Ontario Court of Justice

Date: March 12, 2018

Court File No.: Central East Region: Oshawa Courthouse 17-33220

Between:

HER MAJESTY THE QUEEN

— AND —

MICHAEL HILLIER AND BRITTNY BLAIN

Before: Justice Peter C. West

Guilty Plea Entered: August 23, 2017

Evidence Heard: December 19, 2017

Submissions Heard: January 15, 2018

Reasons for Sentence Released: March 12, 2018

Counsel

Mr. R. Greenway — counsel for the Crown

Mr. A. Richter — counsel for the defendant, Michael Hillier

Mr. M. Jacula — counsel for the defendant, Brittny Blain

WEST J.:

Introduction

[1] On August 23, 2017, Michael Hillier and Brittny Blain pleaded guilty to one count of possession of fentanyl for the purpose of trafficking. A pre-sentence report was ordered and the matter was adjourned to October 18, 2017. Sentencing was further adjourned to December 19, 2017 to allow the Crown to obtain reports from Dr. Karen Woodall, toxicologist at the Centre of Forensic Sciences and Detective Sergeant Craig Hudson, drug expert with Durham Regional Police Service (DRPS).

[2] On December 19, 2017, Dr. Woodall and D. Sgt. Hudson testified. Sentencing submissions were adjourned to January 15, 2018. An agreed statement of facts was filed on December 19, 2017 and marked as Exhibit 5.

Circumstances of the Offence

[3] Durham Regional Police began investigating Mike Hillier and Brittny Blain as a result of a proven reliable confidential source, who advised "Mike" and his girlfriend, "Brittny" were dealing fentanyl in the Oshawa area using a brown Honda Civic, license # BYRH123. This vehicle was registered to Brittny Blain.

[4] On November 17, 2016, police observed three short meetings conducted between Mr. Hillier and Ms. Blain, who were in the brown Honda Civic and various unknown individuals. These meetings were indicative of drug trafficking. During the second meeting Mr. Hillier was seen to leave an unknown object in the trunk, which was retrieved by an unknown individual who removed the item and left the area. Ms. Blain's two young children, an infant and a toddler, were in the vehicle when these meetings took place in the Rossland Square at Rossland Road and Wilson Road. The details of the other two meetings were not provided other than the fact it was Mr. Hillier who was interacting with the unknown individuals from the passenger seat.

[5] On January 13, 2017, Mr. Hillier was observed meeting the occupants of a silver SUV at a plaza located on Elderberry Drive, Oshawa for less than 10 seconds before separating. Ms. Blain was not observed on this occasion. The facts do not indicate whether Mr. Hillier was operating a motor vehicle when this meeting took place.

[6] On January 14, 2017, Mr. Hillier was observed leaving his residence in the passenger's seat of the same brown Honda Civic attending the Rossland Square plaza and conducting three short meetings with unknown individuals. The meetings were indicative of drug trafficking. The Crown did not have evidence as to who was driving the Civic and consequently, Ms. Blain was not proven to be the driver of the Honda Civic on this date.

[7] On January 18, 2017, Ms. Blain was operating the brown Honda Civic with Mr. Hillier in the passenger seat. Two short meetings were observed, indicative of drug trafficking, with unknown individuals between 12:34 p.m. and 12:40 p.m. During the third meeting police observed an individual identified as Jason Visintainer, a known drug addict, meeting Mr. Hillier, with his hands and head inside the passenger window of the brown Honda Civic. All three parties were arrested. Ms. Blain's 10 month old son was in back of vehicle during the meetings on this date.

[8] The brown Honda Civic was searched and two dime baggies of fentanyl were found on the passenger side floor by Mr. Hillier's feet. The baggies weighed 0.2 g and 0.3 g and both had the number 1 written on them.

[9] Additionally, 11 dime bags of fentanyl were located in a metal case by the driver seat and the driver's door, which was on the floor of the Civic. The dime bags had the following numbers:

Number displayed on baggies	Number of bags	Weight in each bag	Total
1	1	0.3 grams	0.3 grams
2	5	0.2 grams	1 gram
2.5	2	0.25 grams	0.5 grams
4	1	0.4 grams	0.4 grams
5	1	0.5 grams	0.5 grams
6	1	0.6 grams	0.6 grams
Total	11		3.3 grams

[10] The total weight of the 13 dime bags, including the weight of the baggies, was 5.1 grams. The actual weight of the fentanyl in the dime bags was 3.5 grams. When Mr. Hillier was searched he had $1,040.00 in his right pants' pocket and Ms. Blain had cash totalling $60.00. Two cell phones were located in the centre console of the vehicle.

[11] A search warrant was obtained for their residence, clear dime bags, the same as the ones found on Mr. Hillier, and a digital weigh scale were discovered in the master ensuite. Documents in the name of both accused were located in this room. No further quantities of fentanyl were found at Mr. Hillier's and Ms. Blain's apartment.

[12] D. Sgt. Fulford of the O.P.P. provided an expert report respecting the potential street value of 3.3 grams of fentanyl.

Low end: 3.3 grams – 33 individual hits @$20 per point = $660.00

High end: 3.3 grams – 33 individual hits @$30 per point = $990.00

[13] There is a reasonable inference based on the agreed statement of facts that Michael Hillier had the more significant and active role of trafficking the fentanyl as between himself and Ms. Blain. Purchasers of the fentanyl either retrieved the fentanyl from the trunk of the Civic after it was placed there by Mr. Hillier or they spoke directly to Mr. Hillier at the front passenger window where the interaction observed was indicative of drug trafficking. Further, Mr. Hillier admitted during the sentencing proceedings through his counsel, to the probation officer in the PSR, Exhibit 7, and in his written statement to the court that the trafficking of fentanyl was his idea and his decision alone.

[14] On two occasions (November 17, 2016 and January 18, 2017) Ms. Blain was observed driving the Honda Civic with Mr. Hillier in the front passenger seat. There was evidence given during the sentencing hearing that Mr. Hillier was suspended from driving and this is corroborated by the fact that on the two occasions referred to above when Brittny Blain was with Mr. Hillier, she was the driver of the Civic. On November 17, 2016, Ms. Blain's two young children were in the backseat of the Honda Civic and on January 18, 2017, only her 10 month old son was in the back seat of the vehicle. This is a serious aggravating circumstance. I find although Ms. Blain was aware of what Mr. Hillier was engaged in, she played a much lesser role. I will refer to this in more detail later in my reasons for sentence respecting Ms. Blain.

[15] A further reasonable inference from the agreed statement of facts is that on two of the days (January 13 and 14, 2017) drug trafficking occurred Ms. Blain was not present. This supports my finding that Ms. Blain played a much lesser role in the trafficking activity engaged in by Mr. Hillier. Further, from the quantities of fentanyl seized on January 18, 2017, I find Mr. Hillier was a low-level, street-level trafficker, selling directly to drug addicts "hits" or "points" (the 13 small baggies seized from the Honda Civic contained .1 to .6 gram quantities) of fentanyl for a total amount of 3.5 grams of fentanyl. No qualitative analysis was done in this case to determine the strength of the fentanyl seized. During submissions the Crown agreed if the baggies with larger "point" quantities were sold without being subdivided there would be a discount in the price.

Expert Evidence on Fentanyl

[16] As indicated above the Crown called two witnesses, Dr. Karen Woodall, her report and C.V. were marked as Exhibit 1 and 2, and Det. Sgt. Hudson, whose report and C.V. were marked as Exhibit 3 and 4. Dr. Woodall testified fentanyl is a synthetic opioid drug, which belongs in the same class as drugs such as morphine and heroin. Fentanyl is available for oral transmucosal administration, as an injectable solution, or in a transdermal delivery system, patches of fentanyl contain 2-17 mg of fentanyl and provide a dose of 2.5-100 mcg/hr for 72 hours, providing continuous pain relief. It is a 100 times stronger than morphine and 20 times stronger than heroin. Fentanyl is used medically for the treatment of severe chronic pain. It is also commonly used as a drug of abuse because it creates strong euphoric feelings and also sedation. In addition, long-term use or abuse of opioids may lead to addiction. In recent years fentanyl powder has become available from illegal drug labs in China, smuggled into Canada through Vancouver and is sold on the streets. The powder can be snorted, injected or smoked. The fentanyl involved in this case was powdered fentanyl.

[17] Dr. Woodall testified a problem with powdered fentanyl was that it is easier to accidentally expose yourself to it. Fentanyl powder can be inhaled by accident or it can get on the skin and be absorbed. Fentanyl can be more easily absorbed through the skin than other opioid drugs. If someone was close to fentanyl powder it can be accidently inhaled. Those individuals who use opioid drugs on a regular basis can build up a tolerance, however, those using an opioid drug like fentanyl for the first time can put themselves in harm's way if they have not already built up a tolerance to opioids because fentanyl is so much stronger than morphine or oxycontin for example.

[18] A child who is exposed to fentanyl would be at a greater risk than an adult because of their size and the fact they likely would not have built up any tolerance for the drug, unless the child was undergoing medical treatment which required the child being treated with opioids on a regular basis.

[19] Each year a number of deaths in the province of Ontario are attributed to opioid use, including fentanyl. A lethal dose of fentanyl could not be provided by Dr. Woodall as it would depend on a multitude of factors including tolerance, route of administration and percentage quality or strength. In the last year to eighteen months the use of powdered fentanyl as opposed to patches has increased and linked to more deaths.

[20] Fentanyl powder has to be sent to a Health Canada lab in British Columbia to be tested to determine its strength or purity. This was not done in this case.

[21] Detective Sergeant Craig Hudson with Durham Regional Police Drug Enforcement Section was qualified as a drug expert in terms of sale and distribution of fentanyl. Between 2015 and 2016, in Durham Region, the fatal and non-fatal overdose reports respecting opioid users, including fentanyl, doubled and by the end of October 2017, counts have almost tripled from the year-to-date 2016.

[22] As a result of the danger of being accidently exposed to fentanyl the Durham Region Police Service (DRPS) has purchased self-venting processing stations. Further DRPS has acquired Narcan, which is a Naloxone that is basically a nasal spray that can be administered to a person suffering the effects from an overdose from an opioid. This antidote has been used four times since its purchase.

[23] In 2016 there were 73 overdose reports, 38 that were fatal and thirteen of those overdoses were found to be positive for fentanyl. This means fentanyl was found in the system of the person involved in the overdose that was fatal.

[24] Detective Sergeant Hudson also provided statistics showing other crimes being committed to gain access to fentanyl or other opioids, for example, break-ins at pharmacies, robberies, fraudulent prescriptions and removal of fentanyl patches from seniors in long term care facilities or palliative care facilities. There were 41 seizures of fentanyl by DRPS in 2016.

[25] Heroin users will often substitute fentanyl and usually a point or two. A point (.1 g) sells for $20 or $30 a point. In Det. Sgt. Hudson's report, Exhibit 3, he indicates, at p. 3:

Traffickers of Fentanyl and its analogues have incorporated this extremely powerful synthetic opioid into the heroin and opioid trafficking stream through; the mixing of quantities of Fentanyl with heroin, using Fentanyl as a substitute to heroin, creating fake prescription analgesics such as Oxycontin and Percocet tablets or now in some circumstances selling Fentanyl itself to demanding customers.

[26] He described the various government intervention and prevention initiatives designed to limit the quantities of legal prescription opioid medications that were finding its way onto the "street."

[27] It was agreed by all parties that fentanyl is a serious Schedule 1 substance, which is highly addictive and very dangerous.

Position of the Parties

[28] Mr. Greenway for the Crown argued a sentence of 4 years in the penitentiary was the appropriate sentence for both Mr. Hillier and Ms. Blain. The Crown points to a number of aggravating factors, including the nature of the illicit substance, fentanyl, and the fact that on one occasion both of Ms. Blain's children were in the car and on the occasion of the arrest her son was in the car. The Crown points to a number of appellate decisions, which indicate a penitentiary sentence will be the usual sentence where heroin or another opioid substance is involved, unless exceptional circumstances exist.

[29] Mr. Greenway does not draw any distinction between Mr. Hillier and Ms. Blain in terms of their roles in the commission of the offence or in their personal circumstances.

[30] Mr. Richter, on behalf of Mr. Hillier, submitted the appropriate sentence is a custodial sentence of 12 to 15 months in jail, followed by probation with conditions addressing treatment and counselling for drug addiction. Mr. Hillier has spent 418 days in pretrial custody, which more than accounts for the appropriate sentence and therefore Mr. Hillier should receive a suspended sentence with three years' probation. Mr. Richter points to Mr. Hillier only having a conditional discharge on his criminal record from 2015. He further points to the fact Mr. Hillier was a low-level street trafficker who was trafficking in street-level single point (.1 g) of 2 point (.2 g) amounts of the fentanyl.

[31] Mr. Jacula, on behalf of Ms. Blain, submitted the appropriate sentence, having regard to her personal background, the significant steps she has taken and continues to take to overcome her addiction to opioids, including fentanyl, her relative youth, the fact she has no criminal record, her work history, the fact she is the primary caregiver for one of her children (daughter, age 5) and the half time caregiver for her other child (her son, almost 2 years old), as well as being the caregiver for Mr. Hillier's mother, who has serious health issues and is in a wheelchair and her role in the facts surrounding the commission of the offence, was a suspended sentence with three years' probation. In the alternative, Mr. Jacula submitted, if a jail sentence must be imposed to address deterrence and denunciation it should be no more than a 90 day custodial sentence, which could be served intermittently.

[32] The ancillary orders respecting weapons prohibitions and DNA orders are agreed to by all parties.

Background Circumstances of Michael Hillier

[33] Mr. Hillier was 34 years of age at the time of his arrest. His only previous involvement with the police was in July 2015, when he received a conditional discharge with probation for 12 months on charges of mischief under, carry a concealed weapon, obstruct peace officer and fail to comply with undertaking. A pre-sentence report, Exhibit 7, was prepared.

[34] Mr. Hillier's biological mother became pregnant at the age of 14 and his great aunt and uncle adopted him at birth. His mother, Ms. Hillier, is currently 71 years of age. He became aware he was adopted in Grade 3 and kept in touch with his biological mother during his childhood at special occasions. He met his biological father at age 21 when his biological parents reconciled.

[35] At age 14 he attended at the Sky Dome with his father and cousin and during the event his father had a sudden heart attack and died in his arms. This incident was described as a significant and traumatic event from which Mr. Hillier never really recovered.

[36] After his father's death Mr. Hillier began to rebel and act out, hanging with an older crowd, to use drugs and stopped attending school. He burnt his family house down when he was smoking marihuana and as a result was kicked out of the family home. He lived with friends for a year before returning to his parents' home. After returning home he skateboarded and smoked marihuana.

[37] His biological father introduced Mr. Hillier to roofing and eventually introduced him to oxycontin. Mr. Hillier worked with his father's business for several years but then sought alternate employment in the roofing industry. At 27 he returned to working with his biological father, who introduced him to snorting heroin. His biological father told him he was wasting the drug by snorting it and he should be injecting it. Mr. Hillier could not inject himself so his biological father told him he would do it for him, which he did. Mr. Hillier continued to work and associate with his biological father until he was laid off at the age of 31.

[38] When Mr. Hillier was charged with the offences he ultimately received a conditional discharge and probation for, he became involved with Drug Treatment Court at the Oshawa Courthouse. Mr. Hillier attempted to get clean, however, he was unable to stay away from drugs for longer than three months at a time. Eventually he was asked to leave Drug Treatment Court and he resolved his outstanding charges by pleading guilty and he received a conditional discharge. He continued to attend counselling through the Pinewood Centre. He remained clean and drug free for about a year until he was 33.

[39] In November 2015, Mr. Hillier met his current partner, Brittny Blain, who had a young daughter and who was pregnant. During this time Mr. Hillier was clean and he assisted Ms. Blain get clean from opiates. They spent their time together, rented a one-bedroom apartment and kept away from negative influences. Mr. Hillier's friends did not like Ms. Blain or that Mr. Hillier was spending all his time with her. An anonymous call was made to CAS saying Mr. Hillier was using drugs in front of Ms. Blain's child and that he had a gun. Police and CAS attended the apartment and when Mr. Hillier opened his lock box the police discovered his methadone. CAS were not aware Ms. Blain was in this new relationship or that she was residing with Mr. Hillier. She was required to move back with her ex-partner, the father of her daughter, where she had been living before moving in with Mr. Hillier. This led to Ms. Blain relapsing with opiates.

[40] Ms. Blain's baby was born quite sick and she finally admitted to relapsing just before his birth. She had been using fentanyl laced with cocaine. She lost custody of her children for five months while she tried to get clean. Ms. Blain eventually regained custody to her son and her daughter.

[41] Mr. Hillier advised the probation officer he wanted Ms. Blain to remain home longer on her maternity leave and he would work to support them. Unfortunately, in October 2016, Mr. Hillier could not find employment, so he decided to sell drugs to support their family. Despite being drug free for a year the closeness and easy access to fentanyl resulted in his own relapse. He sold drugs to maintain his drug habit and assist with household expenses.

[42] Mr. Hillier's mother is a breast cancer survivor. Prior to his arrest Mr. Hillier was living with her. His mother also has diabetes and is overweight. She currently is in a wheelchair. Mr. Hillier has painted his mother's house and has renovated areas of her house. Prior to his arrest he would take her grocery shopping and to her medical appointments.

[43] The probation officer spoke with Mr. Hillier's biological mother, Ms. Hall, who was quite critical of Mr. Hillier and doubtful as to whether he would be completely successful in overcoming his addiction to opiates.

[44] Mr. Hillier's high school education was interrupted by his father's sudden death. Mr. Hillier was expelled from high school in Grade 10 but began attending Durham Alternative Secondary School where he completed all but five credits by the time he turned eighteen. In 2014, Mr. Hillier completed correspondence through EA Lovell and has achieved his high school diploma.

[45] Mr. Hillier was employed as a roofer from ages 21 to 33 but has been supported by Social Assistance for the two years leading up to his arrest in January 2017. It is his intention to attend a welding course upon his release from custody in order to pursue this trade in terms of employment. Ms. Hall confirmed Mr. Hillier was employed with their roofing business and was quite proficient at it. He was a competent and reliable employee until his biological father introduced him to drugs while they worked roofing. Ms. Hall confirmed Mr. Hillier's drug use became quite bad and when he became involved in the methadone program he stopped working with their company.

[46] Mr. Hillier's drug use commenced in high school when he began smoking marihuana shortly after his father's death. He became involved in a negative peer group. He stopped using marihuana by the age of 23 but had graduated to opiates, as a result of his biological father introducing him to oxycontin while they worked together in roofing. At the age of 27 he began using heroin, which became a daily habit almost immediately. In 2016, he started using fentanyl.

[47] Mr. Hillier has participated in the methadone program and counselling since age 25. He has attended detox on two occasions: 2013-2014 he completed treatment in Port Colborne and in 2014-2015 he completed a 10 day program at CAMH. He attended Port Colborne again in 2015 with Ms. Blain for 5 days but they were asked to leave when it was discovered they were in a relationship. Ms. Hall confirmed Mr. Hillier's attempts at overcoming his addiction to opiates. She was aware he has been involved with the methadone program and several of his friends overdosed in his apartment with police being called to take these individuals to the hospital. Ms. Hall believes there is something Mr. Hillier is not dealing with that causes him to abuse opiates as his drug use continues.

[48] Mr. Hillier was assessed at CAMH when he was involved with the Drug Treatment Court and he was advised there was a possibility of fetal alcohol syndrome and depression and grief but no diagnosis or treatment recommendations were made.

[49] The closing summary for his probation which ended in January 2017 indicated Mr. Hillier responded well on probation. He maintained contact with Pinewood Centre for counseling and housing support. He completed his community service hours by doing maintenance work for Pinewood. His probation officer was of the opinion that maintaining involvement with addiction services is vital to Mr. Hillier's long term sobriety.

[50] Mr. Hillier has distanced himself from his biological parents and continues to have a good relationship with his mother, Ms. Hillier. Ms. Hillier is currently acting as a surety for Ms. Blain, who is also providing care and assisting Ms. Hillier cope with her medical issues.

Background Circumstances of Brittny Blain

[51] Ms. Blain was 27 years of age when she was arrested on the charge of possession for the purpose of trafficking in fentanyl. She does not have a youth court record or a criminal record and has not had any previous involvement with the police. A detailed and extensive pre-sentence report, Exhibit 8, was prepared.

[52] Ms. Blain is the oldest daughter of her parents' two daughters. Her mother had a son from a previous abusive relationship. Her parents' marriage had difficulties caused by her father's infidelity. In addition, her father struggled with drug addiction. When Ms. Blain was very young her family struggled financially and collected social assistance. Her father was in a car accident and broke his back. He was an intravenous drug user (speed) and also became addicted to oxycontin. Her father ultimately received an insurance settlement of $100,000 when Ms. Blain was seven years old. The family purchased a house in Brooklin and lived primarily off this settlement.

[53] When Ms. Blain was in grade three her parents separated. Ms. Blain's mother moved with her daughters to live with her uncle who had two sons. Ms. Blain disclosed she was molested by these two cousins and was required to perform sexual acts. The incidents were disclosed to the police but no charges were laid as the boys were under the age of twelve. The boys received counselling because of their inappropriate behaviour through their school but Ms. Blain received no assistance or support.

[54] Ms. Blain's mother and her partner purchased a home in Oshawa where they lived when Ms. Blain was between the ages of eight and thirteen. Ms. Blain described this period as the "only normal part of her life." She got along well with her mother's partner. There was a property owned by her mother's family in Buckhorn where she spent her summers until it was sold. Ms. Blain described this as her "safe place." Her mother became depressed towards the end of this period and became overweight. Her mother's partner was unfaithful and their relationship ended.

[55] Ms. Blain also attempted to maintain contact with her father during this period and for a while he kept his house in Brooklin. Eventually he lost the house and moved into a motel. Ms. Blain advised the probation officer there were a number of "weird" people coming and going from her father's residence, including "strippers." Her father never provided financial support to her mother after their separation.

[56] When the property in Buckhorn was sold Ms. Blain was given $13,000 from the proceeds. She lent this money to her mother who purchased a home in Oshawa. Her mother became involved in a new relationship with a man from Buckhorn. Ms. Blain's mother would spend most of her time with this man in Buckhorn, coming to the Oshawa home only to pick up clothes. Ms. Blain's brother was working and he purchased food for Ms. Blain and her sister, but they were often left on their own without supervision.

[57] At the age of 14, Ms. Blain began to date a 20 year old man. He was quite controlling and abusive. He assaulted her and raped her. This man was manipulative and told her if she wanted to date an older man she would have to participate in a sexual relationship. Ms. Blain sought support from a teacher but never reported the rape to the police. She eventually ended the relationship.

[58] Ms. Marco, Ms. Blain's mother, believes Ms. Blain's lack of a relationship with her father was the beginning of her struggles. Ms. Marco described Ms. Blain's father as being a junkie and described how he was overmedicated for 27 years. Ms. Marco was aware Ms. Blain began using marihuana at the age of 14. She described how her daughter came home one weekend after spending time with her father and told Ms. Marco something bad had happened to her but refused to talk about it.

[59] Ms. Marco described Ms. Blain as becoming more aggressive after this and admitted she and her daughter would get into physical fights. Ms. Blain pushed her mother down and Ms. Marco slapped her across the face. CAS was contacted and Ms. Marco was required to take anger management counselling. Shortly after this Ms. Blain disappeared. Ms. Marco called the police but they advised there was nothing that could be done. Ms. Blain would come home with "bad" people, shower, eat food and then leave. Ms. Marco was aware someone she looked up to was getting Ms. Blain to sell drugs. Ms. Marco tried to stop this but it continued.

[60] Ms. Blain advised the probation officer she continued to spend time with an older crowd and was sexually active. She started drinking heavily, even at school, although she rarely attended classes. She also began taking ecstasy, which she instantly "loved." At one point she went camping in the bush for nine days, she was not eating or drinking but had taken 64 ecstasy pills during this time. Her grandmother found her and convinced her to come out of the bush. She was taken to hospital and it was discovered she was six to eight weeks pregnant. She suffered a miscarriage and stayed in hospital for a week to recover from her drug use. During her stay in the hospital an EKG was performed and it was discovered she was having temporal lobe seizures. It was suggested she could have memory loss from her drug use and might not complete high school. Her doctors also suggested she might be bi-polar. Ms. Blain was put on medication but described it making her like a "vegetable" so she stopped taking it.

[61] Ms. Blain returned for a short time to her mother's house but left again. She returned to her older peer group and was living in a "crack house." She was rarely attending school. She was drinking alcohol regularly. At the age of 15 she was raped at a party by a stranger. This was not disclosed to her mother until several years later.

[62] In grade 10 she moved in with her father and his partner and nine year old son. Her father's rules were strict, she had a curfew of 8:30 p.m. and she was only allowed out one night a week. She rebelled against her father's attempts to parent her and moved out with her nineteen year old neighbour. There were no rules and she began smoking marihuana daily and drinking every weekend. She resumed taking ecstasy regularly and began to experiment with cocaine. A family friend had also convinced her to sell opiates to her friends. She was given oxycontin to take and she instantly "loved them as well."

[63] When she was 16 or 17 her mother sold the Oshawa house and Ms. Blain received her investment back. She found an apartment in Blackstock. She began working at an egg farm and attending school. She was also spending time with the same negative peer group and began to use cocaine daily. Her house was the "party house" and she spent all of her money within the first year of receiving it back from her mother. She was eventually evicted and she moved back with her mother and stepfather in Burkton. Her stepfather was an alcoholic and they would often fight. He would pick on her and make fun of her.

[64] Ms. Blain met another man when she was eighteen and moved in with him. They lived in Oshawa and she described them as having a healthy relationship. Ms. Blain had been complaining about health issues since she was 15 years old. She was diagnosed with fibromyalgia at the age of 18 and was prescribed Percocet. Again, she had an "instant love" for this drug. When she could no longer obtain prescriptions for this drug she continued to purchase them on the street. This continued for five years.

[65] At the age of 19 she described herself as "promiscuous" and explained how she was very heavily reliant on opiates. She began dating a 41 year old man, who she described as her "sugar daddy." She was kicked out of high school for fighting and lack of attendance. Her mother left her stepfather because of his alcoholism and Ms. Blain moved back in with her. She completed her schooling as a Personal Support Worker and secured a job at Lakeridge Health as a service associate. This was in 2009.

[66] While attending school her program facilitator introduced Ms. Blain to her son, age 31. They moved in together in Oshawa within a year and Ms. Blain became stepmother to two young children, ages 6 and 8. Ms. Blain was drinking only occasionally but was still using opiates. When Ms. Blain was 20, her partner's ex-wife committed suicide. Her partner changed and together they both became involved in regular drug use. This relationship did not last. Ms. Blain met another man (age 63) who became another "sugar daddy" and she would drive him places to get drugs and there was an endless supply of pills available to her.

[67] Ms. Blain's first attempt to overcome her addiction occurred when she was 21 and she started attending a methadone program. This lasted for three months when she met another man (age 24) and moved in with him in Oshawa. The living conditions were terrible with her partner abusing her physically, mentally and financially. There were repeated domestic calls to police but Ms. Blain refused to testify against him. She began using opiates regularly and subsequently became pregnant.

[68] At age 23 she moved in with her grandmother and attempted to become clean but she and her partner reconciled. The abuse continued. Ms. Blain was successful in becoming clean but her partner continued to use drugs so she left him. She moved in with her mother and her daughter was born healthy (DOB December 21, 2012) with no evidence her previous drug use had impacted her daughter's health or behaviour. CAS was involved with Ms. Blain for ten days and closed the file. Her daughter's father has never been an active parent and is currently serving a federal penitentiary sentence for the past three years.

[69] Ms. Blain, her mother and her grandmother purchased a home in Oshawa when she was 24. She and her daughter lived in the basement apartment. Her partner (her son's father) began to stay with her but their relationship deteriorated because of her belief he was seeing another woman. She once again began to use opiates and within three months she was again addicted and using regularly. Ms. Blain hid her drug use and continued to work. She began to feel sick and have side effects from her opiate use, so she started injecting them.

[70] Ms. Blain's mother and grandmother were not getting along so the house in Oshawa was sold. When she was 27, Ms. Blain and her partner bought a house and just before moving in, she discovered she was pregnant. She contacted CAS about her pregnancy and re-entered the methadone program but she had issues finding a treatment facility that would admit her due to her pregnancy. She was attending Pinewood Centre for support and was accepted into the Tea Cup Program. Her daughter lived with her grandmother while she completed a 5 day detox at St. Joseph's Hospital. As a result of losing her methadone prescription she became sick and left the program. She returned to live with her partner but they were sleeping in separate rooms. Although she was involved in the methadone program she continued to use opiates regularly.

[71] Ms. Blain met Mr. Hillier in November 2015. He was clean at that time and assisted her in becoming clean. Ms. Blain was pregnant when she met Mr. Hillier. Ms. Blain described Mr. Hillier as a good partner and a good father to her daughter and they became engaged. They were both living a healthy lifestyle but someone contacted CAS and reported that Mr. Hillier was using needles in front of Ms. Blain's daughter. Mr. Hillier reported to the probation officer preparing the PSR that someone alleged there was a gun in their home so police and CAS attended to investigate. No gun or drugs were found, however, CAS suggested that Ms. Blain move out of Mr. Hillier's residence.

[72] Ms. Blain moved back with her ex-partner, who is her son's father. He did not use drugs and did not understand her addiction to them. They often argued over Ms. Blain's involvement with drugs. Three days before the birth of her son Ms. Blain relapsed and began using illicit substances. Her son was born (DOB March 6, 2016) with an addiction and Ms. Blain's drug screens showed traces of cocaine. When the hospital treated him as a cocaine addict, he became very sick. Ms. Blain told the doctors about her heroin and fentanyl use, which may have been laced with cocaine. Once her son was properly treated, he started to get better, however, he remained in hospital for five weeks.

[73] CAS became involved again with Ms. Blain after her son was born. It was decided if she got treatment, her children would not be taken from her and would be placed with family members. Her daughter was placed with Ms. Blain's father and stepmother and her son was placed full-time with his biological father. Ms. Blain was admitted for treatment in Port Colbourne, however, Mr. Hillier had attended the same program to support her and when their relationship was discovered, one was asked to leave the program, so they both decided to leave.

[74] Mr. Hillier and Ms. Blain moved back to Oshawa into Mr. Hillier's mother's house, which he was renovating. Ms. Blain began attending Pinewood Centre and Narcotics Anonymous daily in 2016. When her children started reintegration back home with her under the supervision of CAS, she told the probation officer she had less time to attend treatment. Initially she stopped attending NA and then her involvement with Pinewood deteriorated. Although Ms. Blain continued her involvement in the methadone program and continued her sobriety.

[75] In October 2016, Ms. Blain's maternity leave was ending because she had commenced it four month's early. Mr. Hillier told her they could extend Ms. Blain's maternity leave for her son's entire first year if he sold drugs to provide them financial support until she went back to work. In January 2017, both Mr. Hillier and Ms. Blain were arrested for possession for the purpose of trafficking in fentanyl, which is the charge that brings them before the court.

[76] Ms. Blain was released on bail after her arrest. Initially she was living with her mother in Hastings but the travel to work and her daughter's school became problematic, so her bail was varied to allow her to live with her mother-in-law, Ms. Hillier (age 71), since April 2017. Ms. Hillier struggles with Chronic Obstructive Pulmonary Disease (COPD) and diabetes. She also had a stroke and struggles with mobility issues and is in a wheel chair. She is blind in one eye and partially deaf. Ms. Blain assists Ms. Hillier with home maintenance, meals, housework and shopping needs. Ms. Hillier confirmed the assistance provided to her by Ms. Blain since she took over as Ms. Blain's surety.

[77] Ms. Blain has not breached any of the terms of her recognizance. When she attends for court appearances she has the support of many members of her family, who are in attendance. Ms. Blain's car, a Honda Civic, was seized by the police when she was arrested and it is my understanding the Crown will be seeking a forfeiture order respecting it.

[78] Ms. Blain has full custody of her daughter (now age 5) and she and her ex-partner have joint custody and co-parent their son, who is now 2 years old. Ms. Loranda Stenton, the CAS Family Service Worker, has been involved with Ms. Blain for over two years. Her letter, dated August 18, 2017, was filed as Exhibit 10. Ms. Blain is described in Ms. Stenton's letter as an attentive and caring mother. Although CAS has been involved with Ms. Blain and her children, there has never been the need to have a court ordered agreement put in place. Ms. Blain has always cooperated with the Agency, agreed with supporting case planning and the directions given by the Agency, which at one point required her to have her children reside with family members. Ms. Stenton confirmed Ms. Blain's commitment to remaining clean from drug use and has observed Ms. Blain's methadone carries on each visit to validate her clean lifestyle. It was Ms. Stenton's opinion that both of Ms. Blain's children would be detrimentally affected if they did not have Ms. Blain in their daily life.

[79] The probation officer contacted Ms. Blain's doctor, Dr. Crossman, who is in charge of her methadone maintenance program. In a letter to the probation officer dated in September 2017, he indicated Ms. Blain had been involved in the program under his care since 2015. She has had clean drug screens throughout her treatment apart from a relapse that ended in June 2016 (this relapse started just before the birth of her son in March 2016) and two occasions in July 2017. Dr. Crossman explained on the later occasions in July 2017, Ms. Blain had been unable to afford her methadone and she used opiates to prevent significant withdrawal symptoms. The probation officer was also able to confirm Ms. Blain's involvement with Pinewood Centre and her attendance at individual and group counselling sessions.

[80] Ms. Blain's mother confirmed there were numerous occasions in the past when she found needles in her home when Ms. Blain was living with her. Ms. Marco believed her daughter had been drug free for extended periods of time and that she has turned her life around, focusing on herself and her two children. Ms. Blain's grandmother believed Ms. Blain's addiction to opiates commenced when she was prescribed pain medication to deal with her diagnosed fibromyalgia. She described how she often babysits her great granddaughter and has seen no evidence of Ms. Blain relapsing.

[81] Those close to Ms. Blain described how she struggles with self-confidence and does not believe she is deserving of having good relationships. Many of her intimate relationships have involved physical, emotional and sexual abuse with older men, as well as usually revolving around regular drug use.

Statements by Mr. Hillier and Ms. Blain pursuant to s. 726 of Criminal Code

[82] Both Ms. Blain and Mr. Hillier read statements they had prepared to the court to express their remorse for their actions. Ms. Blain stated she now recognizes the significant harm drugs like fentanyl perpetrate on the community. She has become very aware of the dangerousness of this drug and the seriousness of her involvement with and knowledge of what Mr. Hillier was doing in selling fentanyl to other users. She recognized the serious danger she placed her children in and wished she could go back and do things differently. Ms. Blain has recently been diagnosed with depression and anxiety and has had to take a leave of absence from her employment at Lakeridge Health. Ms. Blain also recognized that because of pleading guilty to the charge of possession for the purpose of trafficking she will never be able to complete her training and fulfill her goal of becoming a nurse.

[83] Mr. Hillier read a portion of his written statement and the remainder was filed as Exhibit 13. He expressed his remorse for what he was involved in. He recognized how it has ruined his life, Brittny's life and her children's lives. Mr. Hillier took responsibility for his involvement in selling fentanyl to users and indicated he took the far more active role in the sale of the fentanyl than Ms. Blain did. He admitted it was his decision to sell fentanyl and he further admitted he probably would not have stopped in March when Ms. Blain planned to return to work. In his letter he described the assistance Ms. Blain provided to his mother who is disabled and how much his mother depended on Ms. Blain.

Mitigating and Aggravating Circumstances

[84] Both Mr. Hillier and Ms. Blain have pleaded guilty to the charge of possession of fentanyl for the purpose of trafficking. Mr. Hillier's and Ms. Blain's guilty plea is a reflection of their remorse and an acceptance of responsibility on their part for their involvement in this serious offence. Mr. Hillier and Ms. Blain both expressed remorse and regret for their actions to the probation officer and in Court, which I find to be sincere. Although their guilty pleas took place about eight months after they were charged, I was involved in a number of judicial pre-trials where counsel indicated their clients intended to plead guilty and accept responsibility for their actions. It is my view their guilty pleas are an indication of remorse and a clear acceptance of responsibility by each of them for their actions.

[85] Ms. Blain read a prepared statement which identified her recognition of the dangers associated with fentanyl for the community at large and the danger she placed her children, particularly her son, when she had them inside her motor vehicle when Mr. Hillier completed his sales of fentanyl (this is also an aggravating circumstance). Mr. Hillier also read a portion of his prepared statement and filed his complete handwritten statement, in which he took primary responsibility for the trafficking of the fentanyl found in the motor vehicle they were stopped in. These are mitigating circumstances to be considered in determining an appropriate sentence. Additionally, their guilty pleas have reduced the court time and the cost required to deal with this matter.

[86] Ms. Blain has no prior youth court or criminal record and has never been involved previously with the police. She is a relatively youthful first offender. Mr. Hillier has a conditional discharge with 12 months' probation from July 27, 2015, respecting offences of mischief under $5000; carry concealed weapon; fail to comply with undertaking and obstruct peace officer, which were committed when he was an opioid addict. His probation had ended prior to being charged with the offence before the court. He has been in pre-trial custody for approximately 14 months. It is my view Ms. Blain being a relatively youthful first offender and Mr. Hillier only having a conditional discharge, where his probation was completed, can be considered a mitigating circumstance when determining an appropriate sentence.

[87] Ms. Blain's background circumstances can only be described as tragic and horrendous. I have set out in detail the circumstances of her upbringing and formative years which led to her downward spiral into opioid addiction referred to above. It is my view Ms. Blain's background and personal circumstances are mitigating and as I discuss later in these reasons, provide a basis for assessing to what extent her level of moral blameworthiness has been affected. Taking Ms. Blain's personal circumstances into account is particularly important in determining a proportionate sentence having regard to the gravity of the offence and her degree of responsibility.

[88] It is mitigating that Ms. Blain has been involved in a methadone program with Dr. Crossman, off and on, since 2015 and with the exception of three occasions where her drug screens showed she has used opioids, the first was where she relapsed a few weeks before her son's birth starting in February 2016 until it ended in June 2016 and the other two occasions were on July 2017, where she advised Dr. Crossman there had been a holiday closure and she had been unable to afford her methadone. She used opiates to prevent going into significant withdrawal symptoms and be able to work. These relapses were confirmed in Dr. Crossman's letter, dated February 14, 2018. Ms. Blain's care has been taken over by Dr. Maurice Agha. I had requested up-to-date drug screens from October 2017 (date of PSR) to the present to determine whether Ms. Blain was continuing her commitment to remain free from the use of illicit substances. I was provided drug screens from November 2015 to the present. All of the drug screens from October 2017 to the present indicate no presence of opiates. The letter of Dr. Crossman and drug screens were marked as Exhibit 16.

[89] Mr. Hillier's background circumstances are also quite tragic, starting with the sudden death of his father in Mr. Hillier's arms at an event at Sky Dome when he was 14 years old. This led to his acting out and engaging in drug use. His introduction to his biological father at 21, who introduced him to oxycontin and who subsequently not only introduced him to heroin but also injected him using needles is particularly appalling. Mr. Hillier has struggled with opioid addiction for many years since he was 22 years old. He has been in custody since his arrest in January 2017. In many ways Mr. Hillier's life circumstances are tragic as well and provide some explanation for his involvement in the offence before the court. However, it was Mr. Hillier's decision to sell fentanyl to allow Ms. Blain to continue her maternity leave for a further four months.

[90] Prior to his arrest on the charge before the court Mr. Hillier had been a client of the Mental Health and Pinewood Centre Program of Lakeridge Health since 2013. Exhibit 14 is a letter of Ms. Sarah Mogg, Registered Psychotherapist and Addiction Counsellor at Pinewood, who attests to Mr. Hillier's involvement with Pinewood Centre. Prior to his incarceration he reported abstinence for 12 months. Mr. Hillier had been attending at his case management appointments on a weekly basis prior to his arrest and appeared engaged in treatment. This is a mitigating circumstance although I was advised by Mr. Hillier and his lawyer he has been charged with possession of fentanyl while he has been in custody at Central East Correctional Centre in Lindsay. It was indicated this charge will be resolved after his sentencing on the offence before me.

[91] It is interesting to note that in R. v. Greene, the Ontario Court of Appeal recognized that addicts with long standing addictions to hard drugs will often have setbacks in their attempts to overcome their addiction. In paragraphs 5 and 6 the Court indicated:

5 The appellant is addicted to cocaine and has been for a very long time. It is unrealistic to expect that he will succeed at overcoming that addiction either on the first or second attempt or even after many attempts. As Wood J.A. said for a five-person court in R. v. Preston (1990), 79 C.R. (3d) 61 (B.C.C.A.) at 74 in relation to a heroin addict:

Indeed, to expect a perfect result would be unrealistic, for it seems unlikely that a pattern of conduct and a lifestyle that has persisted for over 20 years can be changed overnight. There are bound to be relapses on the long road to recovery from any substance addiction.

6 The courts must not be overly critical of an offender in the position of this appellant. What is important is that he has made and continues to make efforts at curbing his addiction.

[92] I am satisfied and I find based on the two PSRs (Exhibits 7 and 8) that both Mr. Hillier and Ms. Blain have made sincere efforts and have had success in overcoming their significant addictions to opioids. I also find they are both highly motivated to live drug free regardless of the sentences imposed at the conclusion of these proceedings.

[93] Despite being addicted to opiates Ms. Blain has been gainfully employed since 2009 with Lakeridge Health System as a service associate in a regular part-time position. It is also significant to note that Ms. Blain was able to complete her high school diploma and then complete the community college course necessary to be qualified as a personal support worker. Her ability to achieve a goal when she makes a decision was reflected by many of those individuals the probation officer spoke to. Ms. Blain's family doctor signed a report on December 13, 2017 advising that she is unable to work as a result of depression and stress and was not expected to return to regular work for a year, see Exhibit 12. All that was filed by Mr. Jacula was the report filled in by her family doctor and signed, no letter of explanation was provided as to the cause of Ms. Blain's depression and stress. Certainly Ms. Blain's steady employment, despite her addiction, can be seen as a mitigating circumstance.

[94] Mr. Hillier was employed for over 12 years working for his biological father's roofing company, however, since 2013 he has supported himself on social assistance. He has plans to complete his credentials and certification as a welder upon his release from custody.

[95] The Crown points to the nature of the illicit substance Mr. Hillier and Ms. Blain were in possession of for the purpose of trafficking as an aggravating circumstance. There is no doubt based on the evidence led by the Crown on this sentencing hearing as to the serious and pernicious nature of fentanyl. There is no doubt as the danger posed by fentanyl to drug users and to first responders, such as paramedics and police, who attend locations where users are suffering from overdoses. There is also an impact of other crime committed by those who addicted to opiate drugs in terms of break-ins, thefts, robberies, falsified prescriptions to name a few. As well from the evidence it is clear that the number of overdoses due to opiate substances and deaths has increased over the past three years in the Durham Region from statistics provided by Det. Sgt. Hudson. I take all of these things into account as aggravating circumstances.

[96] The Crown also points to the presence of both of Ms. Blain's children in the backseat of the Honda Civic in November 2016 and on the day of the arrest, January 18, 2017, when her 10 month old son was in his car seat in the backseat of the Civic as a serious aggravating circumstance that should be reflected in the sentence imposed. There can be no doubt the presence of Ms. Blain's children put them in danger because of the nature of fentanyl being easily absorbed through the skin. It is my view this also speaks to the intensity of Ms. Blain's opiate addiction, particularly given the very positive letter provided by Ms. Stenton, of the CAS, which identifies Ms. Blain as an attentive and caring mother. There is certainly a complete disconnect between Ms. Blain's conduct in driving Mr. Hillier so he could traffic fentanyl in the presence of her children.

[97] The final aggravating circumstance is that Mr. Hillier was trafficking fentanyl to raise sufficient funds to allow Ms. Blain to extend her maternity leave and remain at home with her son until he was a year old. Consequently there was a commercial component to the possession for the purpose of trafficking. This information came from Mr. Hillier in his discussions with the probation officer for the preparation of his presentence report, Exhibit 7 and in his written comments to the court.

Determining the Appropriate Sentence

Sentencing Principles and Objectives

[98] The purpose of sentencing is set out in s. 718 to 718.2 of the Criminal Code. I am of the view it is important to indicate what these sections set out because I believe this is where the applicable principles of sentencing are defined for criminal cases.

[99] Under s. 718 of the Criminal Code, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing a just sanction. Any sanction imposed must be the result of a fair and balanced consideration of the need to:

(a) Denounce the unlawful conduct;

(b) Deter the offender, and others, from committing such an offence;

(c) Separate the offender from society, where necessary;

(d) Assist in the rehabilitation of the offender;

(e) Provide reparation for harm done to "victims", or the community; and

(f) Provide a sense of responsibility in the offender, while acknowledging the harm done to the "victims" and the community.

[100] The "fundamental principle" of sentencing pursuant s. 718.1 of the Code is that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender."

[101] Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances (s. 718.2(a)). This section also requires that a sentence be similar to other sentences imposed on similar offenders in similar circumstances (s. 718.2(b)), that the combined duration of consecutive sentences not be unduly long (718.2(c)), that an offender not be deprived of liberty if less restrictive sanctions may be appropriate (s. 718(d)), and that all available sanctions other than imprisonment that are reasonable in the circumstances be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders (s. 718.2(e)).

[102] In R. v. Gladue, the Supreme Court held the application of s. 718.2(e) applies to all offenders:

Section 718.2(e) directs a court, in imposing a sentence, to consider all available sanctions other than imprisonment that are reasonable in the circumstances for all offenders, "with particular attention to the circumstances of aboriginal offenders". The broad role of the provision is clear. As a general principle, s. 718.2(e) applies to all offenders, and states that imprisonment should be the penal sanction of last resort. Prison is to be used only where no other sanction or combination of sanctions is appropriate to the offence and the offender. [Emphasis added]

Although in Gladue, the main focus was on how the phrase, "with particular attention to the circumstances of Aboriginal offenders" should be applied, the Supreme Court held that s. 718.2(e) was not simply a codification of existing law. The modifications brought about by "the sentencing amendments which came into force in 1996 as the new Part XXIII have changed the range of available penal sanctions in a significant way. The availability of the conditional sentence of imprisonment, in particular, alters the sentencing landscape in a manner which gives an entirely new meaning to the principle that imprisonment should be resorted to only where no other sentencing option is reasonable in the circumstances. The creation of the conditional sentence suggests, on its face, a desire to lessen the use of incarceration. The general principle expressed in s. 718.2(e) must be construed and applied in this light" (at para. 40).

[103] The Supreme Court held that s. 718.2(e)'s expression of the principle of restraint in sentencing is remedial, particularly when considering this section with the restatement of the purpose of sentencing articulated in s. 718. The new paragraphs (e) and (f) along with (d) of 718 "focus upon the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender" (at para. 43). Restorative sentencing goals do not usually correlate with the use of prison as a sanction. Consequently, the Court held that s. 718.2(e) has a remedial purpose for all offenders, with a particular remedial role for aboriginal offenders. The Supreme Court looked to statements made by the Minister of Justice and others when the amendments were introduced in Parliament as further supporting the remedial purpose of s. 718.2(e).

[104] The judgment in Gladue focused almost exclusively on how sentencing judges are to consider the background and systemic factors that have contributed to the over incarceration of aboriginal offenders, however, s. 718.2(e) clearly states that all available sanctions other than imprisonment that are reasonable in the circumstances be considered for all offenders should be considered by sentencing judges. The aims of restorative justice expressed in s. 718(d), (e), and (f) apply to all offenders, not just aboriginal offenders (at para. 70 in Gladue). As indicated by the Court: "In general terms, restorative justice may be described as an approach to remedying crime in which it is understood that all things are interrelated and that crime disrupts the harmony which existed prior to its occurrence, or at least which it is felt should exist. The appropriateness of a particular sanction is largely determined by the needs of the victims, and the community, as well as the offender. The focus is on the human beings closely affected by the crime" (at para. 71).

[105] In R. v. Ipeelee, the Supreme Court was faced again with considering the meaning of the sentencing principles enunciated in Part XXIII of the Criminal Code, with particular attention to s. 718.2(e). The Supreme Court dealt with the fundamental principle of sentencing of "proportionality" pursuant to s. 718.1, which they held was tied to the fundamental purpose of sentencing – the maintenance of a just, peaceful and safe society through the imposition of just sanctions. The principle of proportionality was defined by the Supreme Court as follows (at para. 37):

First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system…. Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other. [Emphasis added]

[106] In both Gladue and Ipeelee the Supreme Court makes reference to the fact that the historical background and systemic factors relating to Aboriginal offenders, which sentencing judges are to take judicial notice of, must be considered in determining a fit sentence. In paragraph 73, Justice LeBel, for the majority, held:

First, systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or her level of moral blameworthiness. This is perhaps more evident in Wells where Iacobucci J. described these circumstances as "the unique systemic or background factors that are mitigating in nature in that they may have played a part in the aboriginal offender's conduct" (Wells, at para. 38 (emphasis added)). Canadian criminal law is based on the premise that criminal liability only follows from voluntary conduct. Many Aboriginal offenders find themselves in situations of social and economic deprivation with a lack of opportunities and limited options for positive development. While this rarely -- if ever -- attains a level where one could properly say that their actions were not voluntary and therefore not deserving of criminal sanction, the reality is that their constrained circumstances may diminish their moral culpability. As Greckol J. of the Alberta Court of Queen's Bench stated, at para. 60 of R. v. Skani, 2002 ABQB 1097, 331 A.R. 50, after describing the background factors that lead to Mr. Skani coming before the court, "[f]ew mortals could withstand such a childhood and youth without becoming seriously troubled." Failing to take these circumstances into account would violate the fundamental principle of sentencing -- that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The existence of such circumstances may also indicate that a sanction that takes account of the underlying causes of the criminal conduct may be more appropriate than one only aimed at punishment per se. [Emphasis added]

[107] It is my view a similar assessment must be undertaken in respect of a non-Aboriginal offender's background and unique circumstances in order to determine an individualized sentence based on this offender's moral blameworthiness. I will deal with this issue in greater detail when I address what I believe is the appropriate and fit sentences for Mr. Hillier and for Ms. Blain.

Sentencing Under the Controlled Drugs and Substances Act

[108] The purpose of sentencing under the Controlled Drugs and Substances Act is set out in s. 10 of that legislation. Section 10 reads as follows:

Purpose of sentencing

s. 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.

[109] In Attorney General of Canada v. PHS Community Services Society, Chief Justice McLachlin also recognized the "mechanisms embodied in the CDSA -- general prohibitions subject to targeted ministerial exemptions -- reflect the dual purpose of the CDSA: the protection of both public safety and public health" referring to s. 10(1) of the CDSA. She further observed "the issue of illegal drug use and addiction is a complex one which attracts a variety of social, political, scientific and moral reactions."

[110] As noted in R. v. C.N.H., at paragraph 31 by Justice Rosenberg:

...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. [Emphasis added.]

[111] In Regina v. Lacasse, at paragraph 4 the court stated:

One of the main objectives of Canadian criminal law is the rehabilitation of offenders. Rehabilitation is one of the fundamental moral values that distinguish Canadian society from the societies of many other nations in the world, and it helps the courts impose sentences that are just and appropriate.

[112] Section 10(2) sets out a number of relevant aggravating factors, none of which appear to be present in this current matter. It is of note that section 10(1) includes as a purpose of sentencing the encouragement of rehabilitation and treatment of the offender in appropriate circumstances.

[113] The provisions of s. 732.1(3)(c.1), (c.2) (g), (g.1) and (g.2); (8) to (12) all relate to probationary conditions addressing treatment for those offenders who have addictions respecting alcohol or illicit substances. Unfortunately, these provisions cannot be imposed as the Ontario governmental authorities have not passed regulations establishing the treatment programs referred to. Consequently, offenders must pursue these goals without the assistance of government treatment programs. This is in many ways unfortunate for achieving protection of the public, recognizing the best way to protect the community from an offender who suffers from a substance addiction is to treat and cure the addiction.

First Offender Status and Restraint

[114] As indicated above Mr. Hillier was 34 years of age and Ms. Blain was 27 years of age at the time of this offence. Ms. Blain has never been in trouble with the law and has no criminal record. Mr. Hillier has a conditional discharge from 2015 for offences unrelated to his drug addiction. His 12 month probation was completed when this offence was committed. Consequently, the sentencing principles of rehabilitation and restraint, particularly where the accused is a relatively youthful first offender, must not be discounted or ignored and general deterrence and denunciation should not be over-emphasized. In R. v. Batisse, at paras. 32 to 34, the Ontario Court of Appeal held:

…the appellant was a first offender. As such, the restraint principle requires that a sentencing judge consider all sanctions apart from incarceration and where, as here, incarceration must be imposed, the term should be as short as possible and tailored to the individual circumstances of the accused: see R. v. Priest (1996), 30 O.R. (3d) 538 (C.A.), at p. 545.

…the principle of restraint requires the sentencing judge to consider rehabilitation in determining the appropriate length of the sentence. In lowering a sentence given to a first offender, this court stated in R. v. Blanas (2006), 207 O.A.C. 226, at para. 5:

[G]eneral deterrence cannot be the sole consideration. The appellant is relatively youthful and has no prior record and appears to have the full support of her family and community. Appropriate consideration must be given to the rehabilitation of the appellant.

In serious cases and cases involving violence, rehabilitation alone is not the determinative factor - general deterrence and denunciation are also significant factors to be considered. However, as this court ruled in R. v. Dubinsky, [2005] O.J. No. 862, at para. 1, it is an error to focus almost exclusively on general deterrence and fail to consider individual deterrence and rehabilitation, especially when sentencing a first offender.

[115] Although deterrence and denunciation are important sentencing principles in cases involving the trafficking or possession for the purpose of trafficking of Schedule 1 substances, those sentencing principles must not exclude consideration of rehabilitation, particularly in the case of a first offender, who will receive a custodial sentence. In R. v. Borde, at para. 36, the Ontario Court of Appeal held where a youthful offender is to be sentenced to a first penitentiary sentence it should not be determined solely on the basis of general deterrence and denunciation, rather the sentencing court should proceed on the basis that the shortest possible sentence will achieve the relevant objectives. Mr. Borde had a lengthy youth record, which reflect serious charges and sentences. Here Mr. Hillier has only a conditional discharge for non-drug offences and Ms. Blain has no criminal record. (See also R. v. Priest, [1996] O.J. No. 3369 (C.A.), at paras. 23-26 and R. v. Vandale and Maciejewski, [1974] O.J. No. 1047 (C.A.), at para. 4.)

Sentencing Ranges and Comparable Cases

[116] I was provided with numerous cases by the Crown and defence counsel addressing the range of sentences imposed for possession for the purpose of trafficking in fentanyl, cocaine, methamphetamine, hydromorphone and heroin. The range of sentence is from that of a suspended sentence with probation, although certainly not a regular occurrence and only where exceptional circumstances are found to exist, to sentences involving custodial sentences in the reformatory or penitentiary depending upon the offender's role in the offence, the nature of the illicit substance, the quantity of the illicit substance, whether the offender is an addict supporting their addiction or involved in the offence for commercial gain. In addition, I have conducted my own research of sentencing cases involving possession for the purpose of trafficking in schedule 1 substances, such as fentanyl, hydromorphone, cocaine, methamphetamine and heroin and I have advised counsel of the results of that research.

[117] It is important to note however, that no two cases are exactly alike, and as emphasized by Chief Justice Lamer in R. v. M. (C.A.), at paragraph 92:

Sentencing is an individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise or academic abstraction. As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the "just and appropriate" mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred.

[118] In the case of trafficking or possession for the purpose of trafficking in Schedule 1 substances the maximum penalty is life imprisonment. Absent statutorily prescribed aggravating circumstances there are no minimum sentences set out in the Controlled Drugs and Substances Act.

Conditional Sentences and Suspended Sentences

[119] As a result of recent changes to the conditional sentence provisions of the Criminal Code, s. 742.1, a conditional sentence is no longer an available sentence for trafficking in a Schedule 1 substance. The jurisprudence reflects many cases where conditional sentences were imposed for cases involving trafficking or possession for the purpose of trafficking in Schedule 1 substances prior to these amendments, particularly where the accused was an addict trafficker who was making inroads in addressing their addiction. Currently, the only sentences available for possession for the purpose of trafficking in Schedule 1 drugs are a custodial sentence or a suspended sentence and probation. It should be noted a suspended sentence is not a lawful substitute for a conditional sentence (see R. v. Bankay, 2010 ONCA 799). However, prior to the creation of conditional sentences in 1995, suspended sentences, although rare, were provided for offences involving heroin and other dangerous drugs where there existed exceptional circumstances. In fact in R. v. Holt, the county court judge had imposed a suspended sentence and probation for an accused who had trafficked 2 ounces of heroin, with a street-value of $72,000.00, to an undercover officer. The Crown appealed the sentence and the Court of Appeal overturned the suspended sentence and imposed a jail sentence of two years less a day where the court found that exceptional circumstances did not exist, although the sentence imposed was reduced from the otherwise merited penitentiary sentence because of the mitigating circumstances relating to Holt's overcoming his addiction between arrest and sentencing.

[120] There have been a number of subsequent decisions in the Ontario Court of Appeal where the Court has recognized the mitigation created where an accused was an addict trafficker or an addict whose criminal offences were directly related to their addiction and who had made significant inroads in overcoming that addiction (see for example: R. v. Greene, [2002] O.J. No. 5976 (C.A.); R. v. C.N.H, supra, and R. v. Lazo, 2012 ONCA 389, [2012] O.J. No. 2547 (C.A.)).

[121] In Greene, the accused was charged with break and enter into a dwelling house to steal a computer, which he intended to sell to support his drug addiction. Mr. Greene had an extensive criminal record, he was an aboriginal offender although no specific mention was made of Gladue principles being applied, the Court of Appeal reduced a two year less a day sentence to one year and made these comments:

3 The appellant has an appalling criminal record including over one hundred convictions for break and enter. The appellant is of aboriginal descent. He had a very difficult childhood marked by abuse within the family. He was also sexually abused at a training school. He developed a substance abuse problem in his teenage years and he has been unable to break out of the addiction, except for a few short periods. He has attempted some drug rehabilitation programmes. Not surprisingly giving the length and seriousness of his abuse problems he has not succeeded to date. His drug addiction is the root of his problems with the law.

5 The appellant is addicted to cocaine and has been for a very long time. It is unrealistic to expect that he will succeed at overcoming that addiction either on the first or second attempt or even after many attempts. As Wood J.A. said for a five-person court in R. v. Preston (1990), 79 C.R. (3d) 61 (B.C.C.A.) at 74 in relation to a heroin addict:

Indeed, to expect a perfect result would be unrealistic, for it seems unlikely that a pattern of conduct and a lifestyle that has persisted for over 20 years can be changed overnight. There are bound to be relapses on the long road to recovery from any substance addiction.

6 The courts must not be overly critical of an offender in the position of this appellant. What is important is that he has made and continues to make efforts at curbing his addiction. A recent report from The John Howard Society of Canada suggests there is some reason for optimism.

[122] Justice Rosenberg in R. v. C.N.H. also cited R. v. Preston (1990), 79 C.R. (3d) 61 (B.C.C.A.) with approval when he cited the Court's view of s. 10(1) of the CDSA 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," however, in that case the offender was not an addict trafficker, rather he was an importer of illicit substances for commercial gain.

[123] Although the Court of Appeal in Lazo overturned the sentencing judge's sentence because he wrongly rejected a joint submission of an eight month conditional sentence for an addict trafficker who trafficked $40 worth of crack cocaine to an undercover police officer, it is noteworthy that Gillese J.A., went on to say:

Moreover, although the sentencing judge acknowledged the appellant's participation in [an addiction treatment program], in my view it was an error on his part to fail to consider that the appellant met the program's expectations and successfully completed it. In so doing, the appellant demonstrated a genuine effort and progress toward his rehabilitation. ... Successful treatment of addiction is the best means of addressing drug crime. The public interest is served by diverting individuals in the appellant's situation into drug treatment programs that address the addictions which fuel their criminal activity. (paras. 7 & 8; emphasis added)

[124] Certainly when conditional sentences were available as part of the sentencing options for trafficking or possession for the purpose of trafficking in Schedule 1 substances, numerous decisions have recognized that a conditional sentence could and did address the principles of deterrence and denunciation. Further, numerous judges recognized that an appropriately designed conditional sentence could balance deterrence and denunciation, while at the same time acknowledging the progress in overcoming a drug addiction an offender had made and putting in place appropriate support and enforcement mechanisms that would assist in the offender's continued rehabilitation. Justice Gillese referred to this in Lazo, where she held: "…his steps towards rehabilitation will be encouraged by a conditional sentence, given the likelihood of incarceration in the event of a breach." It is unfortunate sentencing judges no longer are able to fashion custodial sentences, served in the community through the use of conditional sentences, given the recognition by the Ontario Court of Appeal that successful drug treatment and rehabilitation of the addict trafficker provides the best protection for the public.

[125] In R. v. Preston, the British Columbia Court of Appeal considered the availability of a suspended sentence for an offender charged with heroin trafficking. Ms. Preston was 41 years of age and had been a heroin addict for 20 years. She had 23 prior convictions, including four for heroin trafficking, had served several lengthy reformatory sentences, and her few attempts at treatment had, to that stage, proved futile. Accepting her motivation to reform as genuine, the Court dismissed the Crown appeal and affirmed the propriety of the suspended sentence and probation (including treatment) imposed at trial. Wood J.A., for a five-member court, stated:

Without making any real effort to draw a distinction between cases of possession on the one hand, and those of trafficking or possession for the purpose of trafficking on the other, this Court and other Courts of Appeal across the country have repeatedly stressed the need to impose deterrent sentences in drug cases….

While I am content to accept, at least for the purposes of this case, that sentences of incarceration can have a deterrent effect in cases of trafficking and trafficking related offences, including importing, where the offender or potential offender is not an addict, I have grave doubts that the same can be said in cases of possession where the offender who is to be specifically deterred, or the potential offender who is to benefit from the so called general deterrent effect of such a sentence, is addicted to the substance in question….

What then is the proper approach for the court to take when sentencing in a case such as this? When the benefit to be derived to society as a whole, as a result of the successful rehabilitation of a heroin addict, is balanced against the ultimate futility of the short-term protection which the community enjoys from a sentence of incarceration, I believe it is right to conclude that the principle of deterrence should yield to any reasonable chance of rehabilitation which may show itself to the court imposing sentence. To give the offender a chance to successfully overcome his or her addiction, in such circumstances, is to risk little more than the possibility of failure, with the result that the cycle of addiction leading to crime leading to incarceration will resume, something that is inevitable, in any event, if the chance is not taken. On the other hand, as has already been pointed out, if the effort succeeds the result is fundamentally worthwhile to society as a whole….

A court would only be justified in giving more weight to the possibility of rehabilitation, rather than deterrence, where there is a reasonable basis for believing that the motivation for such change is genuine and there is a reasonable possibility that it will succeed. There will undoubtedly be many cases in which no such prospect exists, and in such cases it would be an error in principle to allow the factor of deterrence to be overshadowed by the illusion of rehabilitation.

[126] It is of interest to note that Parliament could have made a suspended sentence unavailable on a charge of trafficking or possession for the purpose of trafficking in a Schedule 1 substance if the sentencing provisions of the CDSA had incorporated a minimum sentence.

Probation as a Sentencing Tool

[127] Probation, as part of a suspended sentence, has primarily been viewed as a rehabilitative tool (R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at paras. 31-33). Although a probationer remains free in the community, there are certain restraints on her freedom imposed for the purpose of facilitating her rehabilitation and protecting society. Where an offender who is bound by a probation order and who, without reasonable excuse, fails or refuses to comply with that order, she is guilty of an offence under s. 733.1, punishable by up to two years' imprisonment. It is my view this is one of the deterrent aspects of a suspended sentence and probation.

[128] In Shoker, at para. 15, the Supreme Court concluded that supervised probation is a restraint on a probationer's freedom. Section 732.1(3) was a provision introduced in the 1996 sentencing amendments that governed the imposition of optional conditions in a probation order.

732.1 (3) The court may prescribe, as additional conditions of a probation order, that the offender do one or more of the following:

(h) comply with such other reasonable conditions as the court considers desirable, subject to any regulations made under subsection 738(2), for protecting society and for facilitating the offender's successful reintegration into the community. [Emphasis added.]

[129] Sentencing is an individualized process and s. 732.1(3)(h) is part of that process:

The residual power to craft individualized conditions of probation is very broad. It constitutes an important sentencing tool. The purpose and principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code make it clear that sentencing is an individualized process that must take into account both the circumstances of the offence and of the offender. It would be impossible for Parliament to spell out every possible condition of probation that can meet these sentence objectives. The sentencing judge is well placed to craft conditions that are tailored to the particular offender to assist in his rehabilitation and protect society. However, the residual power to impose individualized conditions is not unlimited. The sentencing judge cannot impose conditions that would contravene federal or provincial legislation or the Charter. (Shoker, at para. 14)

[130] In R. v. Voong, at para. 37, the British Columbia Court of Appeal concluded that while a probation order has primarily a rehabilitative objective, because the optional conditions in s. 732.1(3)(h) refer to the purposes of "protecting society" and "reintegration into the community", it is not limited to this objective. This also reflects the deterrent aspect of a suspended sentence.

Suspended Sentences and Revocation

[131] Section 731(1) provides:

Where a person is convicted of an offence, a court may, having regard to the age and character of the offender, the nature of the offence and the circumstances surrounding its commission,

(a) If no minimum punishment is prescribed by law, suspend the passing of sentence and direct that the offender be released on the conditions prescribed in a probation order; or

(b) In addition to fining or sentencing the offender to imprisonment for a term not exceeding two years, direct that the offender comply with the conditions prescribed in a probation order.

[132] Section 732(1)(a) makes it clear, a "suspended sentence" is one in which it is the "passing of the sentence" that is suspended – not the serving of the sentence itself. Where an offender who is bound by a probation order as part of a suspended sentence is convicted of breaching any term of that probation order or has committed any other offence, the court that made the probation order may, on application of the prosecutor, require the offender to appear before it, and after hearing from the prosecutor and the offender, where the probation order was made under s. 731(1)(a), revoke the order and impose any sentence that could have been imposed if the passing of sentence had not been suspended (s. 732.2(5)(d)). The court may also make such changes to the optional conditions as the court deems desirable, or extend the period for which the order is to remain in force for any such period, not exceeding one year, as the court deems desirable (s. 732.2(5)(e)).

[133] As a result, a suspended sentence has a further deterrent impact on an offender given the ability of the judge, on application by the prosecutor, to revoke the suspended sentence and sentence the offender for the original offence. Although the practice of the Crown applying for revocation of a suspended sentence has fallen into disuse, it is my view the Crown has a responsibility to be aware of cases where a suspended sentence has been imposed in respect of a serious offence, where exceptional circumstances have been found to exist, and where an offender has breached their probation or has committed further offence(s), an application to revoke the suspended sentence should be made by the prosecutor.

[134] In Voong, the Court held:

Because a breach of the probation order can result in a revocation and sentencing on the original offence, it has been referred to as the "Sword of Damocles" hanging over the offender's head.

[135] In British Columbia, examples of cases where the prosecutor applied to the judge who imposed the suspended sentence to revoke it are R. v. Moore, [1982] B.C.J. No. 416 (C.A.) and R. v. Patrick, [2013] B.C.J. No. 1552 (C.A.) in which suspended sentences were revoked and replaced with penitentiary-length terms of imprisonment – 5 years and 2 years, respectively. There are numerous examples of courts imposing jail sentences where an offender has breached a condition of their probation when their sentence had been suspended in the 1970s and 1980s in Ontario.

Sentencing Ranges as Guidelines

[136] Appellate Courts often set out sentencing ranges or "tariffs" for specific serious offences. In R. v. McGill, at para. Green J., made the following observations concerning sentencing ranges:

In the case of drug trafficking offences, as with others for which sentencing ranges have been endorsed, the orthodox sentencing exercise thus involves a judicial evaluation of the gravity of the offence and the moral blameworthiness of the offender so as to most reliably situate the latter along the continuum of penal sanctions that constitutes the judicially approved sentencing range for the offence category or sub-category at play. Aggravating factors, such as the pernicious nature or volume of the seized drugs or the related criminal antecedents of the offender, tend to drag the pointer towards the higher end of the range. Mitigating factors, such as extreme youth, remorse or a crime-free history, edge the marker in the opposite direction. As is well settled, the range for trafficking in "hard" drugs such as cocaine or possessing them for the purpose of trafficking reflects the substantial weight attributed to the principles of deterrence and denunciation in the sentencing calculus that governs such cases. In the result, sentences of imprisonment, frequently by way of penitentiary dispositions, are the norm. [Emphasis added]

[137] I agree with Justice Green's observations and adopt them. In sentencing cases involving fentanyl or heroin, dispositions in the upper reformatory and in the penitentiary are the norm and these reflect the considerable weight the sentencing principles of deterrence and denunciation play.

[138] The Supreme Court of Canada and the Ontario Court of Appeal have held in a number of cases that trafficking or possession for the purpose of trafficking in Schedule 1 substances, such as heroin or hydromorphone or fentanyl, even for small amounts by first offenders, will "attract" or "call" for a "penitentiary sentence unless exceptional circumstances exist" (see Farizeh, supra, at para. 5 and Turner, supra, at para. 3). Recently in R. v. Loor, the Ontario Court of Appeal upheld a six year sentence for an accused convicted of 3 counts of trafficking in fentanyl and defrauding a pharmacy using a forged document, after a trial and the accused had a criminal record for trafficking, 45 fentanyl patches (100 micrograms per hour) worth $20,000.00. After the conviction at trial the Crown sought an increased penalty under the CDSA because of Mr. Loor's previous record for similar offences. On the appeal the Crown invited the Ontario Court of Appeal to establish a sentencing range for fentanyl but Laskin J., for the court, held:

Few fentanyl trafficking cases have reached this court. It is thus perhaps too early in our jurisprudence to establish a range. But I think it fair to say that generally, offenders -- even first offenders -- who traffic significant amounts of fentanyl should expect to receive significant penitentiary sentences.

[139] Recently, the British Columbia Court of Appeal in R. v. Smith, increased the sentencing range for drug offences involving fentanyl from six to twelve months for street-level trafficking in heroin/fentanyl to a sentencing range of 18 to 36 months or higher given the development of the public health crisis associated in British Columbia with illicit fentanyl consumption.

[140] The matter of sentencing ranges was addressed by the Ontario Court of Appeal in R. v. Jacko, where at paragraph 90, the court held:

Sentencing 'ranges' ...are not immovable or immutable. They are and represent guidelines, of greater or lesser utility depending upon the breadth of the range. Individual cases may fall within or outside the range. To consider a range of sentence as creating a de facto minimum sentence misses the point, ignores the fundamental principle of proportionality... Individual circumstances matter.

See also R. v. D.D., [2002] O.J. No. 1061 (C.A.), where Moldaver J.A., (as he then was) said the following, at para. 33: "[S]entencing is not an exact science and trial judges must retain the flexibility needed to do justice in individual cases. The suggested ranges are merely guidelines designed to assist trial judges in their difficult task of fashioning fit and just sentences in similar cases."

[141] This issue has recently been revisited by the Supreme Court of Canada in R. v. Lacasse, at paragraphs 57 to 58 and 60 to 61, where the Court held:

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 straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case...

There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile 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 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 specific circumstances of each case. LeBel 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 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. (R. v. Nasogaluak, 2010 SCC 6, [2010] S.C.J. No. 6, at para. 44.)

In other words, sentencing ranges are primarily guidelines, and not hard and fast rules. [Emphasis added]

[142] The minority judgment in Lacasse, by Gascon J. for himself and McLachlin C.J., also endorsed that sentencing ranges are only guidelines, at para. 143:

I agree ... that the ranges established by appellate courts are in fact only guidelines, and not hard and fast rules. A judge can therefore order a sentence outside the established range as long as it is in accordance with the principles and objectives of sentencing.

[143] Justice Green in McGill, at para. 79, points to sentencing ranges being largely founded on the sentencing principle of parity.

This common law principle was codified as s. 718.2(b) of the Code in the 1996 sentencing reforms. However, as applied in Canadian sentencing law, the element of identity for cases captured by any sentencing range is exclusively the nature of the offence and, with respect to drug trafficking offences, the amount or quantum of the drug at issue. Other features bearing on the gravity of a drug crime (such as the purity of the drug, the sophistication of the enterprise and the use of violence in its perpetration) and, especially, the moral culpability of the trafficking offender are rendered subservient to this single offence-centric factor unless they, typically in combination, are of such "exceptional" quality to exempt the case from the restraints on sentencing discretion effectively imposed by an approved range. [Emphasis added]

[144] However, Justice Green concludes in McGill, from Supreme Court of Canada jurisprudence that proportionality trumps parity, a conclusion I adopt:

80 The tension between the principle of parity and that of proportionality figures prominently in Wagner J.'s reasoning for the majority of the Supreme Court in Lacasse. As framed at para. 53:

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. [Emphasis added.]

The authorized reconciliation, however, is one that grants prominence to proportionality, as made clear in the very next paragraph of Wagner J.'s reasons:

The principle of parity of sentences ... is secondary to the fundamental principle of proportionality. [Emphasis added.]

This theme is immediately reinforced. Importing language from the Court's decision in R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, Wagner J., at para. 55, underscores that, absent legal error or patent unreasonableness,

Th[e] exercise of ensuring that sentences are similar could not be given priority over the principle of deference to the trial judge's exercise of discretion.

81 What, then, of the principle of parity? The Saskatchewan Court of Appeal, on reviewing these passages from Lacasse, ventured an answer in R. v. Peyachew, [2016] S.J. No. 65, at para. 21:

[B]ecause individualization and parity of sentences must be reconciled for a sentence to be proportionate ..., the range of sentences previously imposed in respect of similar offences committed by similar offenders in similar circumstances remains a relevant consideration in sentencing. [Emphasis added.]

More instructive, however, is the reconciliation earlier provided by Wagner J. on behalf of a unanimous Supreme Court in R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, at para. 9:

As a corollary to sentence individualization, the parity principle requires that a sentence be similar to those imposed on similar offenders for similar offences committed in similar circumstances (s. 718.2(b) of the Criminal Code). In other words, "if the personal circumstances of the offender are different, different sentences will be justified" (C.C. Ruby, G.J. Chan and N.R. Hasan, Sentencing (8th ed. 2012), at s.2.41). [Emphasis added.]

Restated: individual differences justify different sentences. The more substantial the differences, and the more salient they are to the recognized objectives and principles of sentencing, the greater the justification for principled disparity. What the principle of proportionality demands is individualized parity, not class parity.

Exceptional Circumstances

[145] In R. v. Voong, the British Columbia Court of Appeal addressed what is meant by the phrase "exceptional circumstances:"

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 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 had 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 CSO sentences are not available. Thus, it will be the rare case where the standard of exceptional circumstances is met.

[146] In McGill, supra, at para. 69, Justice Green made these observations concerning what constitutes "exceptional circumstances:"

…Functionally, the doctrine serves as a means for preserving the continuing authority of the sanctioned range while allowing for more lenient treatment of "exceptional", "rare", "unusual" or "extraordinary" cases that, through such legal characterizations, can be fairly and sympathetically addressed without jeopardizing the sentencing norm for any given class of cases. "Exceptional circumstances" is a concept of somewhat uncertain contours that, in the end, seems rooted as much in equity as settled legal principle. The elasticity of the doctrine's boundaries is understandable given the vicissitudes of human experience. Said otherwise, the categories of cognizable "exceptional circumstances" are far from closed.

[147] As discussed above the fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The Supreme Court in Lacasse was clearly indicating a sentence can be imposed that is outside an established range of sentence as long as it is in accordance with the principles and objectives of sentencing. Sentencing is a "highly individualized exercise" and "determining a proportionate sentence is a delicate task." (Lacasse, at para. 13). In some cases the facts and circumstances will be such that a sentence outside the usual range will be appropriate. Whether a sentence outside the usual range is an appropriate and proportionate sentence will depend on whether "exceptional circumstances" exist (see Farizeh, supra, at para. 5 and Turner, supra, at para. 3) or as discussed by Justice Green in McGill, at para. 82:

Individualization, then, is the key to the multi-factorial methodology employed in Lacasse. It defines the meaning of parity in the exercise of assessing a fit sentence in individual cases. Heed must be paid to the provision of similar sentences for like offences and offenders, but the value of any comparison to general "guidelines" turns largely on their proximity to an offender's personal circumstances in his or her unique case. What follows is that sentences that fall outside conventional ranges are not presumptively suspect, nor need their fate on appeal be determined by an inquiry into whether their circumstances are truly or adequately "exceptional". Indeed, exceptionality is the wrong question to ask as it inevitably privileges an offence-centric approach to parity and compels a defence of extraordinary mitigation to escape its orbit. Again, the right question, as is directed by Lacasse, at para, 53, "must be focused on the fundamental principle of proportionality". The resulting sentence may be "exceptional" in the sense of "unusual", but that characterization does not impair its integrity so long as it abides the rule of individualized proportionality. Exceptionality, then, is better understood as description of a sentence's remoteness from a settled range than as a presumptive measure of its legal correctness. The distance may sharpen any appellate review, but it does not itself negatively determine the issue. [Emphasis added]

Sentences to be Imposed

Sentence for Michael Hillier

[148] Given the nature of the illicit substance, fentanyl, as reflected in the evidence of Dr. Woodall and Detective Sergeant Hudson, the sentencing principles of denunciation and deterrence will usually be considered paramount in determining an appropriate sentence. Given the nature of the Schedule 1 substance, fentanyl, the offence portion of the proportionality determination is of such gravity that, considered in isolation, it clearly favours a lengthy custodial sentence. However, given the fact Mr. Hillier has never been convicted of a criminal offence and Ms. Blain is a relatively youthful first offender, rehabilitation, restraint and reintegration into the community are nonetheless important sentencing principles, which cannot be disregarded and deterrence and denunciation should not be over-emphasized (see Batisse, Blanas, Priest and Dubinsky, supra, referred to in paragraph 114 above).

[149] Dealing first with the determination of a fit and appropriate sentence for Michael Hillier. As I have found, he clearly played a far more significant role in the commission of this offence. He made the decision that he would traffic fentanyl to raise sufficient funds so Ms. Blain could remain on maternity leave until her newborn son was a year old. Consequently, there is a commercial element to Mr. Hillier's trafficking, albeit substantially less than a mid-level or top-level trafficking criminal enterprise. He was engaged exclusively in selling street-level quantities of fentanyl. This was not a sophisticated drug enterprise. In fact the amount of fentanyl and its manner of packaging found in the Honda Civic supports this characterization. On two occasions Ms. Blain was observed operating the Honda Civic but it was Mr. Hillier who engaged in what the police believed was indicative of direct acts of trafficking. It should also be noted that it was only on January 18, 2017 when Mr. Hillier, Ms. Blain and Mr. Visintainer (the purchaser who dealt with Mr. Hillier) that there was direct corroboration or evidence of an actual instance of trafficking in terms of Mr. Hillier's conduct. The facts only disclosed the previous contacts between Mr. Hillier and unknown persons were indicative of drug trafficking, however, no hand to hand exchanges were observed during the earlier police surveillance and none of the unknown persons were stopped to determine if Mr. Hillier had in fact trafficked fentanyl or some other illicit substance to them. On one occasion Mr. Hillier was observed putting something in the trunk of the Honda Civic and shortly thereafter an unknown person appeared to retrieve something from the trunk.

[150] There was no evidence led as to how long Mr. Hillier had been selling fentanyl apart from the police surveillance, which occurred on November 17, 2016 and then three occasions on January 13, 14 and 18, 2017. The quantities of fentanyl found in the Honda Civic were indicative of a low-level street trafficker. When a search warrant was executed at the apartment where Mr. Hillier and Ms. Blain lived, other than paraphernalia, indicative of the use, possession and trafficking of illicit substances, being found, no other quantities of fentanyl or other illicit substances were discovered. Nor were any quantities of cash or debt lists found, which could be considered proceeds of crime and might have demonstrated the extent of Mr. Hillier's drug trafficking.

[151] Mr. Hillier's conditional discharge ended in July 2016, so he technically does not have a criminal record, see s. 730(3), and he did not have any prior convictions. He therefore should be treated as a first offender, although not a youthful first offender. It is my view the principles of restraint indicated in R. v. Batisse, supra, and R. v. Borde, supra, are clearly applicable in this case having regard to the fact that Mr. Hillier had never been sentenced to any period of custody previously. Mr. Hillier was not granted bail on the charges before the court and he has been in pre-trial custody for 418 days, which is the equivalent on a 1.5 to 1 basis, pursuant to R. v. Summers, of pre-trial credit of 627 days. While Mr. Hillier was incarcerated at Central East Correctional Centre in Lindsay pending his sentencing he was subjected to 102 occasions of his unit being locked down for greater than 6 hours and 35 occasions of his unit being locked down for under 6 hours. I was asked by Mr. Richter to consider this in my determination of an appropriate sentence, see Exhibit 9. A first period of time in jail would be difficult for a first offender without the conditions described in Exhibit 9. I will take these conditions into account when considering the principle of restraint discussed in Batisse and Borde.

[152] Mr. Hillier was involved in the trafficking of fentanyl and the possession of 3.5 grams of fentanyl for the purpose of trafficking for a commercial purpose, as admitted by him in his PSR, Exhibit 7, and in his comments and his written statement provided to the Court, Exhibit 13, which is an aggravating circumstance. It is significant in my view, particularly in light of Mr. Hillier's history of extended opiate use over many years, that he made this admission. There was also evidence that Mr. Hillier began using fentanyl again during the time period he was selling fentanyl. Although this is an aggravating circumstance, I also view this as somewhat mitigating, given Mr. Hillier's forthrightness with the probation officer and this bodes well for his continued openness and frankness in his dealing with his own serious opioid addiction. The Crown did not object to Mr. Hillier's written statement being filed as an exhibit nor did they request to cross-examine him on the assertions he made therein.

[153] Finally, Mr. Hillier's personal circumstances, as described above, are both tragic and troubling, although to a much lesser extent than Ms. Blain's personal circumstances, as I will discuss later in these reasons. They do however, provide a backdrop and explanation for his addiction to opiate substances, including fentanyl. As noted in some of the cases in the Ontario Court of Appeal involving addict traffickers, who have been struggling for many years, there are often steps forward with steps backwards or "slips," which are recognized as part of an addict's normal process of overcoming their addiction. Perfection cannot be expected. What is clear from Mr. Hillier's background is that he has been attempting to overcome his opiate addiction for a number of years and while there have been setbacks he is certainly committed and motivated to be successful. The probation officer in the PSR indicated he was suitable candidate for community supervision and was of the opinion this was necessary for his continued success in overcoming his addiction and remaining drug free.

[154] A number of the cases I found in my research and a number of the cases provided to me by counsel were similar in their facts to Mr. Hillier's case. As I have indicated no two cases are ever identical, however, the following cases were of considerable assistance in arriving at the sentence I believe is the appropriate, proportionate sentence for Mr. Hillier:

1. R. v. Klammer, 2017 ONCA 416, sentence varied to 20 months from Justice Healey's (SCJ) sentence of 33 months, (trafficking in fentanyl, possession for purpose of trafficking in fentanyl, possession of proceeds of crime, (6-100 microgram fentanyl patches), no record, addict in treatment);

2. R. v. Turner, [2003] O.J. No. 685 (C.A.), (Trafficking in hydromorphone [38-8mg tablets]. Sentence: 12 months sentence upheld, defence appeal dismissed.);

3. R. v. Barham, [2014] O.J. No. 5404 (C.A.), (PFP in hydromorphone, cause disturbance, breach probation, possession of cocaine, possession of stolen property and breach of probation, lengthy criminal record. Global sentence of 14 months and 28 days, less 165 days of pre-trial credit, PFP in hydromorphone sentence was 12 months, less 5.5 months pre-trial credit, sentence upheld and defence appeal dismissed);

4. R. v. Dixon, [2017] O.J. No. 3477 (ONCJ) (PFP (September 1, 2015) heroin, Crystal Methamphetamine and marihuana and possession of a prohibited weapon (Taser), PFP (January 11, 2016) cocaine, fentanyl, methamphetamine and oxycodone (all quantities relatively small), dated unrelated criminal record, drug addict, initially released after 35 days and then released second time after approximately 6 months of pre-trial custody after committing further offences. Sentence: 9 months pre-trial credit reflected on record, suspended sentence with three years' probation);

5. R. v. S.M., 2016 ONCJ 244 (Hearn J.) family physician but not practicing, opioid addiction, forged prescriptions for fentanyl patches and hydromorphone pills, sentence two years penitentiary and 3 year probation order;

6. R. v. Goncalves, 2011 ONSC 2577, [2011] O.J. No. 2029 (ONSC) (PFP cocaine [898.15 grams] and PFP heroin [39.52 grams], criminal record unrelated, accused drug addict. Sentence: 2 years less a day and 3 years' probation;

7. R. v. Aviles, [2016] O.J. No. 2 (ONSC) After trial, accused found guilty of PFP in cocaine, heroin, oxycodone, marihuana and carry concealed weapon (knife), commercial crime for profit, dated criminal record. Sentence: 18 months after credit for 3 months;

8. R. v. Slaughter, 2015 ONSC 7869 (3 counts trafficking in hydromorphone, accused drug addict had lengthy record including two convictions for schedule 1 drug (aggravating circumstance, s. 10(2) CDSA), currently serving 17 month sentence for ABH. Sentence: 2 years and 3 months);

9. R. v. Bilodeau, [2015] O.J. No. 3777 (ONCJ) (Aboriginal accused with prior largely unrelated record, PFP in hydromorphone [135 (3 mg), 30 (6 mg), 3 (12 mg), 6 (24 mg), 177 (18 mg) and 58 (30 mg) hydromorphone pills] and PFP in oxycodone [47 (40 mg) and 42 generic (40 mg) oxycodone pills]. Sentence: 22 months for hydromorphone and 14 months concurrent for oxycodone); and

10. R. v. Reis, [2012] O.J. No. 2623 (ONCJ) (PFP in cocaine [2.1 ounces] and PFP heroin [1.22 grams] and PFP in oxycodone [224 pills], commercial crime for profit, no record. Sentence: 11 months and 1 year probation.

[155] Considering the totality of the circumstances in this case, it is my view an individualized, proportionate sentence for Mr. Hillier would be a custodial sentence of two years less a day to be followed by 3 years of probation with conditions. It is my view this sentence reflects the difficult personal circumstances of Mr. Hillier and the low-level street trafficking he engaged in. Mr. Hillier has never received a jail sentence and the maximum reformatory sentence reflects the sentencing principle of restraint as well as deterrence and denunciation. This jail sentence also takes into account the nature of the illicit substance, fentanyl, its seriousness and dangerousness and its impact on the community. Mr. Hillier has suffered from an opioid addiction for approximately 13 years and has made significant rehabilitative efforts to become drug free and clean, which on the evidence I accept. As has been recognized in a number of appellate decisions these efforts are not always successful. Mr. Hillier succumbed to the temptation to use during an extended lockdown and is now facing a further charge of possession of fentanyl, which is still before the courts. He advised he intends to plead guilty once this matter is completed. In my view Mr. Hillier and the protection of the public is best served by his being placed on probation for an extended period of time to assist him in his goal of becoming clean and drug free.

[156] Mr. Hillier has served 418 days of actual pre-trial custody, which translates to 627 days of credit on a 1.5 to 1 basis. This means Mr. Hillier has a further 103 days remaining of his sentence. A three year period of probation will provide support to ensure Mr. Hillier's continued rehabilitation and reintegration into the community in terms of his efforts to overcome his opiate addiction as well as ensure the protection of the public having regard to the consequences of breaching any of his probation conditions. I will discuss with counsel the probation conditions to be imposed.

[157] There will be ancillary orders under s. 109 for 10 years and a DNA order under s. 487.04 as a secondary designated offence.

Sentence for Brittny Blain

[158] Determining a fit and appropriate sentence for Ms. Blain's conduct has been a much more difficult balancing exercise. As I indicated to counsel during their oral submissions, it is my view Ms. Blain's background circumstances are exceptionally tragic and appalling. In my ten years as a judge in the Ontario Court of Justice, Ms. Blain's personal circumstances are among the worst I have been apprised of. The preceding discussion of the existing governing law, in my view, leads inexorably to only one proportionate outcome, which is a non-custodial sentence having regard to Ms. Blain's unique personal circumstances, the fact she is a relatively youthful first offender, her lesser role in the commission of the offence and the rehabilitative steps she has already undertaken.

[159] A brief summary of her formative years leading up to the charge before the court include the following circumstances: her father struggled with drug addiction; she was sexually abused, at a very young age (8), by two older cousins (age 11); during her teen years she dated older men and was abused emotionally, physically and sexually; during her teens she was raped on two occasions; she was physically assaulted by her mother; CAS were involved with her family; in her teens she began using drugs and drinking heavily; she had a miscarriage as a teenager after taking 64 ecstasy pills and she remained in hospital for a week where it was discovered she was having temporal lobe seizures; she was advised as a teen she may be bi-polar, the medication made her feel like a vegetable and she stopped taking it with no follow-up; in Grade 10 she was convinced by a family member to sell opiates to her friends and this was when she first began using oxycontin; when she was 16 or 17 she lived in her own apartment and was using cocaine daily; at 18 she was diagnosed as having fibromyalgia and was prescribed Percocet; she began purchasing Percocet on the street when her doctor was no longer prepared to continue prescribing it to her; at 19 she described herself as "promiscuous" and was using opiates heavily; she was dating and living with older men (41 and 63) she described them as being "sugar daddies", who provided her with drugs; she made attempts to become clean when she was 20 (she was involved in a methadone program for three months) and at age 23 (she moved in with her grandmother and once again tried to get clean) she was pregnant during that time and when her daughter was born there was no evidence her drug use had impacted her daughter's health or behaviour; CAS were involved respecting her daughter for only 10 days when the file was closed; she began using opiates again after discovering her partner was unfaithful; she began injecting opiates to prevent feeling sick and having side effects; at 27 she discovered she was pregnant again and notified CAS and tried to get clean, she worked with the Pinewood Centre and got accepted into the Tea Cup Program, she did a 5 day detox at St. Joseph's Hospital, continued on methadone program but was also using opiates regularly; in November 2015 she met Mr. Hillier, they moved in together, became engaged and he assisted her in becoming clean; someone called CAS and complained that Mr. Hillier was using needles in the presence of Ms. Blain's daughter as well as the fact Mr. Hillier had weapons in the home, police were called and found no evidence of needles or weapons, however, Ms. Blain was told to move out of Mr. Hillier's house and she moved back with her ex-partner and began using opiates three days before birth of her son; her son was born with a drug addiction and her drug screens showed traces of cocaine, the hospital treated her son as cocaine addicted and he became very sick, Ms. Blain advised she was using heroin and fentanyl laced with cocaine, once properly treated her son got better but remained in hospital for five weeks, CAS were involved and agreed if Ms. Blain went for treatment her children would be placed with family members and not seized; Ms. Blain attended Pinewood Centre and Narcotics Anonymous and has been on a methadone program since 2015.

[160] It is my view Ms. Blain's life circumstances provide a backdrop, which establishes an accurate and convincing explanation for her addiction to opiates and her involvement in the charge before the court. As observed by the sentencing judge in R. v. Skani, referred to by Justice LeBel in Ipeelee, at para. 73, "[F]ew mortals could withstand such a childhood and youth without becoming seriously troubled." The same comment is equally true for Ms. Blain, although she does not have native status or identify as an indigenous person, her childhood, adolescence and early adult years can only be described as seriously troubled.

[161] It is not a difficult conclusion to reach that Ms. Blain would become involved in the drug subculture, which would result in her becoming seriously addicted to hard drugs such as oxycontin and fentanyl when considering her childhood, adolescence and early adult years. As recognized by the Ontario Court of Appeal, the rehabilitation and treatment of a drug addict is the best way to ensure the protection of the public. In Preston, supra, the British Columbia Court of Appeal, cited with approval by the Ontario Court of Appeal in R. v. C.N.H., supra, indicated deterrence should yield where there is a reasonable prospect of successful rehabilitation of a drug addict. Ms. Blain has been committed to her rehabilitation and is very motivated to achieve her goal of being drug free. This was corroborated and confirmed by her family members and by her doctor, Dr. Crossman, by the probation officer.

[162] I find Ms. Blain's role was considerably less than Mr. Hillier's, given on the two occasions she was with Mr. Hillier when he was engaged in what the police believed to be trafficking, her role was that of a driver. I do not agree with the Crown's assertion that both Mr. Hillier and Ms. Blain should be treated identically despite their different backgrounds and personal circumstances and their different roles in the charge before the court. On the evidence contained in the Agreed Statement of Facts, Exhibit 5, she was involved as Mr. Hillier's driver, as Mr. Hillier was a suspended driver and did not have a driver's license. She was never observed interacting with the unknown persons who spoke to Mr. Hillier. The quantity of fentanyl was discovered in a metal box under the driver's seat of the vehicle. This fact was added to the Agreed Statement of Facts sometime after the guilty pleas were entered and the Agreed Statement of Facts was filed as Exhibit 5. Ms. Blain was clearly a party to the offence of possession for the purpose of trafficking. It is significant that Ms. Blain was not present on two of the occasions Mr. Hillier was observed engaging in behaviour the police believed to be indicative of trafficking in drugs.

[163] I have found Ms. Blain's remorse and acceptance of responsibility for her involvement in this crime to be sincere. She has also come to recognize the seriousness and dangerousness of fentanyl to herself, her children and to the community at large. Her statement, which she read to the court, was heartfelt and genuine in my view. The sincerity of these sentiments and beliefs was corroborated in the presentence report as well.

[164] As discussed above, the presence of both of Ms. Blain's children in the backseat of the Honda Civic in November 2016 and on the day of the arrest, January 18, 2017, when her 10 month old son was in his car seat in the backseat of the Civic are serious aggravating circumstances that should be considered in imposing a fit sentence. There can be no doubt the presence of Ms. Blain's children in the Honda Civic put them in danger because of the nature of fentanyl being easily absorbed through the skin. Her children were also placed in danger given the very nature of the trafficking activity Mr. Hillier was engaged in. This is in sharp contrast with the very positive letter provided by Ms. Stenton of the CAS, which described Ms. Blain as an attentive and caring mother. It is my view this speaks to the intensity of Ms. Blain's opiate addiction and the impairment it caused to her judgment. Further, the Children's Aid Society, despite the charges before the court, has given Ms. Blain full custody of her daughter and joint custody with her son's father. No applications were brought by the CAS to seize Ms. Blain's children or prevent her from having access to them. There is certainly a complete disconnect between Ms. Blain's role as a mother and in her driving Mr. Hillier when he was trafficking fentanyl to his purchasers and she had her children in the car.

[165] Any concerns respecting specific deterrence can be met through a lengthy community supervision, with appropriate probationary terms that address Ms. Blain's addiction issues and any underlying issues that contributed to her becoming an addict, as well as the risk of resentencing if she breaches any of the conditions of her probation or commits additional offences. I have considered the sentencing objectives reflected in the principles of general deterrence and denunciation and taken them into account by the fact Mr. Hillier has been sentenced to a significant custodial sentence, the maximum reformatory period, as the person who played the principal role in trafficking the fentanyl and possessing it for the purpose of trafficking it.

[166] It is my view this first sentence of imprisonment for Mr. Hillier is significant. He made the decision to sell fentanyl to allow Ms. Blain to continue her maternity leave. Mr. Hillier's custodial sentence takes into account the fact he is a first offender who has unique personal circumstances relating to how he became an opioid drug addict and who has made rehabilitative efforts and is motivated to continue those efforts. Ms. Blain played a much lesser role in the commission of this offence, her unique personal circumstances are truly tragic and as she is a first offender who is also an addict, it is my view the principles of deterrence and denunciation are better addressed through a sanction that provides for the protection of the public by way of the sentencing principles of rehabilitation, restraint and reintegration into the community. In addition, it is my view a suspended sentence provides for both specific and general deterrence given the fact Ms. Blain has the very real threat of being resentenced for this offence if she breaches her probation conditions. Further, society's denunciation for this type of offence is reflected by Ms. Blain being prevented from becoming a nurse as a result of the conviction registered. This is a collateral consequence of Ms. Blain's conviction as discussed by the Supreme Court in Pham, supra. This was a case where the Crown could have exercised its discretion and withdrawn the charge against Ms. Blain given the guilty plea by Mr. Hillier and having regard to her lack of a criminal record and her tragic personal circumstances. Certainly the Crown is not to be criticized for their decision to proceed against Ms. Blain, which during the Crown's submissions focused on the presence of her children on two occasions, when Mr. Hillier appeared to be and was (the occasion of the arrest) selling fentanyl.

[167] Ms. Blain has full custody of her daughter and shared joint custody of her two year old son with her son's father, in large part because of the steps she has taken in overcoming her opioid addiction. Ms. Stenton described in her letter how separating Ms. Blain from her children would be detrimental to them because of their need for consistency in education and social activities. Ms. Stenton described how both children, particularly Ms. Blain's daughter, who suffered inconsistent care givers, would be negatively impacted due to separation from their mother if Ms. Blain was incarcerated. Since being back in Ms. Blain's care since August 2016, her daughter has thrived according to Ms. Stenton. Her daughter's father has never been involved in her life and is currently serving a penitentiary prison sentence. Further, Mr. Hillier's mother relies on Ms. Blain for her day-to-day care due to her serious medical conditions. Ms. Blain and her children reside with her mother-in-law. Ms. Hillier is able to remain in her own home because of Ms. Blain's assistance, however, if Ms. Blain were incarcerated Ms. Hillier would likely be required to move into a nursing home.

[168] As I have indicated above, the gravity of possessing fentanyl for the purpose of trafficking, within the proportionality assessment, if that were the only consideration, would strongly indicate the appropriate sentence should be a custodial one. The fundamental principle of sentencing, proportionality, also requires consideration of the degree of responsibility of the offender. As I have set out above, it is my view Ms. Blain's "personal constellation of mitigative factors amount to a totality of such exceptional rigour as to not only justify a departure from the conventional range of imprisonment for offences such as [hers] but from any imprisonment at all" (Justice Green's observation in McGill, supra, at para. 116). As the cases indicate, the doctrine of exceptionality certainly contemplates such dispositions. In R. v. Doherty (1972), 9 C.C.C. (2d) 115 (Ont. C.A.), the trial judge expressed frustration that there were "no guidelines set as to what constitutes exceptional circumstances". Gale, C.J.O., giving the judgment of the Court on appeal, responded, at p. 117:

...Each case must be considered in the light of its own circumstances and if those circumstances are extraordinary, or rare, and suggest that a jail sentence is not appropriate, then a jail sentence should not be imposed.

[169] Section 718.2(e), part of the 1996 amendments to the Criminal Code's sentencing provisions and the Supreme Court's instructions respecting these amendments have only reinforced the possibility of non-custodial sentences for even serious criminal offences. As said by the Supreme Court in R. v. Gladue, supra, at para. 43,

Parliament's choice to include [restorative sentencing goals] alongside the traditional sentencing goals must be understood as evidencing an intention to expand the parameters of the sentencing analysis for all offenders. The principle of restraint expressed in s. 718.2(e) will necessarily be informed by this reorientation. [Emphasis added]

[170] There is no doubt, as argued by the Crown in their factum addressing the applicability of Gladue, supra, that s. 718.2(e) includes the words "with particular attention to the circumstances of aboriginal offenders" and this addresses the over-incarceration of aboriginal offenders. This has led the Supreme Court to indicate sentencing judges are to take judicial notice of the systemic and background factors of aboriginal offenders and to undertake the sentencing of Aboriginal offenders differently in order to endeavour to achieve a fit and proper sentence.

[171] The types of systemic and background factors that are relevant were set out in Ipeelee, at para. 60:

To be clear, courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples. These matters, on their own, do not necessarily justify a different sentence for Aboriginal offenders. Rather, they provide the necessary context for understanding and evaluating the case-specific information presented by counsel.

[172] However, this does not mean the preceding words of the section – that all available sanctions other than imprisonment that are reasonable in the circumstances be considered for all offenders – have no meaning or application in the case of a non-Aboriginal offender. The plain reading of this section is it applies to "all offenders." As the Supreme Court has repeatedly indicated, sentencing is an individualized process and as restated by Justice Green in McGill, at para. 81: "individual differences justify different sentences. The more substantial the differences, and the more salient they are to the recognized objectives and principles of sentencing, the greater the justification for principled disparity. What the principle of proportionality demands is individualized parity, not class parity."

[173] While it may be a simpler process when dealing with an Aboriginal offender to take judicial notice of systemic and background factors as set out in Ipeelee above in determining what a proportionate sentence would be, this does not obviate the necessity of a sentencing judge considering the unique circumstances and background of a non-Aboriginal offender in assessing whether this is an appropriate case where the totality of the circumstances surrounding Ms. Blain and her role in the commission of the offence are of such exceptionality that this not only justifies a departure from the conventional range of imprisonment for offences such as hers but from any imprisonment at all. As discussed above, it is my view the tragic and appalling background and personal circumstances of Ms. Blain do diminish her moral blameworthiness. I must sentence the offender before me and if Ms. Blain's personal circumstances are more egregious and are significantly "different", as they are in this case, from other offenders charged with a similar offence, this will lead to a different sentence, one that is outside the range of sentence for this type of offence.

[174] A suspended sentence, coupled with three years of probation is, in my view, a proportionate sentence as envisioned by Lacasse and earlier Supreme Court and Ontario Court of Appeal decisions. It is a sentence that addresses the seriousness of the offence, possession of fentanyl for the purpose of trafficking, as well as Ms. Blain's personal circumstances, her moral responsibility and the steps best suited to protect the community in her unique circumstances. As I have discussed above, all of the sentencing principles, including deterrence, denunciation, rehabilitation, restoration, restraint and reintegration into the community can be addressed by a suspended sentence. Ms. Blain knows there is a very real probability if she breaches a term of her probation or commits further offences, she will be resentenced on this offence. This could very well lead to the imposition of a custodial sentence that would otherwise have been imposed. I should indicate it is my view if the tragic and appalling background and personal circumstances of Ms. Blain did not exist as I have set out in detail, any custodial sentence imposed would have been considerably less than the sentence I imposed for Mr. Hillier because of her lesser role, lack of record and the significant steps she has already taken to overcome her opiate addiction. However, her background and personal circumstances do exist and they are uniquely tragic and appalling.

[175] Consequently, for the reasons discussed above, Brittny Blain's sentence is suspended and she is placed on probation for the next 3 years. As directed and contemplated by s. 732.1(3), the discretionary conditions of her probation are intended to both protect society and facilitate her successful reintegration into the community. I will discuss with counsel the probation conditions to be imposed.

Released: March 12, 2018

Signed: Justice Peter C. West