Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2024 11 15 COURT FILE No.: Niagara Region 998 22 S2003

BETWEEN:

HIS MAJESTY THE KING

— AND —

Arthur Michaud

Before: Justice J. De Filippis

Heard on: July 23 and October 25, 2024 Reasons for Sentence released on: November 15, 2024

Counsel: Mr. D. Reschke, counsel for the Crown Mr. M. Evans, counsel for the accused

De Filippis, J.:

Reasons for Sentence

[1] The defendant was charged with possession of methamphetamine for the purpose of trafficking and possession of the proceeds of crime. He was arrested on April 25, 2020, in the City of St. Catharines after the execution of a search warrant at his residence. During a two-day trial, I heard from three police officers as well as the defendant. My reasons for finding the defendant guilty can be found at R v Michaud 2024 ONCJ 265.

[2] Section 5 of the Controlled Drugs and Substances Act provides for up to life in prison for this offence. Section 10 of the Act states that:

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.

[3] In imposing sentence, I am also guided by Part XXIII of the Criminal Code. The following provisions are particularly important:

718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender

[4] Proportionality means that the severity of a sentence will depend on the seriousness of the offence as well as the moral blameworthiness of the offender; see R v Lacasse 2015 SCC 64. Personal circumstances are relevant in determining proportionality considering the seriousness of the offence, but they do not alter the seriousness of the offence: see R v Schofield [2019] B.C.J. No. 22 (BCCA).

[5] The defendant lived in an apartment in the basement of a house. Photographs taken by the police during the execution of the search warrant show a small unit that was cluttered and dirty. The police found and seized the following items:

• Two “dime bags” with hearts [heart baggies] imprinted on them on the floor.
• A digital weigh scale, scoop, and mirror, all of which contained white powder, on a coffee table.
• A pink backpack found in the bedroom that contained heart baggies, and a scale.
• Two notebooks, the larger of which, contains several pages that record drug debts.
• Two Tupperware containers under a couch in the living room. One container had two heart baggies with white powder and the other had a Ziplock bag with white powder.
• A wallet containing $390, on the same couch.

[6] The white powder in the two Tupperware containers tested as crystal methamphetamine. The white powder on the digital scale, scoop, and mirror was not sent to Health Canada for analysis. The weight of the drug in Ziplock bag bulk is 82.1 grams. The two heart baggies contained 6.1 and 6.5 grams. The total amount of crystal methamphetamine is 98.3 grams.

[7] The defendant has a criminal record. In 2008, was sentenced to time served (26 days) and placed on probation for mischief and two counts of failure to comply with court orders. I know more about the defendant’s background because I have the benefit of a presentence report.

[8] The defendant was born in St. Catharines. His mother abused substances while pregnant with him. He has Metis ancestry on his father’s side. He has three younger sisters and one younger brother as well as several half siblings from both his mother and father's additional relationships. The defendant and his biological siblings all grew up in the child protection system. He does not know why his parents were unable to care of them.

[9] The defendant remembers being adopted at a young age only to be returned to child protection services after ten months. He was later told he faced various forms of abuse during this time; however, has no recollection of such. He was placed in other foster homes between for the next two years before obtaining a more permanent placement in a home at the age of six years old. He remained in this home for ten years. The residence was a group setting in a rural area and the family housed many children with physical and mental disabilities. The defendant hated his childhood and described it as isolated and void of emotional connection. However, he does credit his foster parents, who he said were “born again Christians”, for teaching him good values and treating others with respect. The defendant opted out of child protection services in his late teens and has lived a transient lifestyle until recently. During this time, he hitchhiked across Canada three times and lived in several cities.

[10] The defendant has attention deficit hyperactivity disorder (ADHD) for which he was medicated. That medication ended after he opted out of child protection services and he does not have a family doctor. He began using alcohol at a young age to cope with social anxiety. He attempted suicide several times. By his early twenties he was a daily user of crystal methamphetamine.

[11] The defendant reconnected with his mother later in adolescence, but they are not close. He also reconnected with his father, but the latter was convicted of sexual offences several years ago and is currently under conditions prohibiting communication with immediate family members. The defendant has had no contact with his siblings.

[12] The defendant met a woman four years ago, soon after his arrest for the present offences. For most of this time, they have been homeless. Both are recovering drug addicts but have been “clean” since the woman became pregnant. Recently, she gave birth to their son. They now have stable housing and are in receipt of social assistance. Child protection services has apprehended the child. The parents see him twice a week while they participate in counselling programs, including parenting courses. The defendant and his partner understand they can obtain custody of their son by the successful completion of these programs.

[13] The Crown submits that the defendant should serve a penitentiary term in the amount of three years and six months. Counsel also seeks the mandatory section 109 weapons prohibition for life, along with a discretionary DNA Data Bank order and forfeiture of the offence-related property and proceeds of crime. The Defence does not challenge the ancillary orders but argues that community-based incarceration is appropriate; that is, I should a conditional sentence order under terms of house arrest.

[14] The Crown argues that the most important aggravating factor is the quantity and nature of the drug, suggesting that the defendant is not a low-level street dealer. Rather, it bespeaks a significant trafficking venture for profit. Counsel adds that the defendant’s actions represent a reckless disregard for the way his actions adversely impact the most vulnerable members of the Niagara Region, and the future of our entire community.

[15] The Crown provided me with caselaw that confirms that general deterrence and denunciation are paramount principles in sentencing persons convicted of trafficking in Schedule I drugs. Counsel submits that jail is required to meet these sentencing principles and that they must take priority over rehabilitation.

[16] The Defence asserts that there are substantial mitigating factors that diminish moral blameworthiness: The defendant’s challenges started in the womb because his mother abused substances while pregnant. The defendant suffered was quickly taken into foster care, living with several families. He experienced emotional disconnect and found himself on the streets in his teens. His criminal record criminal is dated, minimal and unrelated. The defendant is in a long-term relationship. He and his partner have been drug free for almost two years and have gone from living in a car and tent to stable housing. They are focused on becoming good full-time parents. Counsel adds that the defendant has not given up the fight; he is pointed in the right direction and has a compass in hand to guide him. A penitentiary sentence will be a great, perhaps permanent, setback. A conditional sentence order can reflect the diminished moral blameworthiness, to promising future and account for the seriousness of the offence.

[17] At the conclusion of submissions, the defendant addressed the Court in these words:

I have struggled with addiction and homelessness. I have a wonderful partner and child. Seeing him being born has changed my life. I don’t know what to say here but I’m grateful. I am emotional. I am working hard to change and doing all that is needed to get my son back. A six-month window to go back to court. I don’t know what to say here. I am praying for the best today.

[18] I am witness to the seriousness of the present offence. The docket of many provincial courts, including Niagara Region, is often informed by poverty, mental illness, and addiction. Although these factors feed on each other, drug addiction, especially with a substance such as crystal methamphetamine, is the most pressing social problem. It causes misery to the addict, suffering by those who love the addict, much secondary crime, and significant social costs to deter and rehabilitate the addicts. Therefore, a penitentiary sentence often awaits those who traffic in hard drugs, even addict traffickers. However, in the present case, I am persuaded that a reformatory sentence is appropriate. The caselaw provided by the Crown involves similar quantity of the drug in question, but not similar offenders.

[19] The defendant is 34 years old. He was 30 years old at the time of his arrest. He came from the foster home system. He has been addicted to illicit drugs. This began in his mid 20s when he was living a transient lifestyle in Toronto. At this time, he was using crystal methamphetamine and MDA. He has been sober for almost two years. He is in receipt of social assistance payments and works in landscaping part time. The defendant suffers from pre-natal brain damage and experiences anxiety and manic depression. He has a dated minor non-related criminal record.

[20] My conclusion that a penitentiary sentence is not appropriate is also informed by my rejection of the Crown submission that the defendant was engaged in a significant trafficking venture for profit. Neither the amount of the drug nor, especially, the defendant’s background and lifestyle points to anything other than a low-level drug dealer supporting his own habit while living in squalid and impoverished circumstances. This does not diminish the harm caused to others by the distribution of this hard drug, but this is not a man who profited from the misery of others.

[21] Having decided that a penitentiary sentence is not required in this case, I can consider whether the period of incarceration can be served in the community under terms of house arrest. Section 742.1 of the Code lists four criteria that a court must consider before deciding to impose a conditional sentence: (1) the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment; (2) the court must impose a term of imprisonment of less than two years; (3) the safety of the community would not be endangered by the offender serving the sentence in the community; and (4) a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2.

[22] The first two criteria are met in this case. There is reason to be hopeful that the defendant can overcome a most difficult childhood and live a good and productive life. He is in a long-term relationship with stable housing, social assistance, and counselling programs. The defendant tells me, and I accept, that he and his partner are determined to prove they can be good parents and obtain custody of their son. There are few more motivating factors in life than this. These personal circumstances give me confidence that community safety will not be endangered by the imposition of a conditional sentence. The difficult question is whether such a disposition meets the fourth criterion set out in the legislation.

[23] The doctrine of proportionality requires a consideration of the seriousness of the offence and the personal circumstances of the offender; one cannot be ignored in favour of the other. The seriousness of the present offence will usually call for a significant jail sentence. However, exceptional circumstances can dictate otherwise. In this regard, I note that the Court of Appeal for Ontario, in R v Pike, 2024 ONCA 608, described exceptional circumstances as shorthand for personal circumstances and mitigating factors that are sufficiently compelling to make a conditional sentence appropriate.

[24] Denunciation and deterrence can be reflected through a conditional sentence, even in the most serious offences. The Court of Appeal for Ontario made this clear in R. v. Kutsukake, [2006] O.J. 3771, a case involving criminal negligence causing death. The Court of Appeal considered the leading case of R. v. Proulx, 2000 SCC 5, 140 C.C.C. (3d) 449 (SCC) and stated as follows:

The Supreme Court of Canada held, at para. 114, that even in the presence of aggravating factors which might indicate the need for denunciation and deterrence"a conditional sentence may provide sufficient denunciation and deterrence, even in cases in which restorative objectives are of diminished importance." Writing for the court, Lamer C.J.C. added at para. 100: A conditional sentence can achieve both punitive and restorative objectives. To the extent that both punitive and restorative objectives can be achieved in a given case, a conditional sentence is likely a better sanction than incarceration. Where the need for punishment is particularly pressing, and there is little opportunity to achieve any restorative objectives, incarceration will likely be the more attractive sanction. However, even where restorative objectives cannot be readily satisfied, a conditional sentence will be preferable to incarceration in cases where a conditional sentence can achieve the objectives of denunciation and deterrence as effectively as incarceration. This follows from the principle of restraint in s. 718.2(d) and (e), which militates in favour of alternatives to incarceration where appropriate in the circumstances.

[25] House arrest is not jail. It is, however, a significant restriction on liberty. Moreover, unlike jail, there is no remission. The conditional sentence order in this case will be for the maximum term allowable and the house arrest will be for the duration of that term. I note that in R. v. Ryazanov, 2008 ONCA 667, the Court of Appeal for Ontario said that:

Conditional sentences should be punitive. As the Supreme Court of Canada stated in R. v. Proulx, at para.117: "[P]unitive conditions such as house arrest should be the norm, not the exception." In my view, that comment applies throughout the duration of a conditional sentence. Therefore, the house arrest conditions should be extended to the full term of the respondents' conditional sentences.

[26] It is also worth mentioning, as a general matter, that I rarely impose a conditional sentence without the electronic supervision program. The defendant has been approved for that program. That means he cannot cheat. As such, the sentence is meaningful and effective.

[27] Having regard to this offence and offender, I conclude that a conditional sentence order is in accordance with the fundamental principles of sentencing, including s. 10 of the Controlled Drugs and Substances Act.

[28] The defendant will serve a conditional sentence for a period of two years, less one day, in accordance with the electronic supervision program and subject to these terms:

1. Report to a supervisor of conditional sentence orders within two days, and thereafter, as required;
2. Attend and actively participate in all assessments, counselling, and rehabilitative programs as directed by the supervisor, including substance abuse and parenting courses;
3. Agree to the release of any medical or other information necessary to monitor compliance with this order;
4. Remain on the property his residence, home, except as follows; i) Medical emergencies; ii) To go directly, to and from, and be at, religious observance, employment, and education; iii) To go directly, to and from, and be at, medical, dental, or legal appointments, and at assessment, counselling, or rehabilitative programs; iv) For personal shopping for a four-hour period per week; v) Except for medical emergencies, he must provide the dates and times for the forgoing exceptions to the supervisor, in advance of such activities. vi) For any other purpose that may be approved of by the supervisor.
5. Carry his conditional sentence order on his person whenever he is outside the home.

[29] I also impose the following ancillary orders; the defendant will provide a sample of his DNA and will be subject to a section 109 order for ten years.

Released: November 15, 2024 Signed: Justice J. De Filippis