Court and Parties

Court of Appeal for Ontario Date: 2023-09-19 Docket: COA-22-CR-0398

Before: Paciocco, Copeland and Monahan JJ.A.

Between: His Majesty the King, Respondent And: Kearsten Lumley, Appellant

Counsel: Shannon Darby, for the appellant Jennifer Lynch, for the respondent

Heard: September 11, 2023

On appeal from the sentences imposed on August 17, 2022, by Justice Jodie-Lynn Waddilove of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant seeks leave to appeal, and if leave is granted, appeals from the sentences imposed for two counts of possession of cocaine for the purpose of trafficking, one count of simple possession of fentanyl, and one count of failing to comply with a condition of a release undertaking. The appellant pled guilty to the offences. Before the sentencing judge, the Crown sought a sentence of 15 months’ imprisonment in a correctional facility. The appellant did not object to 15 months as the length of sentence, but argued that a conditional sentence should be imposed. The sentencing judge imposed a global sentence of 15 months’ imprisonment, to be followed by 12 months’ probation.

[2] The appellant maintains on appeal that a conditional sentence ought to have been imposed. She argues that the sentencing judge erred in law by applying a test of whether the appellant was under the influence of drugs at the time of the offences to determine whether she was entitled to mitigation as an addict trafficker, rather than considering whether the appellant’s offending was connected to her addiction. The appellant argues that, because of this legal error, the sentencing judge failed to give proper weight to her addiction as a mitigating factor. [1]

[3] We are not persuaded that the sentencing judge made the legal error asserted by the appellant. Read in context, the impugned passage is a factual finding, not a statement about the legal test for considering addiction as a mitigating factor in the context of drug trafficking offences.

[4] Reading the sentencing judge’s reasons as a whole demonstrates that she considered and weighed the appellant’s issues with drug addiction at the time of the offences, as well as the steps the appellant had taken towards rehabilitation by the time of sentencing. However, the sentencing judge found that a conditional sentence was not appropriate when the mitigating effect of the appellant’s addiction was weighed with other circumstances of the offences.

[5] These circumstances included: that the appellant possessed cocaine for the purpose of trafficking on two dates; that the second possession for the purpose of trafficking offence was committed five days after the appellant’s release on an undertaking for the first offence; and that at the time of the second offence, the appellant breached her undertaking on the first offence by being in the company of one of her co-accused, which was prohibited by a term of her release undertaking. In addition, the sentencing judge considered the quantity of cocaine and the significant amount of cash seized on each occasion, which suggested that, although the appellant’s addiction may have played a role in her offending, there was also a commercial motive.

[6] Having considered all of these factors, the sentencing judge found that a conditional sentence was insufficient to address the sentencing objectives of denunciation and deterrence. The sentencing judge was entitled to consider the various factors that she weighed, along with the appellant’s issues with drug addiction.

[7] The sentence imposed is within the range for the offences the appellant was convicted of. In the absence of any error in principle, failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor, deference is due to the sentencing judge’s assessment of the appropriate sentence. As we have explained, we are not persuaded that the sentencing judge made an error in principle or a legal error.

[8] Leave to appeal sentence is granted, but the appeal is dismissed. The fresh evidence application is dismissed as abandoned.

“David M. Paciocco J.A.” “J. Copeland J.A.” “P.J. Monahan J.A.”

Footnotes

[1] The appellant does not challenge the probation order. In addition, during the hearing the appellant abandoned her application to admit fresh evidence.