DATE: November 19, 2024 Information No. 21-15000446 21-15000447 21-15001970 21-15001971

ONTARIO COURT OF JUSTICE

HIS MAJESTY THE KING v. ASHLEY GALLIE

R E A S O N S F O R S E N T E N C E

BEFORE THE HONOURABLE JUSTICE B. BROWN On November 19, 2024 at TORONTO, Ontario

APPEARANCES: D. Lumba Counsel for the Crown M. Morse Counsel for Ashley Gallie

BROWN J. : (Orally)

Ms. Ashley Gallie is charged with a series of criminal and drug charges under the C.D.S.A. and, as well, the Criminal Code arising from her employment as a pharmacy technician. The offences were in 2020. The Crown proceeded by indictment on numerous hybrid offences, contrary to the Criminal Code and, as well, the court has the drug offences.

After a lengthy trial where the only issue related to whether the oxycodone Ms. Gallie took from her employment working in two different pharmacies was possessed for the purpose of trafficking, at the end of the trial the court found that a portion of the oxycodone stolen from the first pharmacy, Nova, which was much greater than that taken from the second pharmacy, IDA, was possessed for the purpose of trafficking.

This case has been adjourned and delayed numerous times by the request of the defence. The case is now before the court for imposition of sentence. Both the Crown and defence agree that a penitentiary sentence is appropriate. The Crown is seeking five years' jail and the defence is seeking three years jail.

The charges were as follows:

1Information ending in 0446, theft over $5000, medications which were the property of Mina Girgis, which was the pharmacy.

2Information ending in 0447, similar period of time, between May 1 and September 3, 2020, possession for the purpose of trafficking in oxycodone as well as straight possession of oxycodone.

3Information ending in 1970, an offence period between August 31 to November 5, 2020, possession for the purpose of trafficking in oxycodone and, as well, possession of oxycodone.

[4] Information ending in 1971, for the similar period of August 31 to November 5 of 2020: (i) the charge of theft over $5000, which was oxycodone, the property of Wael El Shebokshy; (ii) using a computer system with intent to commit an offence; (iii) false pretence with intent to defraud over $5,000 oxycodone from Wael El Shebokshy; (iv) make use of prescription knowing that it was made with the intent to defraud and without lawful authority in the name of Anne Karac; (v) make use of prescription knowing that it was made with intent to defraud and without lawful authority in the name of Stacey Dioran; (vi) defraud Wael El Shebokshy from the IDA Pharmacy store at 795 Broadview Avenue of oxycodone of a value exceeding $ 5,000; (vii) using a prescription in the name of Anne Karac; (viii) using a prescription in the name of Stacey Dioran. Again, those are both uttering counts.

The Crown proceeded by indictment on all hybrid offences. A guilty plea was entered to all Criminal Code charges and a guilty plea to the charges of simple possession of oxycodone under the C.D.S.A.

The trial proceeded as a joint trial on the issue of whether Ms. Gallie possessed the oxycodone for the purpose of trafficking.

She has entered pleas of guilt in relation to the period between May 1 and September 3, 2020, of theft of medication over $5,000 from Mina Girgis, which was her position at Nova Pharmacy, and possession of oxycodone over that period of time.

Ms. Gallie also entered pleas of guilt in relation to the period between August 31 and November 5, 2020, to theft of medications exceeding $5,000 from Wael El Shebokshy, which was at her position at IDA Pharmacy, and possession of oxycodone over that period of time.

Ms. Gallie was further charged and pled guilty to counts from August 31 to November 5, 2020:

1. Fraudulently, without colour of right, using the computer system with intent to commit an offence.
2. Obtaining oxycodone of a value exceeding $5,000 by a false pretense and with intent to defraud with a prescription in the name of Anne Karac.
3. Using a prescription knowing it had been with intent to defraud and without lawful authority in the name of Stacey Dioran.
4. By deceit, falsehood, or other fraudulent means, to defrauding Wael El Shebokshy from the IDA Pharmacy store of oxycodone of a value exceeding $5,000.

5Knowing the prescription in the name of Anne Karac to be forged, did, deal with or act on it as if it were genuine.

6Knowing that prescription in the name of Stacey Dioran was forged, did, use, deal or act on it as if it were genuine.

As indicated, Ms. Gallie entered pleas of not guilty to the charges of possession of oxycodone for the purpose of trafficking in relation to the two periods when she was working at Nova Pharmacy and IDA Pharmacy, respectively.

The parties agreed to the facts that were set out in Exhibit 1, an Agreed Statement of Fact, which was later enhanced somewhat by the chart filed as Exhibit 7 regarding the oxycodone drugs.

The Crown called two witnesses who were qualified as experts. The Crown called Dr. Christina Lamparter, who was an expert in toxicology, together with Detective Richard Duffus, who was also qualified as an expert. There was no other expert evidence.

The defence called Ashley Gallie.

The only issue in this trial is whether Ms. Gallie possessed the oxycodone, which she took from the two pharmacies, for solely her own use or whether she possessed at least some of it for the purpose of trafficking as set out in the Section 2 C.D.S.A. definition which includes to sell, administer, give, transfer, transport, send or deliver the substance, to sell an authorization to obtain the substance, or to offer to do anything mentioned in that regard.

Generally, the issue is whether Ms. Gallie possessed and consumed all of the drugs for her sole personal use, or if, as the Crown seeks to prove beyond a reasonable doubt, she possessed, for the purpose of selling, giving, transporting or delivering, any portion of the oxycodone medication to someone else.

The amount of drugs that Ms. Gallie required to sustain her addiction or dependency on oxycodone together with the concurrent issue of how much of the stolen oxycodone she consumed for herself was a pivotal fact in issue in the trial.

The defendant was found guilty of possession for the purpose of trafficking in relation to her employment at Nova Pharmacy, but not guilty of possession for the purpose of trafficking in relation to the position at the IDA Pharmacy in very extensive Reasons for Judgment that were delivered on November 21st, 2023.

On November 21st, 2023, the case was put over to February 22nd of this year for sentence to be imposed. The court ordered a presentence report for sentence which is now before the court. The Crown advised the defendant and the court at that time that it would be seeking a term of incarceration.

On February 22, 2024, the case was before the court for the imposition of sentence. At that time, defence counsel advised he did not realize, even though Ms. Gallie may have told him some time ago, that she had an Aboriginal background.

Defence counsel, at that time, advised the court that he wished to have a Gladue report prepared and put before the court. The court advised defence counsel of the procedure for defence counsel to request the report, and the case was put over to March 26 to set a date for sentence.

The endorsement on the information indicates that defence counsel did not appear that date, nor did Ms. Gallie. A discretionary bench warrant was issued returnable April 3rd, and then again on that date to May 1st, 2024. It was then put over to May 3rd, 2024, when it appears Mr. Morse appeared in court.

On May 3rd it was put over to May 10th, then on May 10th the case was put over to May 16th, and then subsequently to May 30th, 2024. On that date defence counsel Mr. Morse indicated that the Gladue report was not yet done. He advised that he had spoken to a representative from Aboriginal Legal Services and that he was not sure when the report for Ms. Gallie would be prepared, that he had left a voicemail message for someone in the office.

Mr. Morse also advised the court that Ms. Gallie had a hernia arising from childbirth and she was on the list for getting surgery. The case was then adjourned to June 11th with the court asking Mr. Morse to advise the court by email on June 3rd or 4th as to when the Gladue report would be completed.

On June 11th of this year, when the case was next in court, Mr. Morse indicated that he had misdiarized the case and apologized. He advised the court that he had spoken with a representative of Aboriginal Legal Services and that the Gladue report would be prepared and that it would take eight weeks for the report to be prepared. This would mean that the report would have been prepared by August 16th of 2024. Accordingly, the court adjourned the case for sentence to be scheduled on September 9, or thereafter, at a convenient date for counsel and the court. The case was adjourned to September 10th, 2024, for the imposition of sentence. Then, it was adjourned again for sentence at the request of the defence for reasons that will be mentioned in a moment.

The court would note that on September 3rd, noting that the court had not received the Gladue report after August 16th, the court reached out to counsel through support staff to ask for an update regarding the report. At that time the court was advised of the name of the report writer from Aboriginal Legal Services. Subsequently, the court learned that the writer had an appointment with Ms. Gallie on September 5th and would update the court with a letter following that date. The court was provided with a Gladue letter dated September 6, 2024, from Aboriginal Legal Services authorized by Ms. Duplessis, Senior Manager, Gladue Case Worker Program.

In that letter, the court was advised that they were unable to prepare a Gladue report for Ms. Gallie. The author set out in a five-page letter the basis upon which ALS would not prepare a Gladue report for Ms. Gallie and this is set out further in the section dealing with the circumstances of the offender and the reasons. The case was then adjourned to last week, November 13th, for sentence.

Shortly before that date, defence sought for a further adjournment to allow Ms. Gallie to attend a clinic and have potentially further medical treatment arising from surgery. Ms. Gallie had obtained the surgery that she was on the list for in September of 2024, and that was the reason for the adjournment in September.

Yesterday the court was advised that the defence was no longer seeking to adjourn the case and was seeking to have sentence imposed.

Finally, today, the matter is before the court for the imposition of sentence.

Both Crown and defence counsel, as indicated, are seeking a penitentiary sentence for these offences.

The Facts

A. Circumstances of the Offence

As indicated, the court delivered very extensive Reasons for Judgment in this matter. Reference should be made to those Reasons for Judgment for details. The court will summarize those Reasons in very brief summary at this point for the purpose of imposition of sentence. There was a great deal of viva voce evidence and expert evidence in this trial which the court will not repeat at this stage. There was also the Agreed Statement of Fact which was helpful to the court. The court will read from the Agreed Statement of Fact as it sets out the details of the facts independent of the viva voce testimony in the trial.

In essence, in addition to the many oxycodone pills which she stole from both pharmacies, which she admits, Ms. Gallie admits to fraudulently using the IDA computer system with intent to commit an offence, to making use of a prescription knowing it was made with intent to defraud and without lawful authority in the name of Anne Karac and doing the same with respect to the name of Stacey Dioran together with two offences of uttering in relation to the prescriptions for each of these named women, to obtaining oxycodone by a false pretense with intent to defraud, and by deceit, falsehood, or other fraudulent means, to defrauding the pharmacist at IDA of oxycodone. The court will just defer to the Agreed Statement of Fact as filed as an exhibit rather than taking the time now to read it all.

It is to be noted that it indicates that Ms. Gallie did not have permission to access either safe at either pharmacy from which she stole the oxycodone pills.

In addition to the agreed facts, the Crown filed a chart as Exhibit 7, which further calculates and quantifies the milligrams of oxycodone stolen while at the two pharmacies. The oxycodone pills were stolen by Ms. Gallie from Nova Pharmacy on many different dates. Over the period of May 1st to September 3rd of 2020, a period of just over four months, which is 125 days, Ms. Gallie stole oxycodone of various different brand names and dosages ranging from low dosages of 10 and 15 milligrams, then 20 milligrams, and up to 40 and 80 milligrams. Over the time period of that offence she stole 6109 pills.

The value of those pills was determined by the evidence of the expert witness. Detective Richard Duffus testified that the value on the street of the oxycodone pills that were set out as agreed facts in the trial, and those stolen from Nova Pharmacy, would be in the range of $103,730 to $160,460. That is a different value from the value shown on the Agreed Statement of Facts which reflects the value of the loss to the pharmacy, which was a loss to the pharmacy of $10,764.22. The total street value, however, is based on the range of the individual sale prices for pills on the street as set out by the expert witness.

For example, the prices on the street for selling those pills would be $5 to $10 each for the 10 to 20 milligram pills, $10 to $20 each for the 40 milligram pills, and $30 to $40 each for the 80 milligram pills. According to Detective Duffus, the price of oxycodone pills sold on the street varies with the dosages. The prices were given for 2020, the year of the allegations in the trial. For 10 to 20 milligram pills, he indicated that they would range between the amount of $5 to $10. He also gave the range for the 40 milligram pills and the 80 milligram pills, as set out above. If a purchaser, however, bought oxycodone pills in bulk, being 50 to 100 pills at a time, the more you purchase the cheaper it would be, for each of the pills.

Over the period of time that Ms. Gallie was employed as a pharmacy assistant at Nova Pharmacy she was stealing these drugs.

She also stole the drugs in her next position as a pharmacy assistant at IDA Pharmacy from August 31 to November 5, 2020. She stole a lesser variety of oxycodone medications from this pharmacy. She stole the Oxy Neo brand in dosages of 15, 20, 30 and 40 milligram dosages. She also stole the Apo Oxycodone CR 80 milligram tablets. In total, over that period, while at that employment, she stole 1576 oxycodone pills. According to the expert evidence of Detective Duffus, the street value of those drugs was between $21,225 and $34,170. The street value of the 15 milligram pills, which were the IDA Pharmacy thefts, would be sold for $5 to $10 each. The value of those pills to the pharmacy was in the range of $3,153.55. Those drugs were stolen from IDA over a period of 2 months and 5 days, or 66 days.

The total street value of the oxycodone pills stolen from both pharmacies ranged between $124,955 and $194,630. As noted above, the range depends on the price at which each pill might be sold on the street.

The nature of the defence evidence at the trial was essentially that Ms. Gallie testified she consumed all of the oxycodone pills herself over the period of time they were taken and that, in the end, there were essentially none left. She testified she never gave or sold any of the pills. There was a quantification of her evidence of consumption. The total milligrams of oxycodone she stole over the 125-day period from Nova Pharmacy, which she testified she consumed in total, was approximately 316,820 milligrams of oxycodone. If one were to average that amount over the 125 days of the offence this would result in a calculation where Ms. Gallie would have consumed over 2500 milligrams per day, being 2534.56 milligrams per day.

As it related to the thefts of oxycodone from the second pharmacy, IDA, she stole a total of 68,040 milligrams of oxycodone. If one were to average that amount over the 66 days of the offence, this would result in a calculation Ms. Gallie indicated she consumed of 1030.91 milligrams of oxycodone per day, which is far less than half of the daily amount she would have Consumed on average at the previous employment position at Nova shortly before.

The court found that to be a critical uncontradicted fact with respect to assessing her credibility in light of the evidence of the two expert witnesses regarding patterns of consumption by a user of oxycodone.

In its findings of fact, the court noted the following in the Reasons for Judgment.

Overall, Ms. Gallie was not credible. The court rejected her evidence as to the amount of oxycodone medication consumption she had over the two offence periods. The court did not have a reasonable doubt arising from her testimony as it related to the amount of oxycodone consumption and whether she consumed all the oxycodone medication she stole from the two pharmacies. The Crown was required to prove beyond a reasonable doubt that Ms. Gallie possessed the oxycodone pills she stole from her two employers' separate pharmacies at least partially for trafficking, whether to give or sell to other people, including her family members.

The court considered the expert evidence of Dr. Lamparter and Detective Richard Dufus. The court accepted their evidence. As it relates to oxycodone consumption, it is clear that if Ms. Gallie continued to take oxycodone medication at increasingly high dosages over time that the effectiveness of the drug as it related to pain relief would decrease, and it is clear that Ms. Gallie admits she enjoyed less benefit from increased quantities of oxycodone consumption.

Detective Richard Duffus testified that users at that stage often turn to other forms of pain relief, being stronger medications such as fentanyl. The evidence is that Ms. Gallie did have available to her fentanyl from the pharmacy and other strong drugs, she did not take those.

In addition, Ms. Gallie knew dealers during this period of time. Ms. Gallie knew the prices of selling oxycodone pills to traffickers, evidence she stated on her own. She had previously brought gift cards to drug traffickers to exchange for her drug of choice, being oxycodone, in the past.

Ms. Gallie was clearly very close to her family, that came through in many parts of her evidence. When she was in need her uncle and other relatives obtained and gave to her oxycodone medication. She indicated her family is addicted to oxycodone medication. Her uncle was addicted to pills such as oxycodone and cocaine and there was a time, she indicated in her evidence, that she was living with him while she stole oxycodone pills from Nova Pharmacy. At the time she was not paying him rent and she stated that he was asking her for things. At the time she had oxycodone pills she had stolen from Nova. She stated he wanted whatever he could get from her, that is, essentially, what drug addicts such as her uncle did. It is clear that this uncle had helped her out numerous times previous to that giving her oxycodone medication and helping her with her children when she went through a two-week withdrawal period.

The court considered the evidence of Dr. Lamparter that Ms. Gallie could have worked herself, while at Nova, to a high consumption rate. She had been consuming, this court would find pursuant to this expert evidence, in the range of 1030 milligrams of oxycodone per day as she had taken from IDA. In that respect, the court finds, considering the expert evidence of both Crown witnesses, that the Crown failed to meet the test of proof beyond a reasonable doubt as it related to possession for the purpose of trafficking of the oxycodone medication stolen from IDA.

In the end, given the evidence of the expert Dr. Lamparter, the court found that one could not rule out generally a very high unprecedented usage as related by Ms. Gallie regarding her consumption of oxycodone from thefts from IDA, the second pharmacy.

However, as it related to thefts from Nova, the first pharmacy, it was clear that she stole far in excess of her pattern of usage from the second pharmacy. The court found that she possessed a notable portion of the oxycodone from Nova for the purpose of trafficking. The court found that for the lower quantity of theft and usage of oxycodone from IDA, the second pharmacy, the Crown fell short of proving beyond a reasonable doubt that a portion of that oxycodone was for the purpose of trafficking as it could have potentially been for personal use.

Accordingly, this court found that the Crown had met the onus of showing proof beyond a reasonable doubt as it related to the possession of oxycodone medication stolen from Nova Pharmacy and that a portion of it was possessed for the purpose of trafficking. She was, accordingly, found guilty of that charge.

On the count relating to IDA Pharmacy, as stated above, the Crown fell short of its onus of proving beyond a reasonable doubt that the oxycodone medication stolen and possessed for that charge was possessed for the purpose of trafficking and found her not guilty of that charge. She was guilty of simple possession of oxycodone in relation to her employment and theft from the second pharmacy, IDA, of the oxycodone.

B. Circumstances of the Offender

Ms. Gallie's date of birth is [...], 1985. She is 39 years of age now. She is single and she has three children, a daughter, age 21 years, a son, age 19 years, and a toddler with whom she was pregnant when she started her evidence, but was born last year.

Ms. Gallie had her first daughter one week before Ms. Gallie's 16th birthday, and she had her son when she was 18 years of age. She described her relationship with the father of those two children, Adam, as extremely toxic and abusive. He hit, punched, and kicked her.

When she worked at Nova Pharmacy she testified that her son was living with her and that her daughter moved back with her towards the end of her employment at Nova Pharmacy. Ms. Gallie supported her son, and it appears her daughter, at times as a single mother. She supported her son during the period of the offences as a single mother although she may have contributed to her daughter to some extent as well.

Ms. Gallie completed secondary school and then attended Centennial College, graduating in 2013 with a pharmacy technician diploma. She completed this program when she was 28 years of age in 2012. She worked at pharmacies until 2020, when she was arrested for the subject charges. Ms. Gallie has no prior criminal record.

Ms. Gallie indicates that she does not consume alcohol. She previously used marijuana but does not any longer. In the presentence report, the author indicated that Ms. Gallie had a difficult family life. Her father was violent and he committed suicide when she was 14 years of age. She was pregnant with her first child when she was 15 years of age, this daughter is subsequently 22 years of age. Some of the ages and dates are no longer accurate given the many delays that have taken place since the presentence report was prepared.

Ms. Gallie advised that her mother kicked her out after her baby was born. She went on social assistance and found housing. She indicated that her relationship with her mother is strained.

Ms. Gallie met her long-term partner when she was 18, and she had her second child, who is now her 20-year-old son. This partner did not provide for the family and Ms. Gallie had to do so. He was described as alcoholic and abusive. She gave birth to a baby after she was charged with these offences and while she was before the court on this trial. As of the time of the preparation of the presentence report, she resided with her two adult children and her baby. Her adult daughter was pregnant at the time of the presentence report. Subsequently, this daughter has given birth to her child and the court has been advised that her adult daughter no longer lives with her, although the court does not know where she lives as of today. As of September 2024, in the Aboriginal Legal Services letter it was indicated that Ms. Gallie's adult daughter lived in Cambridge. Her younger child was at the time 16 months of age but would now be 18 months of age. Ms. Gallie has been, and is, the sole caregiver of this child. That is a factor that weighs heavily on the court in imposing a suitable sentence for Ms. Gallie, which both counsel agree is a penitentiary sentence.

In the Aboriginal Legal Services letter it indicated that Ms. Gallie is scheduled for surgery at the end of September to fix a hernia for complications from childbirth when her young daughter was born. That surgery did take place in September.

As indicated, Ms. Gallie's youngest child is 18 months of age. Ms. Gallie was arrested in January of 2021. She became pregnant with this child in approximately August of 2022. It seems from the information before the court that the father of this child is not a figure in the child's life, nor in the life of Ms. Gallie. Ms. Gallie told the presentence report author that she is of Indigenous descent with Mi'kmaq heritage. She indicated she has her Metis status card of The Painted Feather of the Woodland Tribe. The court will refer instead to the letter from Aboriginal Legal Services with respect to that aspect of her background later in the Reasons.

Ms. Gallie's medical history was led in great detail both during the trial and the sentencing stage. It was amplified by a series of medical reports filed as exhibits.

Ms. Gallie was 20 years of age when she was diagnosed with scoliosis, which is curvature of the spine. Over the years she has had numerous CT scans and MRI imaging done on her back. She was initially prescribed Percocet for this condition at two pills a day for 30 days. She described feeling "pain all over" at that time. The medication helped her a lot initially, particularly with her children. After about a year her pain level was greater, and she testified that slowly she needed more of the medication.

There was no viva voce medical evidence as to her condition as described in the medical reports. She simply gave evidence as to her understanding of the medical terms in the medical reports put in evidence. She described a bony ridge extending into the spinal canal which misplaces a nerve root. She also has cysts on the nerve root which cause a lot of discomfort. There is also compression of the nerve root. Her overall condition was noted to have worsened following imaging in 2018. The scoliosis is congenital, but her back was further injured in 2017 arising from the father of her children, who was abusive to her, kicking her down two sets of stairs. At the time they were living in Bowmanville. This further aggravated her back.

The second event in the chronology identified by Ms. Gallie to physically aggravate her condition was a motor vehicle collision where she was a passenger in a motor vehicle when she was not wearing a seat belt. After the collision, the airbag was deployed when the vehicle came in contact with a hydro pole. This is referred to in the presentence report. Ms. Gallie indicated that the scoliosis was likely aggravated by the car accident in 2018 when she suffered a back injury which caused three pinched sciatic nerves, two bulging herniated discs and two spinal stenoses. She was prescribed oxycontin and indicated she later became dependent on that drug.

There are numerous medical reports filed in evidence which the court has carefully considered and accepts to be true in terms of the medical status of her condition, injuries, and her body. The dates of those events are contradicted and somewhat inconsistent as it relates to the motor vehicle collision as noted below. Ms. Gallie had described her injuries following the motor vehicle collision as follows, “I have scoliosis. I have multiple synovial cysts up and down my spine. I have three pinched sciatic nerves, two bulging herniated discs and two spinal stenoses, which in case you’re unfamiliar with, means two breaks in my back, one moderate and one severe, both requiring surgery that, because of Covid, I’ve been waitlisted.”

Over the years, Ms. Gallie had been prescribed pain medication including Percocets and oxycodone medication. She indicated that her attending physicians did not prescribe the level of pain relief that she felt she needed to address the pain. As a result she went to illicit means to get the drugs including when she was 21 years old and working at Dolphin Bingo when women who attended there either gave or sold her Percocets and oxycodone pills.

There was a period of time when she totally and completely withdrew from these painkillers for approximately four to five years. She did this withdrawal from painkillers cold turkey, quitting on her own without medical supervision. After that period of time, she began to start taking pain medication again.

In 2019 she was obtaining pain relief partly through medication from her physician Dr. Cheetah who prescribed two tablets of 10 milligrams of oxycodone and four Percocets per day. This was given to her as a prescription for a month at a time and she would need to travel back to Oshawa when she had moved back to Toronto. She testified that she would consume this quantity of oxycodone in that day or two days. After that, she needed to go to other sources to get the quantity of oxycodone which she wished to consume. She indicated that she currently took oxycodone only as prescribed for pain management. She indicated that she had never experimented with any other drug.

Ms. Gallie does not suffer from any mental health issues. It is interesting that in the presentence report Ms. Gallie indicated that her boss at the pharmacy would allow her to borrow oxycodone and that this started a precedent. She did not give that testimony at trial. The court would note that it found the testimony of Ms. Gallie at trial to be lacking in credibility as it related to her evidence as to consumption of oxycontin. Her statement that her first employer allowed her to borrow oxycontin, which started a precedent, was not subject to cross-examination.

The letter from Aboriginal Legal Services dated September 6, 2024, described Ms. Gallie and her background. She did not know about her Indigenous ancestry until, she indicated, she was in her mid to late 20s. She has never had any cultural involvement. She could not discuss her experiences as an Indigenous person and did not know more about the subject. The letter indicated the tremendous extent to which the author went in researching named ancestors of Ms. Gallie. Of particular note, on Page 4 of the letter is the statement, "There were no Indigenous identifiers for any of the known ancestors in Ms. Gallie's family tree." The author also noted that the group which Ms. Gallie indicates she is a member of "The Painted Feather of the Woodland Metis" is a for-profit organization in Bancroft, Ontario. It is not recognized by the Manitoba Metis Foundation, the Metis Nation of Ontario, or the Government of Canada.

The letter indicates that payment of a fee is required to be a member of that organization and a standard oath is given. There is no requirement of supporting documents to demonstrate any Indigenous ancestry of any family members. The cards are available to anyone who requests one. The author clearly indicated that a Gladue report could not be prepared as she was unsure about the specific nature of any Indigenous ancestry for Ms. Gallie.

Secondly, even if the ancestry could be confirmed for Ms. Gallie, and it could not be, the author indicated that there could be no indication of how being Indigenous had affected her life circumstances.

On the day of submissions by counsel, September 10th, 2024, defence counsel advised the court of the current status of Ms. Gallie. He advised the court that Ms. Gallie required surgery for the hernia arising from childbirth on April 23rd, 2023. After a caesarean section was performed for the delivery of her baby, she had an abscess on her incision and complications related to that development. It was then anticipated that she would be receiving surgery, which was scheduled, and the court understands performed, on September 24th of this year. It was also indicated that she would need a period of recovery including a follow-up clinic appointment four to six weeks after the surgery, which would be in the range of October 22 to November 5th. It was on that basis that the court scheduled the return date for sentence to be imposed last week.

The court subsequently learned that the follow-up clinic appointment was the day that the matter was before the court. That appointment has taken place and the court has the letter of Dr. Hopkins (ph), the surgeon, before the court as an exhibit indicating her current status at the present time. As indicated earlier, it indicates that there is a suggestion that she have an ultrasound performed within the next few weeks and that she might be referred to for being seen at the clinic for pain management.

Ms. Gallie has today, when invited by the court, made a statement expressing her remorse for committing these offences. The court considers this expression of remorse as genuine.

C. Impact on Victim

The Criminal Code directs the court to take into account the portions of the victim impact statement that the court considers relevant as set out in section 722 of the Criminal Code. The court has sought input by way of a victim impact statement from the Crown in relation to the two pharmacies and the two pharmacists who were the victims of this significant theft by their employee Ms. Gallie.

For reasons not known to the court, the victims have chosen not to put forward victim impact statements. As well, previously, the victims sought a restitution order in relation to their losses. The court sought further information and clarification before considering the making of restitution orders. The victims did not respond. A question was raised by the defence as to whether there had been recovery from insurance companies for these thefts. That question remains unanswered given that the victims have chosen not to give the Crown any further information for this case. Accordingly, the court will decline to make restitution orders for the losses from the two pharmacies in this case.

Legal Parametres

The most serious offence for consideration of sentence is the offence of possession for the purpose of trafficking in oxycodone. Oxycodone is one of the most serious and addictive of drugs, being a Schedule 1 drug, section 1(29) of the schedule. The range of penalty for this offence contrary to section 5(2) of the Controlled Drugs and Substances Act is, under section 5(3)(a), a maximum of life imprisonment.

For the offence of possession of oxycodone, a Schedule 1, drug contrary to Section 4(1) of the Controlled Drugs and Substances Act where the proceeding is by indictment the maximum penalty is seven years.

The court notes the following ranges of sentence for the Criminal Code offences:

(1) theft over, section 334(a)(i), liable to imprisonment for a term of not more than 10 years; (2) use computer, section 342.l(a), liable to imprisonment for a term of not more than 10 years; (3) false pretense, section 362(1)(a), liable to imprisonment for a term of not more than 10 years; (4) uttering, section 374, liable to imprisonment for a term not exceeding 14 years; (5) fraud over, section 380(1)(a), liable to imprisonment not exceeding 14 years; (6) uttering prescription, section 368(1)(a), liable to imprisonment for a term of not more than 10 years.

Accordingly, the maximum range of sentence for the Criminal Code offences where the Crown has proceeded by indictment ranges from 10 to 14 years.

Accordingly, the maximum range of sentence for the Criminal Code offences where the Crown has proceeded by indictment ranges from 10 to 14 years.

Positions of Crown and Defence on Sentence

The Crown position is that there should be a global sentence for both offences. Its position is that taking into account all of the aggravating and mitigating factors an overall global sentence of five years' incarceration is appropriate. The Crown, however, requests concurrent sentences of eight months incarceration on some of the offences and 18 months incarceration on other offences.

The Crown also seeks a DNA sample for the secondary designated offence of possession for the purpose of trafficking in oxycodone, and a section 109 weapons prohibition order for 10 years.

The defence position is that there should be a global sentence of three years' incarceration.

The defence made no submissions with respect to the ancillary orders that a DNA sample be taken and that there be a section 109 weapons prohibition order for 10 years.

Mitigating and Aggravating Factors

Mitigating

In this case, Ms. Gallie has no prior criminal record. She is not youthful. She is 39 years of age. She was addicted to oxycodone and that is a mitigating circumstance as it related to the theft of oxycodone which she consumed for personal usage.

The court would note that Ms. Gallie entered guilty pleas to numerous charges before the court and she admitted the theft of the oxycodone from the two pharmacies and other aspects of the charges in an Agreed Statement of Facts. That is considered to that extent in mitigation of penalty.

The trial related primarily to whether she possessed the oxycodone for the purpose of trafficking which resulted in a finding of guilt related to Nova Pharmacy but a finding of not guilty in relation to the IDA Pharmacy. She was found guilty of simple possession of oxycodone related to the IDA Pharmacy.

The court also considers Ms. Gallie’s expression of remorse as a mitigating factor.

Aggravating

A significant aggravating factor in this case relates to the strong breach of trust of Ms. Gallie stealing from her employers in the capacity of a pharmacy assistant working for pharmacists. This factor is now statutorily addressed as an aggravating factor in the Criminal Code set out in section 718.2(a)(iii). It is also aggravating, to the extent the court considers the imposition of a global sentence, that she stole from two different pharmacies. Both offences were discovered after the date the offences were committed.

Sentencing Principles

Analysis

The court bears in mind the guiding comments of the Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64, [2015] S.C.J. No. 64. In that judgment the court stated that sentencing ranges are primarily guidelines, not hard and fast rules. Even if an appellate court has established a range, it may be that a fact pattern may arise which is sufficiently dissimilar to past decisions that the range must be expanded. 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.

Accordingly, a sentencing range is not a straitjacket to the exercise of discretion of a sentencing judge. Each crime is committed in unique circumstances by an offender with a unique profile. Everything depends on the gravity of the offence, the offender's degree of responsibility and the specific circumstances of each case. Sentencing ranges must, in all cases, remain only one tool among others that are intended to aid trial judges in their work. The court specifically considers paragraph 73 of that judgment.

Following that, in 2010, the court noted in R. v. Nasogaluak, 2010 SCC 6, 1 S.C.R. 206 (S.C.C.), at paragraph 43, that "No one sentencing objective trumps the others and it falls to the sentencing judge to determine which objective or objectives merit the greatest weight, given the particulars of the case."

Sentencing is highly individualized. See R. v. Suter, 2018 SCC 34, as the Supreme Court stated in paragraph 4:

A delicate balancing of the various sentencing principles and objectives is called for, in line with the overriding principle that a "sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender" (s. 718.1 of the Criminal Code). Accordingly, there will be cases where the particular circumstances of the offence and/or the offender call for a sentence that falls outside of the normal sentencing range. This is one such case.

In 2021, the Supreme Court of Canada in R. v. Parranto, 2021 SCC 46, in the majority judgment at paragraph 10, noted that proportionality is the organizing principle for the court in imposing a fair, fit and principled sentence. Proportionality is the fundamental principle.

Sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender and the unique circumstances of each case. Parity and individualization are important, yet secondary principles. The demands of proportionality must be calibrated by reference to the sentences imposed in other cases. Individualization is central to the assessment of proportionality in that it demands consideration of the individual circumstances of each offender as set out in paragraph 12 of that judgment.

Further, in 2023, in the context of a Constitutional challenge to the mandatory minimum sentencing provisions in the Criminal Code, the Supreme Court of Canada in R. v. Hilbach, 2023 SCC 3, commented in paragraph 128 on sentencing principles and stated:

First, the court must determine what constitutes a proportionate sentence for the offence having regard to the objectives and principles of sentencing in the Criminal Code, including the fundamental principle of sentencing under s. 718.1: "A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender." In assessing an offence's gravity, courts may consider the consequences of the offender's actions on victims and public safety, the harm caused by the offence, and, in some cases, the offender's motivations (Hills, at para. 58). In assessing the degree of responsibility of the offender, a court should gauge "the essential substantive elements of the offence including the offence's mens rea, the offender's conduct in the commission of the offence, the offender's motive for committing the offence, and aspects of the offender's background that increase or decrease the offender's individual responsibility for the crime, including the offender's personal circumstances and mental capacity.

The court went on to quote Hills at para. 58, R. v. Hamilton, 2004 ONCA 5549, 72 O.R. (3d) 1 (C.A.), at para. 91, R. v. Boudreault, 2018 SCC 58, 2018 S.C.C. 58, at para. 68, and R. v. Ipeelee, 2012 SCC 13, 2012 S.C.C. 13.

As often stated by appellate courts considering sentence appeals, every case has its unique features relating to the offender or the offence. The court has reviewed all of the cases referred to by counsel. The absence of mention by this court does not mean that the court has not considered a particular case. It simply reflects the court's view that the circumstances in those cases are not of assistance in considering the appropriate sentence in this case.

The court has also conducted a significant amount of research on its own with respect to looking for additional cases dealing with offences of trafficking and possession for the purpose of trafficking in addition to those that were put before the court by counsel. The court has had limited success in finding additional cases despite the considerable amount of time the court has spent doing this research.

The principle of proportionality is now codified in the Criminal Code. (See s. 718.1). The court bears in mind that the fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation, deterrence, both generally and specifically for the offender, separation of the offenders from society where necessary, rehabilitation, to provide reparation for harm done to victims or the community, and to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims or to the community. (See s. 718 of the Criminal Code.)

The court bears in mind any applicable sentencing principles set out in section 718.2 and, as well, the principles of parity, totality and judicial restraint in considering a sentence of deprivation of liberty or imprisonment as set out in section 718.2(b) through (e). The emphasis of the court in considering those various objectives depends on the nature of the offence and circumstances of the offender. The court first considers the nature of the offences.

Pursuant to section 5(2) and 5(3)(a) of the Controlled Drugs and Substances Act, the maximum punishment for the offences of possession for the purpose of trafficking in Schedule 1 drugs is life imprisonment.

Schedule 1 and 2 drugs include those considered by the courts to be the most serious. For example, heroin, cocaine, methamphetamine and fentanyl are listed alongside oxycodone in Schedule 1. As set out, the maximum punishment for trafficking or possession for the purpose of trafficking a Schedule 1 drug is life imprisonment.

Numerous cases have dealt with sentencing in relation to Schedule 1 drugs and, in particular, the highly addictive nature of such drugs. Courts have renewed emphasis on deterrent sentences for drug trafficking related offences. Courts are eminently aware of the dangers posed to society by drug crime and the importance of deterrent sentences for drug traffickers.

In R. v. Smith, 1987 SCC 64, [1987] 1 S.C.R. 1045, Chief Justice Lamer noted,

Those who import and market hard drugs for lucre are responsible for the gradual but inexorable degeneration of many of their fellow human beings as a result of their becoming drug addicts ... Such persons, with few exceptions ... should, upon conviction, in my respectful·view, be sentenced to and actually serve long periods of penal servitude.

The Supreme Court of Canada further considered drug offences in Pushpanathan v. Canada, 1998 SCC 778, [1998] 1 S.C.R. 982. In that judgment, Justice Cory wrote of the social and economic costs of illicit drug use in Canada and stated at pages 1039 to 1040 as follows:

The costs to society of drug abuse and trafficking in illicit drugs are at least significant if not staggering. They include direct costs such as health care and law enforcement, and indirect costs of lost productivity.

In Canada, the total cost to society of substance abuse has been estimated to be $18.45 billion annually (Canadian Centre on Substance Abuse, The Costs of Substance Abuse in Canada: Highlights .)

And the court would note this is a case that was 26 years ago.

Of this amount, the cost flowing from illicit drugs is $1.4 billion. In 1992 there were 732 deaths, 7,095 hospitalizations and 58,571 hospital days in Canada attributable to illicit drugs. Mortality from illicit drugs is less than for alcohol and tobacco, but tends to involve younger victims.

These significant and often tragic consequences serve to emphasize that the harm caused by trafficking in illicit drugs is very properly a matter of grave concern in Canada, as it is throughout the world.

It is important to note the qualities of the other Schedule 1 drugs to truly appreciate the nature of the substances and severity of offences related to trafficking and possession for the purpose of trafficking in those Schedule 1 substances.

This case relates to oxycodone, a drug which is well-known to this court and well-known in the community as a highly addictive drug. Oxycodone addiction is a widespread and significant problem in this community and the court, as a frontline criminal court in Toronto, is well aware of this problem.

This court would note that, as it relates to other Schedule 1 drugs, cocaine, for example, courts have often spoken about the principles related to trafficking and trafficking-related offences.

As it relates to cocaine, the court considers R. v. Bajada, 2003 ONCA 15687, [2003] O.J. No. 721 (C.A.), which quoted from Sentencing, 5th ed. of the textbook written by Clayton Ruby, and stated at pages 865 to 866:

Cocaine used to be regarded by the courts as a drug which is somewhat more serious than marijuana but less serious than heroin. However, due to the existence of crack cocaine and intravenous cocaine users, this attitude seems to be changing. More recent sentences for cocaine seem on par with those imposed for heroin possession or trafficking.

In R. v. Hamilton and Mason (2004), 2004 ONCA 5549, 186 C.C.C. (3d) 129, the Ontario Court of Appeal, at paragraphs 104 to 113 noted that, "The immense direct and indirect social and economic harm done throughout the Canadian community by cocaine is well known." (Pushpanathan v. Canada (1998), 1998 SCC 778, 160 D.L.R. (4th) 193 (S.C.C.) at pp. 235-37, and R. v. Smith (1987), 1987 SCC 64, 34 C.C.C. (3d) 97 at pp. 123-124.)

Over time, this court would note as a frontline court dealing with drug offences, over 20 years as a judge in Toronto dealing with many drug cases and criminal cases where people have been addicted to oxycodone, this drug is becoming a more prevalent problem in the community. Its highly addictive nature is notable and without question. People often start taking it for pain relief and become addicted to it over time.

As the expert witness, Detective Duffus, testified in this trial, the user is always seeking a higher point. At that point the person would often move from oxycodone to taking heroin, fentanyl, or other stronger opioids. In cross-examination he clarified that that is usually the case with people addicted to oxycodone. In that respect, oxycodone is not only dangerous as a highly addictive drug itself but also is dangerous as it can become the gateway to other drugs, such as, heroin and fentanyl. The highly addictive and dangerous nature of fentanyl is another drug well known to this court.

The range of sentence in this case is for one of incarceration. The Crown submitted that the appropriate range for possession for the purpose of trafficking in oxycodone, bearing in mind the huge quantity of oxycodone for the purpose of trafficking and the other circumstances of the other offences for which Ms. Gallie will be sentenced, together with her circumstances as an offender, is one of five years' incarceration.

The Crown has put before the court a number of cases setting out the range of sentence for similar offences.

In R. v. King, 2013 ONCA 417, the court considered an appellant who had been employed as a nurse receptionist working for a doctor. She was found guilty after a jury trial of six counts of uttering a forged document, being the prescriptions, and six counts of trafficking in a controlled substance. Working as a nurse receptionist for the doctor and thereby breaching the trust of that position, she created false prescriptions for oxycodone at the request of her brother. The offences were committed on a number of occasions over a three-month period. Her brother then used these forged prescriptions, either alone or with someone else, to obtain approximately 500 oxycodone pills illegally. He testified at the trial of the appellant and implicated her.

She was found guilty following a trial by judge and jury. She appealed conviction and sentence. The conviction appeal was dismissed and she appealed her sentence of 42 months' incarceration.

In King the court considered the facts of the appellant as a first offender, the mother of three teenage sons, one of whom faced significant challenges arising from the effects of ADD. The court also considered that she was highly motivated by education and career aspirations that might lead to a career in law. In that case, the offences were committed for financial gain and there was no indication of the appellant suffering from any addiction. The trial judge also considered she had a "rough go at life" enduring physical abuse during childhood and at the hands of the fathers of her children.

This court would indicate that those factors are quite similar to the background of Ms. Gallie in terms of family background. The court also considered that a period of incarceration would have a significant impact on her ability to care for her children, much like the current case where Ms. Gallie has a toddler, daughter and an adult son.

Fresh evidence was tendered on the King appeal. The Court of Appeal, nonetheless, upheld the sentence of 42 months being of the view that it could not be said that it was manifestly unfit. The offence of trafficking in oxycodone is a serious offence. The court noted that it was a carefully crafted sentence.

In King, the court would note that the nature of the offence was far less than the one in the case at bar as there were approximately 500 oxycodone pills illegally obtained. The court also considered the fact that there was actual distribution of the oxycodone pills in a smaller community. In this case, the court has found that Ms. Gallie possessed a vast number of oxycodone pills. In this case, the court would note that it has found that many more oxycodone pills were stolen from both pharmacies ranging from strengths of low dosages to 80 milligrams per pill.

It is also to be noted that the street value of those drugs varied from a low to a high amount that was set out above in the Reasons. The street value of the oxycodone which she stole from the two pharmacies ranged from $124,955 to $194,630, which she had potentially available to distribute in the Toronto community. In this case, however, the court has found that she potentially consumed a notable portion of the oxycodone for her own personal use. Nonetheless, she had, for the purpose of trafficking, a very large number of pills for the purpose to be disseminated or trafficked in Toronto. Toronto, like many municipalities in Toronto, suffers the ill effects of oxycodone addiction in a situation well known to this court.

Also in this case, the offence was part of a scheme of stealing, not from one, but two consecutive pharmacy employers. She stole a great deal of oxycodone, some of which she possessed for the purpose of trafficking, and some of which the Crown could not prove was for that purpose. Nonetheless, she did steal a huge quantity of oxycodone for the purpose of trafficking and some for personal use.

It is important to note that this was theft from her employer, not one employer but two employers, consecutively, over extended periods of time. As the court in King indicated, oxycodone is a highly addictive Schedule 1 drug, and, as well, the significant breach of trust in that case. Oxycodone, this court would add, in the last 11 years following the Court of Appeal decision in King, has become far more aware of the highly addictive nature of oxycodone and the problems associated with addiction to this drug in our community.

Further, the nature of the addiction was well known to Ms. Gallie who herself testified that she was addicted to taking this drug for pain management.

The court also considered the nature of the serious offence of forgery, uttering forged documents, as committed by Ms. Gallie with respect to the prescriptions to get even more oxycodone medication. The court in King considered the nature of the offences of uttering forged documents. The court referred to its prior case of R. v. Scott, 2007 ONCA 231, noting the very serious nature of the crime. The court also noted the very significant aggravating feature of breach of trust set out in section 718.2(a)(iii) of the Criminal Code, which is also an important factor in the case at bar.

The court relied upon its decision in R. v. Pierce, 1997 ONCA 3020, 32 O.R. (3d) 321 at paragraph 48. The court also relied heavily on R. v. Domke, 2006 ABPC 252. Although this was an Alberta trial decision, our Court of Appeal relied heavily on it. In that case there was a breach of trust and the accused being a youthful first offender who worked as a prison guard. He was intimidated into trafficking approximately 600 pills of prescription drugs in the prison and charged with four counts of possession for the purpose of trafficking. He confessed upon arrest, entered a guilty plea, and it was noted that he would suffer hardship in prison as a former prison guard. He was sentenced to five years in jail.

Notwithstanding the filing of favorable fresh evidence, in King the Court of Appeal was of the view that the sentence of 42 months was appropriate. The court found that it was appropriate for a female accused with three children with mitigating circumstances and well within the range given the serious breach of trust. The court also found that a conditional sentence would have been inappropriate. The court considered the principle of parity as it related to Ms. King's sentence of 36 months jail. The sentence appeal was dismissed.

In R. v. Pelkey, 2012 ONSC 648, the court considered a case where the accused entered a guilty plea to trafficking in oxycontin and proceeds of crime under $5,000. This was a very different type of case. Most notably there was no breach of trust. There was no theft of the oxycodone that was later possessed for trafficking. The offender entered a guilty plea in relation to trafficking, although the facts are somewhat unclear. The execution of a search warrant at the offender's home led to the discovery of $34,770 worth of oxycodone in different dosages and $4,450 in Canadian cash. This case involved far less oxycodone than in the case at bar. There was also an indication that the accused's sister was also involved in a similar enterprise, although the facts in that regard are somewhat unclear.

She was 52 years of age, separated and in receipt of disability pensions. Nonetheless, she was the primary caregiver, and her husband had extensive medical issues. The offender suffered from abuse as a child and her father was an alcoholic. She was not addicted to drugs and she had a 19-year-old daughter who lived with her who was addicted to drugs. It is not clear if she was addicted to oxycontin. The offender also had medical issues. It was significant that she entered a guilty plea to the charges. A sentence of 12 months jail and two years’ probation was imposed. A conditional sentence was not imposed. This court did not find that case to be particularly helpful in considering imposition of sentence in this case.

This court would note that in this case, as in King, Ms. Gallie's crimes resulted in a huge number of oxycodone pills possessed for the purpose of trafficking and being available for release into our community, which is in the midst of a significant opiate crisis. The court takes into account the serious breach of trust in this case of stealing over and over again from her employers, not one, but two separate pharmacies. There is a degree of planning in the execution of these thefts, and they were committed over many months.

There were also other offences committed, as noted herein, regarding prescriptions to obtain oxycodone medication and other offences as set out above. While there was a trial and not a guilty plea, the court notes significantly that there was an Agreed Statement of Fact and admissions and some guilty pleas to a number of the charges. Most notably, Ms. Gallie admitted that she stole the oxycodone which was the subject of the trial. The court has been advised that there was video evidence indicative of her role in stealing the drugs.

The only issue with trial was whether she possessed those drugs for the purpose of trafficking, or, alternatively, for personal use. The fact that a defendant enters a plea of not guilty and a trial follows on the charge of possession for the purpose of trafficking is not an aggravating factor. A guilty plea which saves the need for witnesses to testify at trial can be a mitigating factor. The absence of a guilty plea is neutral.

As the Court of Appeal for Ontario noted in R. v. Kakekagamick, the failure to accept responsibility for his actions weighs against affording him significant consideration by way of mitigation. However, the court notes that in this case the trial related only to one aspect, which is whether the oxycodone was possessed for the purpose of trafficking. There were substantial admissions in this trial, including the fact that Ms. Gallie admitted stealing the oxycodone from both pharmacies and the other offences. That has gone some way to reducing the need to call numerous witnesses and prove those aspects of those offences. There is definitely some mitigation given the guilty pleas to numerous charges and the admission that she stole the oxycodone notwithstanding the lack of mitigation on the single charge where she was found guilty of possession for the purpose of trafficking in oxycodone.

The principle of judicial restraint is a principle for the court to consider. The court considers the often quoted case of R. v. Priest, 1996 ONCA 1381, [1996] O.J. No. 3369. However, Ms. Gallie is not a young offender. Generally, the court recognizes that there should be a measure of restraint for a first jail sentence, albeit where denunciation and deterrence are most significant principles. In this case, counsel agree that a penitentiary sentence is warranted and should be imposed.

In this case, the court also bears in mind the principles of sentencing as it relates to Ms. Gallie being an addict, having pain from a long-standing back condition, and as the mother of a young child who is 18 months of age who was born during the trial in this case. The court also recognizes the admissions she made for this trial which reduced the need to call evidence on various issues.

The court considers a combination of R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, with the prior Court of Appeal decision in R. v. Priest. The Ontario Court of Appeal judgment in Priest predated the availability of conditional sentences. While the Priest judgment related to property offences, the principle which has emerged from its consideration of the case is that the court should explore all other dispositions before imposing a custodial sentence. This principle followed the court's earlier case of R. v. Stein (1974), 1974 ONCA 1615, 15 C.C.C. (2d) 376 (O.C.A.), at page 377, a judgment authored by Justice Martin. The court also held that for a first term of imprisonment the length should be as short as possible. Proulx has made it clear that a sentence of incarceration should only be imposed if a conditional sentence is not appropriate.

This court considers the judgment of the Court of Appeal for Ontario in R. v. Batisse, at paragraphs 32 to 34. The principle of restraint for a first offender requires the sentencing judge to consider all sanctions apart from incarceration, and where incarceration is imposed, to impose a term as short as possible and tailored to the individual circumstances of the accused following R. v. Priest. Secondly, it requires sentencing judges to consider rehabilitation. Thirdly, where the case is serious and involves violence, general deterrence and denunciation are also significant factors to be considered.

There are a number of mitigating factors related to Ms. Gallie. She had a difficult upbringing and a violent relationship with her husband. The submissions of defence counsel are to the effect that her family has had issues related to dependency. She has suffered from scoliosis for a significant period of time and this was aggravated when she was pushed down the stairs by her husband and subsequently when she was in a motor vehicle collision.

At the time of the offences before the court, the court accepted the portion of her evidence that she was addicted to oxycodone, but the court rejected her evidence as to the extent of her consumption and personal usage of the oxycodone which was the subject in this trial. That evidence was simply not believable.

The primary aggravating factors relate to the breach of trust, the extended period of time over which she committed these offences, the fact that she did these offences at two consecutive places of employment in pharmacies. These drugs were stolen by her.

The court notes that for the period she worked at the first pharmacy, Nova, from May 1st to September 3rd of 2020, a period of 125 days, she stole 6,109 oxycodone pills. The value of those drugs to the pharmacy was $10,764.22 for which she has not paid any restitution. However, the street value of those drugs ranges from $103,730 to $160,460. The strength of those pills that were stolen range from low dosages of 10 and 15 milligrams up to 20, 40 and 80 milligram oxycodone pills. In total, she stole 316,820 milligrams of oxycodone while at that pharmacy.

While at the second pharmacy position with IDA from August 31 to November 5th of 2020, a period of 66 days, she stole a lesser quantity of oxycodone pills ranging from 15, 20, 30 and 40 milligrams together with 80 milligram strengths. In total, she sold 1,576 oxycodone pills from the pharmacy. In total, she stole 68,040 milligrams of oxycodone from the IDA Pharmacy. The value of those drugs to the pharmacy was $3,153.55, for which she has not paid any restitution. The street value of those drugs ranges from $21,225 to $34,170.

The court reasoned back in its Reasons for Judgment, extrapolating a finding of fact as to her personal usage, taking the evidence to give Ms. Gallie the benefit of a reasonable doubt as to extensive personal oxycodone consumption over the period of time she worked at the second pharmacy, IDA, if she consumed an average per day while working there she would have consumed 1030.91 milligrams of oxycodone per day. The court realized that this is an incredibly high amount of personal usage, unlikely to be consumed by any person not suffering from cancer in the late stages of palliative care as noted by Dr. Lamparter. Nonetheless, giving her the benefit of that doubt and still rejecting her testimony as to her pattern of consumption, the court proceeds on that basis.

The court specifically found that she had no funds sufficient to supplement that consumption by buying street drugs. This was the basis on which the court found a reasonable doubt with respect to the offence of possession for the purpose of trafficking of the oxycodone arising from thefts from the IDA Pharmacy.

However, as it relates the first pharmacy, Nova, she stole at a much higher rate and a much higher quantity of oxycodone. If the court considers an average daily usage of 1030.91 milligrams of oxycodone by Ms. Gallie working there, again appreciating that there is no known case where anyone consumed at that high level according to the expert evidence, this would mean on an average basis for the 125 days she worked at Nova she would have consumed approximately 125 x 1030.91 milligrams of oxycodone, which is a total of 128,864 milligrams of oxycodone. The total she stole from that pharmacy was 316,820 milligrams of oxycodone. This means that the portion she stole from the pharmacy and she possessed for the purpose of trafficking was 187,956 milligrams of oxycodone. Percentagewise, this was approximately 59 percent of the total oxycodone she stole from that pharmacy, which is Nova.

Detective Duffus gave expert evidence as to the street value of the oxycodone pills that the court found Ms. Gallie stole from the Nova Pharmacy. The total street value is based on the range of the individual sale prices for pills on the street as set out in the evidence and in the Reasons for Judgment. The ranges of prices on the street for the oxycodone pills at the relevant time was $5 to $10 for the 10 to 20 milligram pills, $10 to $20 for the 40 milligram pills, and $30 to $40 for the 80 milligram pills.

Detective Duffus testified that the value on the street of the oxy pills that are set out as agreed facts in the trial as those stolen from Nova Pharmacy to be in the range of $103,730 to $160,460. That is a different value from the value shown on the Agreed Statement of Facts which reflects the value of the loss to the pharmacy.

If the court takes 59 percent of the total stolen as reflecting the portions stolen from that pharmacy for the purpose of trafficking, this portion of oxycodone possessed for the purpose of trafficking had a street value between $62,238 and $96,276.

Given the vast number of pills she took and the varying strengths of those pills, it is not possible for the court to make a finding as to how many of those pills were for trafficking. It would be on a spectrum. If they were all 80 milligram strengths, which it appears from math they could not be in light of the circumstances, it would be, on the low end, approximately 2350 oxycodone pills. If the pills were the lower strength, and, again, it would not seem that they would all only be at 10 milligram strength, it would be approximately 18,795 pills. So somewhere between 2350 and 18,795 pills were stolen for trafficking and probably somewhere in the midrange of that spectrum if she had varying strengths of the pills she had for that purpose.

The court finds that there was some planning and deliberation in that the stolen drugs were locked up and she had to take them when she was less likely to be seen on camera and, therefore, detected as committing the thefts. The court has found that the portion she possessed for the purpose of trafficking related to her position working as a pharmacy assistant at that pharmacy. This put her in a position where she had access to the drugs as an employee.

There is no presentence custody in this case. The defence seeks credit for a bail that was imposed after she committed subsequent offences. In this case, for the charges before the court, Ms. Gallie was released from the station on an undertaking on January 19th, 2021. She was not detained. That would have been her bail had she not committed other offences, which, to this point, have not been completed.

Counsel had put before the court the ongoing change in her bail order arising from these new charges. The new charges include firearms charges. The offence dates for the subject charges before the court today range from May 1 to November 5 of 2020. The subsequent charges relate to 15 counts with the offence date of October 15th, 2022.

The new charges are alleged to have been committed while Ms. Gallie was awaiting trial on the charges before this court. They include possession for the purpose of trafficking a Schedule 1 substance, nine counts. There are also charges of possession of proceeds over $5,000. There are firearm charges of possessing a restricted firearm, careless storage of a firearm and ammunition, and two counts of fail to comply with undertaking together with possession of a firearm while prohibited. There is a co-accused to those charges. The court is unclear as to the nature of the firearm prohibition but has been advised that the co-accused had a section 109 firearm prohibition.

In any event, when Ms. Gallie incurred these 15 very serious sets of charges she was put on a bail order in the amount of $2,500 with her mother as a surety. Ms. Gallie was to reside with her mother in Scarborough except if she was in a patient treatment facility. She had a house arrest term with numerous exceptions. This bail order was signed on October 20th, 2022.

The defence has sought credit for the house arrest and bail conditions triggered by this 524 bail order. The Crown strenuously opposes any such credit noting that the order was really to address the new charges which remain outstanding.

The court has carefully considered this situation, including the timing and the nature of the new charges. The court declines to give credit for the bail conditions which clearly were triggered by the new charges, notwithstanding Downes and other cases which clearly indicate that the court may consider credit for such conditions.

Although the issue of Ms. Gallie was raised [sic], and the defence requested a Gladue report be prepared, as noted above, there is no confirmation that Ms. Gallie had an Aboriginal or Indigenous background. The report stated that the group which she indicates she is a member of, The Painted Feather of the Woodland Metis, is a for-profit organization in Bancroft. It is not recognized by the Manitoba Metis Federation, the Metis Nation of Ontario or the Government of Canada. The court has set out the concerns that the author of this report indicated in the letter. This is a group, the court would note, that it is familiar with as well with other individuals saying that they are a member of that group.

The author indicated that a Gladue report could not be prepared as the author was unsure about the specific nature of her Indigenous ancestry. Secondly, even if her ancestry could be confirmed, and it could not be, the author indicated there was no indication of how being Indigenous had affected her life circumstances.

The court finds this situation is very similar to the situation before the Court of Appeal in R. v. Alexis, 2024 ONCA 693, at paragraph 4. In the case at bar, a Gladue report was not able to be completed as indicated. While there is no proof that Ms. Gallie is not Indigenous, there is no information before the court from the defence, or any other source, to assist the court in how it could use her Aboriginal or Indigenous background as a factor to consider on sentencing. Without any information to understand how any Indigenous background led to Ms. Gallie being impacted at all by such ancestry, it is difficult to consider it as a significant factor on sentencing. (See also R. v. Crocker, 2018 ONCA 600, at paras. 10-12.)

Denunciation and deterrence are clearly the most significant factors in this case. Totality directs the court to not impose a sentence which is too lengthy and is relevant to a case like this where Ms. Gallie committed so many offences over the period of time she worked at the two pharmacies. The offences were planned and premeditated to lessen the likelihood of being caught and resulting in a longer period of time over which she could commit the offences. The court bears in mind the principle of restraint for her as a first-time offender who is not youthful, but, rather, turning 39 years of age on December 1st. Rehabilitation plays a small role given the nature of the offences and the overriding principles of denunciation and deterrence and what appears to be her lack of inclination to take any counseling or treatment. The court has not been advised that she has made any efforts in that regard to this point whatsoever.

However, the court does not lose sight of the fact that she has had medical issues and that she took a quantity of oxycodone for her own purposes and was addicted. However, her thefts and possession went far beyond what she used for those purposes.

The court bears in mind that after she was charged, and while she was awaiting trial, she became pregnant and she now has a child who in 18 months old in addition to her two adult children. As indicated, her older daughter has a child of her own currently.

This drug, oxycodone, is highly addictive and a dangerous Schedule 1 drug. The court is well aware, as indicated above, of the very serious opiate crisis in our community. The drug expert has also testified that oxycodone has become, for some users who can no longer find it meets their needs, a gateway to stronger opiates such as heroin and fentanyl. Ms. Gallie was well aware on a personal level of the addictive nature of this drug which she became dependent on over a period of time, yet this court finds she chose to commit criminal acts to make it possible for others to take this drug. The court notes that she has done nothing to address the principle of rehabilitation by taking any counseling or treatment for her drug dependency. This causes the court to wonder if she is interested in taking such treatment as her actions seem to indicate otherwise.

A conditional sentence is outside the realm of consideration given that the appropriate range of sentence for this offender and these offences is in the penitentiary range.

Conclusion

Having considered all of the relevant principles in this case for this offender and these offences, the court is of the view that a penitentiary sentence is appropriate and warranted notwithstanding the mitigating circumstances of Ms. Gallie including her addiction, her youngest daughter, and Ms. Gallie's medical issues together with her admissions and guilty pleas on the Criminal Code charges.

This was a massive breach of trust, two thefts from employers who trusted her with Schedule 1 drugs in their pharmacies. She not only stole the drugs for her personal use, she stole and possessed them for trafficking. There was a huge amount of oxycodone with a very high street value that she possessed for trafficking. She committed these offences in a community, the city of Toronto, which has a huge opiate crisis much like other locations in Ontario.

The court finds that the appropriate sentence in this case on the charge of possession for the purpose of trafficking in oxycodone to be four years and six months' jail.

The court will impose concurrent sentences on the additional charges as follows: 8 months concurrent on the possession of oxycodone from the IDA; 18 months concurrent on the thefts; 8 months concurrent on the fraud and each of the uttering false pretenses and other charges. In a moment I am going to read them out for each information.

The court also orders that a DNA sample be taken for the secondary designated offence of possession for the purpose of trafficking in a Schedule 1 substance. The court considers the nature of the offence in particular in finding that it is appropriate to take this DNA sample.

The court also imposes a section 109 weapons prohibition order for a period of 10 years.

The court makes a recommendation to the correctional authorities that treatment and counseling be provided to Ms. Gallie for substance dependency. The court will also note on the committal warrant that Ms. Gallie is to be seen for medical treatment and issues arising from her surgery in September of 2024, including an ultrasound and treatment for pain management.

The court will waive the victim fine surcharge given her financial situation currently.

I am just going to go through individually by information the counts and the sentences.

Starting with Information 0447, Count 1 is the charge that is going to be stayed because it is the charge of possession of oxycodone. Count 2, which is the possession for the purpose of trafficking in oxycodone, is the charge for which Ms. Gallie was found guilty after the trial. On that charge there is a sentence of 4 years and 6 months jail, although that may be committed or converted to 54 months, I believe, total jail.

In addition to that there will be a section 109 weapons prohibition order for 10 years on that count together with a DNA sample being taken as a secondary designated offence.

Then, on Information 0446, theft over $5,000, which is the Nova Pharmacy, there will be a concurrent sentence of 18 months jail.

Then, on Information 1970, Count 1 is possession for the purpose of trafficking, which is the IDA charge, she was found not guilty on Count 1. Count 2, which is straight possession of oxycodone, she entered a guilty plea and is, of course, guilty of that. That is straight possession of oxycodone from the IDA Pharmacy and that is a sentence of eight months jail, concurrent.

Then, on Information 1971, Count 1 is theft of oxycodone exceeding $5,000. That is from the IDA Pharmacy and that is a concurrent sentence of 18 months jail. Counts 2, 3, 4, 5, 6, 7 and 8 are all 8-month concurrent sentences. Those are for the counts related to the use of the computer system, false pretense, uttering, uttering, fraud, section 368, which involved the use a prescription to be forged acting on it as if it was genuine, and, finally, section 368, another prescription acting on it even though it was forged and using it as if it was genuine.

Those are the endorsements that will be on the informations.

FORM 3

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

I, Tracey Beatty, certify* that this document is a true and accurate transcript of the recording of R. v. Gallie in the Ontario Court of Justice held at 10 Armoury Street, Toronto, on November 19, 2024, taken from Recording No. 4810_805_20241119_092301_6_BROWNBE.dcr which has been certified by E. Clee in Form 1.

Tracey Beatty, ACT ID #7742765329

, 2025

Transcript Ordered: February 25, 2025 Transcript Completed: , 2025 Ordering Party Notified: , 2025

(*This certification does not apply to these Reasons for Sentence which may have been judicially edited.