ONTARIO

SUPERIOR COURT OF JUSTICE

CITATION : R. v. Pelkey, 2012 ONSC 648

COURT FILE NO.: 11-16
DATE: 2012/01/27

BETWEEN:

HER MAJESTY THE QUEEN – and – SUSAN PELKEY Accused

Diane Lahaie, counsel for the Crown

Donald W. Johnson, counsel for the Accused

HEARD: July 7 th , 2011

reasons for sentencing

MADAM JUSTICE LaFRANCE-CARDINAL

1On July 7 th , 2011 Susan Pelkey plead guilty to one count of trafficking in a Schedule I substance, namely Oxycontin, contrary to section 5 (2) of the Controlled Drugs and Substances Act. She further pled guilty to proceeds of crime of a value not exceeding $5,000.00, to wit: Canadian currency knowing that the property was obtained by the commission of an offence punishable by indictment, contrary to section 354(1) (a) of the Criminal Code .

THE FACTS

2The facts can be summarized as follows.

3The Cornwall Police Street Crime Unit received information that Oxycontin was being sold by Cathy Hart Bonneville at 229 First Street West in Cornwall and that Ms. Hart Bonneville was using her sister, Susan Pelkey, and her residence at 117 Bedford Street in Cornwall as a “stash house” for the Oxycontin. The information received by the police department indicated that Susan Pelkey was trafficking in Oxycontin. Several anonymous reports indicated that both suspects were dealing with drugs.

4As a result of this information, the Cornwall Police commenced an investigation and they performed surveillance on those two locations. During the course of the investigation, persons were observed entering and leaving the residences after short periods of time. It was believed at that time that these observations were consistent with active drug houses.

5On the 12 th day of January, 2010 police officers applied and obtained a search warrant pursuant to section 11 of the Controlled Drugs and Substances Act for 229 First Street West and 117 Bedford Street in Cornwall which is the home of the accused. When they entered the accused home the only person present was Mr. Floyd Pelkey, who is the accused’s ex-husband. Mrs. Pelkey arrived shortly thereafter and she was very cooperative, she showed the police officers where the drugs were located throughout the home and she also gave them possession of drugs that she had stored in her bra and in her purse.

6In total, $34,770.00 of Oxycontin was found in the apartment as well as on Ms. Pelkey’s person. The drugs seized can be summarized as follows:

• 400 Oxycodone 80mg located in the Eno box;

• 430 Oxycodone 80mg pills located in her purse;

• 65 Oxycodone 40mg pills located in her purse;

• 4 Oxycodone 80mg pills, 5 Oxycodone 40mg pills and 1 Oxycodone 20mg pill was located in a plastic baggie in Mrs. Pelkey’s bra;

• $4,200.00 in Canadian currency was located under the living room bed and $250.00 in Canadian currency was located in Mrs. Pelkey’s purse.

7At that very same time, a simultaneous search was being conducted at the residence of Cathy Hart Bonneville at 229 First Street West, the sister of the accused, and at that time the officers were able to take possession of pills and a small quantity of marijuana. All in all, Mrs. Hart Bonneville had a much lesser inventory as the total value of the Oxycontin seized was $1,140.00.

PRE-SENTENCE REPORT

8The Pre-sentence report indicates that Mrs. Pelkey is 52 years of age, she is separated, she has completed grade 9 and she is presently in receipt of a Canada Pension Plan Disability and a Manual Life Disability Pension.

9Her childhood was riddled with abuse. Her father was an alcoholic. She received several severe beatings from him. Her mother was also an alcoholic who would go on binges. It was very difficult for the accused to talk about her youth and, consequently, the probation officer did not try to pry any further information from her.

10She was married to Mr. Floyd Pelkey in 1981 and they separated in 1998. They obviously still have a very good relationship as she is his primary caregiver. He is of ill health, he suffers from diabetes, early dementia, COPD, heart disease, bladder incontinence, loss of autonomy, chronic pain syndrome, hypertension, psoriasis and he has some learning disabilities. Mrs. Pelkey is the one who helps him bathe, she does the housework, the grocery shopping, she gives him his medication, she pays his bills and she prepares his meals.

11Mr. Pelkey also resides with the couple’s 19 year old daughter who is not of much assistance as she apparently is a drug addict who has been struggling with her addiction for the past five years.

12Mrs. Pelkey is not addicted to drugs. She denies any use of alcohol or illicit drugs. She reports that her own health is poor, she suffers from degenerative disc disease, she was diagnosed with an Adjustment Mood Disorder and sleep apnoea.

13The Pre-sentence report indicates that Mrs. Pelkey takes responsibility for her actions. She apparently did it without thinking. She regrets this decision. She indicates that she was trying to help a family member. However, the probation officer indicates that Mrs. Pelkey “needs to be mindful of the people around her and their unlawful activities even if these people are family. Although the offender believes she committed the offence without thinking, all behaviour is purposeful and deliberate and she made a conscious choice.”

THE OFFENDER

14The mitigating factors in this case is that the accused has no criminal record, has no prior criminal history, and she has plead guilty at an early opportunity.

15The aggravating factors are that this is a Schedule I drug being Oxycontin, it is a hard drug and the quantities seized were more than a street level quantity. Mrs. Pelkey had a little less of $35,000.00 worth of inventory of Oxycodone in different dosages. Mrs. Pelkey is not addicted to any drugs, this was solely to supplement her income. I cannot accept that Mrs. Pelkey was only stashing the drugs for her sister, had she done so then the drugs would have been found stashed in the apartment and the officers would not have found a great quantity in her purse and also concealed in her bra. I’m also having difficulty accepting that this was a stash house only, and nothing else, when you consider that $4,200.00 in cash was found under the bed. She may have been storing more drugs than her sister Ms. Hart Bonneville but Ms. Pelkey was also involved in the trafficking of drugs as the earlier surveillance of the home demonstrated.

PRINCIPLES OF SENTENCING

16In a case such as this one, the principles of sentencing warrant that the primary consideration be general and specific deterrence as well as denunciation especially when dealing with such a huge quantity of prescription drugs. Rehabilitation in this case is not at the forefront of the equation as Ms. Pelkey has no criminal record, is not an addict, does not consume any alcohol or non-prescribed drugs.

17Parity must also be considered as Ms. Pelkey’s sister, received a sentence of 18 months jail for a much lesser quantity but for two different set of charges of trafficking and breaches. Section 718.2(b) states:

“A sentence should be similar to sentences imposed on similar offenders for similar offenses committed in similar circumstances.”

18Mr. Johnson, counsel for the accused, is asking that the Court impose a sentence comparable to Ms. Bonneville but that the Court permit Ms. Pelkey to serve it in the community. He argues that a conditional jail sentence would be proper in the circumstances. Ms. Pelkey meets the first two of the four statutory conditions in that there is no minimum sentence contemplated, and the proper sentence is for a period of incarceration of less than two years.

19The third statutory requirement is that she cannot represent a threat to the community. Ms. Pelkey has no criminal record, she is remorseful, she has family support and for as long as she has learned her lesson and does not try to supplement her income through the illegal trafficking of non-prescribed drugs she will not be a threat to society. She knows first hand the ravages that drugs can play in a community and more particularly in an individual’s life and family as her own 19 years old daughter is an addict and has been fighting addiction for 5 years. That reality alone should be enough for Ms. Pelkey not to facilitate addiction in others.

20The fourth principle and the difficult one is whether a conditional jail sentence will satisfy the goals of denunciation and of general and specific deterrence. I believe that it does not. A conditional jail sentence may be appropriate in other cases but not in this one. A period of incarceration is required to deter Ms. Pelkey and others who may be tempted from trafficking in this type of drug. The quantity of Oxycontin, the level of trafficking necessary to maintain such an inventory and the principle of parity would dictate that the principles of sentencing would not be met by imposing a conditional jail sentence. Justice Adams gave Ms. Bonneville 12 months consecutive for the charges presently faced by Ms. Pelkey. She had a criminal record, she was out on bail while she committed these offences. However, the mitigating factor in Ms. Bonneville’s case is that she is an addict and she only had $1,140.00 worth of Oxycontin rather than the huge quantity found in Ms. Pelkey’s person and in the home. However, this is Ms. Pelkey’s first offense, but she was trafficking solely for the monetary gain. Faced with these facts and circumstances, the proper sentence for the possession of Oxycontin for the purpose of trafficking is one of incarceration for a period of 12 months followed by a period of probation for a term of 2 years. On the proceeds of crime, the proper sentence is one of 60 days concurrent. The terms of your probation shall be, other than the statutory provisions that will be explained to you:

1. Report and be under the supervision of a Probation Officer;

2. Not to associate, contact or hold any communication directly or indirectly with anyone known to you to traffick illicit drugs except family members;

3. Abstain at all times from the purchase, possession of consumption of drugs except those prescribed to you for medical purposes;

4. Attend and actively participate in programming as recommended by your probation officer.

21There will be a DNA order, a weapon prohibition for a period of 10 years and a forfeiture order of everything seized at the time of the arrest including the drugs, the $4,200.00 plus $250.00 in cash.