R. v. Wilson, 2017 ONSC 6664

CITATION: R. v. Wilson, 2017 ONSC 6664

COURT FILE NO.: CR-17-14386

DATE: 20171106

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

KRISTA DAWN WILSON

Defendant

David Wilson for the Crown

Sandip S. Khera for the Defendant

HEARD: September 5, 2017 and October 6, 2017

reasons for sentence

Boswell j.

[1] Krista Wilson entered a guilty plea to one count of trafficking in cocaine and one count of possession of the proceeds of crime. Facts were read into the record by the Crown and confirmed as substantially correct by Ms. Wilson’s counsel. Those facts established the essential elements of the offences and findings of guilt were recorded, following a plea inquiry. Counsel were not in agreement on an appropriate sentence. Submissions were made. The following reasons explain why I am imposing a sentence lower than those typically meted out for trafficking in cocaine.

The Circumstances of the Offence

[2] In April 2014, officers of the Durham Region Police Service commenced an undercover investigation targeting an individual they suspected of street level drug trafficking. This individual was not Ms. Wilson. The ultimate goal was to get at parties farther up the supply chain.

[3] On May 7, 2014, the undercover officer was introduced to Ms. Wilson. Thereafter, Ms. Wilson was involved as a middleman or facilitator in several cocaine purchases:

• On August 27, 2014 the undercover officer contacted Ms. Wilson and arranged to buy 7 grams of cocaine. They met in Ajax. Ms. Wilson entered the undercover officer’s vehicle. While negotiating the price, Ms. Wilson was texting with a third party. Eventually a price of $450 was agreed-upon. Ms. Wilson produced the cocaine from her purse;
• On September 10, 2014, the undercover officer contacted Ms. Wilson again. She agreed to provide 7 grams of cocaine for $500. They met in Ajax and Ms. Wilson directed the officer to drive to 2881 Audley Road. He did. She took the $500 supplied by the officer and went into the home. She returned with 7.5 grams of cocaine;
• On September 11, 2014, the undercover officer again contacted Ms. Wilson. He picked her up and they travelled to 2881 Audley Road again. Ms. Wilson took $500 in buy money and returned with 7 grams of cocaine;
• On January 4, 2015 the undercover officer met with Ms. Wilson at a Costco Plaza in Oshawa. He provided her with $460 in buy money in exchange for 7 grams of cocaine.

[4] Ms. Wilson’ guilty plea relates only to the acts that took place on January 4, 2015.

The Circumstances of the Offender

[5] Ms. Wilson is 32 years old. Like the rest of us, she didn’t get a choice about the circumstances into which she was born. She wasn’t particularly lucky. She was born into poverty; into a culture where she was surrounded by people who generally did not work, lived on welfare and spent their time drinking and doing drugs. She lacked positive role models.

[6] Ms. Wilson was pregnant by 17. She is now the single mother to two children. Until recently she had never had a positive and supportive relationship. She had, however, endured a number of abusive ones.

[7] It is unsurprising that Ms. Wilson suffered from addictions to alcohol and cocaine. Or that she suffers from depression. She has been diagnosed as bipolar.

[8] Despite starting life in arrears on the balance sheet, Ms. Wilson has been able – since her arrest – to stage a somewhat remarkable comeback. She has found love in a new, stable and supportive relationship. She has gainful employment in a job she likes and is valued in. She has attended rehab and gained the upper hand on her addictions. Her children are thriving.

[9] In the midst of these positive developments, she faces a period of incarceration for her past misdeeds.

The Legal Parameters

[10] A person who contravenes s. 5(1) of the Controlled Drugs and Substances Act (trafficking in a Sch. I substance) is liable to imprisonment for life.

[11] A person who contravenes s. 354(1) of the Criminal Code (possession of proceeds obtained by crime) is liable to a term of imprisonment not exceeding two years, where, like here, the value of the proceeds does not exceed $5,000.

[12] There are no minimum sentences applicable in the circumstances of this case.

The Positions of Crown and Defence

[13] Crown counsel sought, fairly in my view, a sentence of one year, followed by a period of probation. He argued that the usual range of sentences in cases involving street-level trafficking of cocaine in amounts similar to those involved in this case is a reformatory term of imprisonment of 12 to 18 months.

[14] Defence counsel urged the court to consider Ms. Wilson’s particular circumstances, including, but not limited to, the extent to which she has successfully rehabilitated herself since the offences were committed. He argued that a significant jail sentence would be counter-productive and would tend to undermine Ms. Wilson’s efforts. He asked that a 90 day jail sentence be imposed, to be served intermittently.

The Fundamental Principles of Sentencing

[15] Section 718 of the Criminal Code codifies the fundamental purposes of sentencing. Those purposes include the denunciation of unlawful conduct, deterrence - both general and specific, the separation of the offender from society where necessary, rehabilitation, reparation for harm done to the victims and the community, and the promotion of a sense of responsibility in offenders and acknowledgment of the harm done.

[16] Section 718.1 expresses the fundamental principle of sentencing: a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[17] Section 718.2(a) provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances.

[18] Section 718.2(b) provides that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

[19] No one sentencing principle or purpose trumps the others. In each case, the weight to be put on the individual objectives varies depending on the facts and circumstances of the offence and of the offender. There is no dispute that in cases involving trafficking in illicit drugs like cocaine, the purposes of denunciation and deterrence take center stage. Having said that, in this instance, I have also put a heavy emphasis on the purpose of rehabilitation.

Discussion

[20] Counsel helpfully provided the court with case law in support of their contrasting positions.

[21] Mr. Wilson has satisfied me that in Ontario, save in exceptional circumstances, a custodial sentence is to be imposed in cases involving trafficking in serious drugs such as cocaine: see R. v. Ward, 1980 2882 (ON CA), [1980] O.J. No. 1439 (C.A.). The current range of sentence, while somewhat difficult to pin down, appears to be between 6-9 months on the low end and 18-24 months (less a day) at the upper end, depending on the aggravating and mitigating circumstances of the case: see R. v Woolcock, [2002] O.J. No. 4927 (C.A.), at para. 15; R. v. Barkhouse, 2017 ONCA 29; R. v. Barham, 2014 ONCA 797; R. v Radassao, 1994 779 (ON CA), [1994] O.J. No. 1990 (C.A.); R. v. Harrison, 2009 ONCA 386; and R. v. Aviles, 2016 ONSC 34.

[22] Mr. Khera provided me with a number of cases where sentences were imposed below the low end of the typical range, in circumstances he likened to those present in the case at bar. See for instance, R. v. Manoharan, 2017 ONSC 480; R. v. Sawh, 2016 ONSC 7797; and R. v. Pepper, 2015 BCCA 476.

[23] As the Court of Appeal has frequently reinforced, sentencing ranges, while helpful in ensuring the principles reflected in s. 718.2 of the Code are respected, are not meant to be fixed or inflexible. Justice Moldaver, in R. v. D.D., 2002 44915 (ON CA), [2002] O.J. No. 1061 (C.A.), said the following, at para. 33:

[S]entencing is not an exact science and trial judges must retain the flexibility needed to do justice in individual cases. The suggested ranges are merely guidelines designed to assist trial judges in their difficult task of fashioning fit and just sentences in similar cases.

[24] Sentencing is a most delicate process: R. v. Lacasse, 2015 SCC 64. Each case is unique. And in each case a unique solution must be found that respects the fundamental principles of sentencing and reflects the particular circumstances of the offence and the offender.

[25] The individualized nature of sentencing was discussed by Chief Justice Lamer in R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500 at para. 92 where he said:

Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction. As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the “just and appropriate” mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred.

[26] In some cases the presenting facts and circumstances will be such that a sentence outside of the usual range – either above or below – is called for. In my view, this is one of those cases.

[27] I will take a moment to describe the aggravating and mitigating circumstances present here, because, as always, they inform the sentence imposed.

[28] Aggravating circumstances include the following:

(a) The drug in issue, cocaine, is a serious drug. It is an insidious drug that ruins lives. It is addictive and destructive;

(b) The nature of the offence was commercial in nature. The amounts involved – 28 grams over 4 more or less equal transactions – is indicative of a supply to a purchaser intent on reselling; and,

(c) Ms. Wilson entered a guilty plea on one transaction, but agreed that she was involved in multiple transactions with the same undercover officer.

[29] Mitigating circumstances include the following:

(a) Ms. Wilson entered a guilty plea in a case where there were genuine 11b issues. She is genuinely remorseful. She is committed to turning her life around and has made significant positive steps in that regard;

(b) Ms. Wilson is a 32 year old single mother to two school-aged children;

(c) Ms. Wilson has faced significant struggles throughout her life. She was pregnant at 17. She was addicted to alcohol and cocaine and has mental health issues;

(d) She has not had any positive relationships in her life until recently. She is now in a long-term relationship with Jason Molina, who has helped provide support and stability in her life. Previously she was involved in abusive relationships and spent time with people who drink and do drugs;

(e) Her mother recently suffered from a stroke and she is now caring for her as well has her children;

(f) She has obtained a job. She works at a bakery. She is proud of her job and enjoys it. She has received a positive letter of support from her employer; and,

(g) She has been to Pinewood to address her addictions.

[30] Ms. Wilson is, for the first time in her life, leading a balanced, positive and productive lifestyle.

[31] This case highlights one of the problems inherent in a justice system where cases routinely take several years or more to reach the trial stage. Punishments are imposed years after the fact. In the meantime, life has gone on. Sometimes substantial transformations take place between arrest and trial. Sometimes those transformations are hugely positive, as they are here.

[32] Even though Ms. Wilson’s acts – committed four years ago – are deserving of condemnation and significant punishment, it must not be lost in the shuffle that the purposes of sentencing include deterring the offender from committing further offences and encouraging her or him to lead a more productive and socially acceptable lifestyle. Those purposes have been achieved already through Ms. Wilson’s individual efforts. There is a real risk, in my view, that a period of significant incarceration will serve to impair rather than promote those purposes.

[33] The Court of Appeal has recognized that there is a danger, in imposing a lengthy prison term, that an offender’s efforts at rehabilitation will be impaired. In R. v. Woolcock, as above at para. 13, Justice Rosenberg cited the following passage of Dubin J.A. in a dissenting opinion in the Court of Appeal’s decision in R. v. Pearce (1974), 1974 1448 (ON CA), 16 C.C.C. (2d) 369:

It ought not to be overlooked that it is important that persons in prisons who are to be released at some time will not return to a life of crime but will become self-supporting, capable of assuming new responsibilities and turn in the direction of becoming useful members of society. If a prison term is of such a length as to endanger the future rehabilitation of an accused, then the term of imprisonment imposed on him will not protect society in the future.

[34] Ms. Wilson has already taken steps, on her own initiative, to become self-supporting. She has assumed new responsibilities. And she has become a useful and productive member of society. She works. She raises two children. And she is the caregiver to an ailing parent.

[35] There is no doubt that the index offence was serious. Durham Region has a serious drug problem and Ms. Wilson was embedded in that culture. That said, she was not the target of the police investigation. She was essentially a mule. She got involved with certain people due to her addiction and they used her. That is not to say that she is free of responsibility for her actions. She made decisions in her life that were poor and, candidly, criminal, at a time when she had sole responsibility for the care of her children. She put herself and them at risk.

[36] The goal, in imposing a sentence on Ms. Wilson, is to impose a punishment that reflects the seriousness of the offence and Ms. Wilson’s individual moral blameworthiness, but at the same time takes her personal circumstances into account and does not impair or undo the significant efforts she has made at rehabilitation.

[37] Trafficking in cocaine requires the imposition of a custodial sentence. But in this case, anything other than a sentence that may be served intermittently would produce significant negative results including: (1) Ms. Wilson’s children would lose their primary caregiver; (2) Ms. Wilson’s mother would lose her caregiver; (3) Ms. Wilson would lose her job; and (4) Ms. Wilson would be thrust full-time into an environment populated by the very type of individuals that she has successfully managed to break free of.

[38] In my view, a custodial sentence above 90 days will not serve society’s interests or those of the offender. This is, in my view, an exceptional case that warrants the imposition of a sentence below the established range.

[39] In the result, I am imposing, on counts 8 and 9 concurrently, a sentence of 90 days in custody, to be served intermittently. It is to be served from Tuesday evenings at 6:00 p.m. to Thursday mornings at 6:00 a.m. each week until completed. It is recommended that the sentence be served at the Toronto South Detention Centre, which is the correctional facility most readily accessible by public transit to Ms. Wilson.

[40] In addition to the custodial sentence, I impose a two year period of probation on the following terms:

(a) Keep the peace and be of good behaviour;

(b) Appear before the court when required to do so by the court;

(c) Notify the court or 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; and,

(d) Report to a probation officer within 7 days and thereafter when required by the probation officer and in the manner directed by the probation officer.

[41] Ms. Wilson is to comply with the conditions prescribed in this probation order when not in confinement during the period that her sentence is being served and, obviously, on release from prison after completing the intermittent sentence.

[42] Finally, I am obliged to impose a Victim Fine Surcharge in the amount of $200. Ms. Wilson will have 20 months to pay.

Boswell J.

Released: November 6, 2017