Court File and Parties

Court File No.: 14-5050 Date: May 14, 2015 Location: London, Ontario Ontario Court of Justice

Between: Her Majesty the Queen

-and-

Eric Bilodeau

Counsel:

• D. Moffat for Federal Crown
• J. Skinner for Eric Bilodeau

Before: Justice Jonathon C. George

Reasons for Sentence

I. Introduction and Sentencing Principles

[1] Far be it from me to question the wisdom of Parliament, and of higher courts. The law is clear, as is the direction from appeal courts, that when sentencing an individual for certain offences, general deterrence and denunciation are to be paramount considerations.

[2] Denunciation I get. There is, in some instances, considerable value in sending a strong message through sentencing. Not as a vessel for community retribution, or as a pronouncement of a (naive) belief that a sentence imposed for a particular offender, will necessarily have far reaching impact beyond that person. But as the symbolic gesture of a judge, as someone who has the public trust and who should, when imposing sentence, attempt to reflect society's values. In other words, the act of publicly condemning certain behaviour is a recognized judicial function. It is our way of at least being seen to discourage bad conduct.

[3] General deterrence is another matter. Its definition is easy enough to understand – the sentencing objective which promotes the reduction of crime by the threat or example of punishment to the larger population. This sounds pretty good, right?

[4] Well, the problem is always in its application. How does one implement that? Is a sentencing judge to, in a vacuum, having regard only to the facts and antecedents of an offender, come to a conclusion on a fit and proper sentence; and to then 'bump it up a little' to reflect this objective? Or, if there is a legitimate contest between jail and a non-custodial sentence, is a judge to then lean in favour of incarceration as a way to achieve general deterrence. It is a mystery to me, especially so given I am aware of no scholarly thought or specific study which validates general deterrence as an effective sentencing objective, at least for most types of crime.

[5] Specific deterrence surely has some value. This is just common sense. General deterrence, on the other hand, is a complete unknown. Those who support the notion, argue that common sense justifies it also, assigning deficiencies to the difficulty in gauging it, as only those who are not deterred come to the attention of the authorities. That is a fair point. Opponents focus on what they describe as the ridiculous idea that a criminal, before breaking the law, carefully calculates and weighs the consequences against the potential benefits. It is indisputable that general deterrence has no value or bearing on the mentally disordered or drug addicted, or for those who commit what we refer to as crimes of passion.

[6] In Mr. Bilodeau's case, it is arguable this is one of those rare instances where it can be fairly said general deterrence has meaning and impact. Why? Because drug trafficking activity, where it isn't undertaken to support a personal drug habit, is by its very nature an economic enterprise which would have necessarily involved, in different ways and to varying degrees, a calculation of the risks and potential gains. It's still debatable, but more plausible here. Potentially, this argument also holds true for some high level, sophisticated frauds and maybe for impaired driving.

[7] As for Mr. Bilodeau, he has battled addictions; and while that initially introduced him to the drug sub-culture, the facts here, which I will review in a moment, clearly supports the idea his conduct was in furtherance of a commercial enterprise.

[8] Mr. Bilodeau has acknowledged, and I have found him guilty of possessing both hydromorphone and oxycodone for the purpose of trafficking, and to simple possession of ecstasy.

[9] The respective positions being taken are divergent. The defence seeks a twelve month jail sentence; the Crown a two year penitentiary sentence. Both believe a probation order would be of some assistance, and I agree. Regardless of whether I accept the Crown's position, the defence position, or find something in between preferable, probation is available and appropriate. I will make a two year probation order. In addition to the statutory terms, Mr. Bilodeau will report, first within two working days of his release and thereafter as required. He will take counselling if directed. He will not possess drugs except in accordance with a medical prescription. DNA is ordered, as is a lifetime prohibition under section 109.

[10] To the main question; how much jail? A conditional sentence is not available. It is statutorily barred. No one asserts that a fine; suspended sentence; or a combination of a fine and probation is appropriate.

[11] In answering the ultimate question of 'how much jail?' I must be mindful of and consider Mr. Bilodeau's aboriginal ancestry. He is a First Nations person, and the principles set out in R. v. Gladue, and R. v. Ipeelee apply. To what extent, is part of the ultimate question respecting quantum.

[12] Before engaging in that analysis, I will review the facts. I will also review the law respecting the sentencing of offenders who possess hydromorphone for the purpose trafficking.

II. Facts

[13] In December, 2013 the London Police Service began an investigation into Eric Bilodeau. It was suspected he was trafficking in hydromorphone. Surveillance was conducted during which suspected hand to hand drug transactions were observed. At some point a search warrant was applied for, issued and executed. A search of Mr. Bilodeau's person and of his apartment unit yielded the following:

• 47 (40 mg) oxycodone pills
• 42 generic (40 mg) oxycodone pills
• 135 (3 mg) hydromorphone pills
• 30 (6 mg) hydromorphone pills
• 3 (12 mg) hydromorphone pills
• 6 (24 mg) hydromorphone pills
• 177 (18 mg) hydromorphone pills
• 58 (30 mg) hydromorphone pills
• $4,265 cash
• 2 ecstasy capsules

[14] I was told the estimated street value of the seized drugs is $11,325.

[15] The accused' cell phone was seized and analyzed. A large brief, containing hard copy printouts of several text message exchanges, was filed. Here is a sampling of the messages:

To EB - Eric can you please sell me a 12?

EB - No cuz yeah I'm on the bus.

EB - I just got on it and it only takes me to white oaks mall.

EB - I won't be home for like 40 mins probably.

To EB - cool can I meet you there then.

EB - yeah.

To EB - Hey I got $20 can I come by for a 12?

EB - yeah but I have to meet you at macs.

To EB - Thats fine. I'll text u when I'm on my way.

To EB - Can you bring a six and a 12 plz.

EB - yeah.

EB - Don't forget to ask about those tecs. lol. I'm stuck with them. I knew this would happen.

To EB - I've been asking everybody, still got two guys that might take em i gotta get ahold of.

EB - k there's 76. Try to get $3 each.

To EB - Eric can you plz text me back. I really need. I have $40. I'm near Whiteoaks. Ur only person who I know who might have right now. Plz it'll be quick and painless. Plz. Text me.

EB - Sorry I didn't really get up until about 215. I don't have any pills left right now either until tomorrow sometime.

To EB - Hey bro, have any luck finding rockets or greys?

EB - Not yet. Just tecs right now. lol. I never should have bought them.

To EB - I've been trying to push them but the few people I know do em have a bunch right now. But I'll keep trying.

EB - Yeah thats all I got. Hydros tomorrow. If I find morphine I'll let you know.

To EB - Yo I need a 30 instead an 18 and a 12.

EB - K. How much do you then?

To EB - 50.

EB - K. How long are you going to be?

EB - So you want a 30 or an 18 and a 12?

To EB - an 18 and a 12.

EB - You still planning on selling all of your 30's?

To EB - Need bomb kush?

EB - How much do you have?

To EB - infinite.

To EB - pounds.

EB - How much is a pound?

To EB - $1500-$2800

EB - Thats a pretty big range. lol. I'd want bomb kush. I've been thinking about starting to sell it again.

To EB - I can do multiple pounds

To EB - I'm grabbing like 10 for buddy tomorrow anyway so I gotta come by tomorrow. But I did my last morph this morning so it would save me being up sick all night if you can bother.

EB - Maybe. Probably spot you one right now and when I need a ride somewhere if you come back and drive me I'll spot you the second one.

To EB - Are two 18's cool? And another $10 on my tab?

EB - Yeah. I guess so. Your debt is already 10 30's.

To EB - I guess if you could find a cheap opiate and it kept people unstick it might be a decent plan, but you would need tens of thousands of dollars in equipment to be able to pass it off. LOL. He is like 50 and into all the conspiracy theories so I'm not too worried. Just wanted to tell you cause i thought it was kinda funny.

EB - Well fentanyl is NOT a cheap opiate. Codeine is. Fentanyl is the strongest opiate onto there its not very common and its expensive as fuck.

To EB - U got pills?

EB - Yeah.

To EB - Yo man my boy needs a pill. he's gonna call you from the macs pay phone when he's there.

EB - k

To EB - He needs an 18.

To EB - Hi its matt from mikey mikes can I meet up for a 24.

EB - k

To EB - He wants 2 12's now. He'll be there in 25 mins.

To EB - I'm just around the corner. Gotta be quick but I need to grab a couple too.

EB - K right now? At Macs?

To EB - k

EB - k

[16] Tec's mean Percocet, and bomb kush is a reference to marijuana. There are several more exchanges. I can't reproduce them all. What these do is to clearly show Mr. Bilodeau was involved in a fairly sophisticated operation, where the sole focus was not just to sell hydromorphone, but percocets as well, and that he was, at least at the point of these interactions, in the process of resurrecting a past marijuana operation.

[17] The substances in question are very serious. The nature and extent of the operation is aggravating. This was a commercial enterprise and not just a haphazard attempt to, for example, support an underlying addiction. That may have been a small part of it, but it was so much more.

III. Legal Framework: Hydromorphone and Heroin Trafficking

[18] Counsel's submissions were quite lengthy. Several authorities were filed and relied upon.

[19] In my mind, too much time was spent on where on the spectrum hydromorphone sits, and how it should be treated relative to other substances. This is an easy, straightforward question which requires little debate. Hydromorphone is a hard drug. It is a semi-synthetic opioid. It is more powerful than morphine, and is a synthetic heroin substitute. It is heroin's equivalent and should be treated identically. Heroin is one of the, if not the most insidious of controlled substances. It is extremely potent and highly addictive. Its onset of action is quick. It destroys lives, families, and pockets within our communities, and many of those associated with its sale and distribution are dangerous. Nothing more need be said about the nature of the substance or its impact. I understand the distinctions involved, this being no more apparent than in the 2009 Ontario Court of Appeal decision in Sidhu, where, at paragraphs 11 - 13 the majority writes:

11. The trial judge in the instant case questioned that proposition but was prepared, in the end, to assume "that heroin is a marginally more dangerous drug than cocaine", thereby warranting "a marginal increase" in the range of sentences identified for cocaine importation.

12. The trial judge's characterization of heroine as "marginally" more dangerous than cocaine finds no support in the record, nor in the existing case law. Time and again, this court and the Supreme Court of Canada have made it clear that heroin is the most pernicious of the hard drugs --- it is the most addictive, the most destructive and the most dangerous. Heroin trafficking has been described as a "despicable" crime and one that "tears at the very fabric of our society"

13. The trial judge's treatment of heroin as only "marginally" more dangerous than cocaine led him into error in assessing the appropriate range of sentence for first offender couriers who import large amounts of high grade heroin for personal gain.

[20] I will be sure to make no such error.

[21] What other guidance is provided by our Court of Appeal? The Crown relies upon several decisions, the only cautionary note being none address the sentencing of aboriginal offenders, which is a significant and far reaching sentencing consideration, and is something I will address in due course. Setting that aside for the moment, I have taken the time to review the court's comments in all of the DiGiovanni, Farizeh, and Bahari decisions.

[22] DiGiovanni, a 1973 Court of Appeal decision, stands for the proposition that trafficking in heroin is to be regarded as the most serious of all trafficking offences. It contains a specific direction to sentencing judges to impose sentences that are reflective of this. Several cases have since said the same thing; others have provided some elaboration; but this continues to be good law.

[23] In Farizeh, the Court of Appeal, in varying a trial judge's initial disposition, ultimately concluded that a four year penitentiary sentence was in order for a first time, drug addicted offender who trafficked in small amounts of heroin. This decision contains several relevant passages. At paragraph five the unanimous panel writes that:

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

[24] This too still represents good law.

[25] In Bahari, a companion case to Farizeh, the Court of Appeal once again confirms that penitentiary sentences are to be imposed for heroin trafficking offences, absent exceptional circumstances.

[26] Of course, a penitentiary sentence represents a broad range. Any sentence that is at least two years in length is served in a federal penitentiary. The point being, even when exceptional circumstances don't exist, where a sentence fits on this wide spectrum is a question of degree, dependent on not only the facts of the case (both mitigating and aggravating) but on all relevant factors. In determining a fit sentence, I must consider the fundamental purpose and all principles of sentencing.

[27] The defence referred me to R. v. Barham, a 2014 decision of the Ontario Court of Appeal. In that matter, the accused received a global fifteen month sentence for a collection of offences, including possessing hydromorphone for the purpose of trafficking. The particular endorsement for this trafficking offence was 12 months jail. The context is important in order to understand this decision. It was an accused appeal against sentence. There was no Crown cross-appeal. The court wasn't being asked by the Crown to vary the sentence upwards, which is important to note as, in refusing to interfere with the sentencing judge's decision, the three court panel makes specific reference to hydromorphone's nature (as a heroin substitute), highlighting that court's previous, and consistent indications that heroin trafficking, even in small amounts, will attract penitentiary terms.

[28] The defence also relies upon the Court of Appeal decision in R. v. Turner. The context there, however, is identical to Barham. This was a defence appeal against sentence only. The court was not asked by the Crown to vary sentence, and in refusing to interfere with the original disposition, it notes once again the serious nature of the drug. What further sets this case apart are the facts. This is captured in paragraphs two and three of the court's endorsement:

2. Hydromorphone is a synthetic heroin substitute. As such, it is as serious a drug as is heroin. The conviction was for sale of 38 eight-milligram tablets with a street value of $1500.00. This amount is well above the level of a street purchase. Although the appellant's role was non-primary, the trial judge found that the deal would not have taken place without the appellant's involvement.

3. Trafficking in heroin, even small amounts, will attract penitentiary time. Cases involving hydromorphone have received similar treatment and demonstrate that the sentence imposed falls within the appropriate range.

[29] The quantity of substance possessed by Mr. Bilodeau far exceeds that which we find in Turner. Furthermore, it can hardly be said Mr. Bilodeau is but a secondary actor in his trafficking activities. This is evident upon a review of the text message exchanges. This case is distinguishable on the facts, and in no way alters the approach sentencing judges are to take with heroin trafficking.

[30] The discussion must now turn to the following questions. First, do exceptional circumstances exist warranting a movement downward and out of the penitentiary range. Second, having concluded a custodial sentence is warranted, to what extent does Gladue operate to modify length? These are somewhat related, as both require a detailed consideration of Mr. Bilodeau's background and personal circumstances.

IV. Background and Personal Circumstances

[31] This is his background. He is 25 years old. He has a criminal record, which is largely unrelated (in that there are no prior drug convictions) but relevant nonetheless. He is not a first time offender. He has twice been convicted of assault; once for a criminal driving offence; and in three instances he has been convicted of breaching court orders.

[32] Mr. Bilodeau is an aboriginal person. He is First Nation, Oneida specifically, and a member of the Six Nations of the Grand River. The pre-sentence reports detail a level of displacement in that Mr. Bilodeau's mother was taken into care at a young age and removed from the reserve, ultimately being adopted by a non-Native family, separated from her siblings. His maternal (biological) grandparents, both of whom he has never met, were, according to the report, alcoholics. His mother has struggled with alcoholism as well. His grandmother is a residential school survivor. His father left the family when he was very young, and although he lived with him for a time, there have been periods of estrangement.

[33] The accused has had little connection to his aboriginal heritage and virtually none with his community, as his familial relationships have been with his mother's adoptive family. He has not lived a life of privilege by any means, but he was raised by his mother, with his siblings; far different from his mother's experience. He is a high school graduate and has had access to higher education. In 2005 he attended Indiana University-Purdue University (IUPUI) in Indianapolis where he took a program called Academic Nurturing, which enabled him to simultaneously complete high school and obtain some post-secondary credits. In 2006 he commenced a post-secondary program in economics, math and French at IUPUI. In 2008 he was awarded the Liberal Arts Dean's Scholarship for his academic success.

[34] In 2009 the accused moved to London where he began his studies at Western University. This coincides with the commencement of his criminal activity, his first conviction being registered in September, 2009. It looks as if, starting then, his life spiralled out of control. The accused describes this period as one of "upheaval and chaos". He and his mother were both addressing personal difficulties, which seems to have led to significant instability in several aspects of his life. His studies halted; he was unable to find work; and he began using opiates, which was his way of dealing with his feelings of depression.

[35] He attempted periods of sobriety, which inevitably led to relapses. He actually spent some time living on the street and in shelters. The following passage from the report captures what has occurred since then:

The offender enrolled in the methadone maintenance program in October 2011. The offender acknowledged that it took him a long time to get clean as he was "spinning his wheels" as he found it difficult to get motivated about anything that was long-term as he "wanted instant gratification" for his efforts. After incurring the charges before the Court, the offender reported that he began to take action; he applied for ODSP, he ceased smoking, he stopped using any illicit drugs, reduced his methadone intake and started saving money to go back to school. The offender reports that he has been clean since incurring the charges in January 2014. The offender's mother confirmed that she brings the offender to his weekly doctor appointments that he receives 'carries' for the week and that she is aware of the fact that he has been reducing his methadone dose in the past year.

On December 22, 2014 Steven Russell, Professor and Chair of Economics at IUPUI sent a letter to Western University recommending the offender be admitted to their program. In the letter, Mr. Russell referred to the offender as a "superlative student" who was "one of the strongest undergraduate students we have had during my 20+ years at IUPUI". On February 18, 2015, the offender was offered admission on a full-time basis to the Science program at Western University. He was granted transfer credits from his prior post-secondary education and he will commence in the third year in September, 2015.

[36] I am told his interests lie in completing his education and ultimately working for the betterment of First Nations people.

[37] Probation services view Mr. Bilodeau as someone who has made positive changes in his life. My impression of Mr. Bilodeau is that he is capable, and that he has potential. Some consulted by the report's author go so far as to describe him as being "exceptionally bright". These impressions make it clear there is a direct link between his substance abuse and involvement in the criminal justice system. He has now surpassed a year of sobriety and has been able to maintain a suitable residence while strengthening his family relationships. And this is precisely what makes this matter so difficult and disheartening.

V. Gladue Principles and Aboriginal Sentencing

[38] What is the impact of Gladue? The Supreme Court of Canada has provided direction to judges in how to sentence aboriginal people. To impose a period of custody, a different path must be taken. Two important points before elaborating further. First, this should never amount to a race based remission. One does not receive a break on sentence by virtue of their racial make-up. Second, it is a direction to focus on the proportionality principle. That is, a sentence must always be proportionate to both the gravity of the offence and the degree of responsibility of the offender. The idea is that when you consider the history of colonialism, residential schools, racism, ill-fated legislative efforts towards aboriginal people and so on, together with the helplessness, hopelessness, and despair present in many First Nation communities, it may be that a First Nation offender is, in a sense, less culpable. In other words, how can we possibly determine an offender's level of moral blameworthiness without first understanding the history of not just the person, but of their home community. Through no fault of their own, many First Nation people, and many First Nation communities, are broken, and Gladue recognizes that fact. Not to mention the laudable goal of sentencing judges playing their part in reducing the number of aboriginal people in Canadian prisons, when it is reasonable to do so.

[39] With all due respect to higher courts and to Parliament, I have found there to be competing directions when it comes to Gladue. On one hand I am being told to consider all alternatives to custody that are reasonable in the circumstances, paying particular attention to the circumstances of aboriginal people, while on the other we are seeing the proliferation of mandatory minimum penalties and a decrease in the number of offences for which conditional sentences are available. This is relevant here because Mr. Bilodeau would have been a suitable candidate for a conditional sentence, were it available. He does not, at this moment, represent a danger to society. He is on the road to rehabilitation; he has prospects; and if he had committed a crime for which a conditional sentence is available, I would have given that serious consideration. This is a moot point, as I can't.

[40] Also, the case law references how the length of a custodial sentence, when one is unavoidable, must be carefully considered when sentencing an aboriginal offender. While another reasonable interpretation of certain aspects of Gladue is that the more serious the offence, the more likely a sentence will be the same as between an aboriginal and non-aboriginal offender. The tension is obvious.

[41] The question I must answer is, whether exceptional circumstances exist which would warrant a deviation from the starting point of a penitentiary sentence. Sadly, these circumstances do not exist. While his re-acceptance into school, and modest period of sobriety are both important sentencing considerations, they are clearly not exceptional as contemplated by the Court of Appeal.

[42] The analysis doesn't end there however, as Gladue, to the extent it applies, must be factored into any sentence, even when jail is inevitable. In other words, Gladue, insofar as it moderates a sentence, is not the same as exceptional circumstances.

[43] Beyond the tension in the well-articulated principles, there is inconsistency in the way sentencing judges are directed to factor this in. First and foremost, section 718.2(e) of the Criminal Code requires a sentencing judge to consider background and systemic factors in determining sentence, paying particular attention to aboriginal offenders. Beyond the systemic factors for which I can take judicial notice, this must be done in-step with a consideration of the aboriginal accused' individual circumstances, the threat they pose, and their chances of rehabilitation and reintegration. The latter is a consideration for every offender; the former being very particular to aboriginal people. The difficulty is there are Appeal court decisions which endorse non-custodial sentences for very serious offences, while others conclude Gladue was overemphasized; some even concluding Gladue doesn't apply at all, even in the face of a finding the offender is aboriginal.

[44] Furthermore, the Supreme Court, in discussing the background circumstances and antecedents one might typically find with an aboriginal offender, lists displacement and lack of identity, as things to be considered. However, Ontario's Court of Appeal has determined Gladue has little to no impact, in certain circumstances, even when the accused is aboriginal; R. v. JN. In JN, with a finding the offender was aboriginal, it was determined "his claim to the benefit of gladue is weak", and that "this is one of those cases where the crimes were so serious, and the aggravating factors so compelling, that the appellant's ancestry makes little or no difference to the appropriate length of sentence". That case involved a sexual assault in a breach of trust situation, and it is hard to take issue with the lengthy period of incarceration that was ultimately imposed (7 years). But it is a case which clearly stands for the proposition that there is a point at which Gladue becomes irrelevant, which is inconsistent, upon my reading at least, of Gladue and Ipeelee.

[45] To be honest, in trying to make sense of this my head spins. The way in which the law has evolved as it relates to aboriginal sentencing, makes it far too easy to just pay it lip service. This is a hard, but inescapable truth. To my mind, it must all mean something, and in a tangible way. It must make a discernible difference, or what is the point?

[46] Granted, it can be a question of degree. In other words, I recognize that Gladue can be overemphasized; but does it really mean it should be, in some cases, completely discounted and ignored. I ask that rhetorical question as someone who truly believes that a dangerous person must be separated from society, and for as long as possible, regardless of Gladue. But in this instance, we have an offender who is by all accounts on a road of rehabilitation, and who has good prospects (immediate ones). And I believe it can be fairly said that Mr. Bilodeau's aboriginal ancestry has played a part in and has contributed to his offending behaviour.

[47] To my point for the need to separate dangerous people from society, consider this. If one were to extract Eric Bilodeau from the drug subculture; give him something to hope for; and at the same time address his underlying issues, is he a danger to the public? Of course he isn't.

VI. Balancing Sentencing Principles

[48] This leads me to the task a sentencing judge must always undertake, which is to balance all of the, sometimes competing, sentencing principles. The Crown stresses and highlights the quantity of substance found in Mr. Bilodeau's possession; the text message exchanges which reveal a fairly sophisticated operation; and notes the fact he was found in possession of not just hydromorphone, but oxycodone, another very serious, hard drug. The defence focuses on Mr. Bilodeau's current circumstances, his underlying addiction and attempts to address it, and the residential school and displacement history in his family.

[49] I agree with the Crown's assertion that, on these facts, and for this offender, the appropriate range of sentence would typically be somewhere between two and three years in the penitentiary. This would reflect the longstanding general rule that trafficking heroin, even in small amounts, should attract a penitentiary sentence, and that in falling at the low end of that range it would recognize Mr. Bilodeau's relative youth, and positive pre-sentence report. This would not however, at least in my mind, fully incorporate Gladue principles.

VII. Sentence

[50] After balancing the competing interests and factors, and having regard to the facts, counsel's submissions, and filed authorities, I conclude that, although exceptional circumstances do not exist, the application of Gladue, the positive pre-sentence report, lack of related record, and Mr. Bilodeau's relative youth warrants a jail sentence in the upper reformatory range. For the 5(2) CDSA hydromorphone count, I impose a twenty-two month sentence. On the 5(2) oxycodone count I impose a concurrent fourteen month sentence. And for the possession of ecstasy there will be a concurrent forty-five day sentence.

[51] For what it's worth, I recommend that he serve this sentence at a facility equipped to address his addiction issues – either the Ontario Correctional Institute (OCI) or Algoma Treatment Center.

Released: May 14, 2015

Justice Jonathon C. George