ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-13-0023
DATE: 2014-07-16
B E T W E E N:
Her Majesty The Queen
Ronald Poirier, for the Federal Crown
- and -
B.B.,
David Young, for the Accused B.B.
Accused
HEARD: July 16, 2014,
at Thunder Bay, Ontario
Mr. Justice D. C. Shaw
DELIVERED ORALLY Reasons On Sentencing
[1] This is the sentencing of B.B. on a charge of possession of Oxycodone for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act.
Background
[2] On December 3, 2012, police stopped a vehicle and arrested Ms. B.B. in connection with a complaint about a person being accosted about a drug debt. On searching the vehicle, the police found a pink bag containing 296 Oxycodone pills of a street value of approximately $30,000, plus cash of $2,800.
[3] Ms. B.B. pleaded guilty to possession for the purpose of trafficking. She was convicted on April 16, 2014, at which time a pre-sentence report was ordered.
Circumstances of Ms. B.B.
[4] Ms. B.B. is 40 years of age. She has no prior criminal history.
[5] She has had a troubled background. Her parents separated when she was approximately nine years of age. She resided with her mother. In her early teenage years, she became defiant of the rules in the home, was truant from school and began associating with negative peer groups. She started to use drugs and alcohol. For a brief time she moved in with her father and then with an aunt in British Columbia.
[6] At age 17 she became pregnant. The child’s father disappeared as soon as he learned of the pregnancy. After the birth of a daughter, Ms. B.B. left the child with her mother and moved into various rental accommodations with girlfriends.
[7] At age 19, Ms. B.B. began what was to be an extremely violent common law relationship over the next ten years. She was the subject of severe and repeated emotional and physical abuse which left her with broken bones and bruising. Her common law husband was convicted and sentenced to periods of incarceration for those assaults. Two sons were born of the relationship.
[8] At age 30 Ms. B.B. moved with her sons from Thunder Bay to Ottawa. The Children’s Aid Society became involved and the children were apprehended. They were eventually adopted and now reside in the Belleville area.
[9] In 2009, Ms. B.B. entered into another common law relationship, which ended after three years because of her partner’s addiction to Oxycontin after he suffered a workplace injury.
[10] From her teenage years until age 33, Ms. B.B. was a heavy abuser of alcohol and drugs. However, at age 33 she quit abusing both alcohol and drugs, cold turkey. This cessation of alcohol and drug abuse was confirmed to the author of the pre-sentence report by collateral sources of information.
[11] Ms. B.B. reached Grade 11 in high school.
[12] Her employment history is spotty. In her latter years, from 2006 to 2012, she worked as a bartender and then as a dancer at an Ottawa adult entertainment club. She left when the club closed.
[13] She then enrolled at H[…] College in Ottawa, in a drug addiction counsellor program. She has continued in the program. She plans to graduate within a year. Upon completion of the seven weeks remaining in the academic portion of the program, she will be required to take an 18 week placement.
[14] As of April 2014, when her conviction was registered, Ms. B.B. was working part time at a machine and tooling plant in Greely, Ontario, while attending school.
[15] During the past 1 ½ years she has been on judicial interim release on this charge. There have been no reported breaches of her release conditions.
[16] The author of the pre-sentence report advises that Ms. B.B. was open and co-operative during the interviews for the report. Ms. B.B. expressed her remorse for her actions leading to this charge and accepted responsibility for her actions which she described as “the stupidest thing” she had done in her life. Her mother and her daughter have refused to have contact with her because of the charge.
Submissions of the Crown
[17] The Crown submits that the primary focus in this case should be general deterrence. The Crown acknowledges that in light of Ms. B.B.’s background, with no criminal record and with her recent progress as outlined in the pre-sentence report, specific deterrence is not a significant concern.
[18] The Crown points out that Oxycodone is a synthetic heroin that is the scourge of Northwestern Ontario communities and remote Northern reserves.
[19] The Crown submits that a sentence in the range of 12 to 18 months, to be served in an institution, is appropriate.
Submissions of the Defence
[20] The defence submits that a term of imprisonment is indicated for this offence, but that in the particular circumstances of this case it should be served in the community as a conditional sentence. The defence submits that a conditional sentence of two years, less a day, with very restrictive conditions, would satisfy the principle of general deterrence.
[21] The defence points to Ms. B.B.’s remorse as evidenced by her plea of guilty. The defence advises that Ms. B.B. had wanted to dispose of her charges at the earliest opportunity.
[22] The defence emphasizes that Ms. B.B. has no criminal record and is actively engaged in employment and school.
[23] The defence notes that Ms. B.B. suffers from a respiratory illness and experiences anxiety attacks.
[24] The defence submits that in addition to a conditional sentence of imprisonment, Ms. B.B. be placed on a lengthy period of probation with a restrictive curfew.
Principles of Sentencing
[25] The fundamental purpose of the criminal law is the protection of society. This principle has been codified in s. 718 of the Criminal Code which emphasizes that the fundamental purpose of sentencing is to encourage respect for the law and the maintenance of a “just, peaceful and safe society” by imposing just sanctions. These sanctions must have one or more of the following objectives:
• to denounce unlawful conduct;
• to deter the offender and other persons from committing crimes;
• to separate offenders from society, where necessary;
• to assist in rehabilitating offenders;
• to provide reparations for harm done to victims or to the community; and
• to promote a sense of responsibility in offenders and an acknowledgement of harm done to victims and to the community.
[26] Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Every sentence must meet this fundamental and overarching principle of proportionality.
[27] Section 718.2 directs that a court must take into consideration the principle that a sentence should be increased or reduced for any relevant aggravating or mitigating circumstances relating to the offence or the offender. Section 718.2 also requires the sentencing court to take into consideration, among others, these principles:
• a sentence should be similar to sentences imposed on similar offenders for similar offences, committed in similar circumstances;
• an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances;
• 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.
[28] It is essential that the sentencing court consider and blend all the relevant sentencing principles.
Aggravating and Mitigating Circumstances
[29] I agree with the Crown’s submission that the illegal use of Oxycodone is the scourge of communities in Northwestern Ontario. It has caused untold suffering. I regard this as an aggravating circumstance requiring a sentence that sends a message of deterrence. Ms. B.B. should have been aware, more than most, of the damage caused by drug addiction in light of her own use of drugs until she found the strength to quit seven years ago.
[30] However, there are also significant mitigating circumstances to consider, particular to Ms. B.B. :
• she has no criminal record. She comes before the court as a first offender;
• she has pleaded guilty to this offence which is an indication of remorse and acceptance of her wrongdoing;
• she has shown remorse and self-awareness of the consequences of her conduct in her discussions with the author of the pre-sentence report;
• at age 40, she has overcome a long and troubled background of drug and alcohol abuse, severe and repeated domestic violence, a modest education and limited job skills to the point where, if she is given the opportunity and has the commitment to complete her program as a drug addiction counsellor, she can become a useful and productive member of society, bringing a perspective to a job that will allow her to relate to those she is counselling;
• she has followed her release conditions for the past 18 months while awaiting sentencing;
• in the opinion of the probation and parole officer who prepared the pre-sentence report, Mr. Robert Curran, she was open and co-operative and presented as a suitable candidate for community supervision.
Discussion
[31] This offence requires a period of imprisonment. Both the Crown and the defence agree on this point. They also agree that a penitentiary term would not be appropriate in the circumstances of this offender. The issue between the Crown and the defence is whether the term of imprisonment should be served in an institution or in the community.
[32] Section 742.1 of the Criminal Code sets out the criteria governing the availability and imposition of conditional sentences; the three prerequisites are well known as having been set out in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61:
• the offence must not be punishable by a minimum term of imprisonment;
• the court must conclude that a term of imprisonment less than two years is an appropriate disposition; and
• the safety of the community would not be endangered by the offender serving the sentence in the community.
[33] Ms. B.B. meets these prerequisites. A conditional sentence is therefore available.
[34] The position of the Crown is that the principle of deterrence must prevail above other sentencing principles in this particular case and that deterrence can only be met by incarceration in jail for 12 to 18 months.
[35] In my view, the principles of deterrence and denunciation, which I acknowledge are important in this case, can be satisfied by imposing a conditional sentence with significant punitive conditions and a term longer than would have been imposed as a jail sentence.
[36] A conditional sentence would also importantly meet the objective of assisting in the rehabilitation of Ms. B.B. and furthering the sense of responsibility which she appears to have accepted for her crime.
[37] In considering Ms. B.B.’s background, it is commendable that she has taken the steps she has to put her life back on track. If a jail sentence was to be imposed, that would be the end of her ability to complete her educational program as planned and would put her future prospects in jeopardy. Both Ms. B.B. and society would lose if that was the case. She would have nothing to fall back on at age 40 or 41 when she completed a jail sentence. Her opportunity to turn her life around should not be denied on the principle of deterrence when deterrence can be served by a demanding sentence that imprisons her but does not require incarceration in an institution to be effective.
[38] In R. v. R.N.S., [2001] 1 S.C.R. 149, Lamer J. observed, at para. 21:
“In circumstances where either a sentence of incarceration or a conditional sentence would be appropriate, a conditional sentence should generally be imposed. This follows from s. 718.2(e) of the Criminal Code which provides that all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.”
Lamer J. did add that there may, however, be circumstances in which a short, sharp sentence of incarceration may be preferable to a lengthy conditional sentence.
[39] In my view, in the particular circumstances of Ms. B.B., a conditional sentence is the more appropriate of the two appropriate sanctions available.
Ms. B.B., please stand:
[40] The following sentence is imposed:
(a) You are sentenced to a term of imprisonment of two years less a day to be served in the community.
(b) In addition to the statutory conditions of a conditional sentence order imposed by section 742.3(1) of the Criminal Code, you shall comply with the following:
be in your residence at all times except for attending at your employment, your school and any placement authorized by your school or except for such purposes as may be approved by your supervisor. If you are authorized by your supervisor to be away from your residence, you shall carry the written authorization with you at all times while away from your residence and shall produce the authorization as may be required by the police or your supervisor;
present yourself forthwith at the door of your residence upon the attendance of the police to verify that you are in your residence as required by this order;
refrain from the purchase, possession or consumption of alcohol and drugs other than such medications as may be prescribed by your physicians;
refrain from contact with Sherri L. Gaudreau; and
remain within the jurisdiction of the East Region of the Province.
[41] Following completion of this conditional sentence, you are sentenced to a further period of probation of 18 months on the following conditions, in addition to the statutory conditions imposed by s. 732.1(2) of the Criminal Code:
- be in your residence between the hours of 10:00 pm to 6:00 am except for the purpose of employment or such purposes as may be approved by your supervisor. If you are authorized by your supervisor to be away from your residence, you shall carry the written authorization with you at all times while away from your residence and shall produce the authorization as may be required by the police or your probation officer;
- refrain from the purchase, possession or consumption of alcohol and drugs other than such medications as may be prescribed by your physicians;
- report to your probation officer as required; and
- perform 100 hours of community service during the term of your probation order, as required by your probation officer.
[42] The following ancillary orders are made:
(1) The sum of $2,280.00 seized by the police shall be forfeited to the Crown.
(2) An order is made under s. 109 of the Criminal Code prohibiting the accused from possessing any firearms, cross bow, restricted weapon, ammunition and explosive substance for a period of 10 years.
[43] The Victim Fine Surcharge is waived.
___”original signed by”
The Hon. Mr. Justice D. C. Shaw
Released: July 16, 2014
COURT FILE NO.: CR-13-0023
DATE: 2014-07-16
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen
- and -
B.B.,
Accused
REASONS ON SENTENCING
Shaw J.
Released: July 16, 2014
/mls