Court and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20230504 DOCKET: C68809

Feldman, Roberts and Coroza JJ.A.

BETWEEN

His Majesty the King Respondent

and

Alycia Sauvé Appellant

Counsel: Cassandra Richards, for the appellant Lise Csele and Jacqueline Porter, for the respondent

Heard: March 31, 2023

On appeal from the convictions entered by Justice Allan G. Letourneau of the Ontario Court of Justice, on July 19, 2019, and from the sentence imposed on November 19, 2020.

Reasons for Decision

[1] The appellant was convicted of several counts in relation to possession of six different controlled substances for the purpose of trafficking, including fentanyl. She spent 44 days in pre-sentence custody and over 7 months on house arrest while on bail. After the application of enhanced credit calculated as 178 days for the time spent in custody and on house arrest, she received a global 18-month custodial sentence followed by 18 months of probation and other ancillary orders. She brought an appeal of her convictions and sentence and was granted bail pending appeal. On March 30, 2023, she abandoned her conviction appeal. She seeks a stay or reduction of her sentence on the basis of the fresh evidence that she has submitted about her rehabilitation efforts since the imposition of her sentence.

[2] The appellant was only 19 years old and a first-time offender at the time she committed the offences. She used drugs and was romantically involved with someone who was nine years older, appeared to be immersed in drug dealings, and exerted pressure on her to fulfill his demands. With respect to the offences in issue here, he instructed her to bring money from his mother for his bail hearing and to transport a safe that she retrieved from his residence. The appellant and her friend travelled from Ottawa to Kingston to attend his bail hearing and to transport the safe.

[3] Acting on a tip that the appellant was trafficking fentanyl from the hotel room where she was staying, the police obtained and executed a search warrant while she and her friend attended her boyfriend’s unsuccessful bail hearing. The police found the safe open on one of the hotel room beds, containing myriad controlled substances, along with used and unused syringes and other drug paraphernalia strewn around the room. The police arrested the appellant and her friend when they exited the courtroom.

[4] The sentencing judge characterized the appellant as a “pressured and wilfully blind courier” for her boyfriend. As for the mitigating factors, he took into account that she was a youthful first offender; that her boyfriend was the mastermind of the safe scheme; that she did not sell the drugs or derive any financial benefit from them; that she was recently pregnant and had the support of her family; and that she was no longer using drugs and had voluntarily pursued and completed a number of rehabilitative and educational programs. He concluded, however, that the objectives of deterrence and denunciation were paramount because the variety and quantity of controlled substances in issue resulted in very serious criminal conduct that put the community at risk of serious harm. He rejected the defence suggestion of a suspended or a conditional sentence because they would not be sufficient to meet the objectives of deterrence and denunciation that were paramount in this case.

[5] The appellant no longer takes issue with the fitness of the sentence that was imposed. She seeks a stay of execution of her sentence or alternatively that a sentence of time served or a conditional sentence be substituted for the custodial sentence. She relies on the fresh evidence of the extraordinarily successful rehabilitative steps that she has taken to turn her life around. As the appellant deposed in her affidavit, she is not the same person as she was when she was convicted and sentenced for these offences.

[6] The Crown consents to the admission of the fresh evidence and does not oppose the stay of the appellant’s sentence given the appellant’s remarkable and highly unusual degree of rehabilitation since her convictions and sentencing. However, the Crown opposes any substitution of the sentence which, as the appellant now acknowledges, was fit and at the low end of the range for the offences in issue.

[7] We agree that a stay of the sentence would be the appropriate remedy in the particular circumstances of this case.

[8] This is one of those exceptional cases that warrants appellate intervention to respond to the appellant’s significant positive transformation. The fresh evidence shows that the appellant has turned her life around: she is a devoted mother to her young child; she supports her disabled mother with whom she resides who assists the appellant with child care and household tasks; she has achieved extraordinary academic success – she completed her high school credits as an Ontario scholar, winning several scholarships, and is on the cusp of completing a business administration degree at the top of her class; and she has been an outstanding community volunteer. Importantly, she has conquered her use of illicit drugs that appears to have contributed to her commission of the offences in issue here, as well as subsequent possession offences to which she pled guilty. She has not reoffended for over three years. There is also no suggestion that the appellant has sought to “game the system”, deliberately delayed her appeal or did not pursue it with reasonable dispatch: R. v. Dhillon, 2021 BCCA 271, at para. 48.

[9] In the particular circumstances of this case, it is not in the interests of justice to reincarcerate the appellant: R. v. Gray, 2021 ONCA 86, at para. 57; R. v. Elias, 2021 NWTCA 2, at para. 25; Dhillon, at para. 48; R. v. Tokaryk, 2020 ABCA 205, at para. 7; R. v. Sinclair, 2012 MBCA 24, 280 Man. R. (2d) 31, at paras. 23-25. The only justification for requiring the appellant to return to prison would be general deterrence and denunciation. However, in the circumstances of this case, a stay will not undermine those principles. Any gain in those sentencing objectives would be minimal and would be offset by the negative impacts on the appellant’s rehabilitation, including the completion of her education and the disruption of the wellbeing of her child and mother. It is common ground between the parties and the court that in these exceptional circumstances, the appellant should not be reincarcerated.

[10] The confirmation of an appropriate sentence followed by a stay of the execution of the remainder of the custodial portion, rather than a reduction of the sentence to time served or a conditional sentence, is an appropriate disposition in that it identifies and affirms the fitness of the sentence that was imposed: R. v. Smickle, 2014 ONCA 49, 306 C.C.C. (3d) 151, at para. 10; Gray, at para. 57. In Gray, at para. 57, Tulloch J.A. (as he then was), concluded that a stay was the appropriate remedy in the circumstances of that case because “the objectives of denunciation and general deterrence….can be met, without disrupting the appellant’s rehabilitative progress, by affirming the sentence initially imposed”. Here, the Crown submits that such an approach is preferable because it does not result in a sentence below the relevant sentencing range for the offences in issue. We agree.

[11] We are of the view that a stay of the custodial portion of the appellant’s sentence and leaving unchanged the 18-month order of probation and other ancillary orders, best balances the Crown’s concern about not disturbing a fit sentence and not lowering the sentencing range for serious drug offences with the continuation of the appellant’s rehabilitation.

[12] The fresh evidence demonstrates the appellant’s commitment to a positive, pro-social future. By all accounts, she has truly transformed her life. Her enormous rehabilitative strides warrant recognition. In the unique circumstances of this case, and particularly in light of the strong fresh evidence, it is appropriate to stay the execution of the remainder of the custodial portion of the appellant’s sentence. The 18-month probation order, as well as all other ancillary orders, are to remain unchanged. In our view, this sentence will support the remarkable progress the appellant has made and continues to make, which is clearly in the appellant’s interest, as well as the public interest.

[13] The appellant’s circumstances supporting our decision to stay the appellant’s sentence are remarkable and commendable. To the extent that the appellant’s rehabilitative example and our decision encourage other offenders to undertake very significant rehabilitative steps, this unquestionably serves the public interest. Sharpe J.A.’s observations in R. v. Ghadban, 2015 ONCA 760, at para. 23, in relation to a sentence reduction, are apposite here:

To the extent sentences imposed by courts “send a message”, the message sent by reducing the sentence would be that where an offender takes unusual steps to turn his life around, those steps will be recognized by the court. In my view, the gain achieved by way of encouraging social peace and harmony from that message would greatly exceed any gain achieved by way of general deterrence and denunciation if he were required to serve the full term of his sentence at this stage.

Disposition

[14] The conviction appeal is dismissed as abandoned. The fresh evidence is admitted. The sentence appeal is allowed and the remainder of the custodial portion of the appellant’s sentence is permanently stayed. The 18-month probation order and all other ancillary orders remain unchanged.

“K. Feldman J.A.” “L.B. Roberts J.A.” “S. Coroza J.A.”