Court File and Parties

COURT FILE NO.: CR-14-90000275 DATE: 20160714 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – Nicole Irish Accused

Counsel: Sam Siew, for the Crown Mary Murphy, for the Accused

HEARD: June 29, 2016

B.A. ALLEN J.

Reasons for Decision on Sentencing

The Law on Sentencing for Drug Trafficking

[1] The accused, Nicole Irish, was charged on March 7, 2013 with two counts each of trafficking in cocaine and possession of proceeds of crime. She pleaded guilty to count three on the indictment, one of the trafficking charges.

[2] On two occasions Ms. Irish sold an undercover police officer a total of 0.66 grams of crack cocaine in exchange for $120 and $90. On May 11, 2015, Ms. Irish pleaded guilty before me to the count 3 trafficking charge. The specific details of Ms. Irish’s involvement, which were agreed to on her plea, are that the undercover officer approached a male for drugs. The male then approached Ms. Irish who went to another person’s apartment to obtain the drugs which she sold to the undercover officer. Ms. Irish did not sell drugs from her own residence.

[3] At the time of the guilty plea s. 5(3)(a)(i)(D) of the Controlled Drugs and Substances Act, passed in 2012, imposed a mandatory minimum sentence of one year imprisonment for anyone convicted of drug trafficking under s. 5(1) of the CDSA if the offender was previously convicted of a designated substance offence or had served a term of imprisonment for a designated substance offence in the previous 10 years. Ms. Irish has a previous conviction in 2002 for trafficking 0.07 grams of crack to an undercover officer and for possession of crack cocaine for the purpose of trafficking.

[4] The offender in a British Columbia case, R. v. Lloyd, challenged the legislation under s. 12 of the Charter of Rights as a violation of an offender’s right to be free from cruel and unusual punishment. Sentencing on the case before this court was adjourned until after the Supreme Court of Canada came back on April 15, 2016 with its decision striking down the legislation: *R. v. Lloyd*, 2016 SCC 13 (S.C.C.).

[5] Under the 2012 amendment section 742.1 of the Criminal Code made conditional sentences unavailable for convictions for certain offences which include trafficking in a controlled substance. A conditional sentence with house arrest is therefore not an option on sentencing Ms. Irish.

Background Facts

[6] Ms. Irish filed an affidavit containing the following facts:

[7] Ms. Irish is currently 43 years of age. Since March 2014, she has lived in Toronto Community Housing Corporation (TCHC) housing in Toronto’s inner city. Before acquiring housing, Ms. Irish lived in shelters, squatted, lived with friends and couch-surfed for seven years. The last time she had her own residence before she acquired her current residence was in approximately 2000.

[8] Ms. Irish is addicted to drugs. She is in receipt of an Ontario Disability Support Pension (ODSP). Her subsidized monthly rent of $139 is paid directly to TCHC.

[9] Ms. Irish has a month-to-month lease with TCHC. Attached to Ms. Irish’s affidavit is a copy of a City Guideline setting out the policy with respect to a tenant’s absence from his/her apartment. The policy provides that if a tenant is away for longer than three months the unit will be considered abandoned. Ms. Irish fears that a jail sentence would likely jeopardize her living accommodations and the shelter allowance portion of her ODSP since her shelter needs would be provided for by the prison facility.

[10] Ms. Irish started experimenting with crack cocaine when she was age 16. In her early days she would support her habit through prostitution and selling drugs. She has prostitution-related charges dating back to 1991.

[11] Ms. Irish admits to not being successful in completing drug treatment counselling. She says she finds the group discussions about drug use to be triggers and that she is better off to attempt on her own to avoid drug use. She states that since she has had her own residence she has been more effective in controlling her drug use than when she stayed in shelters and with friends. She explains that she can go to her own place and avoid other drug users and is less likely to go in search of drugs.

[12] Ms. Irish cites an example of how homelessness has affected her involvement with drugs. She indicated she has been on bail on the charges before the court since March 2013. She was charged on two occasions while on bail, one charge for a breach of bail in September 2013 which was withdrawn, and another charge in January 2014 for possession of cocaine which she pleaded guilty to and was released on the current bail conditions.

[13] Ms. Irish got her government housing apartment in March 2014 and has faced no new charges since then. She has been required to report every Friday to the Toronto Bail Program since her release on the September 2013 charge.

Sentencing Principles

Basic Principles

[14] The general principles on sentencing are found at s. 718 of the Criminal Code: to denounce unlawful conduct; to deter the offender and other potential future offenders from committing offences; and to separate offenders from society.

[15] Proportionality is also a guiding principle for sentencing. A sentence must be proportionate to the gravity of the offence, determined on the particular facts of the case. The narrow focus of the sentencing process is directed to imposing a sentence that reflects the circumstances of the specific offence and the attributes of the specific offender: [Criminal Code, s. 718.1 and R. v. Hamilton (2004), , 186 C.C.C. (3d) 129, 72 O.R. (3d) 1 (Ont. C.A.)].

[16] Parity, another governing principle, requires a sentence be similar to sentences imposed on similar offenders for similar offences committed under similar circumstances. Sentencing is however an individualized process which necessarily means that sentences imposed for similar offences may not be identical: [R. v. Cox, 2011 ONCA 58 (Ont. C.A.) and R. v. L.M, [2008] 2 S.C.R. 163, 2008 SCC 31 (S.C.C.)].

Sentencing on Drug Trafficking Offences

Custodial Sentence

[17] As noted earlier a conditional sentence is not available to Ms. Irish on her drug trafficking charge. Now, aside from a custodial sentence, the only sentences available to Ms. Irish are a fine or a non-custodial suspended sentence with a period of probation.

[18] The Ontario Court of Appeal set the appropriate range of sentencing for street level trafficking in cocaine to be six months to two years less a day. The court held that cases that involve larger quantity narcotics offences committed during probation should attract sentences at the higher end of the range: *R. v. Woolcock*, [2002] O.J. No. 4927, at paras. 8 and 15, (Ont. C.A.).

[19] Ms. Irish did not traffic in a large quantity of crack cocaine. Nor was she on probation when she committed the offence.

[20] Counsel for Ms. Irish seeks a suspended sentence with two years’ probation. Crown counsel seeks a period of incarceration of 60 days intermittent with two years’ probation. He submitted he would not be averse a lesser custodial sentence if the court is inclined to order one.

Suspended Sentence

[21] A suspended sentence involves the court imposing a sentence after conviction and then delaying the offender serving the sentence in order to allow the offender to perform a period of probation of up to three years. During the probationary period the offender must comply with the conditions of probation. A suspended sentence is therefore not a final sentence. That is, if an offender breaches a condition of probation the offender can be sentenced for the offence of breach of probation and the suspended sentence can be revoked.

[22] If a suspended sentence is revoked the court that originally sentenced the offender may re-sentence the accused. If the offender remains of good behaviour during the probation period and fulfills the conditions of probation the sentencing court may dismiss the sentence. With a suspended sentence the conviction remains registered against the offender.

Custodial Versus Non-Custodial Sentence

[23] In deciding whether or not to impose a custodial sentence in a drug trafficking case regard should be given to the principles enunciated at s. 718.2(d) and (e) of the Criminal Code. Section 718.2 (d) provides that “an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances”. Section 718.2 (e) provides that “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”.

[24] Green, J. of the Ontario Court of Justice made the point in his recent decision, R. v. McGill, that it is difficult to find a single reported case of a court suspending the sentence of an offender who was convicted of trafficking in Schedule I drugs like cocaine or heroin: [R. v. McGill, 2016 ONCJ 138, [2016] O.J. No. 1346, at para. 61, (Ont. C.J.)].

[25] Green, J. went on in para. 61 to point out that with the elimination of conditional sentences for trafficking in controlled substances some trial judges have imposed suspended sentences. He cited several Ontario Court of Justice cases: *R. v. Caputi*, [2013] O.J. No. 6447, unreported (Ont. C.J.), [R. v. Azeez, 2014 ONCJ 311 (Ont. C.J.)]; R. v. Moniz, unreported, 2015 (Ont. C.J.); and *R. v. Duncan*, [2016] O.J. No. 25 (Ont. C.J.).

[26] So the general rule in sentencing offenders convicted of trafficking in controlled substances, especially with the unavailability of conditional sentences, is to impose a custodial sentence. In the rare case that a non-custodial suspension of sentence is imposed the court has relied on the doctrine of “exceptional circumstances”.

Case Authorities on Exceptional Circumstances

[27] Defence counsel relies on R. v. McGill, R. v. Duncan and R. v. Caputi, cited above to support a suspended sentence followed by probation for Ms. Irish. The defence also cites cases from other provincial jurisdictions which have found exceptional circumstances in convictions on heroin and cocaine trafficking that the courts found justified suspending the sentence and imposing a period of probation.

Ontario Court of Justice Cases

• R. v. Duncan, [2016] O. J. 25 (Ont. C.J.) – guilty plea to one count trafficking 5.06 gr. of crack (two others read in) to undercover officer; young person, age 19; no criminal record; difficult childhood; commercial trafficker; sentence suspended, two years’ probation
• R. v. McGill, 2016 ONCJ 138, [2016] O. J. 1346 (Ont. C.J.) – guilty plea to possession for the purpose; 300 gr. cocaine; rehabilitation since arrest; aboriginal offender; criminal record; mid-level trafficker
• R. v. Caputi, [2013] O.J. 6447 (Ont. C.J.) – guilty plea to trafficking in ten tablets of MDMA, 50 tablets in possession; middleman dealer; positive background; continuing commercial enterprise; suspended sentence, 18 months’ probation.

British Columbia Provincial Court, Supreme Court and Court of Appeal Cases

• R. v. Voong, 2015 BCCA 285, [2015] B.C.J. No. 1335 (B.C.C.A.) – trial court gave non-custodial sentences to four accused for trafficking in heroin and cocaine; appeal upheld; non-custodial sentences for three offenders, custodial sentences to the other one; non-custodial offenders exceptional circumstances; one of the offenders, age 40, trafficked 6.6 gr. cocaine and small amount of heroin; 16 transactions; post-arrest sobriety; prior drug convictions; upheld suspended sentence, 30 months’ probation; one of the other offenders age 22, sold 1.02 gr. cocaine to undercover officer; no prior convictions; ordered suspended sentence, three years’ probation; the other offender, age 28, a courier, arrested with small quantities of crack and heroin; lengthy record with four drug convictions; upheld suspended sentence, three years’ probation.
• R. v. Dickey, [2015] B.B.J. No. 1465 (B.C.S.C.); affirmed [2016] B.C.J. No. 615 (B.C.C.A.) – guilty verdict for trafficking and possession of cocaine; aggravating factors: dial-a-dope operation and mid-level dealer; mitigating factors: offender young, no related record, post-offence rehabilitation; suspended sentence, 20 months’ probation.
• R. v. Carillo, [2014] B.C.J. No. 873 (B.C.C.A.) – Crown appeal, aggravating factors: mid-level commercial trafficker in cocaine; mitigating factors: guilty plea, rehabilitation; suspended sentence, two years’ probation upheld.
• R. v. Orr, [2015] B.C.J. No. 1553 (B.C.P.C.) – trafficking cocaine, heroin; two accused; Mitigating factors: one offender guilty plea, neither had criminal records, good prospects for rehabilitation; aggravating factor: dial-a-dope operation; suspended sentences for both, two years’ probation for one, three years’ probation for the other.

Manitoba Court of Appeal Case

• R. v. Peters, 2015 MBCA 119, [2015] M.J. No. 322 (Man. C.A.) – Crown appeal; aboriginal offender convicted of trafficking cocaine; mitigating factor: rehabilitation; aggravating factors: lengthy criminal record; risk to re-offend; appeal court upheld suspended sentence, three years’ probation.

The Crown’s Case Authorities

[28] All of the Crown’s cases involved custodial sentences. The majority of the cases involved larger amounts of drugs than the case at hand and had other important distinguishing features.

[29] R. v. Lo, an Ontario Superior Court case, is an exception. In that case, two accused were charged with trafficking small amounts of crack cocaine and possession of proceeds of crime in relation to the sale of drugs to an undercover officer on two occasions. The transactions were entirely commercial. One offender was 37 years old, with little education and a related criminal record; he obtained a full-time job and a positive relationship post arrest. The other offender was 36 years old; she had a related criminal record and had also obtained positive employment.

[30] The court acknowledged the seriousness of trafficking in crack cocaine and held that the predominant sentencing principles were denunciation and deterrence. Taking the aggravating and mitigating factors into account the court imposed 90 days’ intermittent sentences followed by 12 months’ conditional sentences: *R. v. Lo*, [2012] O.J. No. 6001 (Ont. S.C.J.).

Mitigating and Aggravating Factors

Mitigating Factors

• Ms. Irish, age 43, has had a difficult life with decades of drug addiction, homelessness, and has resorted to prostitution to support her drug habit.
• Her current charge relates to selling a small quantity of crack to support her habit and did not involve a money-making commercial enterprise.
• Ms. Irish was not the first contact by the undercover officer; two other persons were involved in the transaction.
• Ms. Irish’s past drug conviction is also connected to acquiring drugs to support her addiction.
• She pleaded guilty to the offence before the court.
• She obtained shelter in March 2014 in a government housing project and for over two years has not had to live the risky life on the streets.
• Ms. Irish is likely to lose her shelter if her sentence requires her to be absent from her residence for three months or more.
• Obtaining housing has had a rehabilitative influence on her life.
• She has, with the exception of two circumstances, complied with the conditions of her rather lengthy and relatively strict bail period.

Aggravating Factors

• Ms. Irish has a lengthy criminal record dating from 1991 to 2013 involving narcotics offences, prostitution, breaches of recognizances and court orders, and repeated non-attendances at court and a number of assaults.
• She has not been attending drug treatment rehabilitation.
• She was charged in September 2013 with a breach of bail, which charge was withdrawn at trial, and charged with possession of cocaine in January 2014.

[31] Counsel for Ms. Irish cites as exceptional circumstances that should be considered − the potential for Ms. Irish to lose her shelter and the improvement in her lifestyle since obtaining shelter. In response to the prospect of an intermittent sentence counsel also posited that Ms. Irish would have difficulty with the expense and the logistics of travelling to Vanier Women’s Detention Centre in Guelph from Toronto on weekends during the 60 days requested by the Crown.

Conclusion

[32] Balancing the aggravating and mitigating factors, keeping in mind the appropriate sentencing range and applying the principles of denunciation and deterrence, I find I must impose a custodial sentence. The cases that have ordered suspended sentences with a period of probation involve mitigating factors and exceptional circumstances that do not exist in the case at hand. Absence of a criminal record, involvement in rehabilitation programs demonstrating the achievement of sobriety, being aboriginal, a positive background, positive relationships, and acquiring employment are features not present in Ms. Irish’s case.

[33] I must however acknowledge the strides Ms. Irish has made in improving the circumstances of her life. She has come a long way from her early marginalized and risky life on the streets. For this she deserves praise and support. I encourage Ms. Irish to take advantage of any treatment plan offered to her. Perhaps, an individualized plan, an alternative to the structure of group therapy, might be available. I suggest Ms. Irish inquire with her probation officer about this.

[34] I find an intermittent sentence of 30 days served on weekends and a two-year period of probation is a fit sentence. I did not impose the three-year maximum probationary period in view of the fact Ms. Irish has been on bail conditions for over three years.

Sentence

[35] I will now pronounce sentence. Nicole Irish, will you please stand?

[36] You have been convicted for trafficking in cocaine. You stand to be sentenced for that offence.

[37] I sentence you to a 30-day intermittent sentence to be served in a provincial detention centre on weekends.

[38] I also sentence you to a probationary period of two years on the following conditions: (a) You will keep the peace and be of good behaviour. (b) You will appear before the court when required to do so by the court; and (c) You will notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation. (d) You will report to a probation officer (i) within four working days, or such longer period as the court directs, after the making of the probation order, and (ii) thereafter, when required by the probation officer and in the manner directed by the probation officer. (e) Your intermittent sentence will commence on July 22, 2016. You must report to the institution on that day (Friday) no later than 6 p.m. You will be released at 7 p.m. the following Monday. You are to report to the institution every subsequent Friday no later than 6 p.m. and serve your weekend sentence until the sentence is complete. (f) You will attend for and actively participate in, and to the satisfaction of your probation officer, any assessment, treatment or counselling as required by your probation officer, including for anger management, and you will sign whatever consents or releases as may be required by your probation officer in order to monitor and verify compliance with said assessment, treatment or counselling and you will provide written proof of completion of said assessment, treatment or counselling to your probation officer. (g) You will not own, possess or carry any weapons as defined by the Criminal Code. (h) You will abstain from the consumption of drugs except in accordance with a medical prescription.

[39] In addition there shall be the following ancillary orders: (a) A Criminal Code section 109 weapons prohibition for life. (b) A forfeiture on consent of the $50 seized from Nicole Irish.

B.A. ALLEN J. Released: July 14, 2016