R. v. Woods, 2023 ONCJ 622

DATE: November 16, 2023 Information No. - 4411-998-22-44100358-00

ONTARIO COURT OF JUSTICE

HIS MAJESTY THE KING v. MICHAEL WOODS

Reasons for Sentence

BEFORE THE HONOURABLE JUSTICE S. DARROCH

On November 16, 2023, at KITCHENER, Ontario Courtroom 405

Appearances

A. McMaster, Counsel for the Provincial Crown M. McRae, Counsel for Michael Woods

THURSDAY NOVEMBER 16, 2023 DARROCH J. (Orally):

1Michael Woods is before the court for sentencing having pleaded guilty to one count of trafficking in fentanyl, a Schedule I substance, contrary to section 5(1) of the Controlled Drugs and Substances Act.

2The offence was committed October 31st, 2021. Mr. Woods pleaded guilty June 22nd, 2023. The matter was adjourned for a pre-sentence report and to allow Mr. Woods to complete a residential treatment program for substance abuse and addiction.

Circumstances of the Offence

3Mr. Woods and Mr. Hunter Mason had been friends for approximately 12 to 18 months prior to Mr. Mason’s death. They would regularly use drugs together. Mr. Woods was aware of Mr. Mason’s history with substance abuse, including his involvement with the methadone program. Mr. Woods also struggled with an opiate addiction at the time of the offence. Mr. Woods did not sell drugs for commercial gain and only sold drugs to his friends and fellow addicts, including Mr. Mason.

4On the date in question, Mr. Mason attended Mr. Woods’ home. The two used fentanyl together at Mr. Woods’ home. Before Mr. Mason departed, Mr. Woods sold Mr. Mason a small quantity of personal use fentanyl. Mr. Woods cautioned Mr. Mason to be careful since the fentanyl they had used that day was particularly strong. Mr. Mason then returned to his grandmother’s house, arriving there at approximately 8:24 a.m.

5Between 8:24 a.m. and 1:20 p.m., Mr. Mason consumed a quantity of the fentanyl he had purchased that morning from Mr. Woods. Sadly and tragically Mr. Mason died as a result of consuming the fentanyl he had purchased that morning from Mr. Woods.

6Dr. Sarah Keating, a Forensic Pathologist, concluded that Hunter Mason died as a result of fentanyl toxicity.

Circumstances of Mr. Woods

7Mr. Woods grew up in difficult circumstances. His father was an alcoholic who abused Mr. Woods, his brother, and his mother. His father died in 2015 and Mr. Woods was the one who discovered his body.

8In his early 20s, Mr. Woods suffered a back injury for which he was prescribed opioids to manage pain. As so often happens, a legitimate prescription for opioids led to a prolonged addiction that resulted in Mr. Woods enduring years of struggle with the addiction. As he explained to the author of the Pre-Sentence Report, he was a functioning addict for almost 20 years until the matter before the court opened his eyes to the severity of his own actions.

9Mr. Woods did not finish high school but to his credit has maintained positive employment since leaving school in grade 12, achieving this notwithstanding his struggles with substance abuse and addiction.

10Mr. Woods has what I would characterize as a minor criminal record, with a conviction for possessing a controlled substance in 2012 for which he received a $100.00 fine. He also has a conviction for impaired driving from October 24, 2022 for which he received a $1,000.00 fine and a driving prohibition. Pardon me, I think I may have the date wrong. It’s 2021.

MR. MCRAE: I.... THE COURT: Just give me one moment. MR. MCRAE: I think you may have the conviction date correct. The offence date was 2021. THE COURT: Oh, I see. MR. MCRAE: The offence date was February of 2021, preceding this offence, and then he was convicted after his arrest... THE COURT: Oh, okay... MR. MCRAE: ...for the same. THE COURT: ...thank you. Thank you.

11Mr. Woods was never a commercial drug trafficker but, as mentioned, would sell drugs to friends and fellow addicts. Mr. Woods is now 43 years of age. He has now established supportive and positive relationships with his mother and stepfather, grandmother and brother, all of whom continue to support him.

12Following the events giving rise to the charge before the court, Mr. Woods sought and received treatment for his addiction. He has been successful in his abstinence since February 24th, 2022, the date of his arrest.

The Position of the Parties

The Crown Position

13The Crown submits that a sentence of six years imprisonment less pre-plea custody on an enhanced basis is an appropriate sentence in all the circumstances. The Crown also seeks ancillary orders, including a DNA order and a weapons prohibition under section 109 of the Criminal Code. The Crown argues that a sentence of this length is required to properly advance the objectives of deterrence and denunciation and also, to properly acknowledge or account for the exceptionally aggravating circumstances of this case, and in particular the death of Mr. Mason and the corresponding impact on his family.

The Defence Position

14The defence submits that the appropriate sentence is ultimately two years less a day served in the community. The defence concedes that a sentence in the range of three years custody might otherwise be appropriate, but argues that when credit for pre-sentence custody as time already served and the strict terms of release Mr. Woods has lived with for almost 19 months, which included a six-month period of residential treatment, that I ought to impose a sentence of two years less a day and allow Mr. Woods to serve his sentence in the community by way of a conditional sentence order. The defence does not take issue with the requested ancillary orders.

The Principles of Sentencing and Their Application

15The fundamental principle of sentencing is the principle of proportionality. Section 718.1 of the Criminal Code states that,

A sentence must proportionate to the gravity of the offence and the degree of responsibility of the offender.

16Other sentencing principles apply, including the principles of restraint and parity.

17The principle of restraint requires that a sentencing judge consider all sanctions apart from incarceration, and where incarceration is necessary, ensure that the term be as short as possible and tailored to the circumstances of the accused.

18The principle of parity directs that sentences should be similar for similar offences committed by similar offenders in similar circumstances. The parity principle also recognizes that uniformity in sentences is secondary to a fit sentence and there is no uniform approach to sentencing all offenders.

19In its decision on the appropriate sentence for large-scale commercial trafficking in fentanyl, Regina v. Parranto, 2021 SCC 46, the Supreme Court of Canada reaffirmed the importance of the principle of proportionality in sentencing. The majority stated at paragraphs 10 and 12,

The goal in every case is a fair, fit and principled sanction. Proportionality is the organizing principle in reaching this goal. Unlike other principles of sentencing set out in the Criminal Code, proportionality stands alone following the heading “Fundamental principle”. Accordingly, “[a]ll sentencing starts with the principle that sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender”. The principles of parity and individualization, while important, are secondary principles.

20As to the relationship of individuals to proportionality and parity, this Court in R. v. Lacasse, 2015 SCC 64, aptly observed,

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 to sentences imposed for similar offences committed in similar circumstances. Individualization is central to the proportionality assessment. Whereas the gravity of a particular offence may be relatively constant, each offence is committed in unique circumstances by an offender with a unique profile. This is why proportionality sometimes demands a sentence that has never imposed in the past for a similar sentence. The question is always whether the sentence reflects the gravity of the offence and the offender’s degree of responsibility and the unique circumstances of each case.

21The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful, and safe society and by imposing just sanctions that have one or more of the following objectives,

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by the unlawful conduct; b) to deter the offender and other persons from committing offences; c) to separate offenders from society where necessary; d) to assist in rehabilitating offenders; e) to provide reparations for harm done to victims or to the community; and f) to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims or to the community.

22In determining an appropriate sentence, it is helpful to consider relevant aggravating and mitigating circumstances. This would include features of Mr. Woods’ background, features of the offence at the timing of his guilty plea, and potentially other information before the court.

Aggravating Factors

1) Victim Impact

23The most significant and compelling aggravating factor in this case is the death of Mr. Hunter Mason. It is acknowledged that the drugs sold to Mr. Mason by Mr. Woods were consumed by Mr. Mason, which led to his death by overdose. The victim impact statements presented to the court poignantly and meaningfully convey the magnitude of the loss they have suffered. The same statements also profoundly illustrate how Mr. Mason was a vibrant, intelligent, and much loved person whose life tragically ended far too early.

24While I acknowledge the harm and loss suffered, I also recognize that there is no sentence available that can ever restore Mr. Mason’s family and loved ones. I wish there was. But sadly, there is not.

2) The Nature of the Substance Trafficked

25Fentanyl is a notoriously dangerous drug, accounting for an alarming and growing number of overdose deaths in Ontario. Federal statistics in opioid related deaths show that between January 2016 and March 2021 approximately 23,000 Canadians lost their lives, with fentanyl involved in 71 percent of these cases. Over 6,000 deaths occurred in 2020 alone, and of those, 82 percent involved fentanyl.

26The Waterloo Region has been similarly affected by the opioid crisis since 2015. The Waterloo Regional Police have responded to an average of 40 overdose calls per month, with many months spiking much higher. In 2016 and 2017 there were almost five opioid deaths per month in the Waterloo Region. Health Canada Drug Analysis Services shows that Waterloo Region is second only to Toronto in respect of total number of fentanyl exhibits processed, which illustrates a significant prevalence of the drug in our region.

3) Not a One-Time Trafficker

27Mr. Woods has acknowledged that he was an addict trafficker and would supply friends who were fellow addicts with fentanyl in exchange for money, the net result being that the trafficking offence before the court was not a one-off occurrence.

Mitigating Factors

28I consider the following mitigating factors in this matter,

1. Mr. Woods entered a guilty plea. In doing so, he expressed remorse for his actions and accepted responsibility. Mr. Woods’ guilty plea saved valuable court resources, but more importantly, it has spared many witnesses from having to testify and relive what was no doubt the worst event of their lives. I also note that at a very early stage Mr. Woods indicated a willingness to plead guilty to the offence of trafficking. It took time for the particulars of the plea to be sorted out, but I, nevertheless, consider this to be an early plea, which weighs further in mitigation.
2. As set out above and elaborated on in the Pre-Sentence Report, which is an exhibit to this proceeding, Mr. Woods has had a particularly difficult life and his life circumstances have negatively impacted him and negatively impacted his judgment.
3. Mr. Woods suffers from a long-standing addiction to opioids, which stems from treatment received following an injury over 20 years ago. He became addicted to his pain medication, which led to a long-term struggle with opioids. As part of his struggle, Mr. Woods became what is sometimes referred to as an addict trafficker.
4. Mr. Woods’ positive employment history, including an available work opportunity with a local excavating and grading company.
5. Community supports, including positive relationships with his mother, stepfather, and other family members.
6. Significant steps towards rehabilitation. Mr. Woods, to his credit, has been clean and sober since February 24th, 2022, which is a significant and positive accomplishment given the extent and duration of his addiction. He proactively engaged in significant rehabilitation, including six months of residential treatment at the House of Friendship. The staff at the House of Friendship confirm Mr. Woods’ progress and noted his active participation in all aspects of the program, as well as tremendous progress in his recovery. Given Mr. Woods’ demonstrated success, I consider him a strong candidate to maintain his sobriety going forward and his prospects for long-term, sustained addiction recovery appear to be very helpful.
7. Mr. Woods’ expression of remorse to the court as set out in the letter of apology, which was filed with the defence materials. His comments to the court and/or letter of apology demonstrate significant insight into the consequences of his actions.

Other Relevant Factors

29Mr. Woods has been subject to strict terms of bail that amount to house arrest since April 21st, 2022, a period of 19 months, including a period of residential treatment at the House of Friendship.

30Mr. Woods was also detained in custody from his arrest date on February 24th, 2022 until his release on bail in April of 2022, a period of 57 days, which equates to 86 days on an enhanced basis.

Analysis

31Both counsel provided authorities from various courts, including this court, which considered appropriate sentences for the offence of trafficking fentanyl. The caselaw reflects a wide range of sentence, which is impacted, generally-speaking, by the amount of fentanyl involved, the motive for trafficking and whether for profit or addiction, or both, whether the matter resolved by way of a guilty plea, the existence and nature of any prior record, and the presence or use of weapons.

32The cases provided also illustrate the grave impact fentanyl has on our communities. In particular, Regina v. Vezina, 2017 ONCJ 775, [2017] O.J. No. 6027, helpfully sets out details of the local impact on the Waterloo Region.

33R. v. Parranto, 2021 SCC 46, and supra, and in particular Mr. Justice Moldaver’s judgment helpfully includes details of the impact of fentanyl nationally. Justice Moldaver notes at paragraph 93,

As grave a threat as drugs such as heroin and cocaine pose, that threat pales in comparison to the one posed by fentanyl and its analogues. Indeed, over the past decade, fentanyl has altered the landscape of the substance abuse crisis in Canada, revealing itself as public enemy number one.

34Having reviewed and considered the cases provided, it is beyond question that deterrence and denunciation are the paramount sentencing objectives, with rehabilitation playing a lesser role. Further, trafficking in fentanyl will generally attract a sentence of imprisonment and often a penitentiary sentence. (See R. v. Parranto, 2021 SCC 46, Regina v. Vezina, 2017 ONCJ 775, Regina v. Dockstater, [2019] O.J. No. 280, Regina v. Dungey, [2019] O.J. No. 6830, Regina v. Haj, [2022] O.J. No. 1200, Regina v. Hasiu, [2021] O.J. No. 7384, and Regina v. Walker, 2019 ONCJ 132).

35Even trafficking very small quantities of fentanyl can attract a sentence of several years imprisonment. For example, in Regina v. Dungey, Justice Bourgeois of the Ontario Court of Justice sitting in Ottawa imposed a sentence of two years jail for trafficking .1 gram of fentanyl. Mr. Dungey had a record which included multiple convictions for possession for the purpose and for trafficking.

36In 2017 in Regina v. Klammer, [2017] O.J. No. 2605, the Ontario Court of Appeal reduced a sentence of 33 months custody to 20 months custody for Mr. Klammer, who was a first-time offender and drug addict.

37In Regina v. Hillier and Blain, 2018 ONCJ 397, Justice West sentenced two accused for possession of fentanyl for the purpose of trafficking. The total weight of the fentanyl seized at the time of the arrest was 3.5 grams. The Court imposed a custodial sentence of two years less a day followed by three years probation on Mr. Hillier. Justice West imposed a sentence at a time when conditional sentences were not available for the subject offence.

Availability of a Conditional Sentence of Imprisonment for Trafficking in Fentanyl

38A conditional sentence of imprisonment is now a legally available sentence for the offence of trafficking in a Schedule I substance. The change in availability was brought about by legislative amendments through Bill C-5, which came into force November 17th, 2022. Prior to the C-5 amendments, conditional sentences were available for a time for certain CDSA offences that were otherwise statutorily excluded as a result of certain appellate court decisions, notably Regina v. Sharma, 2020 ONCA 478. That decision made conditional sentences more broadly available until it was overturned by the Supreme Court of Canada on November 4th, 2022, just 23 days before the C-5 amendments received royal assent.

39The relatively recent legislative amendments expand the scope of availability for conditional sentences and illustrate Parliament’s confidence in conditional sentences as appropriate sentencing tools.

40The imposition of a conditional sentence for trafficking in fentanyl is not without precedent, although it is rare.

41In Regina v. Grant, 2021 ONCJ 507, after trial an 18-year-old accused with no prior record was sentenced to a conditional sentence of two years less a day and three years probation for possession of fentanyl for the purpose of trafficking with 9.5 grams, possession of crack cocaine for the purpose of trafficking, 13.2 grams, possession of powder cocaine for the purpose of trafficking, 13.2 grams, possession of methamphetamines for the purpose of trafficking, four grams, and possession of oxycodone, one and a half pills. In that case Mr. Grant was not an addict trafficker, however he had a challenging upbringing, including bouts of depression and anxiety, and had shown significant maturation and rehabilitative efforts while on bail pending trial and sentencing, demonstrating that he was committed to pursuing a better path in the future.

42In Regina v. Shearer, 2022 ONCJ 288, Justice Porter sentenced Mr. Shearer to a 20 month conditional sentence with 100 hours of community service for one count of trafficking, one count of possession for the purpose of trafficking, and one count of carrying a concealed weapon. The offender was a young addict, a first-time offender who had trafficked $100.00 worth of fentanyl to an undercover officer. His bedroom was searched and a further 2.84 grams of fentanyl was seized.

43In Regina v. Russell, [2023] O.J. No. 1334, Justice Silverstein imposed a conditional sentence of imprisonment of two years followed by three years probation for one count of possession of 7.73 grams of fentanyl for the purpose of trafficking and one count of possession of the proceeds of crime, which was about $5500.00 in cash. The circumstances included at least one instance of suspected trafficking observed during police surveillance. Mr. Russell was also in possession of 33 grams of cocaine at the time of his arrest. Mr. Russell had a criminal record, including trafficking in a controlled substance and weapons trafficking, for which he received a penitentiary sentence. He was 37 years of age and was trafficking for profit. He was not an addict trafficker trying to support an addiction. By way of mitigation, he had made significant efforts towards rebuilding a prosocial life, including gaining prosocial employment. He was also a caregiver to several children and supported his mother, who was very dependent on him.

44In Regina v. Slack, 2023 ONSC 4497, Regional Senior Justice Gregory Ellies of the Superior Court of Justice imposed a conditional sentence of imprisonment of two years less a day followed by two years probation for trafficking in fentanyl. The circumstances of that case bear a strong resemblance to the matter currently before the court. In that case, the accused, Ms. Slack, and Ms. Brandi Aultman were friends and both were addicted to opioids. Ms. Slack sold a small quantity of fentanyl to Ms. Aultman. Later that same afternoon Ms. Aultman was found on the floor of the bathroom of her workplace with vital signs absent. It was later determined that she died from acute fentanyl and ethanol intoxication. It was not known for certain that the fentanyl she ingested was sold to her by Ms. Slack as Ms. Aultman had purchased a quantity of fentanyl three days earlier from someone else. Justice Ellies noted Ms. Slack’s struggles with addiction, her efforts at rehabilitation, her personal life struggles, her positive employment history, her criminal record, and her stable community supports. When imposing a conditional sentence, Justice Ellies noted at paragraph 24,

In my view, the circumstances surrounding the offence and those now surrounding the offender mitigate against the imposition of a jail sentence. This was not a commercial transaction, motivated by greed or the need to feed Ms. Slack's own habit. It was an effort by one addict to help another. Incarcerating Ms. Slack in a provincial facility now, five years later, is certain to result in the loss of her employment and likely to make re-employment in her chosen field more difficult. Because her employment has been so important to her recovery, it threatens not only to impair it, but to stop it entirely. I do not believe that is necessary to achieve the fundamental purpose of sentencing in this case.

Consideration of a Conditional Sentence in this Case

A) Would the Safety of the Community be in Danger?

45While a conditional sentence of imprisonment is not legally included in these circumstances, to even consider a conditional sentence I must be satisfied that the safety of the community would not be in danger by Mr. Woods serving his sentence in the community. When I consider Mr. Woods’ community support, and in particular the support of his mother and stepfather, his extraordinary efforts at rehabilitation, including his successful completion of a residential treatment program, and his compliance for nearly 19 months with strict terms of bail, I am satisfied that the community would not be in danger by Mr. Woods serving his sentence in the community.

B) Is a Sentence of Less Than Two Years Appropriate in These Circumstances?

46There is no question that the death of Mr. Hunter Mason is a significant and compelling aggravating factor that must be considered when determining the appropriate length of sentence. However, as expressed by Justice Latimer in Regina v. Rafferty, [2019] O.J. No. 6865, I must be careful not to place excessive weight on this one feature of the case to the detriment of others. As noted, I am not sentencing Mr. Woods for a homicide-related offence. He has pleaded guilty to trafficking in fentanyl and I have to sentence Mr. Woods for that offence.

47In Regina v. Rafferty, the accused trafficked a small amount of a controlled substance to his friend Evan Hoegler. Mr. Rafferty believed the substance to be fentanyl but it was in fact carfentanyl. Mr. Hoegler died as a result of consuming the drugs that Mr. Rafferty provided.

48Like the case before the court, Mr. Rafferty and Mr. Hoegler had used drugs together and both were addicted to fentanyl. Mr. Rafferty regularly facilitated Mr. Hoegler’s access to fentanyl. The acts of facilitation, which make out the offence of trafficking, occurred in excess of perhaps 20 times as found by Justice Latimer. Mr. Rafferty had no prior record and a positive employment history notwithstanding his battle with addiction. When crafting the sentence, Justice Latimer emphasized the important distinction between for-profit traffickers and addict traffickers at page six of the decision,

In my view, he is materially different from the classic drug dealer, and the sentencing in this case that I am about to impose is materially different, and I think a far cry, from what a drug dealer, a classic drug dealer, or a trafficker for profit in a commercial context, would receive.

49There are many notable similarities between Regina v. Rafferty and the case at bar. In both cases the trafficking conduct was done repeatedly, in the case of Rafferty, up to 20 times. In both cases the drug trafficked was thereafter used by the purchaser, who then died as a result of an overdose. In both case the accused had serious addiction problems. In both cases the trafficking was done to facilitate the addiction. Both Mr. Woods and Mr. Rafferty have positive work histories, supportive families, and have undertaken steps at rehabilitation.

50Ultimately, Justice Latimer sentenced Mr. Rafferty to two years imprisonment, which was noted to be at the bottom end of the appropriate range of sentence. I also note that a conditional sentence was not considered as it was not then legally available.

51In Regina v. White, [2019] O.J. No. 1734, Mr. White trafficked a small amount of controlled substance to his friend, Mr. Troy. He believed the substance was heroin but it was in fact fentanyl. Mr. Troy died of a fentanyl overdose after consuming the drugs sold to him by Mr. White. Justice West similarly emphasized the distinction between for-profit traffickers and Mr. White, who did not sell as part of a business or ongoing scheme for profit. Mr. White was a heroin addict who trafficked to his friend to facilitate his friend’s access to heroin. Justice West properly considered deterrence and denunciation as paramount sentencing objectives. On balance, considering Mr. White’s status as a youthful first offender, Justice West imposed a period of 18 months imprisonment. It is also noteworthy that a conditional sentence was not a legally available option for Justice West when crafting the sentence in that case.

52In Regina v. Knapp, [2018] O.J. No. 2477, Justice Heeney at the Superior of Justice in Woodstock sentenced William Knapp for fentanyl trafficking and criminal negligence causing death. Mr. Knapp sold a fentanyl patch to Carolyn de Wit, who was addicted to drugs and had recently been cut off her methadone program. Ms. de Wit died shortly after administering the drug purchased from Mr. Knapp. Mr. Knapp pleaded guilty and presented with a history quite similar to Mr. Woods. The Court acceded to a joint submission on sentence and imposed a period of imprisonment of two and a half years less pre-plea custody for the trafficking offence.

53Even in Regina v. Walker, 2019 ONCJ 132, a case with significantly more aggravating features than the case before the court, the judge imposed a three year jail sentence on the trafficking charge, concurrent to a five year sentence for causing the death of Shawn Kelly. Mr. Walker was a for-profit trafficker who lacked insight regarding his own culpability and minimized his level of responsibility notwithstanding his guilty plea to criminal negligence causing death.

54When I consider the applicable caselaw, the unique circumstances of Mr. Woods, the relevant aggravating and mitigating factors applicable in this case as set out above, and when I take into account Mr. Woods’ pre-sentence custody and the successful compliance with a strict house arrest bail for some 19 months since his release, as I am entitled to do, I am of the view that the appropriate period of custody in this case is within the statutory prerequisite for a conditional sentence. This finding takes into account the pre-sentence custody already served by Mr. Woods and takes into account the time spent under house arrest bail as a relevant mitigating factor. Strict terms of bail are relevant sentencing considerations and time spent under stringent bail conditions, especially under house arrest, should be taken into account as a relevant mitigating circumstance on sentencing.

55While each case is distinguishable, this finding is consistent with sentences imposed for similar offences by similar offenders, including Regina v. Russell, supra, Regina v. Slack, 2023 ONSC 4497, Regina v. White, supra, and Regina v. Shearer, 2022 ONCJ 288. Further, Mr. Woods was a not-for-profit trafficker. He trafficked a small personal use quantity of fentanyl to Mr. Mason after the two of them had consumed fentanyl from the same supply. Mr. Woods cautioned Mr. Mason about the particularly potent nature of the fentanyl they had just consumed. At the time, Mr. Woods was in an acute phase of addiction. Since his arrest, he has gotten sober and maintained sobriety. He re-established positive relationships with his mother and stepfather and completed a residential treatment program. He has demonstrated considerable remorse and accepted responsibility at an early stage for the offence of trafficking. For all of these reasons, I am satisfied that the appropriate period of custody in this case is two years less a day.

C) Is a Conditional Sentence Consistent with the Fundamental Purpose and Principles of Sentence?

56Twenty-three years ago the Supreme Court of Canada explained that a properly structured conditional sentence can satisfy the sentencing objectives of deterrence and denunciation. As stated by Justice Lamer in R. v. Proulx, 2000 SCC 5, at paragraph 22,

The conditional sentence incorporates some elements of non-custodial measures and some others of incarceration. Because it is served in the community, it will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community, and the promotion of a sense of responsibility in the offender. However, it is also a punitive sanction capable of achieving the objectives of denunciation and deterrence. It is this punitive aspect that distinguishes the conditional sentence from probation.

57Justice Lamer explained further that a conditional sentence is available in principle for all offences in which the statutory preconditions are satisfied and there is no presumption against the imposition of a conditional sentence for any offence which otherwise qualifies.

58Justice West in R. v. Hillier and Blain, 2018 ONCJ 397 in 2018, following a legislative amendment which has since been reversed that prohibited the imposition of a conditional sentence for trafficking offences stated as follows,

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.

59When I consider the directives from the Supreme Court and recent legislative developments, which again illustrate Parliament’s expanding confidence in the conditional sentence order as an effective and balanced sentencing tool and the unique circumstances of Mr. Woods, I am of the view that a conditional sentence order can be crafted with sufficiently strict terms to give effect to the fundamental purpose and principles of sentencing. In my opinion, a conditional sentence is the appropriate sentence to reflect principles of denunciation and deterrence, with rehabilitation playing a secondary role, in a manner specifically tailored to ensure that the sentence is appropriate to the gravity of the offence and the degree of responsibility of Mr. Woods. In this way, service of the sentence in the community is consistent with the fundamental purpose and principles of sentencing set out in section 718 to 718.2 of the Criminal Code. Serving the custodial sentence in the community is both in Mr. Woods’ best interest and ultimately in society’s interest in ensuring that his addiction continues to be addressed, thus minimizing any risk of reoffence.

60Mr. Woods’ conduct in this case was gravely serious. However, having reviewed the large body of caselaw dealing with sentencing offenders such as Mr. Woods, applying the principles of sentencing set out therein and summarized above, I conclude that the appropriate sentence for Mr. Woods is a conditional sentence of two years less a day followed by three years of probation. The conditional sentence will involve house arrest for the entirety of the sentence with exceptions for employment and a limited window for personal needs and counselling.

UNKNOWN FEMALE VOICE: I thank all of you. Thanks. THE COURT: The conditional sentence will be followed by... UNKNOWN FEMALE VOICE: You’re shit. THE COURT: ...a period of three years, with counselling requirements and reporting.

61Additionally, there will be an order pursuant to section 487.05(1) of the Criminal Code. As it is a designated secondary offence, there will be a section 109 order for ten years.

62House arrest with few exceptions for the longest period available is an onerous and denunciatory sanction which advances the objectives of deterrence and denunciation. Further, the additional three years of probation will help ensure Mr. Woods maintains his sobriety and thus properly advances the objectives of public protection and rehabilitation. The net result is that Mr. Woods will be subject to ongoing supervision and restriction for effectively the next five years.

63Mr. McRae, could you please provide the Clerk of the Court with your client’s address? You can do so in writing.

MR. MCRAE: It is on the recognizance, which should be attached to the Information. THE COURT: Okay, thank you. Mr. McRae, can you please let me know a four-hour time block once a week when your client needs to attend to the necessities of life? MR. MCRAE: I suggest 2:00 to 6:00 on Saturday. THE COURT: All right.

Conditional Sentence Terms

64The terms of the conditional sentence are as follows. These are the statutory conditions.

• you will keep the peace and be of good behaviour;
• appear before the court when required to do so;
• report as the court directs (and there are further reporting conditions set out below) in person to a supervisor and thereafter report when required by the supervisor and in a manner directed by the supervisor;
• you will remain in Ontario unless you have the prior written permission from the court or the supervisor to leave the province;
• you will notify the court or supervisor in advance of any change of name or address and promptly notify the court or supervisor of any change in employment or occupation.

Reporting

1. You will report in person to a supervisor today, and after that, at all times and places as directed by the supervisor or any person authorized by the supervisor to assist in your supervision.
2. You will cooperate with your supervisor and sign any releases necessary to permit the supervisor to monitor your compliance and must provide proof of compliance with any condition of this order to your supervisor upon request.

Residence

65You will reside at your current place of residence, which will be set out in writing on the order, or a place approved of by the supervisor and not change that address without obtaining the consent of the supervisor in advance.

House Arrest

66A home confinement condition will be in effect for the entire conditional sentence. During that time, you will remain in your residence or the property of your residence at all times:

1. except between two p.m. and six p.m. on Saturdays in order to acquire the necessities of life;
2. for any medical emergencies involving you or a member of your immediate family;
3. for going directly to and from or being at work or employment as approved by your conditional sentence supervisor;
4. for going directly to or from or being at court attendances, religious services, and medical or dental appointments as approved by your conditional sentence supervisor;
5. for going directly to or from and being at assessment, treatment or counselling sessions as directed by your supervisor;
6. for any purpose that may be approved by the supervisor. If there is something unexpected that arises, you can seek special permission. During such times, you will carry the written permission on your person at all times while out of your residence.
7. You must present yourself at your doorway upon the request of your supervisor or a peace officer for the purpose of verifying your compliance with your home confinement condition.

Weapons

67You will not possess any weapons as defined by the Criminal Code. There are a list of examples set out on the order. If you now possess any weapons as defined by the Criminal Code, you must surrender them to the police within 48 hours. All licences and registration certificates pertaining to these things referred to shall be surrendered and you will not apply for any such licences and registration certificates.

Drugs

68You will not possess or consume any unlawful drugs or substances referred in the Controlled Drugs and Substances Act except with a valid prescription in your name or those available over the counter. You will not posses any weigh scales, hydroponic growing equipment or other drug paraphernalia.

Counselling and Treatment

69You will attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the supervisor and complete them to the satisfaction of the supervisor. You shall sign any release of information forms which will enable your supervisor to monitor your attendance and completion of the assessments, counselling or rehabilitative programs as directed. You shall provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed.

70Do you understand the terms of that order?

MR. WOODS: I do. THE COURT: Okay. Can you abide by those terms? MR. WOODS: I will. THE COURT: It is essential that you do. If you are found to be in breach of any of those terms, the community-based sentence could be collapsed and you could be required and you likely will be required to complete the balance of the sentence in a traditional custodial facility.

Probation

71The probation will start at the conclusion of the conditional sentence and it will be for a period of three years with the following conditions. The statutory terms will apply, and,

• you will report within two working days following the completion of the conditional sentence order and thereafter as required by your probation officer;
• you will take counselling and treatment as directed by your probation officer. You will cooperate with your probation officer and sign all necessary forms to ensure compliance and completion of the programs;
• further, you will not possess any weapons as defined by the Criminal Code.

72With respect to ancillary orders, as I mentioned there will be a DNA order pursuant to section 487.05(1) of the Criminal Code. To that end, you will provide samples of your bodily substance as reasonably required for the purpose of forensic DNA analysis to be used in accordance with the DNA Identification Act.

73There will be a section 109 order for ten years, and it is a separate and additional weapons prohibition. So I order that you are prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life, any other firearm or any crossbow, restricted weapon, ammunition or explosive substance for a period of ten years following completion of the conditional sentence order as it is a jail sentence.

74Given Mr. Woods’ employment prospects, I understand he has employment available. Pursuant to section 737 of the Criminal Code, there will a victim fine surcharge of $500.00 payable within the next 12 months.

75That is the sentence of the Court.

76Mr. Woods, that completes your matter. You have a lot of responsibility and you have to carry this responsibility and I am sure things will weigh on your conscience forever, but I do wish you success in your ongoing rehabilitative efforts and your journey through sobriety. I hope you stay on that pathway.

MR. WOODS: Thank you. THE COURT: Thank you.

Form 3

Electronic Certificate of Transcript

ELECTRONIC CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2) Evidence Act

I, JUDITH SMITH, certify that this document is a true and accurate transcript of the recording of R. v. Michael Woods, in the Ontario Court of Justice, held remotely at 85 Frederick Street, KITCHENER, Ontario, taken from recording 4411_CrtRm405_20231116_094137_6_DARROCHST., which has been certified in Form 1.

(Date) (Electronic Signature of Authorized Person) ___________ 5339834698 __________________ (Authorized court transcriptionists ID) ____________ Ontario ___________, Canada (Province of Signing)

A certificate in Form 3 is admissible in evidence and is proof, in the absence of evidence to the contrary, that the transcript is a transcript of the certified recording of evidence and proceedings in the proceeding that is identified in the certificate.

Authorized Court Transcriptionist

AUTHORIZED COURT TRANSCRIPTIONIST - MS. JUDITH SMITH CONTACT INFORMATION - smithtranscripts@gmail.com