BARRIE COURT FILE NO.:

DELIVERED ORALLY: 20160321

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

A.S. Defendant

K.E. Jokinen, for the Federal Crown

C. Syme, for the Defendant

HEARD: December 8, 2015

REASONS FOR SENTENCE

mulligan j.:

[1] On April 17, 2015 after a non-jury trial, A.S. was found guilty of one count of trafficking in Oxycodone, contrary to s. 5(1) of the Controlled Drugs and Substances Act, S.L. 1996, c.19. The indictment before the court contained nine counts involving A.S.’s brother, J.S.. J.S. pleaded guilty to certain counts on that indictment and has already been sentenced to a period of incarceration. A.S.’s sentencing was adjourned so that a Gladue Report could be obtained. When I speak of Gladue principles, I am referring to the seminal Supreme Court of Canada decision in R. v. Gladue, 1999 679 (SCC), [1999] 1 S.C.R. 688. The sentencing hearing was adjourned on two occasions because the Gladue Report was not ready for those dates.

[2] At this sentencing hearing, a comprehensive Gladue Report was filed as an exhibit. The report was prepared by Ashley Quinn, Gladue caseworker for the Aboriginal Legal Services of Toronto. The Gladue Report contained a number of appendices.

Circumstances of the Offence

[3] The findings of fact and conclusions as a result of A.S.’s judge alone trial can be summarized as follows. On September 20, 2013, A.S. met with an undercover officer in the presence of her brother, J.S., and discussions about the purchase of Oxycodone followed. J.S., an addict with a previous record, vouched for his sister to the undercover officer. She then discussed and negotiated a price with the officer for Oxycodone pills. Later that day, A.S. called the undercover officer and said that her guy had 100 pills to sell. She met with the undercover officer the same day near a bar; and they continued on to the home of the seller, Daniel Theoret. A.S. was present when the officer paid $4,700 for 98 pills.

[4] Mr. Theoret was dealt with separately. He pleaded guilty to two counts of trafficking in Oxycodone before Justice J. Wilson of the Ontario Court of Justice. Mr. Theoret received an 18-month custodial sentence followed by a two-year period of probation.

Circumstances of the Offender

[5] In this case, the court received a very thorough and comprehensive Gladue Report. The report provides insight into the plight of Aboriginal peoples in the Canadian criminal justice system, together with the circumstances of A.S.’s life.

[6] As the report notes, A.S. is 33 years old and is an Aboriginal person as defined by s. 35 of the Constitution Act, 1982. She does not have status as a Registered Indian under the Indian Act, R.S.C. 1985, c.1-5.

[7] A.S.’s Aboriginal roots can be traced through her father, J.K.S. and her paternal grandmother, D.S., who are registered members with the Wikwemikong First Nation located on Manitoulin Island in Ontario. A.S.’s grandmother, D.S., married a non-Aboriginal man, therefore she lost her Indian status pursuant to provisions of previous legislation. Her grandmother’s parents were R.S. and D.T.. They were married and resided on Manitoulin Island. D.T. attended a residential school on Manitoulin Island. It is unclear whether his wife, R.S., also attended residential school there.

[8] As the author of the report notes:

Residential schools have caused long-term intergenerational harm to those who did not attend school but had family or community members who did… the intergenerational residential school effects are threefold: the trauma experienced by many former students of Indian residential schools affects not only the individual, but their family, as well as their descendants and the community. The effects include but are not limited to:

(i) communication barriers, especially an inability to express affection;

(ii) families where no nurturing or affection was present for generations;

(iii) discomfort expressing love for children in physical ways, especially hugs;

(iv) the lack of communication within the family;

(v) children taken into custody by the Children’s Aid Society; and

(vi) addictive and self-destructive behaviours.

[9] The author of the Gladue Report concludes the residential schools discussion by stating:

It is very likely that A.S.’s family has been impacted by the intergenerational effects of D.T.’s experiences in Residential School, which was described by Chief Justice Beverly McLachlin as “cultural genocide”.

[10] With this background in mind, I will trace A.S.’s family history. A.S. and her younger brother, J.S., were raised by their mother, Sharon, and father, J.S.. A.S. reported that her mother had bipolar disorder and was an alcoholic. When A.S. was six years old, it was reported that her father had touched her inappropriately. A.S. denies that any such conduct took place. For a short period of time, she was removed from the home and placed with the Children’s Aid Society, and then with her maternal grandmother. Charges against her father were withdrawn and A.S. denies that there was ever any inappropriate sexual abuse.

[11] A.S.’s mother was hospitalized numerous times and she eventually left the family, suggesting that she turned to drinking to cope with the allegations of sexual abuse.

[12] A.S.’s parents divorced when she was 14 years of age and she chose to live with her mother, where she first started to experiment with drugs. As she stated in the report:

I started experimenting with drugs and alcohol, cocaine, marijuana, mushrooms, acid. The weed and coke I got from my mom. She gave me a joint with coke in it. She would do rails in front of me, trying for me not to notice, but I knew what she was doing. She would buy alcohol for me and my friends.

[13] A.S. then moved in with her father. She stopped abusing alcohol and drugs. However, she became addicted to painkillers when she was 17, after receiving a prescription for back pain. This began a long period of prescription misuse. When she was 18, she moved in with an individual who sold cocaine, and she began using cocaine daily. Her abuse of Percocets continued and quickly proceeded to an abuse of Oxycodone.

[14] She later moved back in with her father and had employment. When she was 24, she entered into an addictions treatment program at Georgianwood, through the Penetang Mental Health Centre. At the time of her admission, she was noted to be addicted to Oxycodone and diagnosed as having psychiatric disorders. It was the opinion of the intake doctor that: “The diagnoses here are opiate dependence, panic disorder, and probable bipolar disorder. She also fills criteria for generalized anxiety disorder.”

[15] While in the treatment program, she met her current partner, M.B., who was also in treatment. They continued to reside together. After her discharge from Georgianwood, she relapsed into abuse of painkillers while she was pregnant with her first child.

[16] Their first child, M.S., was born […], 2007, premature and addicted to Methadone. The Children’s Aid Society (CAS) became involved in their lives. The CAS developed a service plan to support the family.

[17] On May 2, 2008, M.S. was apprehended from A.S. and M.B. and was placed with a foster family. M.B. and A.S. separated, and M.B. was granted custody of M.S. under a supervision order, at which time there was a no-contact order between M.B. and A.S.. A.S. resumed employment and then entered into an 18-day residential treatment program at Newport Centre in July 2009.

[18] To her credit, A.S. has been clean since then. CAS began drug screening. They closed their file and the no-contact order expired. M.B. and A.S. repartnered.

[19] In August 2012, A.S. contacted the CAS, expressing concern about her being on a Methadone program while being pregnant with their second child. Their second child was also born addicted to Methadone and had to be weaned off of it before being released from hospital. The CAS closed their file in July 2014.

[20] The Gladue Report sets out a number of very positive circumstances currently in A.S.’s life. She has been clean of prescription drug abuse for six years and continues to participate in the Methadone program. Her partner, M.B., is employed full time and A.S. is a stay-at-home mom, supporting their children and their various activities. Their oldest child, age eight, is doing well at school. The youngest child attends pre-school. A.S. is very involved as a committee member of the pre-school and an active fundraiser. She takes their youngest child to the Ontario Early Years Centre three days a week, and has met all expectations of her as required by the Neonatal Follow-Up Clinic. A.S. takes her younger daughter to speech and language therapy appointments, as well as occupational therapy appointments.

[21] The report indicates that A.S. also has been attending a mother care program weekly for the last year. The manager of the mother care program provided the following about A.S.:

A.S. has made significant and steady gains since I met her last year. A.S. is always seeking supports for herself and her family. She reached out and took advantage of what this program had to offer… A.S. is always very attentive to the needs of her children, but not in a way that holds them back. She just wants what is best for her children.

[22] A.S. is now enrolled in a 22-week church-based faith program at her church.

[23] A.S. has been recently diagnosed with bladder problems and is currently in receipt of a prescription to assist her.

[24] The author of the Gladue Report notes that A.S. has a current diagnosis of opiate dependency, anxiety, and ADHD. The author notes, “Having a mental health problem increases the risk of having a substance use problem, and having a substance use problem increases the risk of having a mental health problem.”

[25] The author makes reference to a very supportive letter from Dr. Lorberg, A.S.’s psychiatrist with the Ontario Addiction Treatment Centre. Dr. Lorberg confirms that A.S. has been under his care since 2008. He notes:

It has taken many years to gain a sufficient understanding of her moderately complex psychiatric condition (which includes an addictions component), and to finally arrive at an effective treatment regime… were she to end up in a correctional setting, it is foreseeable that her rehabilitative needs will not be met and her medical condition will deteriorate. …It is foreseeable that the attachment she has to her children and vice versa will be adversely affected if she is incarcerated for a significant period of time.

[26] Dr. Lorberg concludes:

If the court elects to pursue an alternative path other than a significant period of incarceration, the court can be assured that A.S. will continue to regularly attend my clinic, leave weekly urine samples for drug screening, and received specialized psychiatric care with the goal of being to continue to reduce symptoms, improve functioning, and build on the successes already achieved.

[27] The author of the Gladue Report concludes by recommending that A.S. continue to participate in the Methadone program as prescribed by Dr. Lorberg, and that she continue to be involved in the school and pre-school life of her children.

Sentencing Considerations

[28] The court’s role is to determine a fit sentence for this offender. In this case, there are a number of tensions in play. A.S. has Aboriginal roots, so Gladue principles must be considered. She has no previous criminal record. Over the last six years and prior to her current involvement with the criminal justice system, she began a process of self-rehabilitation. She has stayed clean of prescription drug abuse while maintaining a Methadone regime as prescribed by her psychiatrist. She is very involved with nurturing and supporting the day-to-day activities of her children. She expressed remorse at the sentencing hearing.

Position of the Crown

[29] The Crown submits that under ordinary circumstances, an offender convicted of this offence would be expected to receive a custodial sentence in a reformatory facility. A conditional sentence is no longer available under the provisions of this Criminal Code offence. However, the Crown commented on the Gladue Report and the progress that A.S. has made during a period of self-rehabilitation. The Crown submits that an intermittent sentence would be an appropriate sentence for this offender while speaking to the importance of general deterrence for those who would traffic in prescription drugs.

Position of the Defence

[30] Defence counsel submits that a non-custodial sentence and probation is more appropriate for this first-time offender, who has made great strides in self-rehabilitation with the assistance of her psychiatrist and other support groups that she has sought out.

Aggravating Circumstances

[31] As the Crown points out, A.S. took her youngest child with her in her vehicle when this drug-buy was being facilitated. In my view, this exposed her child to harm, especially if the police chose to exercise a takedown of A.S. and the seller at that time. Clearly, profit was her motive.

Mitigating Circumstances

[32] There are a number of mitigating circumstances here, which I have touched on already:

• A.S. has no prior criminal record.
• A.S. has taken positive steps to turn her life around. She acknowledged her addiction by attending residential treatment programs and has been clean ever since her last program in 2009.
• It is evident that she has put the needs of her children in priority to her own addictive behaviour. She has been heavily involved in her children’s activities and has been involved with her youngest child’s pre-school activities and attendance at various therapy sessions.
• A.S. has faithfully followed the Methadone regime as prescribed by her doctor and has submitted to weekly urine tests.
• A.S. expressed remorse at the sentencing hearing.

Principles of Sentencing

[33] Parliament has now codified many former common law sentencing principles in the Criminal Code. The fundamental purpose of sentencing, described in s. 718 of the Code, 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.”

[34] The Code sets out six objectives for sentencing judges to consider at ss.718(a) to (f):

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

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

(iii) to separate offenders from society where necessary;

(iv) to assist in rehabilitating offenders;

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

(vi) to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and to the community.

[35] Parliament in enacting s. 718.2(e) of the Code has signalled that sentencing judges ought to use a different method of analysis to determine a fit sentence for Aboriginal offenders. R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433 at paras. 58-59.

[36] Section 718.2 (e) of the Criminal Code provides as follows:

A court that imposes a sentence shall also take into consideration the following principles:

(e) all available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

[37] In Gladue, the Supreme Court of Canada reviewed the over-representation of Aboriginal people in the Canadian criminal justice system and Parliament’s intent with respect to s. 718.2(e). As the Court stated at para. 64:

It is reasonable to assume that Parliament in signalling out Aboriginal offenders for distinct sentencing treatment in s. 718.2(e), intended to attempt to redress the social problem to some degree. The provision may properly be seen as Parliament’s direction to members of the judiciary to inquire into the causes of the problem and to endeavour to remedy it, to the extent that a remedy is possible through the sentencing process.

[38] Recently in Ipeelee, the Supreme Court of Canada reinforced and expanded upon the principles set out in Gladue. At para. 59, the Court indicated that a judge could take judicial notice of systemic and background factors affecting Aboriginal people in Canadian society.

[39] In Ipeelee at para. 81, the Court clarified that it would be an error to suggest that the offender must establish a causal link between background factors and the commission of the offence before being entitled to have background factors considered. As the Court stated at para. 83:

Furthermore, the operation of s. 718.2(e) does not logically require such a connection. Systematic and background factors do not operate as an excuse or justification for the criminal conduct. Rather, they provide the necessary context to enable a judge to determine an appropriate sentence. This does not say that those factors need not be tied in some way to the particular offender and offence.

Conclusion

[40] A.S. comes before the court as a first offender. She has been convicted of an offence which ordinarily would call for a custodial sentence in the reformatory. A conditional sentence is no longer available for this offence. But when all factors are considered, I am not satisfied that a custodial term of imprisonment would be a fit sentence for this offender. She had many negative influences in her life growing up. She was removed from the family home for a period of time due to allegations against her father. She submits that her mother facilitated her own access to drugs and alcohol when she was a young teenager. However, she showed insight into her conditions by entering into rehabilitation treatment programs. Her first admission to the Georgianwood program in 2006 confirmed her opiate dependence and anxiety disorder. Her second admission to the 18-day program at New Port Centre in July 2009 has had a longer lasting effect. She has remained clean of opiate dependency, as confirmed by regular drug testing and has continued with the Methadone program as maintained by her psychiatrist. She is strongly committed to the welfare of her children and is involved with their day-to-day care and attendance at specialized programs.

[41] In my view, A.S.’s rehabilitation began before her involvement with the criminal justice system. When all factors are considered, I am satisfied that her efforts at rehabilitation would be dealt a serious setback if she were incarcerated.

[42] A.S., please stand. Having considered all of the sentencing factors, I am satisfied that the imposition of a suspended sentence followed by a period of probation and community service will provide a fit sentence for you. A.S., you will be on probation for 18 months. You are required to report to a probation officer within 24 hours of release. The terms of probation in addition to the usual statutory provisions, will be that you continue to participate in the Methadone program offered through the Ontario Addiction Treatment Centre as prescribed by Dr. Lorberg, by attending as required. You should also attend such programs as your probation officer may recommend. You are currently involved in a number of programs with your youngest child. I do not order that those continue because they will vary depending on the needs of your child, but I require you to report to your probation officer about your attendance at these programs as listed on page 49-50 of the Gladue Report. In addition, you shall perform 100 hours of community service during your period of probation. Your time spent as a committee member of the Care a Lot Nursery School can count towards these 100 hours of community service.

Ancillary Orders

[43] The following ancillary orders shall also be ordered:

(i) A DNA order pursuant to s. 487.051 of the Criminal Code; and

(ii) A weapons prohibition order pursuant to s. 109 of the Criminal Code for 10 years.

[44] Good luck to you, A.S.. I hope that you will continue on the path that you have chosen over the last six years, not only for your benefit, but for the benefit of your children.

[45] Victim impact surcharge is $200.

Delivered orally on March 21, 2016

NOTE: This ruling, as delivered orally, is to be considered the official version and takes precedence over these written reasons read into the record. If there are any discrepancies between the oral version and this written version, it is the oral version that is the official record to be relied upon.