Court Information
Ontario Court of Justice
Parties
Between:
Her Majesty the Queen
— AND —
Baillie Elizabeth White
Before: Justice Peter J. Wright
Reasons for Judgment released on: March 21, 2017
Counsel
G. Raven — counsel for the Crown
M. Jacula — for the defendant Baillie Elizabeth White
Introduction
1Baillie Elizabeth White was charged with one count of theft of prescription medication contrary to the Criminal Code. The Crown proceeded by indictment. This is an offence which is within the absolute jurisdiction of the Ontario Court of Justice.
2Baillie Elizabeth White was also charged with one count of trafficking Hydromorph Contin, one count of trafficking in Ratio-Oxycocet, and one count of trafficking in Adderall Contin; all three offences contrary to the Controlled Drugs and Substances Act. These offences are indictable.
3The offences occurred on July 25th, 2015. On the 24th of August 2016 Baillie Elizabeth White elected trial in the Ontario Court of Justice in relation to these four offences and pleaded guilty to each one of them.
4Baillie Elizabeth White is a 25 year old Aboriginal woman who has no criminal record. Since her arrest, Baillie Elizabeth White has abstained from illicit drug use, has reconnected with her Aboriginal ancestry, has attended and successfully completed drug and mental health treatment programs, and has achieved real and demonstrably positive results to effect her own rehabilitation and reformation. These accomplishments are evidenced by the Pre-Sentence Report (Exhibit #1), the Gladue Report (Exhibit #2), the Composite Sentencing Brief, including medical reports (Exhibit #3) and the report from Alana Timmers, Durham Region Mental Health Support Worker (Exhibit #4).
Issue
5What is the fit and proper sentence for Baillie Elizabeth White now almost one and a half years following the commission of these offences.
Ruling
6The Crown submits that Baillie Elizabeth White be sentenced to the penitentiary for a period of two and a half to three years.
7The Defence submits that Baillie Elizabeth White's sentence be suspended and that she be placed on probation.
8The Crown submits that Baillie Elizabeth White be the subject of ancillary orders including a weapons prohibition order for ten years, a D.N.A. order and a victim surcharge. The Defence is not opposed to these ancillary orders.
9On December 14th, 2016 this Court suspended the passing of sentence and placed Baillie Elizabeth White on probation for 30 months. This Court found that Baillie Elizabeth White be the subject of a 10 year weapons prohibition order, be required to provide a sample of her bodily substance for D.N.A. analysis and retention and that she pay a victim surcharge of $200.00 concurrent on all four charges. This Court gave oral reasons to be complemented by written reasons to follow. These are those written reasons.
Circumstances of the Offences
10The facts of this case are relatively straight-forward. At the time of the commission of the offences on the 25th of July, 2015, Baillie Elizabeth White was employed as a Pharmacy Technician at the Shopper's Drug Mart located at 1428 Highway 2, Courtice, which is in Durham Region. As a Pharmacy Technician, she had many duties, but she also had access to a wide range of pharmaceutical drugs which were dispensed at her place of employment. These drugs included the very narcotics which are at the core of the offences before the Court and to which Baillie Elizabeth White pleaded guilty.
11Baillie Elizabeth White was observed on video surveillance taking various narcotics from the narcotic safe. She concealed a bottle of narcotics in her pants. Later she was observed taking more bottles of narcotics and concealing them in a bag. She was seen to place the bag of narcotics in a box and hand it to an adult male later identified as her then boyfriend. Between nine and ten o'clock, Baillie Elizabeth White met with her boyfriend. Later, Baillie Elizabeth White left the store when she finished work at 10:00 p.m.
12While there is some dispute regarding the totality of narcotics which were actually taken by Baillie White, it is admitted that the inventory of the missing narcotics revealed 937 Hydromorph pills in varying strengths missing, 1,043 Oxycocet pills missing and 300 Adderall pills missing.
13Immediately after the commission of the offences, Baillie Elizabeth White and her boyfriend left Ontario and travelled to Edmonton, Alberta. Later, Baillie Elizabeth White returned to Ontario surrendered herself for arrest as she was aware of the charges that she faced. No drugs were recovered at that time.
14Baillie Elizabeth White took the drugs for her personal use and for the use by her boyfriend with whom she was living. In giving the drugs to her boyfriend, Baillie Elizabeth White committed the offence of trafficking. There was never any commercial aspect to the trafficking of the drugs, nor was there any exchange of money. Baillie Elizabeth White and her boyfriend were drug addicts at the time these offences were committed. Baillie Elizabeth White was in an abusive relationship with her boyfriend. When Baillie Elizabeth White decided to return to Ontario she did so for three reasons:
- To resolve her charges
- To resolve her drug addiction through treatment
- To end the abusive relationship with her boyfriend
After entering her pleas of guilty to all of her offences Baillie Elizabeth White admitted all of the facts and circumstances. The Court found Baillie Elizabeth White guilty of the offences with which she was charged.
Circumstances of the Offender
15Baillie Elizabeth White was 23 years of age at the time of the commission of the offences. Today she is almost 25. Baillie Elizabeth White has no criminal record. Baillie Elizabeth White pleaded guilty to all of the offences before the Court. It is clear from her pleas and from the facts and circumstances which were admitted, that Baillie Elizabeth White accepts full responsibility for these offences, is remorseful, has insight into the circumstances surrounding the commission of these offences and the impact that these offences have had on her, the community and her family.
16Baillie Elizabeth White has always expressed her desire to resolve these charges by accepting full responsibility. Baillie Elizabeth White has always been clear that there would be no need for a preliminary inquiry or a trial. At the outset, Baillie Elizabeth White applied to be accepted into the Durham Region Drug Treatment Court. Unfortunately that proved to be unsuccessful, but through no fault of Baillie Elizabeth White. In exercise of its prerogative, the Crown refused to consent to Baillie Elizabeth White's admission into that program.
17Baillie Elizabeth White never resiled from her position to accept responsibility in full measure for these offences. When it came time to make a decision between a trial and entering a plea of guilty, Baillie Elizabeth White accepted full responsibility for these offences and plead guilty to them. She never spoke of a preliminary inquiry or a trial. Baillie Elizabeth White has obeyed each and every term of her bail release conditions without a single violation over the 16 months that have passed from the date of her release.
18Four exhibits were filed which assisted in outlining the circumstances of the offender:
Exhibit No. 1 – a Pre-Sentence Report. This was an excellent report reflecting very favourably upon Baillie Elizabeth White in every respect.
Exhibit No. 2 – a Gladue Report. This was an excellent report reflecting very favourably upon Baillie Elizabeth White in every respect. Baillie Elizabeth White's ancestral heritage as an Aboriginal and her commitment to re-establish with that heritage was detailed in this report.
Exhibit No. 3 – Composite Sentencing Brief. This brief contained a number of reports and letters all of which speak strongly in support of Baillie Elizabeth White and the determined efforts she has made over these past 16 months in demonstrating her resolve to defeat her drug dependency, effect her own rehabilitation and reformation and to resume her contributory role in society.
Exhibit No. 4 – Report from Ms. Alana Timmers. This is an excellent report from Ms. Alana Timmers who is a highly skilled and experienced professional mental health court support worker in Durham Region. Ms. Timmers enjoys an outstanding reputation for integrity within the Durham Region Drug Treatment Court. Judges at all levels in Durham Region rely heavily upon the fact based opinion evidence of Ms. Timmers who provides accurate and reliable assessments of those persons, like Baillie Elizabeth White, who have faced the challenges of drug addiction and dependency. In her report, Ms. Timmers speaks highly of Baillie Elizabeth White's insight and determination to break the cycle of drug dependency and to work constructively through recovery. Ms. Timmers also expressed her opinion that a return to jail for Baillie Elizabeth White, with all of its repercussions, would set Baillie Elizabeth White back immensely.
The Position of the Parties
The Crown
19Mr. Raven, as assistant Crown and agent for the Department of Justice made submissions that the fit and proper sentence for Baillie Elizabeth White was two and a half to three years in the penitentiary. Mr. Raven also made submissions that the Court impose ancillary orders including a weapon's prohibition order under the provisions of s. 109 of the Criminal Code, an order that Baillie Elizabeth White provide a sample of her D.N.A., given that trafficking offences are secondary designated offences and an Order that Baillie Elizabeth White pay a Victim Surcharge.
20Mr. Raven carefully reviewed and brought to the Courts attention those aspects of Exhibit No. 1, the Pre-Sentence Report, Exhibit No 2, the Gladue Report, Exhibit 3, the Composite Sentencing Brief and Exhibit 4 the report from Alana Timmers which did not reflect favourably upon Baillie Elizabeth White. Mr. Raven fairly conceded that all four exhibits were, in the main, positive and most favourable to Baillie Elizabeth White.
21Mr. Raven referred to a number of cases in his submissions – all of which speak forcefully to the sentencing principles of denunciation, deterrence and protection of the community as the paramount sentencing principles in cases of this nature in which Baillie Elizabeth White finds herself. Mr. Raven submits that these cases speak to penitentiary sentences as the means by which the Courts enforce the sentencing principles he has advocated that this Court follow.
22Mr. Raven submits, as a matter of sentencing principle, that this Court consider the specific sentencing provision of the Criminal Code and the Controlled Drugs and Substances Act as well as the cases to which he has referred and conclude as well, that Baillie Elizabeth White does not qualify as a case of "exceptional circumstances" wherein the sentencing principle of proportionality amongst others could afford to Baillie Elizabeth White consideration for a suspended sentence and probation.
The Defence
23Mr. Jacula submits that a fit and proper sentence for Baillie Elizabeth White be a suspended sentence with probation for 30 months.
24Mr. Jacula made no submissions opposing the ancillary orders sought by the Crown.
25Mr. Jacula reviewed in considerable detail the contents of Exhibit # 1 The Pre-Sentence, Exhibit #2 the Gladue Report, Exhibit #3 the Composite Sentencing Brief and Exhibit #4 the report from Ms. Alana Timmers as strong and compelling evidence that speaks to sentencing principles of rehabilitation, reformation and proportionality all favouring a suspended sentence with probation.
26Mr. Jacula submitted that sentencing principles of denunciation, deterrence and protection of the community could be adequately addressed by community based sentence supervision through a probation order. Mr. Jacula pointed out in his submissions that Baillie Elizabeth White had faithfully observed and complied with every single condition of her bail over the 16 months of her release.
27Mr. Jacula distinguished the cases to which Mr. Raven referred. In support of his submissions that Baillie Elizabeth White's sentence be suspended and that she be placed on probation. Mr. Jacula referred to a number of cases supporting sentence principles of rehabilitation, reformation and proportionality together with exceptional circumstances, all of which principles are active and strongly engaged through the evidence presented in Baillie Elizabeth White's case.
Analysis
Introduction
28For reasons expressed orally in December 2016 I concluded that the fit and proper sentence in Baillie Elizabeth White's case was a suspended sentence with probation for 30 months.
29The non-custodial disposition was justified for a number of reasons, but which was based principally on the evidence which revealed a multiple of mitigating factors and exceptional circumstances that were so overwhelming in their scope that a custodial disposition would, in my view be unfit.
30The circumstances of Baillie Elizabeth White's case invite a review of three important sentencing features namely, sentencing principles as set out in the Criminal Code of Canada and the Controlled Drugs and Substances Act, the principles of sentence range and the principle of proportionality which includes "exceptional circumstances".
Sentencing Principles Set Out in the Criminal Code of Canada
31Section 718 – The fundamental purpose of sentencing is to protect society and 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 and the harm done to victims or to the community that is caused by 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 the community; and
(f) To promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community.
32Section 718.1 – A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender, 1995, c. 22, s. 6.
33Section 718.2 – A Court that imposes a sentence shall also take into consideration the following principles:
(a) A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender shall be deemed to be aggravating circumstances;
(b) A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(c) Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
(d) An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) All available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
Sentencing Principles Set Out in the Controlled Drugs and Substances Act
34Section 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.
Section 10(4) – A Court sentencing a person who is convicted of an offence under this Part may delay sentencing to enable the offender
(a) to participate in a drug treatment court program approved by the Attorney General; or
(b) to attend a treatment program under subsection 720(2) of the Criminal Code.
Principles of Sentence - Range
35The offences in this case speak to the principles of denunciation, deterrence and protection of the public. The cases provided by the Crown support those principles and a penitentiary sentence as the tariff which the Crown submits constitutes a fit and appropriate sentence.
36Sentencing requires a careful balancing of sentencing principles including denunciation, deterrence and protection of the community on the one hand and rehabilitation, reformation and proportionality on the other. Sentencing principles of proportionality recognize that in those rare cases where "exceptional circumstances" exist the Court must carefully, thoroughly and objectively assess the individual circumstances of the offences and of the offender to determine if a suspended sentence with probation will adequately serve the principles of sentence. This analysis has application to the case of Baillie Elizabeth White. Proportionality speaks to the issue of individualized sentences including the circumstances of the offender which may, represent "exceptional circumstances".
37Should Baillie Elizabeth White go to jail for two and a half to three years as Mr. Raven urges in his submissions or should the Court suspend the passing of sentence and place Baillie Elizabeth White on probation as Mr. Jacula urges in his submissions to this Court?
38It must be remembered that ranges of sentence are not straightjackets and a sentence which may be outside a range is not automatically an error in principle. What is important is the gravity of the offence, the offender's degree of responsibility and the specific circumstances of the individual case.
39In R. v. Lacasse 2015 SCC 64, [2015] 3 S.C.R. 1089, the Court expressed the following in relation to the issue of tariffs and sentence ranges:
"57 Tariffs differ from sentencing ranges in that tariff-based sentencing is theoretically the opposite of sentence individualization which the ranges allow. On the other hand the principle underlying the two approaches is the same: ensuring that offenders who commit similar crimes in similar circumstances are given similar sentences. The same is true of the starting-point approach, which is used mainly in Alberta but sometimes in other Canadian provinces: (R. v. McDonnell, [1997] 1 S.C.R. 948 para. 69). Ultimately, whatever mechanism or terminology that is used, the principle on which it is based remains the same. Where sentencing ranges are concerned, although they are used mainly to ensure the parity of sentences, they reflect all the principles and objectives of sentencing. Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered "averages", let alone straightjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case":
"Even when an appellate court has established a range, it may be a fact pattern will arise, which is sufficiently dissimilar to past decisions that the "range", as it were, must be expanded. The fundamental point is that a "range" is not a straightjacket to the exercise discretion of a sentencing judge. (R. v. Keepness, 2010 SKCA 69, 359)".
"58 There will always be situations that call for a sentence outside a particular range: Although sharing parity in sentence in itself is a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profit cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are often difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime is not demonstrably unfit. Once again, everything depends on the gravity of the offence, the offender's degree of responsibility and the very specific circumstances of each case. LaBel, J. commented as follows on this subject":
"A judge can order a sentence outside that range as long as it is in accordance with the principles and objects of sentencing. Thus, a sentence following outside the range of an appropriate sentence 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 to which the offence occurred. R. v. Nasogaluak 2010 SCC 6 , 2010 S.C.C. 6".
"60 In other words, sentencing ranges are primarily guidelines, and not hard and fast rules: R. v. Nasogaluak supra para. 44. As a result, a deviation from sentencing range is not synonymous with an error of law or an error in principle".
Principle of Proportionality Including "Exceptional Circumstances"
40In R. v. Lacasse supra the Supreme Court of Canada placed an emphasis on individualized sentences. The Court determined that such individualized sentences be focused on the fundamental principle of proportionality. Therefore in determining an appropriate sentence the trial court must look to the principle of proportionality in determining the individualized basis for sentence.
R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089
"53. This inquiry must be focused on the fundamental principle of proportionality stated in s. 718.1 of the Criminal Code, which provides that a sentence must be "proportionate to the gravity of the offence and the degree of responsibility of the offender". A sentence will therefore be demonstrably unfit if it constitutes an unreasonable departure from this principle. Proportionality is determined both on an individual basis, that is, in relation to the accused him or herself and to the offence committed by the accused, and by comparison with sentences imposed for similar offences committed in similar circumstances. Individualization and parity of sentences must be reconciled for a sentence to be proportionate: s. 718.2 (a) and (b) of the Criminal Code".
41Courts are required to imposed individualized sentences. Clearly this contemplates the circumstances of the individual, which may be "exceptional circumstances" which play an important role in the analysis of the individualized sentence.
42In R. v. Voong 2015 BCCA 285 , which was decided after R. v. Lacasse was argued but before it was released the BCCA spoke directly to the issue of "exceptional circumstances". Bennett, J.A. explained:
"59. Exceptional circumstances may include a combination of no criminal record, significant and objectively identifiable steps towards rehabilitation for the drug addict, gainful employment, remorse and acknowledgement of the harm done to society as a result of the offences as opposed to the harm done to the offender as a result of being caught. This is a non-exhaustive list but at the end of the day there must be circumstances that are above and beyond the norm to justify a non-custodial sentence. There must be something that would lead a sentencing judge to conclude that the offender has truly turned his or her life around and that the protection of the public was subsequently better served by a non-custodial sentence. However, Parliament, while not removing a non-custodial sentence for this type of offence has concluded that conditional sentence orders are not available. Thus, it will be the rare case where the standard of exceptional circumstances is met".
How Does Baillie Elizabeth White's Case Justify a Sentence Outside the Range – A Review of the Evidence
43Exhibit No. 1 – The Pre-Sentence Report. The author notes in the assessment:
"Baillie White is a first-time offender who demonstrates a willingness to make amends and accepts her responsibility for her actions. The offence appears to have been a wake-up call that she needed to get clean. She has made strides in addressing not only her addiction issues but her mental health issues as well and is well-connected with multiple community supports. All professional sources contacted for this report feel that the subject has done very well and has made positive changes in her life. She is clean and she is on the SOBOX [ph.] Program. She has a part-time job and volunteers in her community. She sees a psychiatrist and is taking her medication. She has addiction counsellors and a counsellor to address personal issues. Should the court consider community supervision in whole or as part of the sentence, the following conditions are respectfully recommended: One, that she report to her probation officer as directed; two, that she attend for any assessment counselling as directed by the probation officer for substance abuse and mental health issues and any other counselling recommended by the probation officer; three, that she abstain from the use of non-prescription drugs; and four, that she not attend at the Shopper's Drug Mart at 1429 Highway 2, in Courtice".
The Pre-Sentence Report of Baillie Elizabeth White is positive and favourably disposed to Baillie Elizabeth White.
44Exhibit No. 2 – The Gladue Report
The author of the Gladue Report identifies Baillie Elizabeth White as a person of Aboriginal ancestry who wishes to reconnect with her Aboriginal roots and work within her community as she completes her rehabilitation. Careful consideration must be given to the principles set out in Section 718.2 (e) of the Criminal Code which provides the following direction from Parliament:
"A Court that imposes a sentence shall take into consideration the following principles (e) all available sanctions other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders".
In addition, careful consideration must be given to the principles of sentencing involving Aboriginal offenders as set out in R. v. Gladue, [1999] 1 S.C.R 688 and R. v. Ipeelee 2012 SCC 13 , [2012] 1 S.C.R. 433.
The Gladue Report of Baillie Elizabeth White is positive and favourably disposed to Baillie Elizabeth White.
45Exhibit 3, tab two – Letter from Dr. Ledger, dated November 7th, 2016:
"Baillie Elizabeth White has been a patient in my care since November 2015. She was diagnosed with general anxiety disorder, major depressive disorder and attention deficit hyperactivity disorder, ADHD, in addition to opiate dependency disorder. During the time that I have known her, Baillie Elizabeth White has attended appointments consistently, has followed through with treatment recommendations to the best of her ability. She is now demonstrating improvement in her mental health, be it combined treatment of her disorder. I am confident stating that I feel her risk of reoffending is likely low, and she does not represent a significant threat to society at this time".
46Exhibit 3 – Letter from Catherine Meunier, dated November 9th, 2016:
"Ms. White, I believe, has been motivated to address her addiction issues: she has joined support groups, she has gone to in-patient rehabilitation facilities, she has not abused any illicit drugs since April 2016. She has recently started working a few hours a week".
47Exhibit 3, tab three – Letter from the Lakeridge Health Centre:
It details all of the steps which Baillie Elizabeth White has taken to effect her rehabilitation. Attached, a "Certificate of Achievement" confirming that Baillie Elizabeth White successfully completed the residential program at the Pinewood Centre, Women's Residential Treatment Program, from May 21st, 2016 to June 10th, 2016.
48Exhibit 3, tab four – Letter from Sarah Potter, of the Toronto Bail Program, dated October 27th, 2016:
"Baillie Elizabeth White was released from detention to the supervision of this offence November 5th, 2015, and reported as directed. She has been required to report on a weekly basis. Baillie Elizabeth White has reported every week as directed. Her reporting habits are excellent. She arrives on time and is prepared for her meetings. Baillie Elizabeth White attends all programs and support services as directed and also provides ongoing verification. Baillie Elizabeth White has represented as a polite and cooperative person in her dealings with this office. To the best of my knowledge, she has complied with her conditions of release and has been totally amenable to supervision".
49Exhibit 3, tab five – Toronto Bail Program Report:
Includes attached documentation for entries confirming dates, times and phone numbers of the individuals who have confirmed Baillie Elizabeth White's involvement in that program.
50Exhibit 3, tab six – Letter from Andrea McHattie, Skills and Peer Mentoring Facilitator at the Y.W.C.A., dated October 27th, 2016:
"I am pleased to provide this letter dated October 27th, 2016, of verification of Baillie Elizabeth White's volunteer involvement with the Y.W.C.A. Durham. She has been with the Y.W.C.A. Durham since July 20th, 2016, and has been a hardworking volunteer and a supportive member of Adele's Attic Thrift Shop. She is always willing to offer her assistance, has a great rapport with the staff, the volunteers and the residents at the Y.W.C.A. Durham. Overall, Baillie is an extremely reliable, helpful and valuable volunteer here at Y.W.C.A. Durham".
51Exhibit 3, tab seven – Correspondence from the Urgent Care:
Supporting Baillie Elizabeth White.
52Exhibit 3, tab eight – Medical records from Central East Correctional Centre:
Supporting Baillie Elizabeth White.
53Exhibit 3, tab nine – Letter of reference from Virginia Roach, dated October 13, 2016:
"I am writing this letter as a character reference for my daughter, Baillie White. She has worked very hard to achieve her high school diploma and went on to Eastern College where she completed the Pharmacy Technician Program. On her own, I have watched her stand on her own two feet and get the help that she needed. She has wonderful supports from the Bail Program as well as Durham Mental Health, and Baillie also sought out the help of a psychiatrist to help her deal with ADHD, as well as her anxiety and depression. She has put herself into a three-week rehab program, sees a counselor on a regular basis at Pinewood, sees an Aboriginal counselor at the Y where she lives and attends Narcotics Anonymous meetings. I can't even begin to express how very proud I am of Baillie. She has and continues to work very hard at being drug free and getting help with her mental health issues, and I know she will continue on the path of staying clean. A life of drugs and crime is not what my daughter wants for herself. Baillie knows what she did was wrong and has proven to me over and over again how sorry she is and how hard she is working to rehabilitate herself".
54Exhibit 3, tab nine – Letter from grandparents Brian and Beatrice Starzynski, dated September 15th, 2016:
"We have watched you take the steps to help yourself to become a clean, lovely and independent young woman. Congratulations on successfully taking your drug addiction and standing on your own throughout this past year and we're so proud of you for taking the steps necessary to get clean, going to rehab, attending any meetings and getting the counselling that you need and to continue on your journey to a great life".
55Exhibit 3, tab nine – Letter from Jenna Roach (sister), dated October 31st, 2016:
"My sister was diagnosed in grade 11 with ADHD. That never once stopped her from working toward her goal. She never stopped trying, and when she needed help she always went ahead to get the help that she needed and her actions in this particular offence are so out of character for her it has been a hard time for our family as this has been going on. Since the time she has put herself throughout three-week rehab programs, she works hard every single day to stay clean. We're so proud of her, and I'm proud of her, and she's working again, she's done volunteer work, she's working with her counselors to help her anxiety, her depression and her ADHD. And we're so proud of her and how she's taking control of her life especially being away from her family and being in a city where she has no family. I know Baillie is working hard to fix her wrongs and the best person that she can be".
56Exhibit 3, tab nine – Letter from Cindy Smiley:
"Baillie was raised in a very loving and supportive home with a supportive family, a mother that loves and supports her unconditionally, a step-father who stepped up and loved her as his own. Unfortunately, she wanted to meet her biological dad and mom and moved across Canada to do so. She was expecting this amazing dad who put her through emotional abuse and threatened her, and she's made some bad choices, but she's taken steps to change her life and become a better person. She sees a psychiatrist to deal with her ADHD, her anxiety, her depression. She willingly put herself into a three-week rehabilitation program. She sees counselors at the Y where she lives and attends Narcotics Anonymous meetings, and she's working hard to change her life, be drug free, to get the help that she needs for her mental health issues, and she's learned to love herself and to know that only she is the one who can change her life".
57Exhibit 3, tab nine – Letter from Michelle Forrest:
"I believe that Baillie understands that her past behaviour has had a hugely negative impact on her health, relationships and community at large. I believe Baillie is remorseful. She has demonstrated that she has made real changes in her life. She has a supportive, loving family and friends, she has turned to them for support in addressing this problem in a health way".
58Exhibit 3, tab nine – Letter from Christopher Hogge:
"I have been kept fully informed of Baillie's progress over this past year. Her efforts to stay clean and away from drugs, her attendance to therapy to improve her mental peace, her recent re-entry into the workforce so that she can become a positive and productive member of our community. When I last spoke to Baillie she seemed very proud of what she'd achieved during her efforts to better herself, and I could see that she was happy working toward being the person that she wanted to be".
59Exhibit 3, tab nine – Additional letters:
Contains additional letters from other interested parties who uniformly reflect upon the exceptional steps that Baillie Elizabeth White has taken to mitigate her wrongdoing and to effect her rehabilitation and reformation.
60Exhibit 4 – Report from Alana Timmers, dated October 28th, 2016:
Alana Timmers is a mental health support worker of the Durham Region Drug Treatment Court. It is significant to note that Alana Timmers has been with Baillie Elizabeth White on every occasion she has attended Court, including December 14th, 2016 when this Court sentenced Baillie Elizabeth White.
"My name is Alana Timmers. I am a mental health court support worker with Durham Mental Health Services. I'm writing this letter on behalf of my client, Baillie White, date of birth January 22nd, 1992.
Baillie Elizabeth White appears genuine in her efforts to improve her mental health and has shown this through her dedication to the program. She started volunteering at the YWCA's Thrift Shop weekly for the past several months and states that she is starting a new job next week. Baillie Elizabeth White has been making considerable efforts to demonstrate her desire and her desire to work on her recovery, and I fear that the repercussions of a jail sentence would set her back immensely. She will imminently lose her housing and all other supports with whom she is connected while she has been in this program".
61This Court is aware of the reputation that Ms. Timmers enjoys within the Durham Region Drug Treatment Court and with the judiciary. I am certain that Ms. Alana Timmers measured her words very carefully fully recognizing that it is the Court that makes the final determination on the issue of sentence. I do not read these comments by Ms. Timmers as an attempt to dissuade this Court from exercising its authority to sentence Baillie Elizabeth White. Rather this Court values Ms. Timmers comments as a highly respected professional in her field who was providing her professional opinion. This Court reposes great confidence in her opinion of Alana Timmers.
62Baillie Elizabeth White pled guilty to four offences which occurred when she was 23 years of age. Sixteen months have passed since that time. During that period of time Baillie Elizabeth White has worked very hard to rehabilitate herself. She has attended and successfully completed both drug and mental health treatment programs on her own. These programs are of the very sort contemplated by the Controlled Drugs and Substances Act 10(4) from which she was excluded admission. She remains engaged in counselling. She is working and wishes to return to school. She is healthy now.
63Baillie Elizabeth White has been filled with hope for a better tomorrow – one in which she can be a productive member of her community. Baillie Elizabeth White's hope for a better tomorrow is fuelled by faith that all of those who have been involved in her life can see her efforts for what they are; a full and unqualified acceptance of her wrongdoing and a determined resolve to prove to her community, to her family, to this Court, but most importantly to herself, that her efforts have been in every respect genuine, honest and true.
64Overriding principles of fairness and restorative justice speak loudly and clearly. They weigh very heavily in the calculus of proportionality in this case and justice in favour of Baillie Elizabeth White.
65The central question which remains is the same central question which has been asked rhetorically by Courts over the years in relation to the method by which a fit and appropriate sentence for a Defendant can be determined.
The question is this: "What should this offender receive for this offence, committed in the circumstances under which it was committed"?
R. v. Sears [1978] O.J. No. 435 Arnup, J.A.
R. v. R.E.R. [1978] O.J. 1317 Martin, J.A.
R. v. Priest, [1996] O.J. No. 3369 Rosenberg J.A.
These cases underscore the importance of individualized sentencing which was reiterated in R. v. Lacasse supra and which has direct application to Baillie Elizabeth White.
66I cannot recall any case over which I have presided in which a Defendant has presented a case with such "exceptional circumstances" or that is more compelling than the circumstances of this case involving Baillie Elizabeth White. It is my view that Ms. White has been honest in every respect with all those persons who have assisted her in effecting her rehabilitation and reformation. Baillie Elizabeth White asks this Court for one consideration - hope that she will be able to continue her rehabilitation and reformation without having to go back to jail. This Court will not destroy that hope or the faith that Baillie Elizabeth White that now has for her future by sending her back to jail.
67In his very able submissions, supported by the evidence, Mr. Jacula urges this Court to suspend the passing of sentence and place Ms. White on probation for 30 months. I agree.
Sentence
68Baillie Elizabeth White's Sentence is suspended on all four counts and Baillie Elizabeth White is placed on probation for 30 months concurrently on all charges. Following are the terms of Baillie Elizabeth White's probation:
Keep the peace and be of good behavior
Appear before the Court when required to do so.
Notify the Court or probation officer in advance of any change of name or address and promptly notify the Court or probation officer of any change in employment or occupation.
Report in person to a probation officer immediately and after that, at all times and places as directed by the probation officer or any person authorized by a probation officer.
Cooperate with your probation officer. You must sign any releases necessary to permit the probation officer to monitor your compliance and you must provide proof of compliance with any condition of this Order to your probation officer on request.
Live at a place approved of by the probation officer and not change that address without obtaining the consent of the probation officer in advance.
Not to contact or communicate in any way, either directly or indirectly, by any physical, electronic or other means, with: Christopher Daniel Gosse, date of birth, May 31, 1988:
EXCEPT
- Without the prior written consent of your probation officer.
Do not possess any weapon(s) as defined by the Criminal Code (for example, a BB gun, pellet gun, firearm, imitation firearm, cross-box, prohibited or restricted weapon or device, ammunition or explosive substance or anything designed to be used or intended for use to cause death or injury or to threaten or intimidate any person).
Do not possess or consume any unlawful drugs or substances (refer to the Controlled Drugs and Substances Act) except with a valid prescription in your name or those available over the counter.
Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer for:
- Substance abuse
- Psychiatric or psychological issues
- Stress Management
Sign any release of information forms as will enable your probation officer to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed.
Provide proof of your attendance and completion of any assessment, counselling or rehabilitative programs as directed.
Not attend at or near Shopper's Drug Mart located at 1429 Highway 2, Courtice, ON.
69There will be an order under s. 109 of the Criminal Code for a period of 10 years that Baillie Elizabeth White not have in her possession any firearms, ammunition, explosive substances or any other items proscribed by that section.
70Baillie Elizabeth White will provide a sample of her D.N.A. for databanking purposes under the provisions of the Criminal Code as trafficking is a secondary designate offence.
71Baillie Elizabeth White will pay victim fine surcharge of $200.00 on all charges concurrently for a total of $200.00 with one year to pay.
Released: March 21, 2017
Signed: Justice Peter J. Wright