Court Information

Court: Ontario Court of Justice

Date: February 6, 2014

Court File No.: Brampton, File Number 3111 998 13 9764-02 & 12-10566-02

Before: Justice C.A. Nelson

Heard: August 21, November 20, and December 31, 2013

Reasons for Sentence Released: February 6, 2014

Parties and Counsel

Between:

Her Majesty the Queen

— AND —

Odalia Medeiros-Sousa

Counsel:

• Ms. C. Carrasco, for the Crown
• Mr. D. Cohn, for Odalia Medeiros-Sousa

NELSON J.:

Introduction

[1] This is my decision as to the appropriate sentence for Odalia Medeiros-Sousa for one count of theft over and three counts of trafficking in Schedule I substances namely: oxycodone, hydromorphone, and fentanyl.

Crown Position

[2] The Crown seeks a global penitentiary sentence of between 4 to 5 years together with a s.109 weapons prohibition, a DNA order and an order for restitution of $475 to Medical Pharmacy Group Limited.

Defence Position

[3] Ms. Medeiros-Sousa submits that there are exceptional circumstances in her case which warrant a 2 year conditional sentence. She does not take issue with the ancillary orders sought by the Crown.

The Offence

[4] At the time of her arrest, Ms. Medeiros-Sousa had been employed for about four years as a pharmacy assistant by Medical Pharmacy Group Limited ["MPG"], in their retail store in Mississauga. MPG noted discrepancies in the year-end inventory in May 2012. As a result, the company employed a private investigator, who in turn conducted surveillance on the store. On July 19, 2012, Ms. Medeiros-Sousa was observed entering the store after hours using her keys to the premises. She was in the company of the co-accused, Daniel Beaulieu, who was not an employee of the store. Ms. Medeiros-Sousa and Mr. Beaulieu were in the store for just over one half hour. During this time, both were observed behind the pharmacy counter. They stole various prescription drugs while in the pharmacy. When they exited the store, they were arrested by police. Ms. Medeiros-Sousa was found in possession of 222 oxycodone pills. Mr. Beaulieu was found in possession of 2333 oxycodone pills, 1727 hydromorphone pills and 58 fentanyl patches. A search of Mr. Beaulieu's home resulted in discovery of 609 oxycodone pills with MPG labels. In addition, police intercepted a black duffel bag being removed from Mr. Beaulieu's home which contained 28 fentanyl patches, 1343 hydromorphone pills, 2615 oxycodone pills and $18,000 in cash. These pills were unlabeled and police believed they came from the MPG store; however, this fact was not proven by the Crown at this hearing.

[5] Ms. Medeiros-Sousa met Mr. Beaulieu several years prior to her arrest. They became close friends, as she felt she was able to confide in him about her personal and addiction issues. She was aware that he suffered from substance abuse problems and had a criminal record.

[6] Ms. Medeiros-Sousa admitted to police that she had provided Mr. Beaulieu with drugs stolen from the pharmacy in the past and that she had allowed him access to the store for this purpose. There is no evidence that she was ever remunerated for providing Mr. Beaulieu with drugs.

[7] The retail value of the drugs listed above (with the exception of those found in the intercepted duffle bag) was $10,361.56; the street value was $105,760.

[8] Dr. Karen Woodall, a forensic toxicologist at the Centre of Forensic Sciences, testified about the nature of the drugs involved in Ms. Medeiros-Sousa's offences. Fentanyl is an opioid and acts like morphine to provide pain relief. When in patch form, fentanyl is designed to slowly release in order to control pain over a number of days. However, fentanyl patches can be abused by chewing, melting or otherwise consuming the contents of the patch so as to receive the immediate affect of the drug contained in the patch. Fentanyl is 10 to 20 times stronger than heroin. Misuse of even one patch of fentanyl can cause death. Dr. Woodall testified that there has been an increase of reported deaths from fentanyl; indeed, the reported deaths from fentanyl now outnumber deaths from heroin.[1]

[9] Hydromorphone is a synthetic drug that is very similar to heroin with similar potency. One tablet of hydromorphone taken by an individual with no tolerance to the drug can be fatal.

The Offender

[10] Ms. Medeiros-Sousa is 46 years old. She is married with two teenaged daughters. She has no criminal record. She pled guilty to the offences before the Court.

[11] Ms. Medeiros-Sousa has a high school education and college diplomas in nursing, pharmacology and general arts. For 20 years, she was employed as a pharmaceutical assistant. She is currently employed as an executive assistant for the President of Top Hat Cleaners.

[12] Ms. Medeiros-Sousa is highly regarded by her family, friends, church and current employer. She has devoted countless volunteer hours to her church over the past 20 years, in various capacities, and especially in her position as choir director.

[13] As a teenager, Ms. Medeiros-Sousa was repeatedly sexually assaulted by an Uncle over the course of several years. She did not fully disclose this abuse to her family until after her Uncle's death in 2009. This disclosure was very distressing to her family members. Sometime after 2009, Ms. Medeiros-Sousa underwent breast reduction surgery reportedly motivated by the fact that her Uncle's abuse involved touching her breasts.

[14] Ms. Medeiros-Sousa started abusing prescription drugs around the time of her Uncle's death. This continued and increased after her surgery as she turned to oxycodone.

[15] After her arrest, Ms. Medeiros-Sousa stopped her abuse of oxycodone, suffering through withdrawal symptoms. She sought counselling to address issues related to her historical sexual abuse, her substance abuse and her criminal behaviour.

The Appropriate Sentence

Mitigating Factors

[16]

1. Ms. Medeiros-Sousa entered a plea, demonstrating that she has taken responsibility for her actions.

2. Ms. Medeiros-Sousa has no criminal record.

3. Ms. Medeiros-Sousa is genuinely remorseful. She apologized to her employer for her actions almost immediately after her arrest.

4. Ms. Medeiros-Sousa is a respected and contributing member of our society. Her pre-sentence report was very positive.

5. Ms. Medeiros-Sousa was suffering from an addiction to oxycodone at the time of her offence, which no doubt impacted her judgment.

6. Ms. Medeiros-Sousa has taken steps to address her addiction.

7. Ms. Medeiros-Sousa has two teenage daughters who have been impacted by her arrest and prosecution. They will both be negatively impacted in the event that Ms. Medeiros-Sousa is sent to jail - both emotionally and financially.

Aggravating Factors

[17]

1. Ms. Medeiros-Sousa stole a significant amount of very powerful drugs and delivered significant amounts of these drugs to her co-accused.

2. Even one hydromorphone pill or one fentanyl patch could cause death if taken incorrectly. The drugs are all highly addictive.

3. By stealing from her employer, Ms. Medeiros-Sousa committed a breach of trust, a statutorily aggravating circumstance. In this case, the breach of trust was particularly blameworthy, since she stole not only for her own needs but also to deliver drugs to a third party. Given the very nature of the drugs, and Ms. Medeiros-Sousa's position as a pharmacy assistant, the level of trust placed in her by her employer was high.

4. Ms. Medeiros-Sousa engaged in an ongoing course of conduct. The conduct stopped only when she was arrested. This was not an impulsive or one-time event.

5. By her training and occupation, Ms. Medeiros-Sousa had special knowledge about the drugs she gave to Mr. Beaulieu. She knew the risks and dangers associated with taking these powerful drugs without medical supervision. She was well aware how addictive the drugs were; ironically, she herself was addicted to one of the drugs – oxycodone. Given the quantity of pills given to Mr. Beaulieu, she had to have known the drugs were not solely for his own personal use. Thus, she had to know that not only Mr. Beaulieu but also other third parties were at risk because of the drugs.

Other Relevant Factors

[18]

1. Ms. Medeiros-Sousa submitted that it was a mitigating factor that she committed her crimes under the influence of Mr. Beaulieu. She now believes that Mr. Beaulieu deliberately manipulated her in order to obtain the drugs she provided to him. Indeed, I expect that this was the case. However, this is not, in my view, a mitigating factor in this case regarding Ms. Medeiros-Sousa's sentence. It does provide some explanation for her behaviour.

I am satisfied that in many respects, Ms. Medeiros–Sousa was able to carry on her life despite her addiction to oxycodone. She maintained her employment including her part time employment of singing and playing the organ at public and private functions. She continued her work as a choir director at the church. Her family was unaware of her addiction. While her addiction may have compromised her judgment, it does not explain her actions in delivering fentanyl, hydromorphone and oxycodone to Mr. Beaulieu. The fact that he was a friend whom she wanted to please, does not amount to mitigation of her behaviour.

2. It was submitted that the fact that Ms. Medeiros-Sousa was not remunerated financially because of her offending conduct was a mitigating factor. I disagree that this is a mitigating factor. Offending for the purpose of financial gain is typically an aggravating factor in sentencing. Here Ms. Medeiros-Sousa's lack of financial motivation results in the absence of an aggravating factor which is frequently involved in an offence involving a breach of trust in an employer/employee relationship. However, I hasten to point out there was some financial benefit to Ms. Medeiros-Sousa. She received the benefit of oxycodone pills which she did not have to pay for. Indeed, had she illegally purchased the 220 oxycodone pills she stole from her employer, it would have cost her almost $2,500. Further, she did receive a benefit, albeit a non-financial one, from supplying Mr. Beaulieu with drugs, namely his appreciation which obviously meant a great deal to her.

3. The Court is mindful of the prevalence of the abuse of prescription drugs in our community. Oxycodone, in particular, is frequently cited by offenders as the root cause of their criminal offending. Invariably, the story begins with the drug being legally prescribed, followed by a dependence which long outlasts the original medical need for the drug. The offender then turns to a variety of means to obtain the drug, many of which are illegal. The addiction results in financial ruin, family disintegration and ultimately to criminal behaviour so that the addict can obtain funds to buy drugs in the illegal market. Although not directly implicated in the distribution of oxycodone, Ms. Medeiros-Sousa, through her conduct, contributed to this spiral by supplying Mr. Beaulieu with this drug.

4. The Crown stressed in her submissions that fentanyl and hydromorphone should be treated in the same manner as heroin for sentencing purposes. I have already mentioned that fentanyl patches are 10 to 20 times as strong as an equivalent amount of heroin; hydromorphone is equally as strong. Mr. Cohn, on behalf of Ms. Medeiros-Sousa, argued that the analogy was faulty. He noted that heroin distribution typically involves layered criminal conspiracies accompanied by violence and gangs. Both fentanyl and hydromorphone are synthetic drugs, their manufacture and distribution largely legal. He submitted that the illegal trafficking in these types of drugs (and specifically in Ms. Medeiros-Sousa's case) does not typically involve a multi-layered commercial and criminal enterprise; indeed, the offence of trafficking in Ms. Medeiros-Sousa's case was her delivery of the drugs to Mr. Beaulieu.

A review of the case law, however, does not support the distinction articulated by Mr. Cohn. In R. v. Pimentel, Justice Hill in his typical thorough fashion summarizes the legal basis for treating heroin trafficking as a most serious offence. The repeated theme is that heroin has destructive consequences for its users. As with heroin, the abuse of fentanyl and hydromorphone, have disastrous consequences for its users. I cannot find a principled basis on which to distinguish between these three drugs for sentencing purposes. I note that in R. v. Turner [2003] O.J. No. 685 (Ont. C.A.), the Ontario Court of Appeal referred to hydromorphone as a synthetic heroin substitute and stated at paragraph 2 that "it is as serious a drug as heroin". Given that fentanyl is even stronger than heroin and hydromorphone, by analogy it should be treated as even more serious than heroin or hydromorphone.

The Law

Overview

[19] Section 718 of the Criminal Code sets out the principles of sentencing that the Court must consider in order to fashion an appropriate sentence for Ms. Medeiros-Sousa. The sentence imposed on her must be proportionate to the gravity of the offences she has committed and her role in them. Prior to considering a sentence of jail, the Court must consider whether less restrictive sentences may be appropriate. If a jail sentence is necessary to meet the purposes of sentencing in her case, the Court must use restraint in determining the length of that sentence. In so far as possible, there must be parity with sentences imposed on other similarly situated offenders.

[20] At the end of the day, the decision as to the appropriate sentence for Ms. Medeiros-Sousa is an individualized exercise made within the context of all of the relevant facts of her particular offences and her particular circumstances. However, sentencing never takes place in a vacuum. The appropriate sentence is informed by jurisprudence, some of which is binding, some of which is persuasive. In Ms. Medeiros-Sousa's case there is binding appellate case law which provides direction and guidance as to the appropriate sentence. I am compelled to follow that direction and guidance.

Sentencing Principles Applicable to Breach of Trust Offences

[21] Breach of trust, such as that engaged in by Ms. Medeiros-Sousa is singled out in the Criminal Code as an aggravating factor on sentencing. Here, Ms. Medeiros-Sousa enjoyed the trust of her employer, and in consequence, was provided with keys to her employer's premises and to its locked drug storage. Sentencing principles of denunciation and deterrence are paramount for these types of offences.

Sentencing Principles Applicable to Drug Trafficking Offences

[22] First of all, I am mindful that Ms. Medeiros-Sousa's trafficking offences consisted of facilitating and delivering drugs to Mr. Beaulieu as opposed to the more typical scenario where the trafficker sells drugs to the public for a commercial purpose. The drugs delivered to Mr. Beaulieu that can be traced to Ms. Medeiros-Sousa's actions total 2,942 oxycodone pills, 1727 hydromorphone pills and 58 fentanyl patches. The amount of drugs is substantial. It must be recalled that fentanyl and hydromorprone are as potent (or more potent) than heroin.

[23] The Ontario Court of Appeal has made clear that trafficking in small amounts of heroin will result in a penitentiary sentence absent exceptional circumstances. Indeed in R.v. Farizeh, unreported November 10, 1994 (Doc. C17409) (Ont. C.A.), the Court of Appeal remarked:

"We stress the fact that the sale of heroin even in small amounts by first offenders who are addicts will call for a penitentiary sentence unless exceptional circumstances exist..."

[24] Although the nature of the trafficking in Ms. Medeiros-Sousa's case may not be as blameworthy as in the case of a commercial trafficker engaged in public trade, the amount of heroin like drugs cannot be characterized as a small amount.

[25] The principal sentencing objective for drug trafficking, particularly heroin trafficking, is deterrence.

Availability of a Conditional Sentence

[26] The Supreme Court of Canada made clear in R. v. Proulx 2000 SCC 5, [2000] S.C.J. No. 6 that absent a mandatory minimum jail sentence, all offences are eligible for the imposition of conditional sentences. The November 2012 amendments to the Criminal Code do not apply to Ms. Medeiros-Sousa since her offence pre-dated the coming into force of those amendments. Had the amendments applied, the Court would have been precluded from ordering a conditional sentence.

[27] Under the Code in force at the time of Ms. Medeiros-Sousa's offence, certain criteria must be satisfied before the Court is permitted to impose a conditional sentence. The appropriate sentence must be one of imprisonment for less than two years; there must be no minimum sentence; the offender must not pose a risk to the community; and the imposition of a conditional sentence must be consistent with the purposes of sentencing set out in the Criminal Code.

[28] In Ms. Medeiros-Sousa's case, the offences for which she has been found guilty have no minimum sentence. Given her lack of a criminal record; her remorse; her family and community support; and her successful efforts to control her addiction, Ms. Medeiros-Sousa does not pose a risk to the community. The remaining criteria – that is whether the appropriate sentence is a jail sentence of less than two years and whether a conditional sentence meets the mandated purposes of sentencing – are more problematic. The Crown submits Ms. Medeiros-Sousa does not meet either criterion and therefore a conditional sentence is not available in her case. In order to determine this issue, it is necessary first of all to determine the threshold issue in this case – that is, whether the appropriate sentence for Ms. Medeiros-Sousa requires imposition of a penitentiary sentence.

Is a Penitentiary Sentence Appropriate for Ms. Medeiros-Sousa?

[29] Although I have already addressed the general principles of sentencing for the offences for which Ms. Medeiros-Sousa has been found guilty, it is useful at this point to compare her situation with other offenders in analogous situations.

[30] In R. v. King 2013 ONCA 417, Ms. King was found guilty after trial of 6 counts of forgery and 6 counts of trafficking in oxycodone. Ms. King, in her position as a medical nurse/receptionist employed by a doctor, forged 6 prescriptions for oxycodone in order to permit her brother or one of his accomplices to attend at pharmacies to obtain approximately 500 oxycodone pills. Ms. King was compensated financially for her role in the scheme. She was a first offender; cared for three teenaged sons; and had career aspirations which included law. She was sentenced to a penitentiary sentence of 3 1/2 years. In addition to the mitigating factors, Justice Epstein noted the significant breach of trust, Ms. King's financial motivation, and the insidious nature of oxycodone. She concluded at paragraph 45:

The offence of trafficking in oxycodone is serious - this one particularly so. It was carefully crafted. It involved several people – those who knowingly participated in the criminal enterprise and others who were unwittingly involved. The offences were committed on a number of occasions over a period of three months. For financial gain, the appellant took advantage of the doctor for whom she and her mother worked and facilitated the distribution of a large quantity of highly addictive dangerous drugs into a small community.

[31] The Court of Appeal concluded that the above circumstances as well as the 6 forgery counts and the breach of trust called for a penitentiary term. The three and a half year sentence imposed on Ms. King was in the appropriate range, and thus a fit sentence.

[32] While there are similarities between Ms. King's offence and Ms. Medeiros-Sousa's offence - a first offender with family responsibilities; a breach of an employer's trust; an ongoing scheme which involved some planning; and the involvement of the insidious drug, oxycodone - there are differences as well. There are several aspects of Ms. King's situation that call for a more serious penalty than that which should be imposed on Ms. Medeiros-Sousa:

• Ms. King was sentenced after trial and showed no remorse. By contrast, Ms. Medeiros-Sousa pled guilty and demonstrated remorse.

• Ms. King committed the offence for money. Money was not Ms. Medeiros-Sousa's primary reason for offending.

• Ms. King forged her employer's signature at least six times for prescriptions.

• Ms. King was not an addict; Ms. Medeiros-Sousa was addicted to oxycodone.

[33] On the other hand, there are differences which would support a more onerous penalty for Ms. Medeiros-Sousa:

• The 2942 oxycodone pills involved in Ms. Medeiros-Sousa's trafficking offence were substantially more than the 500 pills involved in Ms. King's case. In addition, much more potent and dangerous drugs were trafficked by Ms. Medeiros-Sousa, namely fentanyl and hydromorphone.

• Ms. Medeiros-Sousa stole drugs from her employer.

[34] On balance, ignoring her guilty plea, Ms. Medeiros-Sousa's culpability is only slightly less than that of Ms. King.

[35] In R. v. King supra the Ontario Court of Appeal approved of the sentence in R. v. Domke 2006 ABPC 252 (Alberta Prov. Ct). Mr. Domke was a jail guard caught red handed with drugs he was intending to traffic to inmates at the institution. He was charged with 4 counts of possession for the purpose of trafficking of hydromorphone, codeine, oxycodone and morphine and sentenced to 5 years. Mr. Domke, a young man and a first offender, pled guilty. At the time of the offence he was a regular drug user but he had stopped using drugs by the time of sentencing. Excellent character references were proffered at the sentencing hearing. The sentencing judge pointed to the drugs involved (87 hydromorphone pills; 100 oxycodone pills; 199 morphine pills; 155 codeine pills and 3.7 grams of marijuana) and commented that the drugs were: "highly dangerous and addictive". The Court noted that there was no evidence that Mr. Domke's drug use contributed to his offence, and therefore the Court did not consider it as a mitigating factor. The Court also found that Mr. Domke did not know exactly what drugs he was bringing into the prison because he was willfully blind. Further, the Court determined that Mr. Domke was under some duress from the inmates and this was a mitigating factor. Finally, the fact that as a former prison guard, jail time for Mr. Domke would likely be "hard' time and served in isolation from other inmates, was considered.

[36] There are similarities between Ms. Medeiros-Sousa's and Mr. Domke's situations. Both committed crimes to advantage others although Mr. Domke received some monetary compensation for his role. Both pled guilty, were remorseful and had excellent reputations in the community. Both breached positions of trust. However, there are significant differences. Mr. Domke's breach of trust of his position as a prison guard was a more egregious breach of trust than that committed by Ms. Medeiros-Sousa. As mentioned, Mr. Domke received financial compensation for his role, whereas this was not the case with Ms. Medeiros-Sousa. On the other hand, the drugs trafficked by Ms. Medeiros-Sousa were more than 10 times the amount that Mr. Domke was found in possession of.

[37] In R. v. Paper 2011 ONCA 56, [2011] O.J. No. 261 the Ontario Court of Appeal upheld a 2 year prison term for Ms. Paper. She was charged with 8 counts of possession for the purpose of a variety of drugs, one of which was oxycodone. The sentencing Judge determined that she was operating an illegal drug store. Ms. Paper was a first offender who pled guilty. She was sentenced to a 2 year penitentiary sentence; after receiving credit for one month time served, she was left with a 23 month sentence to be served in a reformatory.

[38] The amount of drugs found in Ms. Paper's possession was less than was the case in Ms. Medeiros-Sousa's case. However, Ms. Paper was involved in a commercial enterprise. Significantly, there was no breach of trust as an aggravating factor in Ms. Paper's situation.

[39] In R. v. Pontarini [1999] O.J. No. 1539 (Ont. Gen. Div.), Justice Caswell accepted a joint submission for an 18 month conditional sentence for Dr. Pontarini. Under threats, Dr. Pontarini, a first offender who pled guilty, wrote some 100 prescriptions for two criminal patients. The Crown had difficulties in proving its case because a crucial witness had stopped co-operating. The facts set out in the decision are sketchy and the legal analysis extremely brief, so it is difficult to compare the circumstances to that of Ms. Medeiros-Sousa. Moreover, given the deference that Judges are required to give to joint submissions, such decisions provide minimal guidance.

[40] After reviewing the authorities and considering all of the aggravating and mitigating circumstances in Ms. Medeiros-Sousa's case, I come to the conclusion that a penitentiary sentence is warranted. Thus, she is not eligible for a conditional sentence.

[41] I should add that even had I determined that a sentence of less than 2 years jail was appropriate, I would not have imposed a conditional sentence on Ms. Medeiros-Sousa. Given the nature of the offences, the amount of drugs, the serious nature of the drugs and the breach of trust, a conditional sentence would not have been a fit sentence.

[42] In determining that a penitentiary sentence is appropriate for Ms. Medeiros-Sousa, I have considered whether there are extraordinary circumstances which would justify a reformatory sentence. In my view, there are not. I acknowledge there are numerous mitigating factors, as mentioned previously, and Ms. Medeiros –Sousa's situation engenders sympathy. However, these factors do not warrant an exception to the Court of Appeal's direction that a penitentiary sentence is appropriate for the types of offence committed by Ms. Medeiros-Sousa.

The Appropriate Sentence for Ms. Medeiros-Sousa

[43] I have determined that a penitentiary sentence is required to meet the sentencing goals for denunciation and deterrence necessary for Ms. Medeiros-Sousa's offences. Given the mitigating factors and the fact that this is Ms. Medeiros-Sousa's first jail sentence, restraint must be used as to the length of the sentence. The sentence requested by the Crown is 4 to 5 years. In my view, such a sentence would be crushing for her and is much longer than necessary in order to address the appropriate sentencing objectives. Such a sentence would not properly account for the mitigating factors. I am satisfied that a global sentence of 30 months or 2 and ½ years is appropriate in all the circumstances. The sentence will run concurrent on both counts. In addition, there will be a section 109 order for 10 years; a DNA order; and a restitution order in favour of Medical Pharmacy Group Limited for $475 (which can be satisfied from the money seized from Ms. Medeiros-Sousa on her arrest).

Released: February 6, 2014

Signed: Justice C.A. Nelson

[1] Dr. Woodhall qualified this statistic by noting that in fentanyl deaths it is usually readily apparent that fentanyl was the cause of death, whereas it is not always clear whether a specific death is as a result of heroin.