Court Information

Ontario Court of Justice

Between: Her Majesty the Queen — and — Michelle Anna Dzienis

Before: Justice D.P. Cole

Heard on: March 28, May 2, 2012

Reasons for Judgment released: July 9, 2012

Counsel:

• J. Pollard for the Crown
• M. Caroline for the accused

Reasons for Sentence

[1] The Charge and Plea

The 37-year-old accused has entered a plea of guilty to a single charge of conspiring to traffick 28.75 grams of crack cocaine. An Agreed Statement of Facts was filed in support of the plea, the salient portions of which read as follows:

Between February 1, 2011 and March 22, 2011 Michelle Dzienis resided in Kitchener, Ontario. During that time she was in regular contact through telephone conversations and texting with a male known to her by the name of "Dukes". Ms. Dzienis had been addicted to crack cocaine for approximately six years and had purchased for her personal use from "Dukes" on occasion.

Over the course of twenty-two days in February and March 2011 Dzienis and Dukes were in regular contact with each other using text messages and phone calls. In each case Dzienis was the attempted purchaser of crack cocaine and Dukes was the seller. The police intercepted and recorded 133 of these contacts.

On March 8, 2011, Dzienis texted Dukes "hey hun, just wanted you to know that am clean now and trying hard to stay that way". Dukes responded "That's da way ta go".

That same day Dzienis texted Dukes - "lookin' for up" and "hard" - she stated she was willing to drive to him if she could get a "Cuban for 4" - a ¼ ounce, or 7 grams - for $400. If he could agree to the sale "it's gone" because "that's what her boy wants". Dukes responded telling her he did not have that amount available. He had "B" for which he wanted "2,4" which meant he would sell her a 1/8 ounce of crack cocaine for $240. A meeting was arranged to make the purchase.

On March 11, 2011 Dzienis texted Dukes "Need 14 how much"- referring to a half ounce of cocaine. She then placed a telephone call to Dukes. He told her he was ready anytime. Dukes asked if she wants a "half" - referring to a half ounce of cocaine - and that it would be "8,5" meaning $850. Dzienis wanted to know if she could do the deal right away; Dukes said "yes but she has to have wheels". Dukes suggested they meet at Sports World in Kitchener.

On March 22, 2011 Dzienis contacted Dukes by text message for the purpose of purchasing crack cocaine for a friend of hers. Dzienis told Dukes that her friend will take a "whole for 16", meaning an ounce of crack cocaine, for $1600.00, and that "he is one of her biggest guys". Dukes stated he "can do that". Dzienis asked Dukes to tell her "it's good" referring to the quality of the crack cocaine. Dukes said "it is". They discussed where to meet to complete the transaction. They agreed that since they both have cars they would meet at Sports World where she will jump into his car. Approximately half an hour later Dzienis placed a telephone call to Dukes advising him she was on the expressway and would be there soon. Dukes responded that he was 15 minutes away.

A few minutes later Dzienis placed a telephone call to Dukes telling him that she was at McDonald's on Sportsworld Drive and that she was in a grey Sunfire.

At approximately 6 pm in the McDonald's restaurant parking lot on Sportsworld Drive, Dzienis exited a Pontiac Sunfire, which remained occupied by two other individuals, and entered a black Cadillac. The Cadillac left the parking lot and drove to a stash house where it remained for a few minutes before returning to the Tim Horton's at Sportsworld Drive and King Street. The Cadillac entered the parking lot where the Pontiac Sunfire was now parked. Dzienis exited the Cadillac, and the Cadillac then left the area.

Police arrested Dzienis for conspiracy to traffick in crack cocaine as she was walking towards the Sunfire. At the time of her arrest Dzienis was searched. She had a baggie containing a bulk piece of crack cocaine weighing just under 28 grams. She also had a crack pipe with traces of crack cocaine. Subsequent to her arrest Dzienis advised police she had received the crack cocaine from Dukes and it was intended for one of the individuals who had been with her in the Sunfire.

[2] Defence Counsel's Submissions on Rehabilitation

In his submissions on sentence defence counsel particularly drew my attention to one portion of this Agreed Statement of Facts, namely that at a time when Ms Dzienis could not have known that her communications with Dukes were being intercepted, she texted him that she "just wanted you to know that am clean now and trying hard to stay that way". Counsel invites me to infer that this is a clear indication that Ms Dzienis' efforts toward reformation – however imperfect – had started prior to her arrest, and that I should see the steps she has taken since her arrest in that context.

[3] Crown Counsel's Submissions

For his part Crown counsel submitted that the agreed facts demonstrate:

(a) that Ms Dzienis is so knowledgeable as a "drug broker" that her purchaser trusted her to negotiate price and quantities as well as to sample the product(s) before purchase;

(b) that her willingness to traffick at the ½ oz. to 1 oz. level was both ongoing and was certainly above the minimal "piece" level common to addict-traffickers as disclosed in the case law; and

(c) given the level of drug dealing disclosed by the wiretaps, and given her criminal record, she is "a moderate to high risk to reoffend".

[4] Pre-Sentence Custody

Ms Dzienis spent five days in pre-sentence custody before her release on what is commonly known as a "house arrest bail". By the time sentence is imposed, she will have been subject to those bail conditions for about 15 ½ months, apparently without incident.

The Positions of the Parties

[5] Defence Counsel's Proposed Methodology

Defence counsel's principal submission was that I should impose a conditional sentence. Rather than making a specific proposal as to the length of the conditional sentence that might be appropriate, he suggested a methodology that I could and should apply. He argued that the ultimate length of the conditional sentence should be determined according to the credit I would be prepared to give for some 15 ½ months she has spent subject to this "house arrest bail". His preference would be that I should credit this at a 1/2:1 rate i.e. that I should determine the appropriate length of the conditional sentence and then reduce the actual conditional sentence by approximately 8 months.

[6] Defence Counsel's Alternative Submission

Defence counsel argued in the alternative that if I were to come to the conclusion that an actual custodial sentence should be imposed, I should credit the period of time spent subject to house arrest at a 1:1 rate i.e. that I should reduce any custodial period by one day for each day spent on bail subject to house arrest.

[7] Court of Appeal Jurisprudence on Pre-Sentence Credit

Though the Court of Appeal has said on several occasions that a sentencing judge has discretion to make an allowance for some credit for time spent under restrictive bail conditions by way of some reduction of sentence, the Court has been equally clear that a sentencing judge should have some evidence that the terms and conditions of release have been particularly onerous. In other words, the mere fact that, as here, an offender has been subject to "house arrest" for many months does not give rise to any presumption that there should be any allowance made. After all, the offender is not in custody (see R. v. Downes, R. v. Panday, R. v. Ijam, R. v. Lindsay, R. v. M.G., R. v. Junkert).

With respect, defence counsel called no evidence to support his submission that the accused's time subject to a "house arrest bail" has been particularly onerous. In fact, when the accused exercised her right to speak to sentence, she told me that house arrest has actually been beneficial to her because it has kept her away from entering into situations where she might have been tempted to revert to drug abuse. I do not therefore consider that any sentence I might impose should be reduced by some form of pre-sentence credit for time spent on bail subject to house arrest. Further, since the 5 days she spent in custody pending her release on bail was so brief for an experienced offender, I do not propose to reduce the ultimate sentence by that amount (or by some other fraction).

[8] Lack of Specific Conditions Proposed

Defence counsel did not address enforcement mechanisms that might accompany a conditional sentence – such as electronic monitoring of house arrest - nor did he propose any other specific optional conditions that might be attached to a conditional sentence. Similarly, he did not address whether there should be any probationary term to follow any carceral or conditional sentence I might impose.

[9] Crown Counsel's Position on Sentencing Range

Crown counsel took the position that an actual custodial sentence in the two years less a day to two years range would prima facie be called for in the circumstances of this case, considering:

(a) the level of the offender's drug dealing;

(b) the offender's previous record – particularly given that she was still on probation until a few days before her arrest date; and

(c) appellate case law which has considered the appropriate approach to "addict traffickers".

However, given Ms Dzienis' relatively early guilty plea, her express agreement to implicate "Dukes" through testimony (should the Crown require it as his case proceeds through the courts), and her efforts towards her rehabilitation since arrest, Crown counsel argued that the appropriate sentence should be one of 15 months actual incarceration.

[10] Crown Counsel's Proposed Probation Term

Crown counsel further suggested that upon release from confinement Ms Dzienis should be subject to a two-year period of probation. According to my notes, he did not propose specific optional terms of probation.

The Background of the Offender

[11] Childhood and Early Trauma

In addition to the Agreed Statement of Facts and the submissions of defence counsel, I directed that a Pre-Sentence Report (PSR) be prepared. That report, much of which has been confirmed through collateral sources, discloses a dreadful childhood of ongoing parental physical and emotional neglect (fuelled by alcoholism and drug abuse), frequent episodes of dire poverty (rural and urban), physical and attempted sexual abuse by at least one of mother's abusive boyfriends, and recurrent admissions to Children's Aid care. Her biological father is now deceased, and she has little or no contact with her mother.

[12] Relationship with Her Children

Because I believe it is particularly relevant as part of measuring the steps the offender has taken towards rehabilitating herself in recent months, it will be useful to summarize those parts of the PSR that relate to the offender's own children, given that a CAS caseworker told the writer of the PSR that her children "have written their mother off at times". Her daughter Linda M. (now 20) was born when Ms Dzienis was 15 years old.

[13] Custody of Children and Current Living Arrangements

Some months later Ms Dzienis had a brief sexual relationship with her friend and current surety John V. This produced a son Jason V., now 18 years old. Initially Ms Dzienis had custody of both her children but because of her drug use at the time, both children were apprehended by the local Children's Aid Society. John V. gained custody of his son when the child was three years old, and has raised him to adulthood. John V. and Ms Dzienis maintained intermittent contact over the years, so she would see her son during those contacts. When she was charged with the current offences John V. agreed to act as her surety, and they now live together in a platonic relationship, which he reports is "very positive and caring". Jason V. lives in the same house as his parents, and, though he was not interviewed by the writer of the PSR, he is reported as apparently now having an amicable relationship with his mother.

[14] Reconciliation with Daughter

Interestingly, about a year ago Linda M. moved in with her mother, stepbrother and John V. Linda reported to the writer of the PSR that "her mother is becoming more of a mother and confidante to her". She and John V. concur that Ms Dzienis "has maintained her sobriety regarding drug use since being arrested on this charge. [Linda] says her mother thinks more clearly and is more patient than she has ever been. Therefore, she is becoming more of the mother she should have been many years ago".

[15] Criminal Record and Drug Addiction

From 1997-2007 Ms Dzienis was involved in an "on again, off again" relationship with Kenneth Dzienis, whom she married in 2005. She reports that it was he who introduced her to crack cocaine, which she concedes she has frequently used since that time. Not surprisingly, the offender began to come to the attention of local police departments in London, Woodstock, Kitchener and Guelph. Though she has no actual convictions for drug offences, defence counsel was entirely candid that her 17 previous adult convictions – for thefts, various types of mischief, being in possession of stolen property, failing to comply with various forms of court orders - are all related to her drug abuse. Her record starts in 2006, when she was 21 years of age. She has served several short periods of incarceration, the longest of which was 30 days. As her record grew, she found it more difficult to obtain bail, so she has served periods of approximately the same length in pre-sentence custody.

[16] Absence of Drug Convictions

(I pause in the narrative to point out that the absence of any drug convictions on Ms Dzienis' record is important for another reason, that being that the statutory presumption in favour of a custodial term indicated in s.10 (2) of the Controlled Drugs and Substances Act does not apply here).

[17] Response to Community Supervision

Many of the various sentences imposed have been accompanied by orders of probation. Apart from a one-year hiatus, she was on probation continuously from May 4, 2006 until March 17, 2011. She is thus well known to the Woodstock and Kitchener probation authorities. The writer of the PSR, who knows her well, summarized her response to community supervision as follows:

"Probation and Parole Services records state her reporting habits were sporadic until her last period of probation. She reported well on the most recent Order. Her lifestyle was described as transient over the span of all the Orders she served. She lived with numerous boyfriends over the past six years, with friends or with others she would meet and briefly stayed with.

Probation officers assigned to her case over the first five Probation Orders referred her to numerous community resources from counselling for her emotional health and addictions issues. She either did not attend, or reoffend and spend time in jail so that she could not attend or attended for up to a couple of sessions with a counsellor and then cease to continue to attend.

The subject completed two conditions of community service during the first five Orders despite the fact that she continued to struggle with her addictions to crack and oxycontins. She readily admitted that despite her effort to cease her use of these drugs, she continually relapsed. She associated with people who had criminal records and were engaged in criminal activity including drug use. She even reoffended with her ex-husband, Ken Dzienis."

[18] Recent Positive Changes and Medical Support

Despite this gloomy picture, the writer of the PSR noted some positive changes in addition to Ms Dzienis' reconciliation with her adult children. During her last period of probation Ms Dzienis was either referred to or voluntarily started seeing her physician Dr. P. Kugler, in whom she apparently has confidence. After being released on bail on the current offence, she continued to see Dr. Kugler. At his suggestion she consented over a three month period to undergo drug screening. Dr. Kugler writes that "I have 6 urines on record all negative for cocaine". Dr. Kugler then referred her to a local psychiatrist, a step approved of by Probation because Ms. Dzienis reports that "her failure to follow through with [group] counselling and treatment seems to be related to her fear of actually facing her traumatic past". The writer of the PSR fairly concludes: "[d]espite her history, there are signs that she is making an effort to maintain positive changes in her lifestyle".

[19] Continued Compliance and Counselling Engagement

At the conclusion of oral argument, I reserved judgment so that I could provide written reasons given the thoroughness of counsel's submissions. This also afforded an opportunity to see whether Ms Dzienis' efforts at rehabilitation would continue. I therefore requested that a supplementary PSR be prepared, directed to two issues:

(a) a further report on her progress up to the sentencing date;

(b) in the event I determined that a conditional sentence should be imposed, whether the "house arrest" component usually attached to an order could be enforced by way of electronic monitoring.

I have now received two reports from Probation authorities. The first, entitled "Addendum to Pre-Sentence Report" confirms that Ms Dzienis continues to obey the "house arrest" conditions of her bail, including that she not leave her residence unless accompanied by her surety Mr. V. He in turn reports that because he has been working 10-hour days six days per week, he has been unable to accompany her to meetings and appointments. She has however recently been able to connect with a counselling agency in Kitchener, and has had an initial intake meeting with a counsellor. She told the writer of the PSR that she intends to work with this counsellor on "grief issues, her victimization of abuse and mental health issues".

[20] Electronic Supervision Capability

The second report from Probation, entitled "Electronic Supervision Technological Report", confirms that her residence can accommodate ESP technology if required.

[21] Employment and Work History

Before discussing some of the case law referred to by counsel, I wish to comment on two aspects of Ms Dzienis' current living situation that appear to relate to her rehabilitative efforts and prospects. The first is that through a combination of support from Ontario Works and casual employment she is able to work from home putting together spring mechanisms for Hydro boxes. Her current employer, for whom she has worked for over a year, provided a letter indicating that she "is a very conscientious worker and takes pride in doing her job, which is always done well and on time. I would have no hesitation in recommending Michelle as I have found her to be a very satisfactory employee". While the writer of the letter may not have known that it would be used for court purposes, the writer of the PSR was shown a pay stub from that employer, so it does appear that Ms Dzienis is working legitimately.

[22] Home-Based Work and Rehabilitative Prospects

The PSR notes that Ms Dzienis was supported by Ontario Works while doing home-based part-time work of the same nature from 2007 on, during some of which time she was obviously fuelling her addiction and supplementing her income through drug trafficking. It could thus be objected – though Crown counsel did not place much reliance on this – that her living arrangement did not deter or discourage her from continuing to engage in illegal activities. However, when Ms Dzienis exercised her right to address the court under s.726 of the Code I asked her if she felt she could live up to the terms of a "house arrest" conditional sentence of considerable duration. In simple language that I felt had a ring of truth to it, she told me that she is now entirely content to work from home both because she is able to interact with her children, but also because being at home makes it easier for her to avoid individuals and environments that could lead her back into physical and psychological addiction. Furthermore – and this is the second point I draw about her rehabilitative prospects drawn from her current living arrangement - Mr. V. told the court (through counsel) that even when his commitments as a surety are concluded he "wouldn't have the slightest hesitation" in demanding that she leave the house immediately if he (or her children) considered that she was "even beginning to deteriorate". I inferred from what counsel told me that Ms Dzienis' daughter (and likely her son) share the same sentiments.

Case Law Cited by Counsel

[23] Defence Counsel's Case Citations

Defence counsel cited some 27 cases, 21 of which were decided by Ontario courts, in which conditional sentences have been imposed for trafficking various drugs where there has been evidence of extensive efforts towards rehabilitation by the time sentence was being considered. While Crown counsel accepted that there is (both pre- and post- Proulx) a considerable body of precedent in favour of the position being advanced by defence counsel, he pointed out that the accused in many of those cases were either first offenders, or had either minor or very dated criminal records. He argued that Ms Dzienis' very recent and quite extensive history of criminal behaviour disentitles her to making a claim for mitigation of sentence to the extent of reducing the penalty below one of actual incarceration. His submission was that such mitigation as she can claim derives from the positive factors outlined in paragraph 9 supra, namely her relatively early guilty plea, her express agreement to implicate "Dukes" through testimony, and her efforts towards her rehabilitation since arrest.

[24] R. v. Holt and the "Addict Trafficker" Framework

Crown counsel based a considerable portion of his argument on the 1983 decision of the Ontario Court of Appeal in R. v. Holt, which he submitted still governs the approach a trial judge should take to the sentencing of an "addict trafficker". In that case the offender was a long-time heroin addict who sold an undercover officer two ounces of that drug, which, if "cut" to the street level quality available in Toronto at that time would have an (approximate) street value of $72,000.00. The disposition of the case had been delayed for some 2 ½ years to give the offender an opportunity to rid himself of his drug dependency, which had been achieved by the time he ultimately pleaded guilty. Obviously impressed by the offender's progress, and influenced by Ontario and other case law, the trial judge considered the case to be "exceptional" and imposed a suspended sentence and three years probation. On appeal by the Crown the Court of Appeal held that the trial judge had erred. Weatherston J.A. wrote for the Court:

"I do not deduce from those cases that any principle has been established that a convicted drug trafficker should ordinarily be released from custody and his sentence suspended if he persuades the Court that he has rid himself of his own dependency on drugs and is apparently rehabilitated. These are not exceptional circumstances. I do not preclude the possibility that a suspended sentence might be proper if there are the additional factors that the trafficking has been casual and has been done solely for the purpose of and limited in quantities sufficient only to support the accused's own dependency.

In the present case, the evidence merely discloses that the respondent was addicted to heroin and that he trafficked in heroin. There is no evidence showing or even indicating a causal connection between the respondent's addiction to heroin and his trafficking in it. There is no evidence that the addiction was a contributing cause, let alone the sole cause or even a substantial cause of his involvement in this business. Nor is there any evidence that his trafficking was limited to trafficking for the purpose of satisfying his own addiction.

…[T]he respondent was, commendably, able apparently to rid himself of his addiction to heroin. It was right for the trial judge to take that into consideration, but it did not lessen the seriousness of the offences. Nothing about the circumstances of the offences, or the subsequent conduct of the respondent constituted "exceptional circumstances" so as to justify suspended sentences." (paras. 7-8; 11)

While Crown counsel was prepared to concede that the evidence in the case at bar is somewhat more favourable to Ms Dzienis, in the sense that he generally accepted that her addiction was the main factor motivating her drug trafficking, he nevertheless argued that Holt continues to be the law in Ontario to the extent that the only relief granted by the Court of Appeal in that case was to reduce what the court considered would be an otherwise merited penitentiary term down to a reformatory term of two years less a day. By analogy, he argues that Ms Dzienis' entitlement to a reduction of sentence to mark her rehabilitative efforts to date should result in a reduction of a custodial sentence from around the two-year mark to one of 15 months.

[25] R. v. Preston and the Modern Approach

I agree with Crown counsel that there does not appear to be any appellate decision in Ontario that directly modifies or challenges the holding in Holt. To that extent I agree with him that Holt has not been overruled or otherwise found to be inappropriate to apply in cases involving addict traffickers whose criminal activities are more than "casual and…done solely for the purpose of and limited in quantities sufficient only to support the accused's own dependency". However, through the good offices of one of my judicial colleagues, I have been made aware of a very brief judgment of the Ontario Court of Appeal in R. v. Greene (May 27, 2002, Ct. File #C37307 per Rosenberg, Cronk & Armstrong JJA.), which expressly adopts the thrust of the important decision of the British Columbia Court of Appeal in R. v. Preston (1990) 79 C.R. (3d) 61 revising that Court's approach to sentencing "addict traffickers".

[26] Ms Preston's Background and Criminal Record

Ms Preston was a long-time heroin addict, 41 years of age by the time the appeal was heard. Before the charges under consideration by the appeal court, she had "amassed a total record of 23 convictions, including eight for narcotics offences, four of which were for trafficking in heroin, five soliciting or other prostitution related convictions, and an assortment of escape, unlawfully at large, failing to appear and breach of probation convictions. Apart from concurrent sentences of two years less one day on three counts of trafficking in heroin, imposed in 1976, her longest sentences have been 18 months on a charge of confinement, also in 1976, and 18 months for another heroin trafficking conviction in 1985. All other sentences imposed on her have been for 90 days or less".

[27] Ms Preston's Sentencing and Appeal

Not surprisingly, Ms Preston again found herself before the court servicing the Vancouver Downtown East Side about to be sentenced for three charges of possession of not insignificant quantities of heroin, arising from three separate incidents. Counsel for the Crown, stressing the importance of deterrence and the protection of the public, submitted that in light of the nature of the offences and her previous criminal record Ms Preston should be sentenced to imprisonment. Defence counsel pointed to several steps Ms Preston had been taking to rid herself of her addiction. Considering the offender's efforts to be "genuine", the sentencing judge considered that there was a reasonable chance of rehabilitation, and declined to incarcerate Ms Preston. Sentence was suspended and she was placed on probation for a period of two years with an order for drug counselling as directed by her probation officer.

[28] British Columbia Court of Appeal's Decision in Preston

The Crown appealed to the British Columbia Court of Appeal. In a somewhat unusual step the court of its own motion decided to convene a panel of five judges in order that it might "take this opportunity to reconsider, free from the constraints that may be seen to be imposed by any of its previous decisions". In result the court concluded that the trial judge had not erred "when he considered the rehabilitation of the respondent to be of greater importance than any deterrent value that a sentence of incarceration might have". The Court went on:

"Underlying much of the argument of counsel for the Crown was the suggestion that that to approve the disposition of the trial judge in this case would be to "decriminalize" heroin. Nothing could be further from the truth. A court would only be justified in giving more weight to the possibility of rehabilitation, rather than deterrence, where there is a reasonable basis for believing that the motivation for such change is genuine and there is a reasonable possibility that it will succeed. There will undoubtedly be many cases in which no such prospect exists, and in such cases it would be an error in principle to allow the factor of deterrence to be overshadowed by the illusion of rehabilitation." (at 72; emphasis added)

[29] R. v. Greene - Offender's Background

In Greene the Ontario Court of Appeal was asked to consider the appropriateness of a sentence of two years less a day for a charge of break and enter, where the offender broke into a residence and stole a computer to fuel his cocaine addiction. He had:

"…an appalling criminal record including over one hundred convictions for break and enter. The appellant is of aboriginal descent. He had a very difficult childhood marked by abuse within the family. He was also sexually abused at a training school. He developed a substance abuse problem in his teenage years and he has been unable to break out of the addiction, except for a few short periods. He has attempted some drug rehabilitation programmes. Not surprisingly, given the length and seriousness of his abuse problems he has not succeeded to date. His drug addiction is the root of his problems with the law. The appellant has had some success in writing endeavours and is hopeful of attending McMaster University." (para. 3)

[30] Ontario Court of Appeal's Application of Preston

In reducing the sentence to one year custody, the Court of Appeal quoted with approval the appellate decision in Preston:

"Indeed, to expect a perfect result would be unrealistic, for it seems unlikely that a pattern of conduct and a lifestyle that has persisted for over 20 years can be changed overnight. There are bound to be relapses on the long road to recovery from any substance addiction." (at 74)

The Court continued:

"The courts must not be overly critical of an offender in the position of this appellant. What is important is that he has made and continues to make efforts at curbing his addiction. A recent report from the John Howard Society of Canada suggests there is some reason for optimism." (para. 6; emphasis added)

[31] Principles for Sentencing Addict Traffickers

I infer from this decision that the Ontario Court of Appeal has now said that an addict trafficker need not be incarcerated where:

(a) there is evidence that they are making "genuine" efforts to deal with their substance addiction; and

(b) there is evidence that there is a "reasonable possibility" that those efforts will be successful.

[32] R. v. Tahal and Crack Cocaine Trafficking

Crown counsel relied on R. v. Tahal as support for the proposition that, absent highly exceptional circumstances, a significant custodial term should normally be imposed for trafficking in crack cocaine. In that case a 15 month sentence was imposed at trial for (a) selling .16 grams of crack to an undercover officer, and (b) being found in possession of another 1.12 grams of crack for the purpose of trafficking. The Court of Appeal said that such a sentence would have been appropriate, but varied the sentence to a conditional sentence of 14 months. The court wrote:

"Manifestly, the principle of general deterrence must take precedence over the other recognized principles of sentencing in cases of this nature. However, in all of the circumstances, that principle is adequately met by the imposition of a conditional sentence." (para. 22)

The Court listed the seemingly inordinate amount of time the case had taken to be heard by the appeal court (6 years) as one of the factors that led it to conclude that a conditional sentence was now appropriate. While the Court did not expressly characterize the offender as an addict trafficker, it said:

"[The offender] has faithfully abided by the terms and conditions of his release orders and he has not reoffended. This is cogent evidence of his rehabilitation and it leads us to believe that the appellant does not pose a continuing danger to the community." (para. 21; emphasis added)

[33] R. v. Lazo and Rehabilitation Efforts

After submissions were made in this case, the Court of Appeal released its oral judgment in R. v. Lazo, a case involving an addict trafficker who sold $40 worth of crack cocaine to an undercover officer. While it is clear that the Court of Appeal's main reason for allowing the appeal was that the sentencing judge had wrongly rejected a joint submission for a conditional sentence for a first offender, I find it noteworthy that Gillese J.A. went on to say for the court:

"Moreover, although the sentencing judge acknowledged the appellant's participation in [an addiction treatment program], in my view it was an error on his part to fail to consider that the appellant met the program's expectations and successfully completed it. In so doing, the appellant demonstrated a genuine effort and progress toward his rehabilitation. The public interest is served by diverting individuals in the appellant's situation into drug treatment programs that address the addictions which fuel their criminal activity." (paras. 7 & 8; emphasis added)

[34] Application of Holt to the Present Case

Holt was a case about the appropriateness of a suspended sentence for trafficking in heroin. The Court of Appeal decided such a sentence should be imposed extremely rarely. Given the fact that the conditional sentence regime did not exist at the time Holt was decided, and given that a suspended sentence is not be proposed by defence counsel in the case at bar, I do not see how Holt applies here. In light of Greene and Lazo I do not think that Crown counsel's submission to the effect that Holt continues to reflect the Court of Appeal's view of how addict traffickers should be dealt with is the law today, at least, as here, where the level of trafficking is not sophisticated or particularly high.

[35] Risk Assessment and Community Safety

Crown counsel's further argument was that Ms Dzienis continued involvement in criminal activity over the past several years militates against a conditional sentence, in that I cannot be "satisfied that the service of the sentence in the community would not endanger the safety of the community" (s. 742.1). I agree that Ms Dzienis presents some risk to reoffend. (Interestingly, so too does Ms Dzienis). But as I read the general case law on conditional sentences, combined with the case law on addict traffickers I have just referred to, I consider that the risk she presents is manageable given her demonstrated motivation and her ongoing co-operation with medical and probation authorities. In this regard there is one other brief quote from Lazo that I have found to be of assistance. Gillese J.A. noted:

"[The offender's] steps towards rehabilitation will be encouraged by a conditional sentence given the likelihood of incarceration in the event of a breach." (para. 7)

[36] Conditional Sentences and Sentencing Principles

In sum, given that the Court of Appeal has now said on several occasions that conditional sentences can serve to address deterrence and denunciation in cases of drug trafficking, I am of the view that an appropriately designed conditional sentence can adequately balance deterrence and denunciation, while at the same time acknowledging the progress the offender has made to date and putting in place support and enforcement mechanisms that will hopefully assist in her continuing rehabilitation.

[37] Community Service as "Secular Penance"

I wish to return briefly to R. v. Tahal. As one of the optional conditions of the conditional sentence imposed by the Court of Appeal, the offender was ordered to perform 100 hours of community service (para. 23). Though the report of the case contains no apparent rationale for the imposition of this condition, it seems to me that this is consistent with numerous other trial and appellate decisions where community service is seen to be an opportunity for the offender to pay (or repay) her obligations to the community. In the drug context, defence counsel's casebook cites the decision of Glithero J. in R. v. Tran, where, in sentencing "a busy low-level [non crack-using] street trafficker" 100 hours of community service was imposed in the hope of creating a "disincentive for those similarly inclined". Defence counsel also cites R. v. Richards, where, without articulating any rationale for so doing Spies J. imposed an order for the performance of 250 hours of community service as part of a conditional sentence. His casebook also cites R. v. Martin, where, similarly without articulating a rationale, Ratushny J. imposed 240 hours of community service as part of a conditional sentence order. My rationale for imposing community service hours is as a form of "secular penance", to quote the sentencing scholar Prof. Duff.

Disposition

[38] Conditional Sentence Order

The offender is sentenced to a conditional sentence of 18 months, the first 6 months of which are to be served subject to the electronic monitoring program.

[39] House Arrest Conditions - First 12 Months

For the first 12 months of this conditional sentence order, the offender is to remain confined at her own residence (house arrest) except for the purposes of school attendance, employment, medical appointments, religious services, and legal obligations regarding compliance with this conditional sentence order. The offender shall provide the supervisor with proof of her schedule of school/work hours, medical appointments and religious services. The supervisor will incorporate these into a written letter of permission to be out of the residence and that letter shall be carried by the offender on her person at all times while out of the residence. The offender may obtain from the supervisor written permission to be absent from her residence for any other reason deemed appropriate by the supervisor. Such written permission shall be carried by the offender on her person at all times while out of the residence.

[40] Optional Conditions of Conditional Sentence

In addition to the compulsory conditions contained in any conditional sentence order imposed in this province, the following optional conditions are imposed:

1. Abstain from the purchase or consumption of drugs except in accordance with a medical prescription;

2. Participate in such rehabilitative counselling as may be directed by your conditional sentence supervisor;

3. Sign such releases as may be necessary to authorize your conditional sentence supervisor to communicate with your treating therapist(s);

4. Not to associate with any person known to you to have a criminal record (family members excluded);

5. During the last six months of the conditional sentence, obey a curfew: be in your place of residence between the hours of 2200 and 0600 unless permission in writing is obtained from the conditional sentence supervisor;

6. During the last six months of the conditional sentence, perform 60 hours of community service, at a rate of no less than 10 hours per month, all community service to be completed no later than 15 days prior to the expiry of the conditional sentence.

[41] Electronic Supervision Program Conditions

For the purpose of enrolment in the electronic monitoring program she shall report today to the Conditional Sentence Liaison office located at the Adult Probation office in this courthouse, and thereafter as directed. The conditions of the 6-month Electronic Supervision Program (ESP) will be attached to the Conditional Sentence Order as Appendix A. In addition to the compulsory conditions contained in any order of electronic monitoring, the following optional conditions are imposed:

1. The offender will answer the phone at any time during house arrest;

2. The offender will present herself to Ministry of Community Safety and Correctional Services staff, police services and/or persons who are authorized by Minister of Community Safety and Correctional Services staff associated with the Electronic Supervision Program at the door of your residence at any time during the period of house arrest for the purpose of confirming her presence and compliance.

[42] Probation Order

Upon the expiry of the conditional sentence, the offender is placed on probation for a period of two years. In addition to the compulsory conditions common to all probation orders, the following further optional conditions are imposed:

1. Abstain from the purchase or consumption of drugs except in accordance with a medical prescription;

2. Participate in such rehabilitative counselling as may be directed by your probation officer;

3. Sign such releases as may be necessary to authorize your probation officer to communicate with your treating therapist(s);

4. Not to associate with any person known to you to have a criminal record (family members excluded);

5. Report as directed to your probation officer;

6. Reside at premises known to and approved of by your probation officer;

7. Perform 180 hours of community service, at a rate of no less than 10 hours per month, all community service to be completed no later than 17 ½ months from the commencement of the period of probation.

[43] Transfer of Orders

It is directed that this conditional sentence order and probation order shall be transferred to Kitchener, Ontario.

Released: July 9, 2012

Signed: Justice D.P. Cole