Ontario Court of Justice
Date: 2018-08-31 Court File No.: Newmarket 17-07427
Between:
Her Majesty the Queen
— AND —
Gena Milligan
Sentencing
Sentencing: August 30, 2018 Reasons Released: August 31, 2018
Counsel:
- Ms. Rose Ghaly, counsel for the Federal Crown
- Mr. Arthur Stern, counsel for the defendant
KENKEL J.:
Introduction
1Ms. Milligan pleaded guilty to one count of trafficking cocaine based on her involvement in the sale of a small amount of crack. She's 39 years of age and has no criminal record. Given the burden of a heavy list it was not possible to provide a complete explanation for departing from the typical range of sentence in this case, but I advised both counsel these written reasons would follow.
The Submissions of Counsel
2The Crown submits that the range of sentence for a person trafficking in a small amount of crack cocaine is 6 to 12 months imprisonment citing R v. Woolcock, [2002] OJ No 4927 (CA). Even first offenders who have been party to a one-off transaction involving a small amount of crack similar to this case have received sentences at the lower end of that range. See: R v. Butters, 2017 ONCA 973. Note however that Butters was convicted at trial and did not have the important mitigating effect of a guilty plea. The Crown submits a sentence in the intermittent range would take into account the significant mitigating factors here. The defence acknowledges that the Crown submission reflects consideration of the plea and the mitigating factors but submits that a suspended sentence would best meet the purpose and principles of sentencing in this case.
The Gladue Report
3I agree that the Crown's position is generous and reflects not only credit for the plea but also consideration of the many mitigating factors disclosed in the Gladue report. I acknowledge that position is consistent with the governing caselaw and without the assistance of the Gladue report Ms. Milligan's sentence would likely have landed within that range.
4The 54 page Gladue report written by Ms. Margaret Larochelle provides an extensive review of Ms. Milligan's background and life story, her present circumstances, and her relationship to the Chippewas of Georgina First Nation. It also outlines in detail relevant information about the impact of colonialism and policies of assimilation that have had a devastating impact on Indigenous communities. The result has been the victimization and disproportionate incarceration of Indigenous people.
5It's not necessary to review in these reasons every aspect of Ms. Milligan's personal history, but a few circumstances are particularly important:
Ms. Milligan was abandoned by her mother at birth. Her mother was struggling with many issues including alcohol and was not able to care for her.
Ms. Milligan was lucky enough to have been adopted by loving parents who have provided a consistent source of support throughout her life and were present for the sentencing hearing.
She had success as a competitive swimmer, but even from an early age she found academics difficult. She was in special education classes throughout. She didn't feel she fit in socially with the predominantly Caucasian schools of that era. She left high school at 16.
Ms. Milligan was pregnant when she left school. She gave birth to her son who is now 21 years old. Ms. Milligan cared for her son at home until the child's father left her. When she was 21 she left her parent's home and ended up living on the street while her adoptive parents cared for her son.
From that point onward the report describes a cycle in which Ms. Milligan would return home and do well, but then would leave and take up with people who were involved in alcohol and drugs. She's struggled with issues arising from her alcohol and drug use throughout her adult life.
She was diagnosed with Social Anxiety Disorder and Depression and she receives income from ODSP on that basis. At present she is under the care of a psychiatrist and is receiving medications for both disorders and medication for high blood pressure.
She did not have any exposure to her culture or heritage until later in life. She met her birth mother just 4 years ago. Her birth mother did not participate in the preparation of the Gladue report, but other relatives provided helpful information. The report identifies specific Indigenous resources that can help Ms. Milligan connect with her heritage and culture and help her deal with the issues that are all too familiar within that community.
Today Ms. Milligan is again at home with her parents and doing well. She is very shy, has low self-esteem and she remains vulnerable to manipulation by those who show her attention or affection. Luckily, the fact of this charge and the preparation of the Gladue report has brought her into touch with very positive supports that are available within her community.
6The report notes that Ms. Milligan shows many symptoms consistent with Fetal Alcohol Syndrome Disorder (FASD). The high rate of FASD among Indigenous communities reflects in part the legacy of historical assimilationist policies and is one of the ways in which persons like Ms. Milligan continue to suffer the effects of traumas inflicted on past generations. It's important that any sentence imposed include an assessment for FASD and counselling if required.
Determining a Fit Sentence
7While I acknowledge that trafficking in this dangerous substance typically carries a tariff that provides for general deterrence through incarceration, I find that sending this offender to jail would be contrary to the overall purpose and principles of sentencing. A custodial sentence is not necessary for specific deterrence in this case. While such a sentence would provide for general deterrence, it would have a crushing impact on this particular offender out of proportion to any such benefit. The damage such a sentence would cause would frustrate Ms. Milligan's efforts at rehabilitation and would create further social problems for the community in the long-term.
8There's more. Ms. Milligan did not act alone. The defence explained that Ms. Milligan was involved at the direction of the co-accused as a go-between, which insulated him from detection. She did not do so for money or drugs but for his attention and affection. Ms. Milligan was not the target of the police surveillance. Just prior to this sentencing hearing the co-accused's charges were withdrawn. That does not relieve Ms. Milligan of responsibility for her actions, but it's yet another reason why incarceration for this offence would simply add to the victimization of a vulnerable person.
9Section 718.2(e) directs us to do better in relation to all offenders, but given our nation's history it's important that we pay particular attention to the circumstances of members of Indigenous communities. In this case I find there are sufficient available sanctions other than imprisonment that can reflect the gravity of the offence, but do so in a way that is consistent with rehabilitation. Through community service this sentence can include an aspect of punishment that promotes a sense of responsibility in the offender and provides deterrence commensurate with her low level of culpability. In this case a non-custodial sentence better serves the offender and better serves the long-term community interest.
The Sentence
10I suspended the passing of sentence and placed Ms. Milligan on probation for 24 months. In addition to the statutory conditions the following terms were ordered:
Report to probation as required
Take counselling as recommended in the Gladue report as directed by probation
Be assessed for Fetal Alcohol Syndrome Disorder and take any counselling resulting from that assessment as directed by probation
Sign any releases necessary for probation to monitor compliance with your assessment and counselling conditions
Perform 40 hours of community service within the first 18 months of this order
Not purchase, possess or consume any non-medically prescribed drugs
11There was a mandatory s.109 order for 10 years. Ms. Milligan was given one year to pay the mandatory Victim Fine Surcharge.
12I thank both counsel for their assistance with the resolution of this matter. I want to extend particular thanks to Ms. Larochelle and Aboriginal Legal Services for the preparation of a very detailed and very helpful report.
Reasons Released: August 31, 2018
Justice Joseph F. Kenkel