COURT FILE NO.: CR-10-435
DATE: 20121102
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Nora L. Lapp and Geoffrey Roy, for the Crown
- and -
JOANNA ROSS
Wlademer Fedunchak, for the Joanna Ross-Rushton
HEARD: March 19, 2012 and October 26, 2012
REASONS FOR SENTENCE
Fragomeni J.
[1] Joanna Ross-Rushton was convicted by a jury following a lengthy trial on the following counts:
Conspiracy to export ecstasy;
Conspiracy to export Marihuana;
Possession of proceeds of crime;
Conspiracy to possess proceeds of crime;
Possession of cocaine for the purpose of trafficking;
Possession of ecstasy for the purposes of trafficking.
[2] With respect to the conspiracy to export ecstasy, the amount of the pills was significant. Ms. Ross’ role was to provide a location, her apartment, to facilitate the packaging of the pills for export to the United States.
[3] With respect to the conspiracy to export marihuana, the amount involved was about 10 pounds.
[4] With respect to the possession for the purpose of trafficking convictions, the amount of cocaine involved was 124 grams. There were also numerous ecstasy pills found in her apartment.
[5] Finally, with respect to the proceeds convictions Ms. Ross was in possession of $16,000 in U.S. cash.
Pre-Sentence Reports:
[6] Initially, the sentencing of this matter was scheduled for March 19, 2012. At that time, submissions were made. A Pre-Sentence Report had been prepared and filed with the Court.
[7] The Pre-Sentence Report disclosed that Ms. Ross is currently married to James Rushton with whom she is having their first child. The anticipated date of birth was May 11, 2012. The Pre-Sentence Report also noted that at the time of sentencing, Ms. Ross was entering her final trimester and as a result, she was feeling anxiety about the potential for incarceration.
[8] Ms. Ross requested that sentencing be postponed until after she gave birth to her child and has had an opportunity to bond with the child.
[9] Following the sentencing submissions on March 19, 2012, I decided to accede to the defence request to adjourn the imposition of the sentence to a later date so that Ms. Ross would have an opportunity to give birth to their child and have time to bond with the child.
[10] The matter was, therefore, adjourned to October 26, 2012. A further Pre-Sentence Report was ordered to update Ms. Ross’ situation.
[11] The initial Pre-Sentence Report sets out the following additional personal information relating to Ms. Ross.
Dr. Pat Franklin, contract psychologist for Probation & Parole Services, confirmed Ms. Ross’ claims of unrewarding prior relationship. Prior to her current relationship, Ms. Ross engaged in her second intimate relationship with an individual whom she described as the person who was primarily responsible for her connection to criminal activities. Both her parents and Ms. Ross herself described examples of grooming by her partner at the time which included expensive gifts, financial compensation for living expenses, and emotional reinforcement.
Ms. Ross completed Grade 12 as well as a three year post-secondary diploma in Business Administration & Human Resources.
The Pre-Sentence Report also notes that with respect to these charges, Ms. Ross accepts responsibility for some but not all of her actions. Ms. Ross continues to place primary responsibility of the offences on other parties and believes she was manipulated.
On January 5, 2011, Ms. Ross was given a Conditional Discharge with 12 months probation for a charge of uttering a forged document. On page 5 of the initial Pre-Sentence Report, the Probation Officer states:
The subject has been supervised by this writer on her recently completed 12 month order since August 2011. While there can be no doubt that she has struggled emotionally likely as a result of the outstanding matter that predated the order, a significant change in attitude and behaviour has been documented showing the subject having matured and taking on significant responsibility within her newly formed family. The subject consistently reported, even when out of the area for the purpose of attending to outstanding criminal matters.
Follow-up Pre-Sentence Report
[12] Ms. Ross gave birth to a healthy boy on May 8, 2012. Ms. Ross reported that the birth was non-problematic and further reports the bond both she and her husband have with their son is strong. The father, Jamie Rushton, has taken a parental leave of absence until March 2013.
[13] With the birth of her child, Ms. Ross reports that she is now more emotionally stable.
[14] At the recommendation of the physician that diagnosed Ms. Ross with ADHD, she has made contact with an ADHD life coach. Ms. Ross has made contact with Ms. Gillian Smith, an ADHD life coach, developing strategies to assist in being more productive with daily activities.
[15] At the October 26, 2012 attendance further submissions were made in light of the up-dated Pre-Sentence Report.
[16] The defence also filed a report dated October 24, 2012 from Dr. Yvonne Bohr, Associate Professor, Clinical Development Psychology, La Marsh Centre for Child and Youth Research, York University.
[17] Before I deal with the contents of that report, I wish to set out defence counsel’s position. The defence asks the Court to impose a conditional sentence of 2 years less a day followed by probation for 3 years, both orders to contain very strict terms.
[18] Ms. Ross, in a statement read out to the Court, urged the Court to grant a conditional sentence.
[19] Ms. Ross articulated to the Court that her conduct in 2009 does not define her now and since then she had been engaged in counselling to deal with her depression and anxiety and her ADHD. She advised that her most serious concern with incarceration is the separation from her son. In her report Dr. Yvonne Bohr states at paragraph 2:
In short, there is overwhelming scientific evidence to suggest that early parental loss – whether through death or prolonged separation – which occurs after about the 5th or 6th month of a child’s life, a time when a child first shows “object permanence” and attachment behaviours, can have very significant social, emotional and neuro-endocrine sequelae (consequences) well into that child’s adulthood. These consequences include mood and anxiety disorders, as well as altered stress responses, resulting in diverse health and mental health problems. The cost to individual children, families and society of such consequences is great, and should be taken into account when considering such separations.
[20] At the October 26, 2012 hearing the Crown reiterated his position that because of the seriousness of the charges and the nature and quantities of the drugs involved in this case, a penitentiary term is mandated. The Crown maintained his position that a conditional sentence is not appropriate and his original position of a period of incarceration in the range of 5 to 6½ years is the appropriate term of imprisonment.
Position of the Crown
[21] The Crown is seeking a total period of incarceration of 5-6 ½ years in a penitentiary. The Crown allocates this time period as follows:
Counts 8 and 10 - Conspiracy to export ecstasy and conspiracy to export marihuana, 3 years concurrent.
Counts 11 and 12 - Possession of proceeds and Conspiracy to possess proceeds, 12-18 months consecutive, but concurrent to each other.
Counts 15 and 16 - Possession of Cocaine and Ecstasy for the Purposes of Trafficking, 2 years consecutive but concurrent to each other.
[22] The Crown points to the following factors to support this position:
- With respect to the exportation of the ecstasy, the number of pills was significant. The Crown submits that Ms. Ross’ role is comparable to that of Mr. Pinch and Mr. Duncan. On February 13, 2012, Justice Hill sentenced Mr. Pinch to 6 years.
At pages 3 and 4 of his sentencing decision Justice Hill states:
Together with Andrew Duncan and others, the offender conspired to export ecstasy from Canada to the Atlanta area. Mr. Pinch acted between the supplier of the MDMA and the Duncan network, running couriers into the United States, and back with cash proceeds of the distribution of MDMA in the United States. The evidence supports intimate involvement in the ecstasy distribution regime over a number of months.
In a wiretap intercept, the offender discussed “85-87 pounds of pills,” and in another a reference to what may be inferred as about 90,000 ecstasy pills.
In a separate trial, Andrew Duncan was found guilty of his part in the unlawful scheme and stands to be sentenced by Justice Fragomeni.
MDMA in the form of ecstasy pills can be cheaply produced for a few cents a pill. Relevant case law reviews show street-price ranges of perhaps $20.00 to $40.00 a pill. The value of the 85,000-plus pills here therefore in total would be from one to one-and-a-half to over three million dollars.
On the evidence as said, Mr. Pinch stood between the supplier – whether a foreign supplier or the operator of a domestic lab – and Andrew Duncan who arranged to have the ecstasy pills packaged and couriered into the United States with proceeds returned. The offender’s role was integral to the operation. On the evidence, he was fronted the ecstasy and had either actual or constructive possession before passing it to Andrew Duncan. Mr. Pinch came under pressure when payment was delayed. The wiretap intercepts indicate that he and Mr. Duncan both felt the pressure and urgency of the situation when sufficient funds were not returned from the United States after border seizures from cash couriers. What exact cut or profit Mr. Pinch stood to make is unknown.
[23] After reviewing the aggravating and mitigating circumstances relating to Mr. Pinch, Justice Hill noted the following at pages 8 and 9:
In Pushpanathan v. Canada (Minister of Citizenship and Immigration,) 1998 778 (SCC), [1998] 1 S.C.R. 982 (S.C.C.), Justice Cory wrote of the social and economic costs of illicit drug use in Canada. He stated at page 1039:
“The costs to society of drug abuse and trafficking in illicit drugs are at least significant if not staggering. They include direct costs such as health care and law enforcement, and indirect costs of lost productivity.”
Canada, of course, has a legal duty to honour its international obligations respecting elimination of the global movement of ecstasy. Meaningful sanctions contribute to the defeat of transnational criminal organizations. A conviction for possession of ecstasy for the purpose of exportation from Canada is punishable, pursuant to section 6(2) of the Controlled Drugs and Substances Act, by a maximum of ten years’ imprisonment. The conspiracy to export ecstasy offence is similarly punishable by a maximum of ten years’ imprisonment.
And finally Justice Hill states at page 14:
Mr. Pinch is not a one-off courier employed at a low level role in the ecstasy distribution scheme. His participation in the unlawful agreement to export ecstasy involving tens of thousands of MDMA pills and his possession of the ecstasy for the purpose of trafficking was at the level of a principal. As such, the degree of moral blameworthiness is significant. Only complete deprivation of liberty would be proportionate to his involvement, the gravity of the offence, and the need for general deterrence.
In the circumstances, the offender is sentenced on Counts 1 and 2 to concurrent terms of six years’ incarceration. There will be a section 109(2)(a) order for ten years; a section 109(2)(b) order for life.
The Crown argues that this was a significant operation and Ms. Ross’ role was important and integral.
- With respect to the possession for the purpose of trafficking cocaine and ecstasy, the Crown refers the Court to the Bacchus decision. In R. v. Bacchus, 2011 Carswell Ont 14447 A.J. O’Mara, J. stated the following at para: 18:
The amount involved in this case is substantial and could well warrant the imposition of a sentence in the higher end of the range as requested by the Crown. However, several factors that must be taken into account serve to moderate the term of imprisonment that might otherwise be imposed. There was no evidence of the role Mr. Bacchus played in the drug trade. There was no evidence of his direct participation in the sale of the drugs in the circumstances of the offence. (See R. v. Speziale, [2011] O.J. No. 3957 (O.C.A.) at para. 23 where it was considered a factor in reducing an otherwise penitentiary term offence in that case to within the reformatory range.) He was in possession and the defence admitted that the quantity was consistent with an amount for trafficking. He was not on probation or bail. He is a youthful offender with no criminal record and most important, he has demonstrated potential for rehabilitation.
In Bacchus, the amount of cocaine involved was 35.19 grams of crack cocaine. Justice O’Mara sentenced Bacchus to 14 months in jail.
- In R. v. Woolcock, 2002 Carswell Ont 7683, (Ont CA) the Court of Appeal reduced the sentence from 2 years less a day to 15 months for possession for the purpose of trafficking crack cocaine and possession of proceeds of crime.
Position of the Defence
[24] The defence submits that a Conditional Sentence is appropriate in these circumstances.
[25] The defence submits that Ms. Ross’ diagnosis as having ADHD is a mitigating factor. Ms. Ross has taken 12 counselling sessions in Hanover to deal with her stress, and coping mechanisms.
[26] In this regard, the defence filed the decision in R. v. Matheson, [2001] NSJ No. 195. This case involved a solicitor charged with breach of trust, theft using a forged document. At paras: 27, 28 and 29, the Court notes the following:
Dr. Tahira S. Ahmed, M.D. was qualified on behalf of Mr. Matheson to give opinion evidence in respect to the diagnosis, treatment and the conditions and symptoms affecting a person with ADHD and how they are demonstrated in the conduct of the individual. She testified to seeing Mr. Matheson in November 1999 and finding he fit the criteria necessary for her to conclude he had, since childhood, suffered from this disorder.
Her diagnosis was later confirmed when he attended at the Massachusetts General Hospital and was examined by another expert in the field of ADHD, Dr. Edward M. Hallowell. In describing ADHD she testified:
“ADHD is one of the developmental and more recently genetic disorders in which persons have a triad of symptoms of hyperactivity, impulsivity and inattention. It is divided into several different categories now according to the diagnostic and statistical manual which is used for reference to people with mental disabilities. There are different classifications of ADHD. It’s a combined type in which the triad of these three symptoms occur. It can be the inattentive type alone in which a person can have inattention and no impulsivity and hyperactivity, and more recently they look at a hyperactive type alone in which a child with average to above average IQ just presents with hyperactivity alone. Mr. Reeves (sic) suffers from a combined type of attention deficit disorder diagnosed as Adult ADHD.
......When I first saw Reeves, this was, like I stated before in November of 1999 and he fit the criteria of the combined type of ADHD. Looking not only at his symptoms that had occurred in the last year but of course going back right into his childhood, his development and other issues that related particularly to symptoms that are associated with people who are diagnosed in a later part of life or in adulthood or adolescent and are unaware of their symptoms as a child.
...The difficulties that they experience in adult life is mostly based on impulsivity and cognitive deficits. Cognitive deficits being that adults with ADHD because of the genetic component of the problem and... these people experience this as an inherited genetic trait, impulsivity along with other ...things like inattention, distractability, living for the moment, inability to recognize abstract reasoning and some people with higher IQs also have learning disabilities in mathematical reasons, language arts, things like that.
When I first saw Reeves he had combined type of symptoms of marked inattention, very concrete thinking, inability to recognize events as they would pertain, spur of the moment decisions, impulsive decisions and an... inability to recognize the difficulties that he was or even the fact that these did exist... They are not able to process and put their thoughts together and hence they are unable to express them. They need a lot more time. For example children in school need time to write exams, extra time, they need extra time for homework, they need extra time for projects. The same thing applies in the adult life, they are scattered all over. Their thoughts are scattered. And their thoughts have to be put together. This is what the newer DSM4 criteria is looking at in adults with ADHD and hence they suffer. They suffer emotionally, they suffer academically, they suffer in their work life and personal life. And he had several symptoms ...
...they are going to defer things, they procrastinate, they wait til the last moment til panic hits them and then they’re saying okay, this is what we’re going to do and the net result of the problem is that they do not function to the best of their ability. ...
....follow through is a major problem. This is one of the worst symptomotology of people with ADHD and particularly the adult type. Procrastination, the fear of failure....
.......one of the things that adult ADHDs of high IQ are good at is variety, novelty and thrill. This is one of the impulse acts. This is the spur of the moment. They get bored with things that are desk work, written work, things like that...
Russell A. Barkley, Phd. in his work ADHD and the Nature of Self Control: Social and Clinical Implications argues this disorder is fundamentally a mental problem of self control.
[27] The defence also asks the Court to take into account the strict bail terms that Ms. Ross was on.
[28] Ms. Ross is now in a more stable emotional state. She has a child she cares for and a stable relationship with her husband. She has the support of her family.
[29] Ms. Ross has changed her life in very significant ways and all of these factors must be balanced against the aggravating features as set out by the Crown.
Conclusion
Re: Restrictive Bail Issue
[30] In R. v. Ijam, 2007 ONCA 597, [2007] O.J. No. 3395 (ONCA) the court set out the following at paras. 23 to 37:
The appellant contends that the sentencing judge erred in principle by failing to consider the appellant's stringent pre-trial bail conditions as a mitigating factor.
As set out above, the appellant spent about thirty-one months on bail before his trial. The appellant experienced three bail regimes - an initial five week period under house arrest with exceptions for school or while in the company of his surety, an eleven month period under a 10:00 p.m. curfew except while in the company of his surety, and a final nineteen month period under the same curfew but with an additional exception for work purposes.
Defence counsel raised the issue of pre-trial bail in her sentencing submissions:
So, your honour can take into consideration restrictive bail conditions. So, we have a situation where I don't think that it could be said -- I think that there's a history of compliance here. History of compliance with bail and with an extremely restrictive bail. So, essentially, your honour can treat that as a form of pretrial custody in whatever formula your honour wishes to do, and the Court of Appeal has endorsed that approach especially when you have house arrest. Now, the house arrest has allowed him to work, but that's what we want.
The sentencing judge identified and discussed comprehensively eight mitigating and four aggravating factors before imposing sentence. He did not mention pre-trial bail as a mitigating factor. The appellant submits that this constitutes an error in principle because this court said in R. v. Downes (2006), 2006 3957 (ON CA), 205 C.C.C. (3d) 488 at para. 33, that "time spent under stringent bail conditions, especially under house arrest, must be taken into account as a relevant mitigating circumstance. ... [I]t is incumbent on the sentencing judge to explain why he or she has decided not to take pre-sentence house arrest into account."
For several reasons, I do not accept this submission.
First, the fact situations in Downes and this case are substantially different. In Downes, a house arrest bail regime remained in place for eighteen months; here, it lasted five weeks and was then replaced by a less stringent regime.
Moreover, in this case the record before the sentencing judge did not demonstrate that the bail conditions had prejudiced, or imposed undue hardship on, the appellant: see Downes at para. 37. For example, the pre-sentence report describes the appellant's situation in this fashion:
The subject is presently living in the familial home in the town of Richmond Hill. He is single with no children and maintains full time employment at "End to End Networks." When he's not working he enjoys spending his leisure time with his friends on the weekends meeting at various coffee shops in the city. He also mentioned that he enjoys going to Wasaga beach during the summer with his friends and to the parks to play soccer. He describes his friends as being well-educated individuals; some are still in university studying while others are successfully working in their fields. None are reported to have a criminal record prior to this criminal offence.
In my view, this is not a description of hardship or deprivation. In any event, it is a picture of a life far different from pre-trial custody in the Don jail or the West Detention Centre which might have been the appellant's situation if bail had been denied.
Second, it is desirable that appellate courts not hamstring judges in their weighing of relevant factors in the sentencing process. The sentencing judge in this case addressed twelve mitigating and aggravating factors in his reasons. They were all important factors and the sentencing judge's treatment of them was comprehensive and careful. The thirteenth factor - pre-trial bail - was specifically drawn to his attention by counsel for the appellant and was the subject of submissions at the sentencing hearing. In these circumstances, particularly as the period of strict pre-trial bail was very brief and it is apparent that this factor was of lesser significance than the others, it makes no sense to conclude that the sentencing judge failed to consider it, or to take it into account in his sentencing calculus. The sentencing judge simply determined that, in the particular circumstances of this case, this factor was outweighed by many competing - and more powerful - considerations. It was open to the sentencing judge to so conclude. That said, it would have been preferable had the sentencing judge explicitly explained that conclusion.
Moreover, Downes itself recognizes that the imposition of absolutes by appellate courts on sentencing judges is to be avoided. In the paragraph immediately before the one relied on by the appellant in this appeal, Rosenberg J.A. cited passages from two appellate authorities, R. v. Lau (2004), 2004 ABCA 408, 193 C.C.C. (3d) 51 at para. 15 (Alta. C.A.) and R. v. Spencer (2004), 2004 5550 (ON CA), 186 C.C.C. (3d) 181 at para. 43 (Ont. C.A.), where the courts stated that stringent bail conditions "may" and "can" be taken into account and have a mitigating effect on sentence.
This conclusion is reinforced by the sentencing principles outlined in the Criminal Code, R.S.C. 1985, c. C-46. Section 719(3) of the Code, which provides that time spent in custody as a result of an offence may be taken into account by a sentencing judge in determining the sentence to be imposed on a person convicted of an offence, makes no reference to pre-trial bail. Nor has the Code been amended to include reference to pre-trial bail, in a manner analogous to the treatment of "time spent in custody" under s. 719(3). The absence of such provisions concerning pre-trial bail reinforces the conclusion that pre-trial bail should not be seen as a compulsory or inflexible mitigation factor.
Third, there is recent authority from this court that failure by a sentencing judge to refer in his or her reasons to bail conditions does not automatically constitute an error in principle. In R. v. Lawes, [2007] O.J. No. 50, 2007 ONCA 10 at para. 10 the court said:
In our view, even if the experienced trial judge failed to consider the appellant's bail conditions as a mitigating factor in fixing sentence pursuant to R. v. Downes (2006), 2006 3957 (ON CA), 205 C.C.C. (3d) 488, at para. 42, his failure to do so is not fatal to the ultimate sentence imposed. He was entitled to emphasize community safety and the need to continue to send the message of deterrence to those who threaten that safety with firearms.
See also: R. v. Hunjan, [2007] O.J. No. 520, 2007 ONCA 102 (C.A.).
The sentencing judge engaged in similar reasoning in this case. He emphasized the important points - both mitigating and aggravating - and did not expressly mention pre-trial bail. As I have said, however, on this record, it is inconceivable that the sentencing judge failed to consider the implications of the appellant's pre-trial bail.
Fourth, I do not accept the proposition that bail, even with stringent conditions, and pre-trial custody are to be regarded as equivalents in every case. Put bluntly, bail is not jail. Bail is what an accused person desires to stay out of jail. That is because, at a practical, common sense level known to all accused persons, the pith and substance of bail is liberty, whereas the essence of jail is a profound loss of liberty.
The import of the above reasoning is this: Pre-trial bail and pre-trial custody are very different concepts. Their foundations are different because their realities for accused persons are different. That said, there will be cases - Downes, with long-term house arrest bail conditions, is one - where a sentencing judge should give mitigation effect to pre-trial bail. However, there will be many other cases - Lawes and Hunjan are examples - where this factor should attract little, if any, weight.
[31] Ms. Ross has been on bail for a considerable period of time and I am satisfied that some consideration be given to this factor.
Criminal Code Sections
Purpose & Principles of Sentencing
[32] Section 718 states:
- The fundamental purpose of sentencing is 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;
(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 and to the community.
R.S., 1985, c. C-46, s. 718; R.S., 1985, c. 27 (1st Supp.), s. 155; 1995, c. 22, s. 6.
[33] Section 718.1 states:
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
R.S., 1985, c. 27 (1st Supp.), s. 156; 1995, c. 22, s. 6.
[34] Section 718.2(b), (c), (d), (e) states:
718.2 A court that imposes a sentence shall also take into consideration the following principles:
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
1995, c. 22, s. 6; 1997, c. 23, s. 17; 2000, c. 12, s. 95; 2001, c. 32, s. 44(F), c. 41, s. 20.
[35] There is no doubt that the charges are serious. The amount of ecstasy involved was significant. Ms. Ross’ participation and involvement in Mr. Duncan’s drug operation was important and integral. However, I cannot agree that her role is at the same level of Mr. Pinch or Mr. Duncan. Justice Hill noted that Mr. Pinch was at the level of principal. So was Mr. Duncan. The degree of moral blameworthiness is, therefore, significant for both Mr. Pinch and Mr. Duncan. That is not the situation for Ms. Ross and her moral blameworthiness is much reduced.
[36] Ms. Ross provided a venue, namely, her apartment, for Mr. Duncan and others to package the drugs for distribution. Ms. Ross knew what was going on. Ms. Ross is an intelligent person and she knowingly and willingly assisted and participated in this extensive exportation scheme.
[37] Ms. Ross’ role relating to the proceeds of crime was also important and integral to the success of Mr. Duncan’s drug distribution network. However, as I have already indicated her role was not as a principal. She acted on the directions of Mr. Duncan.
[38] Mr. Duncan and others are engaged in this type of business to make money. There is no point in doing so if you cannot retrieve the cash derived from this activity. Mr. Duncan and Mr. Pinch stood to make a considerable profit from this operation.
[39] There is no doubt as well that the distribution of drugs is a scourge on our society that leads to untold misery for so many people. The entire world of drug distribution and trafficking and importing is the genesis for all kinds of serious and violent criminal activity and as Justice Hill noted in Pinch in reference to Pushpanathan, “the costs to society of drug abuse and trafficking in illicit drugs are at least significant if not staggering.”
[40] The question for this Court to determine is whether Ms. Ross’ involvement and responsibility in these matters mandates a penitentiary term of imprisonment as the Crown urges this Court to impose.
[41] These offences took place in 2009. Over three years have elapsed.
[42] As noted in the two Pre-Sentence Reports filed with the Court, Ms. Ross’ personal circumstances today bear no resemblance to the life she found herself in back in 2009.
[43] Ms. Ross is an intelligent person. She completed a three year post secondary diploma in Business Administration & Human Resources.
[44] What would motivate someone like Ms. Ross to become involved with Mr. Duncan and his world of drug distribution? Was it the thrill of that lifestyle or the opportunity to make money? Was she manipulated by Mr. Duncan as she suggests? Were her difficulties associated with her diagnosis for ADHD a contributing factor? She acknowledges responsibility for some, but not all, of her conduct.
[45] What else is different today than the life she led in 2009? The biggest and most profound difference is that she now has a son who was born on May 8, 2012. She now has the responsibility to care for her son. Thankfully, she has a stable marriage with Jamie Rushton who is supportive of his wife and has embraced his new role as a father.
[46] As the updated Pre-Sentence Report notes in the revised assessment at page 3:
Before the court again stands Joanna Rushton, nee Ross for the offences of Conspiracy to Export Ecstasy, Conspiracy to Export Cannabis, Possession of Proceeds of Crime, and Conspiracy to Commit Possession of Proceeds of Crime, Possession of Cocaine for the Purpose, and Possession of Ecstasy. The initial assessment described an articulate and intelligent woman who struggled with the reality of her poor decisions, and was concerned for the welfare of her unborn child.
Further concerns for her mental health given the physical condition she was in at the time were also noted. The child has been born without complication, and a strong familial bond has not only been formed with both the subject and her son, but also with her partner Jamie Rushton. The subject appears to be making positive strides towards pro-social thoughts and behaviours with the assistance of not only her partner and family, but also with the coaching from Gillian Smith. The therapeutic relationship, although new appears to be a positive step for the subject. In short, the subject presents as embracing motherhood and her role within the family.
[47] The Court’s response to these types of charges must be clear and strong.
[48] The sentencing principles of general deterrence and denunciation are definitely in play.
[49] With her present circumstances, I am satisfied that specific deterrence is not a significant sentencing principal for Ms. Ross.
[50] This is a very difficult sentencing case. On the one hand, the circumstances of this case call for a penitentiary term and a strong response from the Court that society cannot and will not condone this type of conduct which puts so many people at risk with all the ills that follow the world of drug distribution. On the other hand, Ms. Ross is today not the person she was in 2009. Her personal circumstances and family responsibilities have altered dramatically the landscape she now inhabits as compared to the landscape she inhabited in 2009.
[51] Ms. Ross let me also add this. The proliferation of these drugs into our society and into our communities is a very serious problem. People become addicted, some do so at very young ages. One wonders how many adult lives have been destroyed by these addictions. One wonders how many youthful individuals never achieve a productive and meaningful life because of such addictions.
[52] When we talk about deterring others it is those other people who must be discouraged from engaging in this type of criminal conduct so 15 or 20 years from now your son will not be exposed to this menace in society.
[53] Sentencing is an individualized process. I have reflected considerably on what I should do. I have attempted, as I must, to properly balance all of the competing interests that are engaged in my analysis. I am guided by the jurisprudence relevant to these cases and by the relevant provisions of the Criminal Code.
[54] Would a conditional sentence in all of these circumstances be consistent with the fundamental purpose and principles of sentencing set out in Sections 718 to 718.2 of the Criminal Code?
[55] Section 718.1 clearly states that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[56] Ms. Ross acknowledges responsibility for some of her conduct but not all of her conduct.
[57] As I indicated Ms. Ross is an intelligent person. The Jury found that she participated in this sophisticated and significant conspiracy to export large quantities of ecstasy. The Jury also concluded that she had in her possession a substantial amount of proceeds of crime. She was also found to be in possession of a substantial amount of cocaine in her apartment.
[58] Ms. Ross must now realize and understand how the choices she makes will not only affect her life but will also affect the life of her child as he grows up and her relationship with her husband as they raise their son.
[59] A period of incarceration will not only punish Ms. Ross but it clearly will also punish her son. I have no doubt that Ms. Ross would absolutely not want any harm to come to her son. Fortunately, and as the P.S.R. notes, James Rushton has taken a parental leave of absence and is not scheduled to return to work until March 2013. And Ms. Ross’ parents have been a tremendous source of support to all of them.
[60] The massive proliferation of drugs into society creates problems. As Justice Doherty sets out in Hamilton and Mason as it relates to cocaine, “the immense direct and indirect social and economic harm done throughout the Canadian community by cocaine is well known. The use and sale of cocaine kills and harms both directly and indirectly.”
[61] In Hamilton and Mason Justice Doherty sets out the following at paras. 92, 93, 95 and 96:
In R. v. Priest (1996), 1996 1381 (ON CA), 110 C.C.C. (3d) 289 at 297-98 (Ont. C.A.), Rosenberg J.A. described the proportionality requirement in this way:
The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good.
Fixing a sentence that is consistent with s. 718.1 is particularly difficult where the gravity of the offence points strongly in one sentencing direction and the culpability of the individual offender points strongly in a very different sentencing direction. The sentencing judge must fashion a disposition from among the limited options available which take both sides of the proportionality inquiry into account. As indicated in Priest, supra, factors which may accentuate the gravity of the crime cannot blind the trial judge to factors mitigating personal responsibility. Equally, factors mitigating personal responsibility cannot justify a disposition that unduly minimizes the seriousness of the crime committed.
Proportionality is the fundamental principle of sentencing, but it is not the only principle to be considered. Parity, totality, and restraint are also principles which must be engaged when determining the appropriate sentence: Criminal Code, ss. 718.2(b)-(e). The restraint principle is of particular importance where incarceration is a potential disposition. That principle is reflected in ss. 178.2(d) and (e):
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
The express inclusion of restraint as a principle of sentencing is one of the most significant features of the 1996 Criminal Code amendments statutizing sentencing principles for the first time. As Professor Manson explains:
Restraint means that prison is the sanction of last resort…. Restraint also means that when considering other sanctions, the sentencing court should seek the least intrusive sentence and the least quantum which will achieve the overall purpose of being an appropriate and just sanction.
[62] Ms. Ross, I am sensitive to the temporary loss your child will endure with your absence from his life if you are incarcerated. However, those interests cannot, in the circumstances, predominate the sentencing analysis. Those interests have to be weighed against your responsibility and culpability in these very serious offences. It is not lost on me that your very young son will certainly miss you while you are in prison but with the love and affection of his father and your parents I am confident he will continue to have a stable and loving environment until your return home.
[63] I am not persuaded that a period of incarceration in the range of 5-6½ years as requested by the Crown is appropriate. Such a sentence is unduly harsh for Ms. Ross and does not adequately address her personal circumstances.
[64] However, I cannot agree with the defence request that you be given a conditional sentence. I am not satisfied such a sentence properly addresses the purpose and principles of sentencing set out in the Criminal Code. Such a sentence would, in my view, minimize the seriousness of these charges.
[65] Ms. Ross, please stand up:
[66] You will be sentenced to a penitentiary term of 30 months allocated as follows:
Counts 8 and 10: - Conspiracy to Export Ecstasy and Marihuana – 18 months concurrent;
Counts 11 and 12: - Possession of Proceeds of Crime and Conspiracy to Possess Proceeds of Crime – 18 months concurrent to Counts 8 and 10 and concurrent to each other;
Count 15 – Possession for the Purpose of Trafficking Cocaine – 12 months consecutive;
Count 16 – Possession of ecstasy for the purpose of trafficking – 6 months concurrent;
Total sentence – 30 months
[67] A section 109 weapons prohibition order shall issue for a period of 10 years.
Fragomeni J.
Released: November 2, 2012