Court File and Parties

Date: August 10, 2017

Information No.: 15-274; 15-140

Ontario Court of Justice

Between:

Her Majesty the Queen

and

Sylvia T. Moldovan — and — Her Majesty the Queen and Krishani Nancoo

Before: Justice G.A. Campbell

Counsel:

• Scott Kerwin, for the Crown (Moldovan)
• Ahmad Ammar, for the Accused (Moldovan)
• Carolyn Filgiano, for the Crown (Nancoo)
• Paul Esco, for the Accused (Nancoo)

CAMPBELL J.

REASONS FOR SENTENCE

(Released August 10, 2017)

Background of Proceedings

[1] These proceedings were not consolidated but heard together for the purpose of sentencing because of an issue that arose during submissions in regard to the availability of intermittent sentences in the Southwest Region.

Krishani Nancoo

[2] Mr. Nancoo entered a guilty plea to simple possession of 16 fentanyl patches contrary to s. 4(1) of the Controlled Drugs and Substances Act. He was charged with possession for the purpose of trafficking. The case proceeded to trial by agreed statement of facts supplemented by viva voce evidence from a police officer qualified to give opinion evidence with respect to the central issue of whether the patches found in Mr. Nancoo's possession were held by him for the purpose of trafficking. In addition, Mr. Nancoo and his mother also testified.

[3] Mr. Nancoo was prescribed Percocet at the age of 19 following surgery. He became dependent on the drug and escalated his use of opioids to oxycontin and then eventually fentanyl. He's a large man and his tolerance was abnormally high. He supplied his habit by purchasing the patches illegally from a neighbour who had a lawful prescription for the drug. In January 2015 when Mr. Nancoo was 21, he was at a friend's home and smoking the drug until he passed out. His friend called emergency services for assistance. When the police arrived, they found Mr. Nancoo unconscious on a bed and next to him on a side table was a fentanyl patch in tin foil. Officers located sixteen 25 microgram fentanyl patches in Mr. Nancoo's front pants pocket.

[4] Sergeant Raffuse held the opinion that the patches were likely in Mr. Nancoo's possession for the purpose of trafficking, although he did not rule out the possibility they could have been for personal use. For reasons indicated, including reliance on the testimony of Mr. Nancoo's mother and his own, I was not satisfied beyond a reasonable doubt that Mr. Nancoo purchased the patches for the purpose of trafficking. He was found guilty of simple possession.

[5] Mr. Nancoo was remanded out of custody pending delivery of a pre-sentence report.

Sylvia Moldovan

[6] On March 2, 2017, Ms. Moldovan pleaded guilty to the offence of operating her motor vehicle while her ability to do so was impaired by alcohol. Her Jeep was observed by officers to have swerved across lanes of traffic and then through a traffic signal before police activated their emergency lights and brought Ms. Moldovan's vehicle to a stop. The officers detected an odour of alcohol on her breath. Ms. Moldovan acknowledged having consumed alcohol. Following arrest and a lawful demand for a sample of her breath for analysis by an approved instrument, Ms. Moldovan refused to provide a sample. She was found guilty of the offence of impaired driving. Ms. Moldovan was remanded out of custody pending preparation of a pre-sentence report.

Sentencing Submissions

Krishani Nancoo

[7] The Crown submitted initially for a nine month period of custody. As the case was remanded for reasons I will come to, the Crown's position varied to a range of six to nine months. Counsel for the defence initially submitted for a conditional sentence order. I informed counsel for Mr. Nancoo that such a sentence would be inconsistent with the purpose and principles of sentencing for a variety of reasons, notwithstanding this was a first offence for Mr. Nancoo and the finding made was for simple possession. There were aggravating circumstances. Mr. Nancoo was in possession of a Schedule one substance and was therefore liable to a period of imprisonment for a term not exceeding seven years. Moreover, the schedule 1 substance at issue was fentanyl. The jurisprudence is clear. Denunciation and deterrence is paramount. The circumstances surrounding how Mr. Nancoo was found in possession of this potentially lethal substance is further aggravating. He had passed out to the point that his friend felt the need to call for medical services. As a consequence, Mr. Nancoo was in no position to safeguard those 16 patches he had in his pocket. They could have easily found their way onto the street and brought about further harm to others.

[8] This synthetic opioid that is intended for clinical use and associated with the management of chronic pain is an extraordinarily powerful drug. Expert testimony reported in the case law reveals that the normal or legitimate use of the fentanyl patch is often abused by users who tend to cut up the patch, eat small portions of it, inject its contents or even smoke it as Mr. Nancoo did. Forensic toxicologist Dr. Karen Woodall in the case of R. v. Richard Miller, [2014] O.J. No. 4786, indicated that fentanyl is a central nervous system depressor that slows down the way the brain functions and eventually slows down respiration to the point that an individual will stop breathing if they take enough of the drug. Several reported cases have quoted experts who have indicated that fentanyl can be up to one hundred times more potent than morphine and 20 times stronger than heroin and as already indicated, it has a toxicity that can bring about fatal consequences.

[9] As much as I am sympathetic to the most unfortunate and disturbing predicament Mr. Nancoo found himself in as a user, in these circumstances, general deterrence must remain the uppermost consideration, although in Mr. Nancoo's case, rehabilitation is also an appropriate consideration.

[10] Mr. Nancoo's lack of a prior criminal record, his acknowledgment that he was in possession of the substance and pre-sentence report indicating that he acquired his addiction to opioids as a consequence of a post-surgery recovery and had at least taken some steps to improve himself through rehabilitative efforts all reflect positively for him as mitigating factors but do not negate the requirement that a period of custody is in order. A sentence that would allow Mr. Nancoo to serve his sentence in the community would be inconsistent with the fundamental purpose and principles of sentencing.

[11] After indicating to counsel for Mr. Nancoo that a period of imprisonment to be served in the community would not be in order, counsel next invited me to consider an intermittent period of custody so that his client, who has recently found employed in the tool and die industry, could retain his employment. I indicated notwithstanding the requirement that such a sentence would limit incarceration to 90 days, I would entertain the submission as part of a rehabilitative effort as from the accounts I heard this new employment was offering Mr. Nancoo a career path toward becoming an apprentice and would no doubt be very beneficial to him. The sentencing proceeding was therefore adjourned with Mr. Nancoo remanded out of custody for the purpose of allowing him to make inquiries of his employer in respect of his foreseeable work schedule so that he might go into custody on weekends and still maintain his employment during the week.

Sylvia Moldovan

[12] Ms. Moldovan had a history of driving offences and to that end, the Crown relied on notice with respect to her most recent conviction for driving while impaired in 2011. As a second offence, Ms. Moldovan faces a mandatory minimum sentence of 30 days in jail. As will become apparent later in these reasons, it is noteworthy to point out here that pursuant to s. 742.1(b), Ms. Moldovan would not be entitled to serve her sentence of imprisonment in the community insofar as she is subject to a minimum term of imprisonment of 30 days in accordance with s. 255(1)(a)(ii) of the Criminal Code. Counsel for Ms. Moldovan also submitted that an intermittent sentence would be appropriate because she too had employment and considerable debt that she was trying to take care of so to serve here sentence as straight time could affect her detrimentally.

[13] It was during submissions by Ms. Moldovan's counsel when I learned that he had been in contact with a representative from the Southwest Detention Centre about a program that would allow his client to serve her sentence in the community. As I questioned counsel further in an effort to learn more about the program, the Crown Attorney who was present that day offered to arrange for a representative of the Southwest Detention Centre to attend court to explain the program. As a result, Ms. Moldovan was again remanded out of custody in order to allow the prosecutor an opportunity to arrange for Mr. Cameron Adamson of the Southwest Detention Centre to attend court to explain how intermittent sentences were being handled at the Southwest Detention Centre.

[14] Counsel for Mr. Nancoo was also in court this date for sentencing. When his case was called subsequently, Mr. Nancoo's counsel submitted consistent with what I heard from Ms. Moldovan's lawyer that he too would like to explore whether his client would qualify for what I now understand to be the Intermittent Community Work Program which would allow Mr. Nancoo to avoid having to travel to the Elgin-Middlesex Detention Centre, which is where male offenders in this region are required to report for their intermittent sentences.

[15] Based on the foregoing, I directed that Mr. Nancoo should also be remanded to June 21, 2017 when we could expect to hear from Mr. Adamson.

Testimony of Cameron Adamson

[16] Cameron Adamson is a Rehabilitation Officer at the Southwest Detention Centre. He previously worked for the Ministry of Community Safety and Correctional Services as a Probation Officer. In November 2015 he took over the Intermittent Community Work Program at the Southwest Detention Centre. He explained that both Mr. Nancoo and Ms. Moldovan have already been approved for the program by him, although final authorization would not occur until the Deputy Superintendent signs off after they are sentenced.

[17] The Intermittent Community Work Program is available to offenders who have been sentenced to custody but allowed to serve their sentence intermittently, typically on weekends. If approved, the offender will be immediately released to serve the entirety of his custodial sentence in the community. That is to say, reside at home and do community service during the day. Violent offenders and individuals with convictions for sexual assaults and domestic violence are automatically excluded from consideration for the program. Also, having a history of breaches will likely disqualify a candidate from being considered.

[18] The authority for the program falls under the provisions of the temporary absence permit as provided for in s. 27 of the Ministry of Correctional Services Act. That section reads as follows:

s. 27(1): "Where, in the opinion of a person, designated by the Lieutenant Governor in council for the purpose, it is necessary or desirable that an inmate be temporarily absent from a correctional institution for medical or humanitarian reasons or to assist the inmate in his or her rehabilitation, the person may authorize the temporary absence of the inmate on such terms and conditions as the person may specify."

[19] Mr. Adamson is required to review a variety of material before determining eligibility, including any pre-sentence report, the police occurrence report, probation records and notes, and any level of service inventory that might be available. He also determines if the offender's home is suitable for telephone monitoring. The home requires a landline that can handle voice recognition software.

[20] Once an offender is determined to be eligible for the program, a supervisory package is then prepared. This is done by a corrections official at the Elgin-Middlesex Detention center in cooperation with an independent agency known as "Springboard". Springboard works with community agencies and determines the placement for the offender in regard to the community service portion of the program. The Ministry's representative will use that placement information and incorporate it into a draft plan or program for the offender which will set out the parameters for supervision that will include, for example, a requirement to report to the Detention Centre once a week at a specific time and thereafter to report to a community service agency which might be the Humane Society, Habitat for Humanity, St. Leonard's House or the Downtown Mission to name a few. This would typically be from 9 to 5 on a Saturday or Sunday.

[21] Final approval for the program must come from the Deputy Superintendent of the Detention centre. If it is a female offender, approval is required from the Superintendent at the Southwest Detention Centre. If it is a male, the request for approval goes to the Elgin-Middlesex Detention Centre. The Southwest Detention Centre does not take into custody any males who are allowed to serve their sentence intermittently, however Mr. Adamson who works out of the Southwest Detention Centre will screen males for eligibility. A female who doesn't qualify for the program can however serve her custodial sentence intermittently at the Southwest Detention Centre. A male who does not qualify for the program must serve his custodial intermittent sentence at the Elgin-Middlesex detention centre.

[22] Any failure by the offender to comply with the conditions outlined in the supervisory plan may result in cancellation of the temporary absence permit, depending on the circumstances. Mr. Adamson explained that admission into the program is a privilege that is subject to review and may be cancelled by the Deputy Superintendent.

[23] Mr. Adamson indicated that there were no medical reasons why Mr. Nancoo or Ms. Moldovan would need a temporary absence permit. Humanitarian reasons, for example, are often a consideration because of a lack of transportation that would be necessary to get to the Detention Centre and report on time, which in Mr. Nancoo's case, would be London. Other circumstances might be where the offender has family responsibilities such as having to care for an elderly parent or children. Notwithstanding an indication that these circumstances may fall within one of the grounds for a temporary absence permit, what became clear during Mr. Adamson's testimony was that the primary reason for issuing a temporary absence permit to allow an offender to participate in the Intermittent Community Work Program, is rehabilitation. To this end, Mr. Adamson confirmed, for example, that if a temporary absence permit was issued for humanitarian reasons to allow the offender to care for a sick family member and that family member later passed away, the offender would not be required to then serve his or her sentence in the detention centre because there was still a rehabilitative aspect to the program. In every instance were a TAP is issued as a consequence of approval for the Intermittent Community Work Program, the offender is required to cooperate with a community service program and report to a community-based agency.

[24] With this backdrop, Mr. Adamson confirmed that neither Mr. Nancoo nor Ms. Moldovan would serve any time in custody if I were to sentence them to an intermittent sentence. When I suggested to him there was nothing temporary about the permit at all, he agreed:

Question: The concern I have is that what you are going to tell me, if they meet all these prerequisites, they can go and serve their sentence in the community.

Answer: Yes, Your Honour

Question: So you're doing a temporary absence from the outset which is not a temporary absence. Is that a fair statement?

Answer: Yes, Your Honour.

[25] In addition, Mr. Adamson made it clear that even in the case of a specific direction or recommendation by the sentencing judge in the face of this program that the offender serve his or her time in custody and not in the community, it would remain his decision in cooperation with Mr. Grainger who works out of Elgin-Middlesex, to determine the offender's eligibility and make a recommendation for the offender to the program and it would remain the Deputy Superintendent's decision to sign off and grant a temporary absence permit, notwithstanding any judicial fiat made at the time of sentencing.

The Law and Analysis

[26] From all of the foregoing it is clear that if I sentence Mr. Nancoo and Ms. Moldovan to an intermittent sentence, they will serve no time in custody subject to only one exception. That is, if they fail to comply with the conditions of the TAP, their approval for participation in the program can be but is not automatically revoked. If revoked, then they are expected to serve the remainder of the sentence in Custody.

[27] The question I must therefore determine is what if any effect this evidence has on my authority to impose an intermittent sentence. To put it another way, do I have any discretion to order an intermittent sentence as contemplated by the Code knowing that the offender will serve the sentence in the community, or am I without authority to make that order in these circumstances.

[28] What follows are the relevant provisions of the Criminal Code and the Ministry of Correctional Services Act with respect to custody following sentences.

[29] Where the accused is convicted by a judge trying an indictable offence under Part XIX or upon summary conviction pursuant to Part XXVII, the Code provides that a warrant of committal in form 21 or 22 shall issue (see sections 570(5) and 806(1)). Part XXIII of the Code deals with sentencing and provides at s.744 that a peace officer or other person authorized by the warrant of committal shall convey the person to the prison mentioned in the warrant and deliver the person, together with the warrant, to the keeper of the prison.

[30] Pursuant to s. 20 of the Ministry of Correctional Services Act, a superintendent of a correctional institution designated by the Minister "shall receive into the institution every person delivered under lawful authority for detention in the institution and is responsible for the custody and supervision of such person until his or her term of imprisonment is completed or until the person is transferred or otherwise discharged in due course of law."

[31] Section 743.1(3) of the Code provides that where a person is sentenced to imprisonment other than a penitentiary, being a term of less than two years, the person shall be sentenced to "…imprisonment in a prison or other place of confinement, …within the province in which the person is convicted." Section 2 of the Act defines "prison" as including a penitentiary, common jail, public or reformatory prison, lock up, guard room or other place in which persons who are charged with or convicted of offences are usually kept in custody.

[32] Being mindful of the provisions of s. 743.1(3) of the Criminal Code and sections 14 and 15 of the Ministry of Correctional Services Act, which allow for the Lieutenant Governor or Minister to designate any place as a correctional institution or community resource centre for custody, supervision or rehabilitation, I asked Mr. Adamson if either of the offender's home or their proposed placement in the community had at any time to his knowledge been so designated. Mr. Adamson responded in the negative indicating only that to his mind, these places described in a TAP were simply the offenders' homes and places they were expected to report in the community.

[33] Sections 16 and 17 of the Correctional Services Act are particularly noteworthy and at harmony with Mr. Adamson's testimony. These sections provide that where a court has convicted a person of an offence punishable by imprisonment and sentenced to serve his sentence in a correctional institution, "…any designation of a particular correctional institution in a warrant of committal is of no force or effect."

[34] In short, while the Ministry is required to provide facilities and staff to receive offenders who are ordered to be confined in prison, it is wholly within the discretion of the Ministry and its staff to determine where the offender will be detained and also in regard to their supervision. While some parameters exist in regard to how long an offender is expected to remain in custody, for example, limits on parole eligibility, how much time an offender ultimately spends in a custodial setting is typically left to the corrections officials.

[35] Separate and apart from this line that separates the jurisdiction associated with the court passing sentence and corrections carrying out the sentence, the evidence before me indicating the offenders will serve the whole of their custodial sentences in the community moves beyond corrections determining how long an offender might remain in custody after a period of time to observe and assess a prisoner's suitability to return to the community and instead substitutes a custodial sentence to a community based period of imprisonment.

[36] There is a fundamental difference between institutional custody and community imprisonment. The difference was made clear in the case of R. v. Middleton, 2009 SCC 21, 2009 S.C.C. 21, [2009] 1 S.C.R. In Middleton, the Supreme Court was asked to review a decision of the Ontario Court of Appeal directing the accused to serve what was a 90 day intermittent sentence on consecutive days because the sentencing judge, who passed two subsequent concurrent conditional sentences, did not specifically order that the intermittent sentence could continue to be served intermittently pursuant to s. 732(3) of the Code. The Supreme Court allowed the appeal and affirmed the trial judge's original sentence. In doing so, the Court conducted an analysis of the distinction between conditional sentences which allow for periods of imprisonment to be served in the community and intermittent sentences that were custodial sentences of imprisonment. Part of that analysis included reference to s. 139 of the Corrections and Conditional Release Act which would have required in that case that the 90 day intermittent sentence and the 18 month conditional sentence imposed be merged to form one single sentence of 18 months.

[37] Justice Fish, writing for the majority of the Court, had this to say:

"To hold that a conditional sentence is a sentence of imprisonment within the meaning of s. 732(1) of the Criminal Code and s. 139 of the CCRA is to disregard the plain wording of the provisions, their legislative purposes, and the nature and object of conditional sentences. It would disregard as well the valid sentencing objectives of the trial judge in this case and would unnecessarily, in the future, deprive judges of their ability to render similarly fit sentences where they conclude that a custodial sentence is required."

[38] At paragraph 10 of the Court's decision, after looking at s. 732(1) of the Criminal Code dealing with intermittent sentences, Justice Fish said this:

"It is apparent from the words 'confinement' and 'prison' that s. 732(1) contemplates custodial sentences of imprisonment and not conditional sentences of imprisonment, which are served in the community. In my view, this textual consideration is alone sufficient to warrant the conclusion that conditional sentences are not 'sentences of imprisonment' within the meaning of s. 732(1)."

[39] At paragraph 17, Justice Fish added further:

"On the contrary, reading s. 742.7 as a whole, I think it obvious that parliament has drawn a clear and sharp distinction in that section between the conditional sentence being served in the community, and a custodial period served for breach of a conditional sentence order. Where an offender is ordered under s. 742.6 of the Code to serve or all part of an unexpired conditional sentence in custody, the custodial period is explicitly treated in s. 742.7(3) as imprisonment for the purposes of s. 139 of the CCRA, the rest of the conditional sentence, served in the community, is not."

[40] Justice Binnie released concurring reasons with the majority. At paragraph 57 he stated:

"I agree with Cromwell J. that the text of the Criminal Code and this Court's jurisprudence make it clear that a conditional sentence of imprisonment is generally considered a "Sentence of Imprisonment" and therefore, at first blush, falls within the opening words of s. 732(1). It is imprisonment without incarceration. However, s. 732(1) provides an exceptional context because its application presupposes, in my view, that the "sentence of imprisonment", referred to therein, is capable of being served intermittently. Yet conditional sentences, in their nature, do not lend themselves to being served intermittently. On the face of it, therefore, s. 732(1) seems to have no application to the conditional sentences in this case."

[41] And in the next paragraph, Binnie J. concluded his brief analysis on this issue indicating that "Textually and contextually. s. 732(1) simply does not extend to conditional sentences."

[42] This case highlights the important distinction between a period of imprisonment served in the community and in custody with specific reference to s. 732(1).

[43] The present form of s. 732(1) which deals with intermittent sentences came out of Bill C41. The Bill was introduced by the Minister of Justice and Attorney General of Canada, Alan Rock, in 1994. He described the Bill as a response to over 14 years of effort to achieve comprehensive reform in the sentencing process as part of the criminal justice system in Canada. This Bill introduced a framework setting out the purpose and principles of sentencing and policy objectives associated with the sentencing process that we're all familiar with today. Prior to the bill coming into force on September 3, 1996, a section similar to s. 732(1) was found under what was then Part XXIII – Described then as Punishment and the making of probation orders. Section 737(1)(c) allowed the Court to order an accused to serve his sentence intermittently at such times as were specified and to comply with conditions of probation when not in custody for sentences that did not exceed 90 days.

[44] While the layout was different, the content of the provision dealing with intermittent sentences was essentially the same as it appears now save for one noticeable addition that has since been added.

[45] The former provision known as s. 737(1)(c) previously read as follows:

s. 733(1): "Where an accused is convicted of an offence, the Court may, having regard to the age and character of the accused, the nature of the offence and the circumstances surrounding its commission,

(c) where it imposes a sentence of imprisonment on the accused, whether in default of payment of a fine or otherwise, that does not exceed 90 days, order that the sentence be served intermittently at such times as are specified in the order and direct that the accused, at all times when he is not in confinement pursuant to the order, comply with the conditions prescribed in a probation order."

[46] Section 732(1) as it reads now replaced s. 737(1)(c). It reads as follows:

s. 732(1): "Where the Court imposes a sentence of imprisonment of 90 days or less on an offender convicted of an offence, whether in default of payment of a fine or otherwise, the Court may, having regard to the age and character of the offender, the nature of the offence and the circumstances surrounding its commission, and the availability of appropriate accommodation to ensure compliance with the sentence, order:

(a) that the sentence be served intermittently at such times as are specified in the order; and

(b) that the offender comply with the conditions prescribed in a probation order when not in confinement during the period that the sentence is being served, and if the court so orders, on release from prison after completing the intermittent sentence."

[47] It appears clear to me that the purpose of inserting the words "… and the availability of appropriate accommodation to ensure compliance with the sentence…" was to instruct courts not to order intermittent sentences in circumstances were the sentence could not be properly carried out. The added provision serves as a condition precedent. Before an intermittent sentence can be imposed, there must be available appropriate accommodations to ensure that the sentence can be complied with. In other words, there must be a prison available that is prepared to confine the person to custody on an intermittent basis. If I were to order an intermittent sentence for Mr. Nancoo and Ms. Moldovan, not only would there be nothing intermittent about their sentences, beyond a brief check-in or telephone call to report, neither offender will serve any time following their sentence actually in custody.

[48] Mr. Esco submitted that his client would be willing to stipulate to the court a willingness to serve his intermittent sentence in custody at the Elgin Middlesex Detention Centre if I were to conclude the Intermittent Community Work Program was not an appropriate sentence. It appears reasonably evident to me that once sentence is passed, implementation is left to the people at corrections. Mr. Nancoo's undertaking and my direction would not be binding. Mr. Adamson has not only confirmed that Ms. Moldovan and Mr. Nancoo have already been approved for the Intermittent Community Work Program, he has also confirmed that regardless of any recommendation or direction I might provide on sentencing to indicate that each should serve their sentence confined to a Detention Centre, the Minister's representatives at the Southwest Detention Centre and the Elgin Middlesex Detention Center will inevitably proceed as they see fit. It is not only clear to me they have the authority to proceed as they see fit, it is also noteworthy that on no occasion has Mr. Adamson's recommendation to the Deputy Superintendent to grant a TAP for an Intermittent Community Work Program been rejected.

Disposition

[49] It is my obligation to impose a sentence that I believe can be carried out. I have no reason to believe there is available an appropriate accommodation to ensure that in the case of either Mr. Nancoo or Ms. Moldovan, the imposition of an intermittent sentence will be complied with. I am therefore without authority to sentence Mr. Nancoo at 90 days and Ms. Moldovan at 30 days to be served intermittently.

[50] Insofar as there may have been some uncertainty on the part of Mr. Nancoo and Ms. Moldovan in regard to how matters would proceed next following the release of my reasons today, I am prepared to remand both offenders again today so they can make suitable arrangement before they go into custody.

Released: August 10, 2017

Greg A. Campbell

Justice