Court File and Parties
Ontario Court of Justice
Date: February 27, 2017
Court File No.: Cobourg 16-0317
Between:
Her Majesty the Queen
— and —
Megan Diminie
Before: Justice S. W. Konyer
Heard on: November 21, 2016 and January 23 and February 13, 2017
Reasons for Sentence released on: February 27, 2017
Counsel
Ms. K. Lederri — counsel for the Crown
Mr. K. Bernhardt — counsel for the accused Megan Diminie
Judgment
KONYER J.:
Background and Guilty Plea
[1] Megan Diminie is a 28 year old first offender. She entered a guilty plea before me on November 21, 2016 to a single count of trafficking in cocaine. The sentencing in her matter was adjourned for the preparation of a pre-sentence report, and to allow her to complete some rehabilitative programs prior to being sentenced. The Crown seeks a sentence of 6 months jail followed by probation, while the defence has urged me to impose a non-custodial sentence. These are my reasons for sentence.
The Offence
[2] The offence that Ms. Diminie committed is manifestly serious. She sold 0.4 grams of cocaine to Rodney Decoste outside the Best Western hotel in Cobourg for $40 on April 18, 2016. At the time, she and her domestic partner, Michael Rutledge, were under police surveillance as a result of information the police had received that they were involved in the sale of cocaine. Ms. Diminie was arrested two days later, at which time she was in possession of $922 in cash.
Seriousness of Cocaine Trafficking
[3] It is beyond dispute that cocaine is a serious and harmful drug. It is highly addictive, and wreaks havoc on the lives of those who become addicted. It destroys families and harms communities. Because it is illegal yet highly profitable, the cocaine industry attracts organized criminals who use violence to carry out their business. It is not a stretch to say that those who traffic in cocaine peddle human misery for profit. Accordingly, as the Crown rightly points out, this is "a serious offence warranting emphasis on the principles of deterrence and denunciation": R. v. Woolcock, [2002] O.J. No. 4927 (C.A.), at para. 8.
[4] Therefore, it is important that the sentence for Ms. Diminie's conduct sends the appropriate message. The sentence I impose must, in part, represent "a symbolic, collective statement" that Ms. Diminie's conduct "should be punished for encroaching on our society's basic code of values": see R. v. M.(C.A.), [1996] 1 S.C.R. 500, at para. 81.
Sentencing Objectives for First Offenders
[5] At the same time, Ms. Diminie is a youthful first offender, which means that the objectives of rehabilitation and specific deterrence must also be primary sentencing objectives: see R. v. Priest, [1996] O.J. No. 3369 (C.A.); R. v. Nassri, 2015 ONCA 316, at para 30.
Personal Circumstances and Addiction
[6] From the evidence before me, it appears as though Ms. Diminie was addicted to cocaine at the time she committed this offence. She has a history of serious substance abuse dating back to the age of 12, and her intimate partner at the time this offence was committed was also an addict. I am satisfied on the evidence before me that Ms. Diminie was a street level cocaine dealer at the time of her arrest who was selling small quantities of the drug to support her own addiction. Accordingly, her level of moral culpability for the trafficking offence is markedly lower than a trafficker motivated solely for profit.
[7] Ms. Diminie has been involved in a series of unhealthy and abusive domestic relationships with partners who have also been addicts. Despite her drug use and lifestyle, she successfully completed high school and does have some history of gainful employment, though her employment was also in fields that were compatible with her lifestyle and drug use. She is now living with and being supported by her mother, who works as a nurse.
Rehabilitative Efforts
[8] Ms. Diminie has accessed counseling services since being charged, and prior to her plea being entered. She has attended regular appointments with FourCAST (Four Counties Addiction Services Team) since November 8, 2016 and "has been engaged and actively participates" according to her counsellor: see Exhibit 5. This service assisted Ms. Diminie in completing an application for residential treatment, and she completed the residential component of treatment at the New Port Centre, a residential treatment facility for substance abuse in Port Colborne, Ontario, from January 3-19, 2017: see Exhibit 7. She is currently engaged in follow-up counseling in accordance with her discharge plan, which includes "increasing stress management and coping skills, increasing knowledge of anger management and conflict resolution, as well as increasing knowledge on improving healthy relationships": see Exhibit 5.
[9] I have the benefit of a comprehensive pre-sentence report, which I would characterize as cautiously optimistic. Ms. Diminie has a long history of substance abuse and has been entrenched in a negative lifestyle for most of her young life. She has, however, made significant progress recently in addressing the issues underlying her negative lifestyle and her offending behaviour. It is the opinion of the probation officer who authored the report that Ms. Diminie "would be a suitable candidate for community supervision with compliance and willingness to seek assistance on an ongoing basis": see Exhibit 3, page 6. Based on all of the information before me, I share this opinion.
Sentencing Range and Individualized Analysis
[10] In arguing for a sentence of custody, the Crown relies upon R. v. Woolcock, supra, where the Court of Appeal reduced the sentence imposed after trial of two years less a day jail to fifteen months jail for possession of crack cocaine for the purpose of trafficking. The appellant, who was 53 years old and had two prior drug convictions for which he had received jail sentences, was found in possession of over 6 grams of crack cocaine, cash and other drug trafficking paraphernalia. He was convicted following a jury trial. The sentencing judge found that appellant was a commercial trafficker. In that context, the Court of Appeal held that "[t]he range of sentence for this type of offence appears to be 6 months to 2 years less a day": para. 15.
[11] While I appreciate that the seriousness of cocaine trafficking will usually mean that nothing short of jail can properly reflect the pressing need to denounce and deter this conduct, my fundamental duty as a sentencing judge is to "engage in an individualized assessment of all of the relevant factors and circumstances, including the status and life experiences, of the person standing before [me]": R. v. Ipeelee, 2012 SCC 13, at para. 75.
[12] Sentencing is a highly individualized process that cannot be reduced to a mathematical calculation. While sentencing ranges may be useful guides, the Supreme Court has directed sentencing judges that they cannot be substitutes for an individualized analysis. "Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered 'averages', let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case": R. v. Lacasse, 2015 SCC 64, at para. 57.
Sentencing Decision
[13] I am required, in every case, to consider "all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community": s. 718.2(e). In Ms. Diminie's case, she has spent 17 days in a residential treatment facility, which I consider to be the equivalent of custody. She has made significant gains to positively address the issues at the root of her offending behaviour. A community-based sentence is the best option to foster her ongoing rehabilitation through counseling and other rehabilitative programming. In the long term, her successful rehabilitation is the best means to protect society from a repetition of similar behaviour. Although a jail sentence would send a stronger deterrent and denunciatory message, these objectives are still achieved to a significant degree through a recognition of time spent in residential treatment coupled with lengthy probation and significant community service hours.
[14] Accordingly, I take into account the 17 days spent in residential treatment. I suspend the passing of sentence and place Ms. Diminie on probation for the maximum term of 3 years. The conditions of her probation order are as follows:
To keep the peace and be of good behaviour;
Appear before the court when required to do so;
Notify the court or probation officer in advance of any change of name or address and promptly notify the court or probation officer of any change in employment or occupation;
Report in person to a probation officer within 2 working days and after that, at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in your supervision;
Your reporting requirement ends when you have satisfied your probation officer that you have completed all of your community service hours and completed all of your counselling;
Cooperate with your probation officer. You must sign any releases necessary to permit the probation officer to monitor your compliance and you must provide proof of compliance with any condition of this Order to your probation officer on request;
Live at a place approved of by the probation officer and not change that address without obtaining the consent of the probation officer in advance;
Do not contact or communicate in any way, directly or indirectly, by any physical, electronic or other means, with Michael Rutledge or Rodney Decoste;
Do not be within 100 metres of any place where you know any of the person(s) named above live, work, go to school, frequent or any place you know the person(s) to be EXCEPT for required court attendances;
Do not attend at the Best Western Hotel, 930 Burnham St., Cobourg, Ontario;
Do not possess or consume any unlawful drugs or substances (refer to the Controlled Drugs and Substances Act) except with a valid prescription in your name or those available over the counter;
Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer for substance abuse and life skills;
Perform 150 hours of community service work on a rate and schedule to be directed by the probation officer but must be completed within 18 months of the start date to this Order.
Firearms Prohibition
[15] I also make an order pursuant to section 109 of the Criminal Code prohibiting Ms. Diminie from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for a period of 10 years.
Victim Surcharge
[16] Finally, I am required to impose a victim surcharge of $200 for this offence. Ms. Diminie has 60 days to pay the surcharge.
Released: February 27, 2017
Signed: Justice S. W. Konyer