Indictment No. 3811-998-17-134
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
CURASA CLAYTON
R E A S O N S F O R S E N T E N C E
BEFORE THE HONOURABLE JUSTICE M.K. FUERST
on May 11, 2018, at BARRIE, Ontario
APPEARANCES:
L. Saunders, K. Jokinen, A. Meiners
Counsel for the Crown
J. Kieffer
Counsel for C. Clayton
SUPERIOR COURT OF JUSTICE
T A B L E O F C O N T E N T S
ENTERED ON PAGE
REASONS FOR SENTENCE
1
LEGEND
[sic] Indicates preceding word has been reproduced verbatim and is not a transcription error.
(ph) Indicates preceding word has been spelled phonetically.
Transcript Ordered:
May 16, 2018
Transcript Completed:
June 29, 2018
Ordering Party Notified:
June 29, 2018
FRIDAY, MAY 11, 2018
R E A S O N S F O R S E N T E N C E
FUERST, J. (Orally):
INTRODUCTION
Curasa Clayton pleaded guilty to two counts of trafficking in fentanyl and two counts of using a forged document (commonly referred to as “uttering a forged document”) specified to be an electronic prescription.
The defence concedes that a jail term must be imposed. The issue is the length of that jail sentence.
THE CIRCUMSTANCES OF THE OFFENCES
In the course of an investigation that came to be known as “Project Northbound”, police executed a search warrant at a residence in North Bay in 2013. They found a prescription purported to be issued by a Dr. Sacksen in Barrie.
Further investigation revealed that that prescription, along with 18 others, was fraudulent. During the period of March 2013 to August 31, 2013, Julie Baks, who worked as a receptionist in Dr. Sacksen’s Barrie office, created 19 false patient profiles, along with fraudulent prescriptions for each of those false patients. Those prescriptions were for fentanyl, and in one instance, oxycodone.
Ms. Clayton was one of the 19 false patients. She did not know Dr. Sacksen, or Ms. Baks. She did know Mary Joncas.
In August 2013, Ms. Clayton was with Ms. Joncas at an establishment when Raymond Godreau introduced himself and asked the two women if they would like to make some money. Both women agreed that they did. Mr. Godreau asked them for their health cards and other personal details. He told them that to make money, they would have to fill a prescription every 30 days for three months, and give the prescription drugs to him.
Both women provided Mr. Godreau with the necessary information.
Mr. Godreau gave Ms. Clayton’s patient information, including her health card information, to Ms. Baks. Using that information, on August 26, 2013, Ms. Baks created a fraudulent prescription in Ms. Clayton’s name. It was for forty-five 100 microgram fentanyl patches, to be dispensed at the rate of 15 patches at 30 day intervals over a 90 day period.
Mr. Godreau gave Ms. Clayton the fraudulent prescription. She went into a drug store in North York, tendered the prescription as if it were genuine, and received fifteen 100 microgram patches of fentanyl, at a cost of $228.93. Ms. Clayton left the pharmacy and gave the fentanyl patches to Mr. Godreau.
On September 25, 2013, Ms. Clayton was ill. Ms. Joncas went to the pharmacy and picked up the second installment of fentanyl patches in Ms. Clayton’s place.
On October 25, 2013, Ms. Clayton went back to the same drug store. Relying on the same fraudulent prescription, she received another fifteen 100 microgram patches of fentanyl, for $228.93. She again gave the patches to Mr. Godreau. In each instance, Mr. Godreau paid the pharmacist the cost of the fentanyl patches in advance.
While Ms. Clayton gave the fentanyl patches to Mr. Godreau for the purpose of obtaining money, the Crown does not allege that she actually received money from him.
Ms. Joncas was arrested on June 26, 2014. She called Ms. Clayton on behalf of the police, and asked that Ms. Clayton turn herself in to the authorities. Ms. Clayton did not do so.
Ms. Clayton was arrested on August 27, 2016. She was released on a promise to appear.
Meanwhile, in October 2015, Ms. Joncas pleaded guilty to obtaining fifteen 100 microgram patches of fentanyl on each of four occasions, on the basis of a fraudulent prescription in her name that was filled in three installments, and in addition, on the one occasion, the fraudulent prescription in Ms. Clayton’s name. Ms. Joncas assisted the Crown by testifying at criminal proceedings against Mr. Godreau. On the basis of a joint submission, she received a conditional sentence of imprisonment of 15 months, followed by 12 months of probation.
THE CIRCUMSTANCES OF MS. CLAYTON
Ms. Clayton is now 43 years old. She is a first offender.
She is a single parent of two children, who are 20 and 18 years of age. One is in college and the other has finished high school.
Ms. Clayton has a Grade 11 education. She supports herself through Ontario Works.
At the time that she committed the offences, Ms. Clayton was living with Ms. Joncas, and was in a relationship with the son of Ms. Joncas. That relationship was described as abusive. It has ended.
Ms. Clayton’s physician advised that Ms. Clayton has a long-standing history of issues with mood disorder, specifically depression/anxiety in the context of polysubstance misuse. She has been seen by a mental health worker and a psychiatrist, and encouraged to participate in programs such as Alcoholics Anonymous and Community Addiction Services.
Ms. Clayton is close to her mother, who was present in court at the guilty plea and sentencing hearing. Ms. Clayton’s mother suggests that Ms. Clayton needs long-term care because she battles with depression.
Friends describe Ms. Clayton as a dedicated mother, and a kind and caring person, for whom criminal activity is out of character.
Ms. Clayton did not turn herself in to the police when contacted by Ms. Joncas, because her children were young teenagers at the time. The police apparently took no follow-up steps to locate her.
Ms. Clayton told me in court that she was sorry for her offences and did not want to be in this kind of situation again.
THE POSITIONS OF THE PARTIES
On behalf of the federal Crown, Ms. Meiners seeks a global sentence of three years in jail. She emphasizes that fentanyl is a dangerous drug. When fentanyl patches are obtained illicitly and cut up by drug users, lives are put at risk because the dosage cannot be known. She submits that Ms. Clayton was part of a sophisticated scheme, in which pharmacists were deceived. Ms. Clayton’s motivation was financial gain, even though she actually obtained nothing. Ms. Meiners also seeks a s.109 order and a DNA order on all counts.
On behalf of Ms. Clayton, Mr. Kieffer submits that a reformatory sentence should be imposed, or at most, a two-year penitentiary term. He does not oppose s.109 and DNA orders. He emphasizes that Ms. Clayton pleaded guilty, unlike some others who were arrested in this investigation. Ms. Clayton used a single prescription that authorized three quantities of fentanyl, of which she personally obtained two. She did not seek out participation in the scheme, but was recruited by a larger player who used her as a proxy at a time in her life when she was vulnerable because of personal issues. She did not distribute the drug in the community. Her participation was at the lowest level, and represents isolated activity by someone who has no criminal history.
THE PRINCIPLES OF SENTENCING
The objectives of sentencing that I am required to consider are set out in s.718 of the Criminal Code. They are: the denunciation of unlawful conduct and the harm done to victims or to the community; deterrence, both general and specific; the separation of the offender from society where necessary; rehabilitation; reparation for harm done to the victims or the community; and promotion of a sense of responsibility in offenders and acknowledgment of the harm done to victims or to the community.
Additionally, s.10(1) of the Controlled Drugs and Substances Act states that the fundamental purpose of any sentence for a designated substance offence is to contribute to respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, treatment, and acknowledgment of the harm done to victims and to the community.
Section 718(1) provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances. It sets out various aggravating factors. It also requires that a sentence be similar to those imposed on similar offenders in similar circumstances, that the combined duration of consecutive sentences not be unduly long, that an offender not be deprived of liberty if less restrictive sanctions may be appropriate, and that all available sanctions, other than imprisonment, that are reasonable in the circumstances, be considered.
The offences in this case involved fentanyl. Fentanyl is a Schedule 1 drug. There can be no doubt that it is a very dangerous substance when used illicitly, because of its potency. It has been described as 20 times more powerful than heroin. It is particularly dangerous when it is obtained through the adulteration of patches, because its dosage cannot be determined by the user. Its abuse puts users at risk, not just of addiction, but also of death. As its abuse has become more wide-spread in Ontario, lives have been lost in our communities. All of this was noted by the Court of Appeal for Ontario in its recent decision in R. v. Loor, 2017 ONCA 696.
For those reasons, deterrence, both general and specific, as well as denunciation, must be the paramount objectives of sentencing for fentanyl offences, including the knowing use of forged prescriptions to obtain fentanyl, and the deception of pharmacists that that involves. While I do not ignore rehabilitation as an objective in fashioning a sentence for Ms. Clayton, it plays a lesser role than denunciation and deterrence.
ANALYSIS
There are a number of aggravating factors in this case, in addition to the nature of the drug as fentanyl.
Ms. Clayton knowingly agreed to participate in criminal activity that involved using a false prescription issued in her name to obtain the drug fentanyl from a pharmacy. She did so in the expectation of monetary gain. She agreed at the outset that her involvement would not be just an isolated act. Rather, she would obtain a quantity of fentanyl three times during a three month period. By her direct participation, she obtained 30 fentanyl patches that she gave to Mr. Godreau to do with as he wished. She facilitated the obtaining of an additional 15 patches, in that the quantity authorized by the false prescription in her name was picked up by a third person. All of the patches obtained were of the highest strength available, at 100 micrograms. On each occasion, a pharmacist was deceived.
There are a number of mitigating factors. Ms. Clayton is a first offender. As a single parent, she successfully raised two children through high school and on to adulthood. The offences are out of character for her. She pleaded guilty, which is a sign of remorse and willingness to accept responsibility for her unlawful activity. She expressed remorse to me in court. While she was promised money in return for her participation, it is not alleged that she was ever paid. Accordingly, I find that she did not, in fact, profit from her activity. Ms. Clayton is a person who has struggled with mental health issues for some time, and I accept that the offences occurred at a point in her life when she was dealing with additional personal difficulties. Her mother believes that Ms. Clayton needs longer-term professional help. It is important that her mother, who has this insight, is continuing to be supportive of her. It is a factor that weighs in favour of Ms. Clayton’s rehabilitative potential.
I also take into account that Ms. Clayton was far from being at the centre of this drug trafficking scheme, which was run by Grenville Sinclair and Mr. Godreau, with the assistance of Ms. Baks. The Court of Appeal for Ontario described the operation in R. v. Baks, 2015 ONCA 560 at paragraph 3, as being “somewhat sophisticated”. In R. v. Godreau, 2016 ONSC 6318 at paragraph 14, the sentencing judge noted that the kingpins acquired more than 900 fentanyl patches during the course of the operation, which they trafficked for profit. Ms. Clayton was not one of the kingpins. Her participation, unlike that of Ms. Baks who ultimately received a sentence of six years in jail, did not involve a breach of trust. Unlike Mr. Sinclair, who received a sentence of eight years in jail, and Mr. Godreau, who received a sentence of 10 years in jail, Ms. Clayton did not design, implement, oversee, or actually benefit from the operation of the scheme. I agree with defence counsel that she was an instrument, albeit a knowing one, by which Mr. Godreau ultimately obtained 45 fentanyl patches. Her participation puts her at the lower end of the range of complicity.
It is important to consider the sentences imposed on other individuals whose participation in “Project Northbound” was similar to that of Ms. Clayton. In Loor, which I referred to earlier, the offender obtained a total of 45 fentanyl patches using a forged prescription prepared in his name by Ms. Baks, at a pharmacy on three occasions. He did not profit much financially. He was described by the Court of Appeal for Ontario, at paragraph 41, as a “low-level member” of the drug trafficking ring. He had a trial, and was convicted of three counts of trafficking in fentanyl and three counts of using a forged prescription. The appellate court found that his crimes and their consequences were serious, and upheld a sentence of six years in jail less credit of 18 months for pre-trial custody. The court pointed out that it was an aggravating factor that Mr. Loor had a previous criminal record, including a conviction described as a conviction for trafficking.
Unlike Mr. Loor, Ms. Clayton pleaded guilty, and she is a first offender.
Two other participants in “Project Northbound”, Julia McCarthy and Sean Forrester, received sentences of 30 months and 36 months in jail, respectively, for convictions for three counts of trafficking in fentanyl and three counts of using a forged prescription. The participation of Ms. McCarthy and Mr. Forrester was essentially the same as that of Ms. Clayton. Each was given a forged prescription that included renewals. They filled the prescription and turned over the fentanyl patches to someone higher up in the organization, on the promise of payment. Both Ms. McCarthy and Mr. Forrester were first offenders. However, each of them was found guilty after a multi-day jury trial. Ms. McCarthy received a lesser sentence than did Mr. Forrester, because she was the single parent of a school-aged child whom the sentencing judge recognized would be impacted by her mother’s incarceration.
I have considered all of the sentencing decisions provided to me by Crown and defence counsel. I am aware that there are cases in which individuals who were not addicts, and who sold very small quantities of fentanyl patches, received penitentiary sentences exceeding two years on pleas of guilty. See, for example, R. v. Cloutier, [2014] O.J. 4783, where the accused received a 27 month jail sentence for selling two patches to an undercover police officer and discussing a future sale of five patches that did not occur. But, it is the sentences of Ms. McCarthy and Mr. Forrester that are most relevant to the determination of Ms. Clayton’s sentence, because they were participants in the same drug trafficking operation as was she, and their conduct parallels hers.
I am unable to agree with Crown counsel that Ms. Clayton should receive a sentence of three years in jail. Given that she, unlike Ms. McCarthy and Mr. Forrester, pleaded guilty, a sentence in that range would not have regard for the principle of parity.
I also am unable to accept the submission of defence counsel that a high-end reformatory sentence should be imposed. Such a sentence would not reflect the Court of Appeal’s recognition of fentanyl as an especially dangerous drug when its patch form is abused, the gravity of the offences, and Ms. Clayton’s moral blameworthiness. Even on a guilty plea, because of the insidious nature of fentanyl, a penitentiary sentence is required.
Ms. Clayton, please stand. On count 2, I sentence you to 26 months in jail. The same sentence is imposed to be served concurrently on each of counts 1, 3, and 4.
There is a s.109(2)(a) order for 10 years, and a s.109(2)(b) order for life on each of those counts. There is also a DNA order on each of those counts. You may be seated.
THE COURT: Mr. Kieffer and Ms. Jokinen, is there anything that needs to be clarified?
MR. KIEFFER: No, thank you.
MS. JOKINEN: No, Your Honour, and I just want to see the dates of the offences. I don’t think they attract the victim fine surcharge.
THE COURT: Oh, I am sorry; you wanted to see the indictment....
MS. JOKINEN: No, no, I’m looking at the date. I don’t....
THE COURT: I’m sorry. The offence date is August 26, 2013, October 25th, 2013.
MS. JOKINEN: No, I think the victim fine surcharge became mandatory in November of 2013.
THE COURT: Do you have that date? I’m sure our Registrars have it.
MS. JOKINEN: Of 2013?
MR. KIEFFER: I don’t think it was until 2014....
MS. JOKINEN: Okay.
THE COURT: Not an issue, then?
MS. JOKINEN: Your Honour has to waive the victim fine surcharge, and I don’t have an issue with that given her circumstances.
THE COURT: All right. Mr. Kieffer, is that what you wish?
MR. KIEFFER: Yes, thank you.
THE COURT: Okay. And the other counts, Ms. Jokinen? No, I guess that is all of them, isn’t it? All of them are dealt with?
MS. JOKINEN: Yes.
THE COURT: All right. I have endorsed on the indictment Ms. Clayton is sentenced on count 2 to 26 months in jail. The same sentence is imposed concurrent on counts 1, 3, and 4. There is a DNA order on all counts. A s.109(2)(a) and a s.109(2)(b) order for 10 years, and life, respectively, on all counts. The victim fine surcharge is waived.
MS. JOKINEN: Thank you, Your Honour.
MR. KIEFFER: Thank you very much, Your Honour; an obviously difficult case, for all.
THE COURT: Thank you for your assistance.
MR. KIEFFER: I appreciate all the time spent by my friend and everyone else on the case, today.
THE COURT: Thank you.
MS. JOKINEN: Thank you, Your Honour.
Form 2
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2))
Evidence Act
I,
Cathy Ther
(Name of Authorized Person)
certify that this document is a true and accurate transcript of the recording of
Regina v. Curasa Clayton
in the
Superior Court of Justice
(Name of Case)
(Name of Court)
held at
75 Mulcaster St., Barrie, Ontario
(Court Address)
taken from Recording
3811_02_20180511_090424__10_FUERSTM.dcr
, which has been certified in Form 1 by Chelsea Pollard.
29 June 2018
(Date)
(Signature of Authorized Person)