeful recovery and to afford you additional supports in the community upon your release from custody. If you breach any of the terms of the probation order that will be in place you could be back before the court facing additional charges as well as a charge of breach of probation. I am hopeful that will not occur.
67In summary then, the total period of imprisonment moving forward is two years to be followed by three years' probation and the ancillary orders under s. 109 as well as a DNA order. All other charges on the informations before the court are to be marked withdrawn against Ms. McArthur.
68I would be remiss if I did not thank counsel for their very thorough and thoughtful submissions on this difficult matter. I would also wish Ms. McArthur good luck in dealing with her various issues while in custody and thereafter.
Released: April 27, 2016
Signed: "Justice G. F. Hearn"
