Ontario Court of Justice

Date: 2018-03-28

Court File No.: Central East Region: Oshawa Courthouse 17-16-37718

Between:

Her Majesty the Queen

— AND —

Adriana Digiorgio

Before: Justice Peter C. West

Guilty Plea entered: December 8, 2017

Evidence and Submissions Heard: February 2, 2018

Reasons Released: March 28, 2018

Counsel

Mr. J. Frost — counsel for the Federal Crown

Mr. R. Macdonald — counsel for the defendant, Adriana Digiorgio

WEST J.:

Introduction

[1] On December 8, 2017, Adriana Digiorgio pled guilty to charges that between August 1, 2016 and December 15, 2016, she did steal prescription medication of a value exceeding $5000.00, the property of Lovell Drugs, contrary to s. 344 (a) of the Criminal Code of Canada and she did possess a substance included in Schedule 1, namely Oxycodone, for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act and she did possess a substance included in Schedule 1, namely Fentanyl, for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act and she did possess a substance included in Schedule 1, namely Hydromorph, for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act. The matter was adjourned to February 2, 2018 for the preparation of a Presentence Report (PSR) and for the Crown to call expert evidence relating to the Schedule 1 substances involved in this case.

[2] On February 2, 2018, the Crown called Dr. Karen Woodall, Toxicologist at the Centre of Forensic Sciences as a witness together with her Report and Qualifications, Exhibit 6, and the Expert Witness Report, Exhibit 7, of Detective Sergeant Craig Hudson, Durham Regional Police Service. In addition, the Crown filed the transcript from Guilty Plea Proceeding, R. v. Adriana Digiorgio before Justice Payne, dated April 25, 2014, a Certified copy of Adriana Digiorgio's probation order and a more detailed Agreed Statement of Facts based on an Investigative Report authored by DC Baldini, dated January 19, 2018, collectively filed as Exhibit 4.

[3] The defence filed two volumes of Support Materials, Exhibits 1 and 2, a letter from Lakeridge Health dated December 7, 2017, Exhibit 3, and letter from CAMH Durham, dated December 6, 2017, Exhibit 4. The Presentence Report (PSR) dated January 25, 2018, prepared by probation officer, Ms. Michaela Wilson, was filed as Exhibit 5.

[4] Finally, both parties filed a Comparison of Charges and Reports as Exhibit 8, which reflects the actual quantities of the various Schedule 1 prescription medication stolen by Ms. Digiorgio.

Factual Background

[5] Between August 1, 2016 and December 15, 2016, Ms. Digiorgio, while working as a pharmacy assistant at Lovell Drugs located at 600 Grandview Road in Oshawa, removed, without authorization over $5,000.00 (value of pills from pharmacy) worth of Schedule 1 substances from the pharmacy. Ms. Digiorgio had access to the safe in which narcotics are stored in the pharmacy. She would log into the computer and by manipulating the count she removed 16,974 prescription pills (hydromorphone and oxycodone) and 670 fentanyl patches without being detected. These thefts were discovered as a result of an audit by management, including review of video footage, which captured Ms. Digiorgio removing substances from the vault and concealing them on her person without authorization.

[6] During this time period Ms. Digiorgio removed without authorization Oxycodone 80 mg pills, Oxycodone 40 mg pills, Diluadid 8 mg, Hydromorph Contin 24 mg, Mylan Fentanyl 75 mcg, Teva Fentanyl 100 mcg, Teva Fentanyl 50 mcg, and Teva Fentanyl 75 mcg. Ms. Digiorgio was not prescribed this type of medication. The quantity of Schedule 1 substances supports the charge of possession for the purpose of trafficking.

[7] Members of the Drug Enforcement Unit of DRPS arrested Adriana Digiorgio for theft over $5000 and possession for the purpose of trafficking in Schedule 1 substances. At the time of her arrest Ms. Digiorgio was found to be in possession of 400 pills (Oxycodone 80 mg, Oxycodone 40 mg and Dilaudid 8 mg), which were located in her vehicle. Ms. Digiorgio's thefts were committed from August 24, 2016 to December 16, 2016, which was the day of her arrest. A search warrant was executed at her residence and a quantity of Canadian currency was seized from the residence.

[8] A report was prepared by DC Baldini, DRPS, Tab 1 in Exhibit 4, reflects that Ms. Digiorgio, during the time period of the charges removed 16,974 prescription pills and 670 fentanyl patches without detection. His investigative report concluded the pharmacy's value for the prescription medications was $24,974.83 for the pills and $8,749.90 for the fentanyl patches, for a total of $33,724.73. The street value estimate was $736,880.00 for the pills and $169,000.00 for the patches, for a total of $903,880.00. Obviously the value becomes considerably less if sold in larger quantities. There was no evidence led as to what wholesale value of these Schedule 1 substances were. In his report Detective Sergeant Hudson estimated the street level value of the Schedule 1 substances is $850,000 to $900,000. At page 3 of his report Det. Sgt. Hudson set out a number of factors that could affect this value.

[9] The PSR revealed Ms. Digiorgio was a severe cocaine addict for many years and she told the probation officer she was trading or bartering the schedule 1 substances she stole for cocaine. Ms. Digiorgio did not testify concerning this assertion nor did the Crown take any strenuous objection to her assertion contained in the PSR. The Crown did not seek to cross-examine Ms. Digiorgio on this issue.

[10] As indicated above the Crown called Dr. Karen Woodall, her report and C.V. were marked as Exhibit 6, and Det. Sgt. Hudson's report and C.V. were filed and marked as Exhibit 7. Dr. Woodall testified fentanyl is a synthetic opioid drug, which belongs in the same class as drugs such as morphine and heroin. Fentanyl is available for oral transmucosal administration, as an injectable solution, or in a transdermal delivery system, patches of fentanyl contain 2-17 mg of fentanyl and provide a dose of 2.5-100 (micrograms) mcg/hr for 72 hours, providing continuous pain relief. It is a 100 times stronger than morphine and 20 times stronger than heroin. Fentanyl is used medically for the treatment of severe chronic pain. It is also commonly used as a drug of abuse because it creates strong euphoric feelings and also sedation. In addition, long-term use or abuse of opioids may lead to addiction. In recent years fentanyl powder has become available from illegal drug labs in China, smuggled into Canada through Vancouver and is sold on the streets. The powder can be snorted, injected or smoked. Police officers and first responders must be careful when dealing with fentanyl as it is so easily absorbed through the skin.

[11] Fentanyl patches can be used in ways not intended by doctors for the treatment of pain. When it is used in a manner different from absorption through the patch into the skin a user will get a larger quantity of the drug. Patches can be cut up and chewed. They can be cut into strips and smoked. Someone would only be prescribed fentanyl if opioid tolerant. If a person using fentanyl is not opioid tolerant it can have fatal consequences. Fentanyl can cause respiratory depression, it will slow down breathing and actually stop it.

[12] Hydromorphone, a synthetic heroin, is an opioid used to treat moderate pain. It is eight times stronger than morphine. It is usually taken by tablet, either immediate release or slow release. It can also lead to respiratory failure. It can be snorted after the tablets are crushed or it can be crushed and taken orally. Hydromorphone can also be injected. Oxycodone is an opioid pain relief medication. It is one and a half times stronger than morphine. It is a very popular drug of abuse. There have been changes brought about by provincial regulation. Oxycontin was delisted in 2011.

[13] Each year a number of deaths in the province of Ontario are attributed to opioid use, including fentanyl. A lethal dose of fentanyl could not be provided by Dr. Woodall as it would depend on a multitude of factors including tolerance, route of administration and percentage quality or strength of the fentanyl taken. In the last year to eighteen months the use of powdered fentanyl as opposed to patches has increased and has been linked to more deaths.

[14] Detective Sergeant Hudson described how opioid abuse, including fentanyl, has permeated almost every community in Canada and has reached a level never seen before, resulting in overdose and sudden death, which has increased every year. He described a number of measures the federal and provincial governments have introduced, which have attempted to limit these opioid substances finding their way into the community, either through legitimate sources, altering prescription medication so it is harder to be used by addicts, patch 4 patch programs or illegitimate sources, by regulating precursor chemicals used to illegally manufacture fentanyl. Statistics of opioid deaths have increased over the years, 2010 to 2015, with fentanyl toxicity deaths being identified as causing about 20 percent.

The Offender's Background

[15] Ms. Digiorgio is currently 37 but was 36 when she committed the offences before the court. She is married and has two children, ages 7 and 11. She previously worked as a waitress for 13 years. She and her husband also owned and operated Novara Restaurant in Whitby for two and a half years. She worked as a pharmacy assistant for a number of years, however, two of those jobs were lost as a result of criminal conduct on her part. She and her husband, James Wilkinson, have owned and operated Oshawa Escape Rooms in Oshawa for two years. A second location was opened in Bomanville in October 2017. Ms. Digiorgio has also been working as a cleaner since November 2017.

[16] Ms. Digiorgio has a close knit supportive family and has a good relationship with her parents and her sister, Julia (31). Her family and a number of friends have been in attendance during each of Ms. Digiorgio's court appearances. It is clear from the letters of support that Ms. Digiorgio has a strong support system in place to assist her in the future.

[17] Although she had attendance issues in high school, which resulted in suspensions, she has obtained her high school diploma. She first used marihuana when she was in grade seven. When she was nineteen she used ecstasy and she regularly used drugs for the next five years. Her drug of choice became cocaine, which she used regularly for thirteen years. She described to the probation officer using cocaine daily and going on binges for several days at a time. She hid her drug use from her family but believed towards the end of her using they had become aware of what she was doing.

[18] Ms. Digiorgio's husband is an alcoholic and although he is now sober, during the years Ms. Digiorgio was using drugs his alcoholism was an ongoing and significant issue in their relationship. Their marriage was quite difficult during those years with numerous separations and difficulties. Their addictions impacted their marriage on both sides.

[19] In addition, Ms. Digiorgio became involved in gambling in her early twenties and was regularly attending the casino near Port Perry over a four year period. Seven years ago Ms. Digiorgio declared bankruptcy because of unmanageable debts due to her gambling. This was confirmed in the PSR by the probation officer.

[20] Ms. Digiorgio has been under the care of her family doctor for depression and was been prescribed Ciprolex for the past seven years. She discussed a prior suicide attempt with the probation officer when she overdosed on medication and cocaine. She advised she no longer has any ongoing needs or concerns in this area.

[21] Ms. Digiorgio has been clean since shortly after her arrest. She regularly attends Narcotics Anonymous. In the PSR the probation officer made reference to Ms. Digiorgio's attendance in individual counselling and group counselling with Pinewood Centre's PASS and Umbrella programs (see also Exhibit 3, letter from Maggie Beattie, Addiction Counsellor, PASS). She continued her involvement in these programs even after her probation was completed. Numerous character letters were provided (Exhibits 1 and 2) attesting to the changes Ms. Digiorgio has made in her life since December 2016, particularly in respect of her sincerity and motivation towards becoming and remaining drug free and clean. Five of the letters in Exhibit 1, at Tabs 2 to 6, are from her sponsor and fellow participants in the NA program Ms. Digiorgio regularly attends and they spoke very positively about the changes they have observed in Ms. Digiorgio and how she has also been involved in assisting others who are struggling with addiction.

[22] From the materials provided there is a very real probability of Ms. Digiorgio's successful rehabilitation and in my view this principle of sentence must be afforded some weight given Ms. Digiorgio's age and the significant steps she has undertaken over the past year to address her drug addiction issues.

[23] It is interesting to note that in R. v. Greene, [2002] O.J. No. 5976 (C.A.), the Ontario Court of Appeal recognized that addicts with long standing addictions to hard drugs will often have setbacks in their attempts to overcome their addiction. In paragraphs 5 and 6 the Court indicated:

5 The appellant is addicted to cocaine and has been for a very long time. It is unrealistic to expect that he will succeed at overcoming that addiction either on the first or second attempt or even after many attempts. As Wood J.A. said for a five-person court in R. v. Preston (1990), 79 C.R. (3d) 61 (B.C.C.A.) at 74 in relation to a heroin addict:

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.

6 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.

[24] Recognizing that a drug addict will relapse when attempting to overcome their addiction is important in Ms. Digiorgio's case. In April 2014 her drug addiction was brought to light given her charges of stealing from her pharmacy employer and she began treatment and counselling. Unfortunately she continued to use cocaine despite the programs she was involved in through Pinewood and despite her involvement in Narcotics Anonymous. It is noteworthy that a number of the men and women who have travelled the road to recovery with Ms. Digiorgio have written letters attesting to the sincerity of Ms. Digiorgio's current desire and motivation to remain clean from using illicit substances as opposed to when she was first involved with NA.

[25] I am satisfied and I find based on the PSR (Exhibit 5), the letters from her sponsor and fellow NA participants, the letters from family members and friends and the letter from her addiction counsellor, (Exhibit 3) that Ms. Digiorgio has made sincere efforts and has had considerable success in overcoming her significant addiction to cocaine. I also find she is highly motivated to live drug free regardless of the sentences imposed at the conclusion of these proceedings.

Statement by Ms. Digiorgio pursuant to s. 726 of Criminal Code

[26] Ms. Digiorgio advised me that during the time she was dealing with her addiction to cocaine and she was stealing prescriptions drugs to trade for cocaine, she was not totally aware of the seriousness of the consequences of her actions. Since her arrest she told me she is now fully aware of the consequences of her actions to herself, her family and to the community at large. She has worked very hard to overcome her addiction to cocaine and she believes she has been successful. Ms. Digiorgio advised she knows she will be serving a lengthy jail sentence and is very desirous of being placed in an institution where she can continue counselling and treatment for her drug addiction. She indicated she is very sorry for her conduct. It is my view her comments were both sincere and genuine.

Position of the Parties

[27] The Crown is seeking a sentence of imprisonment of 10 to 12 years in the penitentiary. Mr. Frost pointed to the aggravating circumstance of Ms. Digiorgio selling or bartering the Schedule 1 substances she stole from her employer to obtain cocaine, which was her drug of choice and which she was seriously addicted to. Therefore the commercial element was an aggravating circumstance. Further she was providing the drugs to a third person who she knew was selling to the public.

[28] The Crown argued Ms. Digiorgio stole from her employer, a pharmacy, which is a statutorily defined aggravating factor under s. 718.2(a)(iii). Further, the substances she stole were fentanyl, hydromorphone and oxycodone, all serious Schedule 1 opioid substances, which was also aggravating. The Crown further pointed to the substantial quantity and the significant street value of the fentanyl, hydromorphone and oxycodone she stole as aggravating circumstances.

[29] The Crown also pointed to the fact Ms. Digiorgio committed similar offences in 2014 when she was convicted of theft over $5000, which related to her stealing prescription drugs from the pharmacy where she was employed as a pharmacy assistant. The Crown argued this was also an aggravating circumstance on sentence.

[30] The Crown argued the sentencing principles of deterrence and denunciation were the paramount sentencing principles to be considered in determining a fit and appropriate sentence given the aggravating circumstances present in this case.

[31] The defence submitted a sentence of three to four years in the penitentiary was a proportionate sentence for Ms. Digiorgio given the steps she has taken in overcoming her addiction to cocaine. This will be a first custodial sentence in "real" jail and consequently the principles of restraint, rehabilitation and reintegration back into the community were sentencing principles that ought to be taken into account. Mr. Macdonald agreed the principles of deterrence and denunciation were of paramount significance but he submitted a first jail sentence should not be so lengthy as to be crushing to an offender.

[32] Mr. Macdonald submitted it was always Ms. Digiorgio's intention to enter pleas of guilty to the charges she was facing and this demonstrated her remorse and acceptance of responsibility.

Aggravating and Mitigating Circumstances

[33] The Crown pointed to the nature of the illicit substance Ms. Digiorgio stole from her employer and the quantities taken as being aggravating circumstances. There is no doubt based on the evidence led by the Crown on this sentencing hearing as to the serious and pernicious nature of fentanyl, hydromorphone and oxycodone. There is no doubt as the danger posed by these opioid substances to drug users and to first responders, such as paramedics and police, who attend locations where users are suffering from overdoses. There is also an impact to the community of other crimes being committed by those who are addicted to opiate drugs for example, break-ins, thefts, robberies, falsified prescriptions. As well from the evidence, it is clear that the number of overdoses due to opiate substances and deaths have increased over the past three years in the Durham Region from statistics provided by Det. Sgt. Hudson. I take all of these things into account as aggravating circumstances.

[34] Ms. Digiorgio was employed as a pharmacy assistant and her theft of a considerable quantity of prescription opioid medications was an egregious breach of trust. This is a statutorily defined aggravating circumstance in s. 718.2(a)(iii). What is a further aggravating circumstance was that just two years prior (April 25, 2014) to committing these offences Ms. Digiorgio was convicted of engaging in exactly the same conduct of stealing prescription medications from a different pharmacy employer. The prescription drugs stolen by Ms. Digiorgio at that time included Oxy Neo, Fentanyl and Hydromorphone. The amount of Ms. Digiorgio's theft in that case was considerably less, $8541.52. In addition, at the time of the commission of these offences Ms. Digiorgio was still on a three year probation order, which included terms dealing with her receiving counselling and treatment for substance abuse and for her to keep the peace and be of good behaviour. This is also an aggravating circumstance. In addition, Ms. Digiorgio's conduct continued over an extended period of time, on the evidence from August to December, and only stopped because her theft was discovered and she was arrested. Accordingly, this was not an impulsive or one-time event, it was orchestrated, deliberate and planned, which is an aggravated circumstance.

[35] It is also an aggravating circumstance that Ms. Digiorgio was trading or bartering the prescription drugs she stole by providing them to a third person, which means there is a commercial aspect to Ms. Digiorgio's conduct. The street value of the prescription drugs she stole was substantial ($33, 724.73 actual cost to pharmacy and $850,000 street value) and the monetary value of the cocaine she would have received for her personal use to feed her addiction would have been exceedingly far less. This is an issue which remained unresolved on the evidence provided on this sentencing hearing.

[36] Finally, Ms. Digiorgio admitted to the probation officer that she was providing the prescription Schedule 1 drugs, fentanyl, hydromorphone and oxycodone, to her drug dealer, who she knew was in turn selling these Schedule 1 drugs to members of the public. When opioid drugs are distributed without proper monitoring or direction they may be ingested by individuals with very little experience or tolerance to their effects and this poses significant dangerous and deadly health consequences to the public.

[37] The mitigating circumstances to be considered on sentence relate to Ms. Digiorgio's plea of guilty and her acceptance of responsibility. I accept Ms. Digiorgio's expression of remorse for her conduct as being sincere. Ms. Digiorgio has always indicated an intention to plead guilty and resolve the charges she is facing. Her guilty plea has saved the expense of what would have been a lengthy trial and this can also be considered as mitigation.

[38] Ms. Digiorgio has suffered from a serious addiction to illicit substances, primarily cocaine, although she has used other illicit substances in the past, for thirteen years. There is no doubt this affected and impacted her judgment respecting the charges she has pled guilty to. Since being charged with these offences it would appear Ms. Digiorgio has become much more serious about addressing her issues surrounding her addiction to cocaine. She advised the probation officer she has been clean since shortly after her arrest in December 2016. She has regularly attended Narcotics Anonymous meetings and is now volunteering as a sponsor with NA. She initiated involvement with the Pinewood Centre through the Pinewood Addiction Support Services (PASS) since July 18, 2017. Since September 2017 until the present time she has been involved in individual counselling and with a variety of programs surrounding support, parenting and recovery issues. It would appear from the PSR that a number of the programs she was involved in were related to her probation order from her prior conviction.

Determining the Appropriate Sentence

[39] The purpose of sentencing is set out in s. 718 to 718.2 of the Criminal Code. I am of the view it is important to indicate what these sections set out because I believe this is where the applicable principles of sentencing are defined for criminal cases.

[40] Under s. 718 of the Criminal Code, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing a just sanction. Any sanction imposed must be the result of a fair and balanced consideration of the need to:

(a) Denounce the unlawful conduct;

(b) Deter the offender, and others, from committing such an offence;

(c) Separate the offender from society, where necessary;

(d) Assist in the rehabilitation of the offender;

(e) Provide reparation for harm done to "victims", or the community; and

(f) Provide a sense of responsibility in the offender, while acknowledging the harm done to the "victims" and the community.

[41] The "fundamental principle" of sentencing pursuant s. 718.1 of the Code is that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender."

[42] Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances (s. 718.2(a)). This section also requires that a sentence be similar to other sentences imposed on similar offenders in similar circumstances (s. 718.2 (b)), that the combined duration of consecutive sentences not be unduly long (718.2(c)), that an offender not be deprived of liberty if less restrictive sanctions may be appropriate (s. 718(d)), and that all available sanctions other than imprisonment that are reasonable in the circumstances be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders (s. 718.2 (e)).

[43] The purpose of sentencing under the Controlled Drugs and Substances Act is set out in s. 10 of that legislation. Section 10 reads as follows:

Purpose of sentencing

s. 10 (1) Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community.

[44] As noted in R. v. C.N.H., [2002] O.J. No. 4918 (C.A.), at paragraph 31 by Justice Rosenberg:

...the importance of s. 10 is to encourage courts to recognize the particular problem that in many cases persons convicted of drug offences are themselves victims of the drug culture and dependent upon drugs as addicts or users. I think s. 10 recognizes a view that had become increasingly prevalent that, especially for the addict trafficker, the public interest -- including the protection of the public -- is best served by the treatment and rehabilitation of the offender. [Emphasis added.]

[45] In Regina v. Lacasse, infra, at paragraph 4 the court stated:

One of the main objectives of Canadian criminal law is the rehabilitation of offenders. Rehabilitation is one of the fundamental moral values that distinguish Canadian society from the societies of many other nations in the world, and it helps the courts impose sentences that are just and appropriate.

[46] Section 10(2) sets out a number of relevant aggravating factors, none of which appear to be present in this current matter. It is of note that section 10(1) includes as a purpose of sentencing the encouragement of rehabilitation and treatment of the offender in appropriate circumstances.

[47] Although deterrence and denunciation are important sentencing principles in cases involving the trafficking or possession for the purpose of trafficking of Schedule 1 substances, those sentencing principles must not exclude consideration of rehabilitation, particularly in the case of an offender, who will receive a first custodial sentence and in particular, a first penitentiary sentence. In R. v. Borde, [2003] O.J. No. 354 (C.A.), at para. 36, the Ontario Court of Appeal held where a youthful offender is to be sentenced to a first penitentiary sentence it should not be determined solely on the basis of general deterrence and denunciation, rather the sentencing court should proceed on the basis that the shortest possible sentence will achieve the relevant objectives. Mr. Borde had a lengthy youth record, which reflect serious charges and sentences. Here Ms. Digiorgio is also not a first offender, in fact, she was convicted of theft from her employer, a pharmacy, in similar, although not as extensive circumstances. She received a 6 month conditional sentence, which she successfully completed along with three years of probation. (See also R. v. Priest, [1996] O.J. No. 3369 (C.A.), at paras. 23-26 and R. v. Vandale and Maciejewski, [1974] O.J. No. 1047 (C.A.), at para. 4.) Both counsel recognized in their submissions the need to impose a penitentiary sentence to properly address the sentencing principles of denunciation and deterrence. However, it is my view Borde directs sentencing judges, when sentencing an offender to a first penitentiary sentence to exercise restraint and to give appropriate consideration to the principles rehabilitation and reintegration into the community.

[48] Ms. Digiorgio was released from custody on December 19, 2016. She spent 4 days in pre-trial custody, which on a 1.5 to 1 basis is the equivalent of 6 days. She also was on a very restrictive house arrest bail from December 19, 2016 until her house arrest condition was varied on consent on September 19, 2017 to a curfew between 7:30 p.m. to 5:30 p.m. The only exceptions for her to be absent from her home were for medical emergencies or when she was in the company of her surety. On March 14, 2017 her bail was varied to permit her to be absent from her residence when she was attending NA meetings. This house arrest bail was more restrictive than a conditional sentence in my view. In R. v. Downes (2006), 205 C.C.C. (3d) 488 (Ont. C.A.), Rosenberg, J.A. held that "time spent under stringent bail conditions, especially under house arrest, must be taken into account as a relevant mitigating circumstance." (See para. 33)

Stringent bail conditions, especially house arrest, represent an infringement on liberty and are, to that extent, inconsistent with the fundamental principle of the presumption of innocence. House arrest is a form of punishment, albeit of a different character than actual incarceration. Pre-sentence house arrest varies little in character from the house arrest that is often imposed as a term of a conditional sentence under s. 742.1 of the Criminal Code. (See para. 29)

Thus, a trial judge faced with an offender who has spent time on bail under house arrest should adopt a flexible approach. In the end, the amount of credit and the manner in which it is taken into account as a mitigating factor is a matter for the trial judge. That factor must be considered along with the myriad of other mitigating and aggravating circumstances that may impact on the sentence in a given case. (See para. 36)

[49] The Crown conceded that R. v. Downes had application to this case. In my view the appropriate credit for the 10 months of stringent and restrictive bail conditions and the credit (6 days) for pre-trial custody is 3 months.

[50] I was provided with numerous cases by the Crown and defence counsel addressing the range of sentences imposed for possession for the purpose of trafficking in fentanyl, hydromorphone, oxycodone and heroin. Where there were significant quantities of Schedule 1 substances, such as fentanyl, hydromorphone and oxycodone, the fit and appropriate sentence resulted in custodial sentences in the reformatory (upper range) or the penitentiary, depending upon the offender's role in the offence, the nature of the illicit substance, the quantity of the illicit substance, whether the offender is an addict supporting their addiction or whether the offender was involved in the offence for commercial gain. In addition, I conducted my own research of sentencing cases involving possession for the purpose of trafficking in schedule 1 substances, such as fentanyl, hydromorphone, oxycodone, and heroin and I have advised counsel of the results of that research.

[51] It is important to note however, that no two cases are exactly alike, and as emphasized by Chief Justice Lamer in R. v. M. (C.A.), [1996] 1 S.C.R. 500, at paragraph 92:

Sentencing is an individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise or academic abstraction. As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the "just and appropriate" mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred.

[52] In the case of trafficking or possession for the purpose of trafficking in Schedule 1 substances the maximum penalty is life imprisonment. Absent statutorily prescribed aggravating circumstances, the only minimum sentences set out in the Controlled Drugs and Substances Act are those set out in s. 5(3)(a) of the CDSA. In R. v. Lloyd, 2016 SCC 13, [2016] S.C.J. No. 13, the Supreme Court held the minimum sentence in this section was unconstitutional. Ms. Digiorgio's previous conviction and sentence related to a theft over from her employer of Schedule 1 substances. She did not plead guilty to a CDSA­ designated offence. Consequently, this section, although ruled to be unconstitutional, has no applicability to the case before me.

[53] The Supreme Court of Canada and the Ontario Court of Appeal have held in a number of cases that trafficking or possession for the purpose of trafficking in Schedule 1 substances, such as heroin or hydromorphone or fentanyl, even for small amounts by first offenders, will "attract" or "call" for a "penitentiary sentence unless exceptional circumstances exist" (see Farizeh, supra, at para. 5 and Turner, supra, at para. 3). Recently in R. v. Loor, 2017 ONCA 696, [2017] O.J. No. 4628, the Ontario Court of Appeal upheld a six year sentence for an accused convicted of 3 counts of trafficking in fentanyl (45 fentanyl patches (100 micrograms per hour) worth $20,000.00) and defrauding a pharmacy using a forged document, after a trial and the accused had a criminal record for trafficking. After the conviction at trial the Crown sought an increased penalty under the CDSA because of Mr. Loor's previous record for similar offences. The sentencing judge imposed the minimum one year sentence along with a further five years for a total sentence of six years. On the appeal the Crown invited the Ontario Court of Appeal to establish a sentencing range for fentanyl but Laskin J., for the court, held:

Few fentanyl trafficking cases have reached this court. It is thus perhaps too early in our jurisprudence to establish a range. But I think it fair to say that generally, offenders -- even first offenders -- who traffic significant amounts of fentanyl should expect to receive significant penitentiary sentences.

[54] The matter of sentencing ranges was addressed by the Ontario Court of Appeal in R. v. Jacko 2010 ONCA 452, [2010] O.J. No. 2583, where at paragraph 90, the court held:

Sentencing 'ranges' ...are not immovable or immutable. They are and represent guidelines, of greater or lesser utility depending upon the breadth of the range. Individual cases may fall within or outside the range. To consider a range of sentence as creating a de facto minimum sentence misses the point, ignores the fundamental principle of proportionality... Individual circumstances matter.

See also R. v. D.D., [2002] O.J. No. 1061 (C.A.), where Moldaver J.A., (as he then was) said the following, at para. 33: "[S]entencing is not an exact science and trial judges must retain the flexibility needed to do justice in individual cases. The suggested ranges are merely guidelines designed to assist trial judges in their difficult task of fashioning fit and just sentences in similar cases."

[55] This issue has recently been revisited by the Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paragraphs 57 to 58 and 60 to 61, where the Court held:

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...

There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. Once again, everything depends on the gravity of the offence, the offender's degree of responsibility and the specific circumstances of each case. LeBel J. commented as follows on this subject:

A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit. Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community in which the offence occurred. (R. v. Nasogaluak, 2010 SCC 6, [2010] S.C.J. No. 6, at para. 44.)

In other words, sentencing ranges are primarily guidelines, and not hard and fast rules. (Emphasis added)

[56] The Crown and defence are worlds apart in terms of what each argued was an appropriate and fit sentence for Ms. Digiorgio. I recognize that a fit and proportionate sentence is determined by weighing and balancing all of the relevant sentencing principles applicable taking into account the mitigating and aggravating circumstances referred to above. It is my view the paramount principles of sentencing in this case are deterrence and denunciation. It is my view both Mr. Frost and Mr. Macdonald recognize this in the positions they have argued since both recognize a penitentiary sentence is necessary to adequately address those principles. I also am mindful of the caution advocated by the Court of Appeal in Priest, Batisse and Borde, referred to above, and as this is a first prison sentence and first penitentiary sentence I am instructed that "the shortest possible sentence will achieve the relevant objectives."

[57] There are a number of trafficking and possession for the purpose of trafficking in opioid substance cases which involve pharmacy assistants, nurses or receptionists in a doctor's office, pharmacists or doctors, where the offenders have stolen from their employer or forged prescriptions in order to obtain the Schedule 1 substances. The cases set out below are those which I have found to be of the greatest assistance in determining an appropriate and proportionate sentence in Ms. Digiorgio's case.

[58] In R. v. Darren Gebien (unreported, April 18, 2017, OCJ, Justice J. Wilson) the offender was a doctor who pled guilty to producing false prescriptions, which he used to obtain fentanyl patches, and to trafficking in fentanyl. Dr. Gebien became an addict as a result of being prescribed opioids for pain. He was an emergency doctor and his conduct in writing false prescriptions amounted to a serious breach of trust. After his arrest he had been very successful in overcoming his addiction through treatment and counselling. He had no criminal record. He obtained 445 fentanyl patches and used 400 or so to feed his own addiction. A number of the patches, 43 to 44, ended up in the hands of other individuals although there was no evidence of any financial benefit to Dr. Gebien. The sentence imposed by Justice Wilson was 2 years in the penitentiary followed by 3 years of probation.

[59] In R. v. S.M., [2016] O.J. No. 2278 (ONCJ, Hearn J.) the offender, a doctor, pled guilty to uttering forged prescriptions, theft, possession for the purpose of trafficking hydromorphone [12,000 pills], and fraud. The accused doctor was a drug addict and had no criminal record. The sentence imposed was 6 months for uttering forged prescriptions, 6 months concurrent for theft, 18 months consecutive for possession for the purpose of trafficking in a Schedule 1 substance and 3 months concurrent for fraud, for a total penitentiary sentence of 2 years with three years' probation.

[60] In R. v. Godreau, 2016 ONSC 6318, after a trial, the head of a sophisticated significant commercial enterprise involving a doctor's nurse/receptionist and a number of other individuals, was convicted of trafficking 900 fentanyl patches, knowingly make false documents (prescriptions) and utter forged documents. Mr. Godreau had a lengthy criminal record with a dated prior conviction for trafficking. He was sentenced to a 10 year penitentiary term less 4 years pretrial credit (this case was related to the Sinclair, Baks and Loor cases).

[61] In R. v. Baks 2015 ONCA 560; 2015 ONCA 615, a youthful first offender, who had acted at the instigation of higher ups in the criminal enterprise pled guilty to trafficking in fentanyl and forgery. She also testified for the Crown against Godreau. Her 9 year joint submission penitentiary sentence was reduced to 5 years for fentanyl trafficking and one year consecutive for forgery charges for a total sentence of six years. Ms. Baks was employed by a doctor and she engaged in a breach of trust by forging drug prescriptions in her employer's name. The sentence was reduced because of the significant mitigating circumstances reflected in her early cooperation and her being pressured by one of the higher ups to become involved.

[62] In R. v. Sinclair, 2016 ONCA 683, Mr. Sinclair, a mid-level offender pled guilty to trafficking 990 patches of fentanyl. He had a minor record and testified against Mr. Godreau. His 9 year joint submission penitentiary sentence was reduced to 8 years on appeal. The Court of Appeal held a number of the significant mitigating circumstances in the Baks case did not exist for Mr. Sinclair. It was Mr. Sinclair who had persuaded Ms. Baks to become involved in the sophisticated commercial criminal enterprise.

[63] Finally, in R. v. Loor, [2015] O.J. No. 7262 (ONCJ, Dawson J.), after a trial, Mr. Loor was convicted of trafficking in a Schedule 1 substance and utter forged documents. Mr. Loor was one of the individuals that the false prescriptions were made out for by Ms. Baks and he was viewed as a mid-level trafficker. He was part of a sophisticated scheme involving a doctor's employee and others. The offender was a drug addict and had a prior record for CDSA offences, which resulted in the mandatory minimum of 1 year being imposed as part of Justice Dawson's 6 year sentence. The sentence imposed by Justice Dawson of 6 years was upheld on appeal R. v. Loor, 2017 ONCA 696.

[64] In R. v. King, 2013 ONCA 417, [2013] O.J. No. 2850 (C.A.), a nurse/receptionist in a doctor's office falsified prescriptions for oxycodone (total of 500 pills) over 3 months, which she provided to her brother, an opioid addict. After a trial, she was convicted of trafficking and falsifying prescriptions. Her brother was convicted of possession for the purpose of trafficking and received three years. Ms. King did not have a criminal record, her conduct amounted to a serious breach of trust and she received compensation from her brother for the oxycodone. She was sentenced to 42 months, which was upheld on appeal.

[65] In R. v. Medeiros-Sousa, [2014] O.J. No. 4515 (OCJ, Nelson J.), a pharmacy assistant stole from the pharmacy where she worked 86 fentanyl patches, 2942 oxycodone pills, 3007 hydromorphone pills, which was viewed as a serious breach of trust. She pled guilty to theft over and drug trafficking. She had no criminal record and was an addict during the commission of the offence. She had made significant progress in overcoming her addiction and received a sentence of 30 months in the penitentiary.

[66] In R. v. Reid, [2015] N.S.J. No. 405 (NSSC), a pharmacy assistant pled guilty to trafficking in fentanyl (179 patches) and hydromorphone (1731 tablets) and numerous other medications not prescribed to the accused, which were discovered on a search of her home. This was a serious breach of trust committed by a first offender drug addict although there was also a commercial element. The sentence imposed was 30 months.

[67] Finally, in R. v. Patel, [2017] O.J. No. 5375 (ONCJ, Graham J.), a pharmacist pled guilty to trafficking over 3000 fentanyl patches, possession for the purpose of trafficking over 1500 hydromorphone pills, also significant quantities of fentanyl (50/100 mcg and 6/30 mcg patches), hydromorphone (120/30 ml and 60/18 ml tablets), oxycodone (200/5 ml and 6/100 ml tablets) and diazepam (108/5 ml tablets), with total value over $975,000. Mr. Patel was not an addict and the breach of trust theft from the pharmacy where he worked was committed by falsifying records, which was viewed as an extremely serious breach of trust. As well Mr. Patel falsified 124 prescriptions in the names of customers of the pharmacy, which he took himself and provided to his co-accused. In addition, Mr. Patel also defrauded Rexall and the Ontario Drug Plan in the amount of $50,000 each. There was also a significant commercial element to Mr. Patel's conduct as he provided the drugs he took to an individual known to police as a drug user and drug dealer. The sentencing judge referred to Mr. Patel as the gatekeeper when comparing Mr. Patel's facts to those in Medeiros-Sousa. Mr. Patel received a sentence of 11 years where the Crown was seeking a sentence of 15 years and the defence was seeking a two year sentence and three years' probation.

[68] There are numerous cases where the quantities of fentanyl or hydromorphone or oxycodone do not approach the significant quantities in Ms. Digiorgio's case or the cases referenced above. Those cases and the sentences imposed can be found in footnotes 1 and 2 above. Suffice it to say, the sentences range from suspended sentences to low penitentiary sentences of 2 to 4 years. As I have previously indicated, no two cases are completely alike and determining a proportionate sentence is an individualized process. The cases I have just summarized above involve similar circumstances, similar quantities of Schedule 1 substances, similar aggravating and mitigating circumstances and in my view are of greater assistance in determining a fit and appropriate sentence for Ms. Digiorgio.

[69] Ms. Digiorgio is not entitled to the mitigation reflected in the Baks decision where Ms. Baks, a first offender, cooperated with the police and identified the other parties involved in what was a sophisticated criminal enterprise operated solely by greed. In Ms. Digiorgio's case there was no evidence she received any other financial benefit from her actions apart from not having to pay for her drug of choice, namely, cocaine. As I indicated above the Crown did not seek to cross-examine Ms. Digiorgio on her assertion in the PSR that she provided or bartered the drugs she stole to her drug dealer for cocaine. I have accepted the evidence before me that Ms. Digiorgio was seriously addicted to cocaine throughout the period of four months she stole from her employer. I have also accepted that she has made tremendous inroads in overcoming her addiction to cocaine and has been significantly involved in Narcotics Anonymous, both as a participant and recently as a sponsor.

[70] It is my view, as I expressed to Mr. Frost during submissions, a first penitentiary sentence of 10 to 12 years would be a crushing sentence to Ms. Digiorgio and is much longer than is necessary to address the appropriate sentencing objectives. In my view such a sentence is excessively disproportionate in the circumstances of this case. Such a sentence ignores the important rehabilitative steps taken by Ms. Digiorgio in addressing her addiction to cocaine during the past year and frankly, such a sentence would likely have a detrimental and harmful impact on that progress. I believe this is the reason the principle of restraint and reintegration into the community should play an important role in determining a proportionate sentence for Ms. Digiorgio, while recognizing the importance of deterrence and denunciation. It is my view the principle of specific deterrence is an important consideration in this case having regard to Ms. Digiorgio's prior record of theft over.

[71] The two cases provided by the Crown where a sentence of 10 years was imposed (R. v. Godreau) and a sentence of 11 years was imposed (R. v. Patel) in my view are significantly different from Ms. Digiorgio's case and can be distinguished. In the Godreau case, Mr. Godreau had a lengthy criminal record, which included trafficking and possession for the purpose of trafficking in Schedule 1 substances, he was the kingpin of a sophisticated commercial criminal enterprise involved in trafficking Schedule 1 substances and his sentence was imposed after a trial. In the Patel case, Mr. Patel was a pharmacist who stole fentanyl and oxycodone, which had a street value of $975,000, over several years. The quantity of fentanyl patches was significantly greater (3000) than in Ms. Digiorgio's case (672). He also defrauded the pharmacy where he worked of $50,000 and the Ontario Drug Plan of a further $50,000, which is three times the financial loss suffered by the pharmacy where Ms. Digiorgio was employed. There was a substantial commercial element to his criminal conduct and he was not a drug addict. He had a professional and statutory responsibility to ensure narcotics were accounted for and safely distributed into the community. He was described by the sentencing judge as a gatekeeper when describing this role. The aggravating factors which existed in these two cases were more serious than in the case of Ms. Digiorgio and her mitigating circumstances relating to her overcoming her cocaine addiction were not present in either Mr. Godreau's or Mr. Patel's cases.

[72] I am also of the view that the final position taken by Mr. Macdonald of three to four years in the penitentiary does not adequately reflect all of the aggravating circumstances present in Ms. Digiorgio's case. The nature of the Schedule 1 substances and the quantity she stole require a penitentiary sentence of greater length than the three to four year sentence submitted by the defence. Further, the previous record for a breach of trust offence relating to the theft of Schedule 1 substances is an aggravating circumstance, as is the fact there is a commercial element involved in the facts as admitted by Ms. Digiorgio to the probation officer in terms of her bartering the drugs she stole for cocaine from her dealer. It is my view Ms. Digiorgio is not entitled to the significant mitigation that would have resulted had she co-operated with the police and provided information as to the identity of the individual she traded the Schedule 1 substances for cocaine.

[73] Ms. Digiorgio's involvement and circumstances are similar to the cases of Medeiros-Sousa, Gebien, S.M., Reid and King, where penitentiary sentences of 2 years to 3.5 years were imposed for first offender drug addicts who stole from their employers (pharmacies/doctor's offices) or falsified drug prescriptions (doctors). There are obvious differences between those cases and Ms. Digiorgio's case in terms of mitigating and aggravating circumstances. There are additional aggravating circumstances in Ms. Digiorgio's case in that she has a criminal record involving a similar breach of trust from her employer and the quantities of the Schedule 1 substances she stole were significantly greater. If these additional aggravating circumstances did not exist a sentence in the range sought by Mr. Macdonald would have been an appropriate and fit sentence. As I indicated above, had she cooperated with the police she would have been entitled to the mitigation reflected in the Baks decision.

Sentence

[74] Considering the totality of the mitigating and aggravating circumstances which exist in Ms. Digiorgio's case, a proportionate sentence is a penitentiary sentence of six years. On the charge of possession of Schedule 1 substances, namely fentanyl, hydromorphone and oxycodone, for the purpose of trafficking there will be a sentence of five years. On the charge of theft over $5000 there will be a sentence of one year consecutive, less the 3 months of credit referred to in paragraph 50 above, leaving a sentence of 9 months, consecutive to the 5 year sentence for the possession for the purpose of trafficking sentence.

[75] In addition there will be a s. 109 weapons' prohibition order for 10 years.

[76] There will also be a DNA order as a secondary designated offence pursuant to s. 487.04.

[77] Finally, there will be a free standing restitution order pursuant to s. 738(1)(a) in the amount of $33,724.73 in favour of Lovell Drugs, 600 Grandview Street South, Oshawa.

Released: March 28, 2018

Signed: Justice Peter C. West