Court File and Parties
COURT FILE NO.: CR-15-90000526-0000 DATE: 20170714
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – T.E. Accused
Counsel: Arielle Elbaz, for the Crown Ashley Audet, for the Defendant
HEARD: July 5, 2017
B.A. ALLEN J.
REASONS FOR DECISION ON SENTENCING
BACKGROUND
[1] T.E. is 32 years of age. On March 30, 2015 the police entered her apartment on a warrant. She was present at the time. A search of Ms. T.E. incident to the arrest disclosed she was in possession of 1.02 grams of crack cocaine and $25.00 in her bra. The police seized the 1.02 grams of crack cocaine from Ms. T.E.’s person and seized 65.05 grams of crack cocaine from the apartment as well as 65.81 grams of powder cocaine from inside two wooden jewelry boxes on top of a dresser in Ms. T.E.’s bedroom. Altogether the police seized 131.88 grams or 4.71 oz. of cocaine. The police also seized $14,500.00 from a safe under the bed of her six year old son, O..
[2] Ms. T.E. was charged with three counts of possession of cocaine for the purpose of trafficking and one count of possession of proceeds of crime.
[3] Ms. T.E. did not contest the Crown’s case. The matter proceeded by way of a blended voir dire wherein Ms. T.E. raised a challenge under s. 8 and s. 24(2) of the Charter of Rights and Freedoms. Ms. T.E. undertook to concede guilt if I found the drugs and proceeds admissible. I found no violation of rights and admitted the evidence. On June 13, 2017, I found her guilty on all four counts on the indictment.
T.E.’s Life
[4] Ms. T.E. has lived a most unfortunate life. She was born in Kingston, Ontario. She left home at age 16 to escape the abuse of her stepfather. She came to Toronto in 2007 where she had no family support. Ms. T.E. suffers from drug addiction. She has a young son, O., and from 2007 sought support and offered support at a women’s organization in Toronto. Before her arrest on the charges before the court she was in receipt of Ontario Disability Support payments.
[5] After her arrest, her son, O., was taken into the care of the Children’s Aid Society. Also following her arrest she was taken to the hospital where she found she was seven weeks pregnant. She was denied bail and spent from March 30, 2015 to August 13, 2015 at Vanier Centre for Women in Milton, Ontario. While detained she did not receive adequate medical care for her pregnancy. There were delays in scheduling medical appointments and checkups. Her conditions while detained were unduly harsh.
[6] Ms. T.E.’s second son was born in November 2015 while she was out of custody. The second son was also taken in by the CAS. She has limited access rights with O. and no access with her second son.
[7] Ms. T.E. is currently in custody on other charges. Ms. T.E. has a criminal record with adult charges dating back to 2005. She has convictions for drug offences in 2005 for which she received a 62-day sentence, in 2007 for which she received a one-day sentence and in 2012 for which she received a four-month sentence.
[8] In terms of prospects for a life change after release, Ms. T.E. has made some positive decisions while in custody. She has earned 15 secondary school credits and is now four credits short of receiving a diploma. Ms. T.E. shows some dedication to ongoing improvement of her life. She specifically requests a federal penitentiary term in order to take advantage of the enhanced programming offered in a federal institution.
PRINCIPLES OF SENTENCING
[9] The general principles on sentencing are found at s. 718 of the Criminal Code : to denounce unlawful conduct; to deter the offender and other potential future offenders from committing offences; and to separate offenders from society.
[10] Proportionality is also a guiding principle for sentencing. A sentence must be proportionate to the gravity of the offence, determined on the particular facts of the case. The narrow focus of the sentencing process is directed to imposing a sentence that reflects the circumstances of the specific offence and the attributes of the specific offender: Criminal Code, s. 718.1 and R. v. Hamilton (2004), 186 C.C.C. (3d) 129, 72 O.R. (3d) 1 (Ont. C.A.).
[11] Parity, another governing principle, requires a sentence be similar to sentences imposed on similar offenders for similar offences committed under similar circumstances. Sentencing is however an individualized process which necessarily means that sentences imposed for similar offences may not be identical: R. v. Cox, 2011 ONCA 58 (Ont. C.A.) and R. v. L.M, [2008] 2 S.C.R. 163, 2008 SCC 31 (S.C.C.).
SENTENCING ON DRUG OFFENCES
[12] The paramount principle in sentencing for trafficking in drugs is general deterrence.
[13] Courts have distinguished between the levels of gravity of drug offences. Trafficking for a commercial purpose has attracted the greater penalties. This offence is regarded as an aggravating factor on sentencing. Lower-end trafficking, for instance, solely to support an addiction, has tended to attract lighter sanctions on the view that the offence is committed to support a habit which has come to be regarded as a type of disease: R. v. Bui, at para. 2 and R. v. Woolcock, [2002] O.J. No. 4927, at para. 5, (Ont. C.A.).
[14] There is no dispute that, although Ms. T.E. is a drug addict, the quantity of drugs and proceeds indicate she was involved in drug trafficking not just to support her habit, but also for financial gain as part of a commercial enterprise.
[15] Under the Controlled Drugs and Substances Act cocaine is a Schedule II controlled substance. By legislation enacted in November 2012, section 742.1 of the Criminal Code made conditional sentences unavailable for convictions for certain offences which include trafficking in a controlled substance. Ms. T.E. was charged on March 30, 2015 and is therefore not entitled to be considered for a conditional sentence.
THE PARTIES’ POSITIONS
[16] In view of the seriousness of the offence, its commercial nature and Ms. T.E.’s prior criminal record for similar offences, the Crown takes the position that a global 3 to 3 ½- year penitentiary sentence on all charges is appropriate. The Crown also seeks the following ancillary orders which are not contested by the defence: a DNA order; a mandatory s.109 firearm prohibition for life; and forfeiture of the 131.88 grams of cocaine and the $14,500.00 in proceeds.
[17] Ms. T.E. served 137 days of pre-trial custody.
[18] With the enhanced credit on the 1.5:1 basis allowed under s. 719(3.1) of the Criminal Code, the defence seeks 206 days’ or 7 months’ credit. The defence seeks a total sentence of 31 months’ penitentiary time and with credit for time served, a total global term of 24 months on all the charges.
CASE AUTHORITIES
[19] The sentences in the cases counsel submitted have a large range from reformatory sentences of 18 months, 21 months, and 2 years less a day to penitentiary sentences from 2.5 years, 3 years, 4.5 years and 6 years.
[20] The upper range penitentiary sentences were for offenders involved with larger quantities of cocaine on a commercial scale and offenders with more extensive criminal records: R. v. Bajada, [2003] O.J. No. 721 (ONCA) and R. v. Ovid, 2016 ONSC 2974. The offender that received a 3-year prison sentence pleaded guilty, trafficked in a larger quantity of drugs in a commercial enterprise and was a first offender: R. v. Compte, 2012 ONSC 2974. One offender who received a 2.5-year prison sentence trafficked in a smaller amount of crack cocaine and had a varied and lengthy criminal record including drug offences: R. v. Young, 2016 ONSC 3615 (Ont. S.C.J.). The other offender who received a 2.5-year prison sentence trafficked in a slightly smaller amount of cocaine in a commercial enterprise, had a minor criminal record and pleaded guilty: R. v. Colquhoun, [2002] O.J. No. 5412 (Ont. S.C.J.).
[21] An offender who received a 2-year less a day jail term was convicted of trafficking in a much larger quantity of cocaine for commercial purposes, had a record for related crime, showed remorse and was a good candidate for rehabilitation: R. v. Tulloch, [2016] O.J. No. 5038 (Ont. S.C.J.). An offender who received a two-year prison term was convicted of trafficking in relation to 118.7 grams of cocaine. He had a criminal record involving related offences: R. v. Bogle, [2016] O.J. No. 484 (Ont. S.C.J.). Another offender was sentenced to 2 years less a day jail time where the police on a warrant seized 6 ½ oz. of powder cocaine and some crack cocaine from his home. a Charter of Rights and Freedoms application was brought, the drugs were admitted and the offender accepted his guilt without challenging the Crown’s case through trial: R. v. Thomas, [2016] O.J. No. 6492 (Ont. S.C.J.).
CONCLUSION
[22] I find a prison sentence of 31-month terms in a federal prison is a fit sentence. Deducting the 7 months’ pre-trial custody, I order a 24-month prison sentence for each of the three counts of possession of cocaine for the purpose of trafficking, the three sentences to run concurrently. I further sentence Ms. T.E. to 6 months’ imprisonment for the possession of proceeds conviction to run concurrently with the 24-month sentences for possession of cocaine for the purpose of trafficking. I also impose a DNA order, a s.109 firearm prohibition and forfeiture of the 131.88 grams of cocaine and the $25.00 and $14,500.00 in proceeds.
[23] I believe the sentence appropriately acknowledges the principles of denunciation, deterrence and separation of the offender from society. The sentence addresses the seriousness of Ms. T.E.’s involvement in drug trafficking for commercial gain. The term falls within the range of sentences for offenders committing similar crimes under similar circumstances.
[24] The sentence also takes into account the aggravating and mitigation factors. Ms. T.E. has a criminal record which involves three convictions for similar drug-related offences. As well, a large amount of cocaine was located in her home where she and her young son lived. The large amount of currency was in fact located in a safe under her son’s bed. This put her household and the life of herself and her son at great risk due to the violence associated with large-scale drug trafficking.
[25] I found the mitigating factor very compelling. Ms. T.E. had a very rough and abusive start in life. She has been on her own for half her life without family support. She has sought help through a women’s organization and has offered her assistance to help others. She has addiction problems and a psychiatric condition that have led her into a criminal lifestyle.
[26] However, Ms. T.E. has made constructive use of her time in prison by pursuing the completion of secondary school education. She has asked for a federal prison term in order to take advantage of programs to better her life when she is released from prison. I encourage Ms. T.E. to stay on the positive path, seek assistance for her addiction and other emotional problems. This will put her in a better position to seek custody of her two sons.
[27] I am most disturbed by the harsh conditions she faced while at Vanier Centre for Women. Pre-trial time is harrowing enough without being mistreated while serving that time during a pregnancy. The neglect is inexcusable. This is a mitigating factor I gave special attention to in fashioning sentence.
SENTENCE
[28] I will now pronounce sentence. T.E., will you please stand?
[29] T.E., you have been convicted on three counts of possession of cocaine for the purpose of trafficking (counts 1, 2 and 3) and one count of possession of proceeds obtained from crime (count 4). You stand to be sentenced on all four counts.
[30] I sentence you to a 31-month sentence in a federal prison. I deduct from that sentence the 7 months you served in pre-trial custody. I therefore sentence you to 24 months in prison on each of count 1, count 2 and count 3. Those sentences shall be served concurrently.
[31] I sentence you to a 6-month prison term for one count of possession of proceeds obtained from crime (count 4). The 6-month sentence shall be served concurrently with the sentences for counts 1, 2 and 3.
[32] Your total term in federal prison will therefore be 24 months.
[33] I make the following ancillary orders: (a) a DNA order; (b) a mandatory s.109 firearm prohibition for life; and (c) the forfeiture of the 131.88 grams of cocaine and the $25.00 and $14,500.00 in proceeds seized by the police.