Court Information

Ontario Court of Justice

Date: 2019-07-16

Court File No.: Niagara Region 998 18 N0455

Parties

Between:

Her Majesty the Queen

— and —

Patricia Walstra

Judicial Officer and Counsel

Before: Justice J. De Filippis

Heard on: March 20 and May 15, 2019

Reasons for Sentence released on: July 16, 2019

Counsel:

• Ms. S. Ford — counsel for the Crown
• Mr. D. Kerr — counsel for the accused

Reasons for Sentence

De Filippis, J.:

Facts

[1] The defendant pled guilty to trafficking in fentanyl. The admitted facts are these: On January 20, 2018 the police, who were conducting surveillance at the rear of a pharmacy, observed a suspicious meeting involving two cars. A motor vehicle, driven by Nicole Elia, entered the parking lot and stopped. A second vehicle, driven by the defendant did the same. The defendant left her car and went into the front passenger side of the other vehicle. The defendant was seen to pass what appeared to be fentanyl patches to Mr. Elia. This sequence of events was observed again on February 1, 2018. The police stopped both vehicles as they left the parking lot and arrested the two women. Ms. Elia was found in possession of 18 fentanyl patches. Each one contained 25 micrograms of the drug.

[2] Ms. Elia told the police that she has been using fentanyl for several years. She was aware that the defendant had a prescription for fentanyl and asked for some. The defendant sold her the patches found on her person. The defendant also provided a statement to the police; she admitted selling her prescription fentanyl patches to Ms. Elia and added that she "did it for the money".

Sentencing Submissions

[3] The Crown submits that the appropriate sentence is three years in the penitentiary. The Defence argues that a fit sentence is one year in the reformatory. The position of both counsel is informed by the relatively severe penalties that have been imposed on those who deal in fentanyl. These sentences recognize that this drug is particularly dangerous to the community.

Evidence and Background

[4] I have reviewed the material filed by the Crown including statistics related to fentanyl, a report by Dr. Karen Woodall about the nature, use, and abuse of this drug, and relevant case law. I also benefit from a fulsome pre-sentence report about the defendant's background and a letter from her doctor. Neither party took objection to this evidence. What follows is a summary of it.

Nature of Fentanyl

[5] Fentanyl is a synthetic narcotic analgesic that is used for chronic pain management. Its most common form is the transdermal patch, designed to be placed on the skin and to release the drug into the body over a 72-hour period. If used properly, fentanyl is a potent drug. When it is abused, it is deadly. The illicit use of fentanyl involves crushing the patch and taking the drug at one time, by oral consumption, intravenous injection or inhalation (smoking). At such a dosage, the drug can cause respiratory depression and failure. Dr. Woodall is of the opinion that fentanyl is 10 to 20 times more powerful than heroin. She added that determining what is a fatal dose depends on the tolerance of the user. Fentanyl can also be manufactured illegally. This powder form makes its way down the chain of distribution and is often mixed with other drugs. As already noted, the present case is about the illicit sale of prescription patches.

Public Health Crisis

[6] The significance of the statistics and reports included in the Crown material was, perhaps, best captured by my colleague, Justice Wilkie, in R v Larocque and Santos-Mendez, unreported, March 4, 2019, Ontario Court of Justice: "A drug most of us had never heard of several years ago is now at the centre of a national public health crisis that has resulted in literally hundreds of deaths through overdose. The region of Niagara has not been spared".

[7] Not surprisingly, the Crown focused her submissions on the public danger created by those who commit this offence. However, as is almost always the case in sentencing, the issues are not that simple. Defence counsel emphasized the life of this offender.

Pre-Sentence Report

[8] The probation officer who prepared the pre-sentence report noted that the defendant was polite and answered all questions put to her. Much of what she said was confirmed by her mother and sister.

Defendant's Background and Personal History

[9] The defendant is 50 years old. She has six convictions for crimes of dishonesty (fraud, personation, forgery) during the 12-year period between 1998 and 2010. In all cases, sentence was suspended and the defendant was placed on probation. Her parents separated when she was young and her mother remarried. As her mother worked many evening and night shifts, the defendant, at the age of 12, was often home alone with her step-father. The defendant claims that he sexually abused her for several years and threatened her with further harm if she revealed it to anyone. At the age of 16, the defendant became pregnant. Within six months, her stepfather had sexual intercourse with her. This induced early labour and the child was born prematurely. After this time, the defendant began to wet her bed. Her mother arranged for counselling and the sexual abuse was revealed. The police were called and the defendant's father was charged accordingly. He was found not guilty, after a trial.

[10] The defendant has struggled throughout her life with physical and mental issues. Her mother feels guilty about not protecting her daughter and believes her issues are related to the abuse. The defendant's younger sister has a doctorate from a university and appreciates how different her life is. She was not sexually abused and, in hindsight, now also realizes why the defendant always stayed by her side when the stepfather was at home.

Employment and Substance Use History

[11] The defendant quit school at the age of 16 and became a hairdresser. She is currently employed by a company that sells candies and accessories. The defendant became addicted to cocaine in the 1990s but managed to free herself from the drug. However, she has been prescribed fentanyl for the past 20 years. She reports having difficulty managing stress and often finds herself overwhelmed. This manifests itself in crying, loss of appetite, vomiting and dry heaving.

Remorse and Rehabilitation Potential

[12] The defendant told the probation officer that she greatly regrets this offence and wants counselling to "work through past trauma, historical addiction, and making better choices". The probation officer noted that the defendant "has been successful on probation in the past and her intentions would be fully supported should she be placed on community supervision". These comments are echoed by the arresting officer; he described the defendant as "cooperative, remorseful, and a suitable candidate for community supervision".

Medical and Mental Health Conditions

[13] The extent of the defendant's mental and physical challenges is revealed by a letter prepared by her family physician. She is bipolar and has also been diagnosed with affective mood disorder, and ADHD. She suffers from hearing loss, fibromyalgia, chronic constipation and incontinence. She uses a catheter to relieve her bladder. Her occasional panic attacks, due to post traumatic stress disorder, irritates her bowel and requires an adult diaper. The defendant sees a psychiatrist every two months and takes 43 pills each day, including eight Percocet.

Legal Principles

[14] The maximum penalty for trafficking in fentanyl is life imprisonment. That reflects the seriousness with which Parliament views the crime and the many ways in which it is committed; from the addict trafficker on the street to the large commercial drug dealer. There is no minimum penalty (apart from the requirement that a conviction be registered). This wide discretion recognizes that sentencing is an individualized exercise; the same offence can be committed by different persons or different circumstances and result in different sentences. This discretion is fettered by my duty to be faithful to the principles of sentencing set out in the Criminal Code and as explained by appellate courts.

[15] The ultimate purpose of all sentences is protection of the public. The most important principle is that of proportionality; a sentence must be proportionate to the gravity of the offence and the degree of responsibility of moral blameworthiness of the offender. This requires a consideration of the aggravating and mitigating factors. The Court of Appeal for Ontario in R v Lu, 2016 ONCA 479, noted that, "Fentanyl is one of the most highly addictive and dangerous drugs….General deterrence and denunciation are paramount factors".

[16] In R v Loor 2017 ONCA 696, the same court noted that:

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.

[17] I would not describe the 18 patches sold by the defendant as a "significant amount" of fentanyl. Neither is it inconsequential. The trial decisions brought to my attention suggest that, absent exceptional circumstances, even this modest amount can attract a penitentiary term.

Analysis and Sentencing Decision

[18] The defendant's personal circumstances are extraordinary. Defence counsel described her as more a fool, than a criminal. That may be, but I cannot ignore the fact that she sought to profit from the sale of such a dangerous drug. On the other hand, her remorse is genuine and substantial. She readily confessed to the police and pled guilty before me. She cried during much of the sentence hearing, occasionally looking to her mother and son, who had come to support her. The defendant presents as timid and unsophisticated. She has never been in custody before. Her serious physical and mental health challenges have brought her to this point in life; those challenges mean that jail will be especially hard on her. This, also, cannot be ignored.

[19] In my opinion, the competing interests are appropriately balanced by a sentence of one year in jail. Following this period of custody, the defendant will be on probation for one year. In addition to the statutory terms, she will report to a probation officer and take counselling as directed. She will provide a sample of her DNA and be bound by an order under section 109 of the Criminal Code for a period of 10 years.

Released: July 16, 2019

Signed: Justice J. De Filippis