COURT FILE NO.: CR-16-3834
DELIVERED ORALLY: January 31, 2018 at 9:15 a.m.
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty The Queen
– and –
Stephen Gerald Childs
Accused
Christine Malott, for the Crown
Jennifer Comand, for the Accused
HEARD: January 26, 2018
C. M. BONDY J.:
A. BACKGROUND
[1] On October 26, 2017, Stephen Gerald Childs (“Mr. Childs”) pled guilty to possession of Dilaudid, also known as hydromorphone, for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”).
[2] According to the facts read in by the Crown on April 13, 2015, the police received a tip that Mr. Childs would be at a Tim Hortons in the east end of Windsor, and be in possession of a large quantity of Dilaudid. When he was arrested, the police found 600 Dilaudid pills in a Doritos bag in his possession, 1100 Dilaudid pills in a bag in his jacket pocket, a Samsung touchscreen cell phone with a Bluetooth earpiece, and $160 in cash. A further $1,000 in cash was later found in a wallet belonging to him but which was in the possession of his girlfriend.
[3] A further $4,000 in an RBC money envelope was found on his person or at his girlfriend’s house. The Crown initially maintained that the $4,000 belonged to Mr. Childs. Defence counsel denied the assertion but agreed that the $4,000 would be subject to forfeiture. On that basis, the Crown agreed that the $4,000 did not belong to Mr. Childs.
[4] Counsel agreed that the value of the drugs was $34,000.
B. THE POSITIONS AS TO SENTENCE
1) The [Controlled Drugs and Substances Act](https://www.canlii.org/en/ca/laws/stat/sc-1996-c-19/latest/sc-1996-c-19.html) as to Sentence
[5] Section 5(3) of the CDSA provides that anyone who contravenes s. 5(2) is guilty of an indictable offence and liable for imprisonment for life. Both counsel agreed that there does not seem to be case law with respect to an appropriate range of sentencing for Dilaudid. However, both agreed that a penitentiary term was appropriate in the circumstances of this case.
2) The Position of the Crown as to [Sentence](https://www.canlii.org/en/ca/laws/stat/sc-1996-c-19/latest/sc-1996-c-19.html)
[6] The Crown seeks five years in a federal penitentiary.
3) The Position of the Defence as to [Sentence](https://www.canlii.org/en/ca/laws/stat/sc-1996-c-19/latest/sc-1996-c-19.html)
[7] The defence seeks a sentence of 2–3 years in a federal penitentiary.
C. THE VICTIM IMPACT STATEMENT
[8] There were no known victims of this crime.
D. THE ACCUSED’S STATEMENT
[9] Mr. Childs said that he takes responsibility for his actions and that he knows his conduct was wrong.
[10] Mr. Childs said that he had never done any crime for a profit. He described his involvement in this drug transaction as that of a courier. According to Mr. Childs, he got in the wrong situation with the wrong people. He immediately left that community after his arrest.
[11] Between the date of arrest and now, Mr. Childs has been living in a new community where he regularly assists his neighbours doing chores like cutting the lawn. He never charges them for those chores. Mr. Childs explained that those efforts were intended to repay society for his deeds.
[12] Mr. Childs also attempted to distance himself from the presentence report. He explained that the interview had occurred on a bad day.
[13] Finally, Mr. Childs said that he is afraid of prison.
E. THE PRE-SENTENCE REPORT
[14] Mr. Childs is 58 years of age. According to the presentence report, Mr. Childs grew up in what appears to have been a loving family and had the benefit of a stable childhood. He no longer has meaningful contact with any members of his family since his conviction for kidnapping a wealthy businessman for ransom in 1982. Mr. Childs was not in a relationship at the time of the interview, nor does he have any children.
[15] Mr. Childs has a lengthy criminal record. He has a total of 11 convictions for crimes of violence including kidnapping, extortion, armed robbery, assault, and possession of a prohibited weapon. His most recent prior conviction was, however, in 2002. The author of the presentence report concludes that Mr. Childs’ intent was to receive high amounts of money through deliberate crime. In other words, they were crimes of greed.
[16] The presentence report also observes that Mr. Childs has a number of health issues which have been challenging for his family physician to manage due to a history of non-compliance and following up with recommendations.
[17] Mr. Childs’ family doctor reported that there is no mental health diagnosis, although Mr. Childs from time-to-time reports feeling anxious and depressed.
[18] According to Mr. Childs, he suffers from either a neurological disorder or a second-stage concussion. Mr. Childs maintains the concussions were acquired in his career as a professional kickboxer and a skydiving accident when his parachute failed to open on a 2200 foot jump. The author of the presentence report was unable to verify the accuracy of these claims. Further, a CT scan and MRI scan of Mr. Childs’ brain conducted in 2016 did not show anything remarkable.
[19] There is concern expressed about Mr. Childs’ heavy and lengthy use of prescribed narcotics. The presentence report states that Mr. Childs’ family doctor has referred him to drug rehabilitation in an attempt to reduce his dependency on these narcotics. Unfortunately, Mr. Childs has failed to follow through, often blaming others for his lack of compliance.
[20] The presentence report quotes Mr. Childs as stating that he has never held any legitimate full-time employment, although he has done “a lot of odd jobs under the table, but never for any company.” Mr. Childs lives on ODSP (Ontario Disability Support Program).
[21] Finally, Mr. Childs told the probation officer that he had the number one crime in Canada in 1982. That was the kidnapping referred to above. Mr. Childs told the author of the presentence report that as a result of the notoriety of that crime he has been unwillingly caught up in what appears to be some type of organized crime, and that he committed this trafficking offence out of intimidation. The author of the presentence report found the veracity of his claims in this regard questionable.
F. THE PRINCIPLES OF SENTENCING
1) Proportionality
[22] Section 718.1 of the Criminal Code provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Proportionality in sentencing was considered by the Supreme Court in its decision in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089. At para. 12, the majority for the Court states,
The more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier the sentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime’s consequences, but also on the moral blameworthiness of the offender.
The majority also observed that “both sentences that are too lenient and sentences that are too harsh can undermine public confidence in the administration of justice.”
2) The Objectives of Sentencing
[23] Section 10(1) of the CDSA states that:
Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Part [I of the CDSA] is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community.
[24] Section 718 of the Criminal Code provides that the fundamental purposes of sentencing are served by imposing just sanctions that have one or more of a number of the enumerated objectives. They include:
a) To denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct
[25] At para. 62 of the decision in R. v. Pearson, 1992 CanLII 52 (SCC), [1992] 3 S.C.R. 665, the majority of the Supreme Court references the characteristics of drug crimes as noted in the Rapport du groupe de travail sur la lutte contre la drogue (1990) [Translation: Report of the Working Group the Fight Against Drugs] At p. 24 the report observes that narcotics offences increase the general level of criminality, and explains that drugs are responsible for 70–80 percent of prison terms. That includes crimes resulting from the application of narcotics legislation such as possession and trafficking; crimes committed under the influence of alcohol or drugs such as rape, violence, and homicide; and crimes committed to obtain drugs such as theft. Persons are often forced into the sex trade to feed their drug habits.
b) To deter the offender and other persons from committing offences
[26] For the reasons above, I conclude that both general and specific deterrence are important sentencing considerations in a crime involving the kinds and quantities of drugs in this situation. I find specific deterrence important in this case because of Mr. Childs’ criminal history.
[27] I did not accept Mr. Childs’s statement that he has never done any crime for profit. That statement stands in stark contrast to the reality of his criminal record. Mr. Childs is not addicted to alcohol or street drugs. The vast majority of his past criminal activity has consisted of crimes such as kidnapping with intent to hold for ransom, extortion, armed robbery, robbery, and breaking and entering. Each of those crimes involves doing something for profit, much like trafficking in narcotics.
[28] In the circumstances, I find that this was one crime for profit within a series of several crimes for profit committed by Mr. Childs over an extended period of time. Mr. Childs has been imprisoned in the past for such crimes and it appears that he has not yet learned his lesson. It follows that specific deterrence is necessary.
c) To separate the offender from society, where necessary
[29] Given the quantity and nature of drugs involved, I find it necessary to separate the offender from society.
d) To assist in rehabilitating offenders
[30] Sentencing requires a balance of the competing principles of retribution and rehabilitation. In this case, I find the chances of rehabilitation somewhat limited. There are three overarching reasons.
[31] The first is Mr. Childs’ extensive criminal record for crimes of violence which were, as said above, apparently motivated by greed. In other words, notwithstanding several convictions for crimes of greed, subject to my comments below, it appears that Mr. Childs may not yet have been rehabilitated. I am aware that the impact of his record is to some extent mitigated by the significant gap of about 10 years between this conviction and the last. I say 10 years because although his last crime was committed approximately 15 years prior, Mr. Childs had been in prison for roughly the first five years of that time, from 2002–2007.
[32] The second reason that I find Mr. Childs’ chances of rehabilitation are somewhat limited is Mr. Childs’ apparent lack of support in the community.
[33] I reiterate that he has no meaningful contact with any of his family members and has not since approximately 1982. Mr. Childs was not currently in a relationship at the time of the presentence report, nor does he have any children. In other words, there is no family to assist Mr. Childs in the community.
[34] As to support from friends, while I am aware that he received three glowing recommendations from neighbours, none of them were aware of Mr. Childs’ criminal past or the charges which he now faces. According to Mr. Childs, at least two of the three letters were authored by persons in law enforcement. One is a Royal Canadian Mounted Police (“RCMP”) officer and another a prison guard. I do not find it a stretch to conclude that the support expressed in those letters would likely wane if those neighbours were fully apprised of the situation. I am also aware that Mr. Childs spoke of an unnamed individual in an unnamed high-ranking job who would assist him upon his release. With the greatest of respect, it would be very difficult for me to place much weight on such a vague assertion.
[35] The third reason that I find Mr. Childs’ chances of rehabilitation somewhat limited is Mr. Childs’ lifestyle. I reiterate that he is 58 years of age, yet has never had any meaningful employment. Mr. Childs’ only legitimate income is from ODSP. Between the date of this crime and the date of sentencing he was living in a neighbourhood with individuals earning significant incomes. I reiterate one of his neighbours is an RCMP officer and another a prison guard. Given Mr. Childs lifelong unwillingness to work to support the lifestyle which he desires, it is difficult to believe that at 58 years of age he will learn to become a productive employee and earn the income necessary to keep him in the style to which he has become accustomed.
[36] In most circumstances those observations as to rehabilitation would likely be moderated by the potential for assistance from the authors of the three letters from Mr. Childs’ present and/or past neighbours. The evidentiary value of those letters is, however, significantly diminished because, as said above, none of the three authors were made aware of Mr. Childs’ criminal past or the charges which he now faces.
[37] It seems likely to me that none of those three individuals would have supported Mr. Childs if they knew the full context of his current situation. I find that Mr. Childs was no doubt aware that the glowing comments of his neighbours would likely be impacted if they knew the full truth. I say that because of Mr. Childs’ unwillingness to share contact information for those persons with the author of the presentence report. Had the author of the presentence report been able to contact those neighbours and apprise them as to Mr. Childs’ past and present situation, he would have been in a position to elicit fully-informed, objective information as to their willingness to assist in Mr. Childs’ rehabilitation.
e) To provide reparations for harm done to victims or to the community
[38] The victims of those involved in large-scale drug trafficking are often unknown, and so reparations to those individuals remains elusive. As to the community, Mr. Childs has engaged in very positive conduct with his current neighbours. I accept his statement that said conduct was intended as a sort of restitution to the community.
f) To promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community
[39] Nothing in the past seems to have promoted enough of a sense of responsibility in Mr. Childs to prevent him from committing this crime. That said, in exercising his right of allocution Mr. Childs did acknowledge the seriousness of the offence and, at least to some extent, took responsibility for his actions. On that very narrow basis, I did find that there may be some remote possibility that Mr. Childs may finally be seeing the light. To what extent remains to be seen.
3) Other Sentencing Principles
[40] Section 718.2 provides further sentencing principles. They include:
a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender
i. Mitigating Factors:
[41] Mr. Childs pled guilty. Notwithstanding that the plea came late in the process, it nonetheless saved the state significant amounts of money. His guilty plea also supports the contention that Mr. Childs has taken some responsibility for his actions.
[42] I reiterate that Mr. Childs is 58 years of age. The age of older offenders, such as Mr. Childs, is a factor tending to ameliorate punishment. That is because the older the person is, the more difficult it is to serve a sentence: see R. v. K.N., [1999] O.J. No. 4572 (S.C.), at para. 67.
[43] Similarly, the ill health of an offender is a factor worthy of consideration in sentencing: see K.N., at para 68. Dr. Zatzman is Mr. Childs’ family doctor and has been since 2007. Doctor Zatzman wrote a letter in which he states that it would be considered detrimental to Mr. Childs’ health if he were to be incarcerated for an extended period of time. Dr. Zatzman advised that Mr. Childs suffers from osteoarthritis and degenerative disc disease of his lumbar spine for which he has received narcotic pain medication and some physical therapy over the years. Dr. Zatzman also stated that Mr. Childs has some serious issues related to cyclic vomiting and syncope which may be related to a cardiac problem. Although a pacemaker has been recommended for a heart arrhythmia, it has not yet been implemented. Defence counsel argues that as a result, prison would be subjectively more onerous upon Mr. Childs than it would be on an inmate with better health.
[44] While I agree with the general proposition put forth by defence counsel, Mr. Childs’ health must be considered in the context of Mr. Childs’ particular situation. There are two things which stand out with respect to his health.
[45] The first is that his health issues are likely exacerbated by his unwillingness to follow treatment advice.
[46] The second is that there was no evidence that Mr. Childs’ health problems could not be addressed by the correctional authorities. That factor tends to allay the subjective impact of these health problems on him while incarcerated: see R. v. Drabinsky, 2011 ONCA 582, 107 O.R. (3d) 595, at para. 170.
[47] For these reasons, while I do find Mr. Childs’ health to be a mitigating factor, the mitigation is not as great in this fact situation as it may in others.
[48] Another mitigating factor is the letters from Mr. Childs’ neighbours. Those letters paint Mr. Childs as a kind, considerate, helpful, and trustworthy neighbour. I, however, reiterate that the value of those letters is significantly lessened because Mr. Childs, by his own admission, had not told any of those neighbours of his past criminal history or the charges which he currently faces. Accordingly, it is not clear that his neighbours’ opinion of him would have been the same if they had been given more fulsome information.
[49] Another factor is Mr. Childs’ acts of kindness towards his neighbours between the date he was charged with this offence and the date of his guilty plea. I reiterate that Mr. Childs told me that those acts of kindness were an expression of remorse to the community by him for the crime he had committed. I did give some weight to that representation.
[50] Finally, Mr. Childs spent two years and nine months on bail. During that time he was not convicted of any offences. When an offender demonstrates crime-free behaviour during a lengthy term of bail that is a factor deserving of some weight: see R. v. Simmons, 2010 ONSC 5894, at para. 58; R. v. Nikkanen, 1999 CanLII 7339, 140 C.C.C. (3d) 423 (Ont. C.A.), at paras. 13 and 15. Also, Mr. Childs was subject to a curfew and reporting requirements, so his life was more restricted than would have otherwise been the case. Again, I find that those restrictions on his life for that extended period of time to be a mitigating factor.
ii. Aggravating Factors:
[51] The first aggravating factor that I will address is the sheer volume of a very addictive drug, Dilaudid, seized from Mr. Childs; a total of 1,700 Dilaudid pills with a value of $34,000. As was observed by Momotiuk J. in R. v. Griffith, [1996] O.J. No. 4797, at para. 13, this highly addictive drug has a very corrosive effect on the social fabric of our society.
[52] I reiterate that there was no suggestion that Mr. Childs was selling drugs to feed an addiction. To the contrary, Mr. Childs told the author of the presentence report that he has never tried alcohol or street drugs. While Mr. Childs is most likely addicted to narcotic pain medications, those are obtained by prescription and accordingly would be paid for through ODSP. In the circumstances at present, it is difficult to avoid the conclusion that Mr. Childs’ drug trafficking activities were motivated by anything other than greed. That conclusion finds support in my observations above as to Mr. Childs’ past criminal activity.
b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances
[53] I begin with the observation that while previous judicial determinations of sentence are helpful in the sentencing process, they must be approached with caution. They should be considered more as a guide than a tariff. That is because the facts, circumstances, and other factors to be considered, vary significantly from case to case. Sentencing is a subjective, case-centric, and individualized process: see R. v. Summers, 2013 ONCA 147, 114 O.R. (3d) 641, at para. 35, aff’d in 2014 SCC 26, [2014] 1 S.C.R. 575; R. v. Shropshire, 1995 CanLII 47 (SCC), [1995] 4 S.C.R. 227, at para. 46; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 82; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 43; R. v. Jacko, 2010 ONCA 452, 101 O.R. (3d) 1, at paras. 48 and 52. The determination of a “fit” sentence is, subject to some specific statutory rules, an individualized process that requires the judge to weigh the objectives of sentencing in a manner that best reflects the circumstances of the case: see Nasogaluak, at para. 43; R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309, at pp. 340–41; M. (C.A.) 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para. 73; and R. v. Hamilton, 2004 CanLII 5549, 72 O.R. (3d) 1 (C.A.), at para. 2).
i. Case law provided by the Crown
[54] The following cases were provided by the Crown:
a. R. v. Griffith: The offender was convicted of possession of 38 Dilaudid tablets for the purpose of trafficking. A sum of $1,830 was also seized. Momotiuk J. noted that the offender was an addict himself but concluded that he, like Mr. Childs, was “an entrepreneur for profit.” Unlike Mr. Childs, Mr. Griffith showed some interest in employment when he was released. He was sentenced to three years in a federal penitentiary.
b. R. v. Turner, [2003] O.J. No. 685: The offender was convicted of trafficking 38 8 mg tablets of hydromorphone with a street value of $1,500. He was sentenced to 12 months incarceration followed by two years of probation. That sentence was upheld by the Ontario Court of Appeal.
c. R. v. Domke, 2006 ABPC 252, 400 A.R. 112: The offender was convicted of possession for the purpose of trafficking in 37 24 mg pills of hydromorphone, 50 12 mg pills of hydromorphone, 55 codeine (Tylenol 4) pills, 3.7 g of cannabis marijuana, 100 20 mg pills of oxycodone, 100 codeine (Technol c ½) pills analysed to include butalbital), 30 PMS morphine pills, and 160 TC/30 morphine pills, with an estimated street value of $3,425, and an approximate institutional value of $15,500. Like Mr. Childs, Mr. Domke had a number of reference letters from supporters. The offender received five years on each count, to be served concurrently. I consider that case to be clearly distinguishable because Mr. Domke was, at the time, in a significant position of trust. That is a statutorily-mandated aggravating factor: see s. 718.2(a)(iii) of the Criminal Code. He was a prison guard who was delivering these drugs to prisoners in the facility in which he worked. Given the seriousness of the breach of trust it would be difficult for me to assess what that sentencing judge would have done but for that aggravating factor.
d. R. v. David, 2013 NSSC 83, 327 N.S.R. (2d) 306: Mr. David was convicted of a number of offences which included possession of hydromorphone for the purpose of trafficking. He was in possession of 96 8 mg tablets of Dilaudid, 50 4 mg tablets of Dilaudid, and 5 g of hydromorphone powder. Mr. David also had heroin, ecstasy, oxycontin, oxycodone, and morphine in his possession at the time. He was sentenced to four years and nine months on each count, concurrent. I make the same observations here as I did for Domke: The offender was, at the time, employed as a Deputy Sheriff with the Nova Scotia Department of Justice and was using that significant position of trust to deliver the drugs to inmates in a correctional centre.
e. R. v. Murphy, 2014 NSSC 14: The offender was found guilty of two counts of possession of controlled substances for the purpose of trafficking, including 73.1 g of cocaine and 26 30 mg tablets of hydromorphone. He was also found with $715 in cash. Unlike Mr. Childs, Mr. Murphy did not have any previous criminal record. The offender was sentenced to 36 months on each count, to run concurrently.
f. R. v. Medeiros-Sousa, 2014 ONCJ 626: The offender worked at a pharmacy. When arrested, she was found in possession of 222 oxycodone pills, and her accomplice was found in possession of 2333 oxycodone pills, 1,727 hydromorphone pills, and 58 fentanyl patches. In addition, the police intercepted a black duffel bag being removed from the accomplice’s house which contained 28 fentanyl patches, 1,343 hydromorphone pills, 2,615 oxycodone pills, and $18,000 in cash. During that investigation, 609 oxycodone pills were also found at the accomplice’s residence. The contents of the duffel bag were believed to have come from the pharmacy in question but that was not proven. The offender had been sexually assaulted by an uncle when she was a teenager, was addicted to oxycodone, entered a guilty plea, was a contributing member of society, and had no criminal record. In other words, the mitigating circumstances in this offender’s case were significant. The offender was sentenced to a global sentence of 30 months. Notwithstanding that this case also involved a breach of trust, I found it more useful than the decisions in Domke and David. I say that because I find the breach of trust far more significant in those cases.
ii. Case law provided by the defence
[55] The following cases were provided by the defence:
a. R. v. Shea, 2016 NSSC 20: The offender was convicted of possession of 18 hydromorphone capsules for the purpose of trafficking. He also had 101 empty capsules, a large number of hydromorphone needles, and $170 at the time. Mr. Shea was on probation. Like Mr. Childs, he had a lengthy criminal record. He was also close to Mr. Child’s age; Mr. Shea was 55 years of age and Mr. Childs is 58. The judge accepted a joint recommendation of two years imprisonment in a federal penitentiary.
b. R. v. Pilkington, 2015 MBQB 2, 313 Man. R. (2d) 51: The offender was convicted of possession of a number of Schedule I and Schedule IV substances for the purpose of trafficking. The street value of the drugs was just under $20,000. They included oxycodone, morphine, percocet, hydromorphone, diazepam, lorazepam, temazepam, and alprazolam. The trial judge, at para. 21, described the quantity and selection of drugs as a “veritable drug boutique.” Ms. Pilkington was 62 years of age and, at the time of the offences, was on disability. Also similar to Mr. Childs, she was prescribed narcotic painkillers including morphine and Tylenol 3; had letters of praise from friends; had an extensive criminal record but for less serious offences; and there was a significant gap since her last conviction. The offender was sentenced to a global sentence of 30 months imprisonment.
c. R. v. Barham, 2014 ONCA 797: The offender was convicted of a number of offences including possession of hydromorphone for the purpose of trafficking. Like Mr. Childs, the offender had an extensive criminal record with a significant gap since his last conviction. Unlike Mr. Childs, the offender suffered from schizophrenia and a cocaine addiction. The Ontario Court of Appeal upheld a 12-month sentence. The difficulty with this case is that the quantity of hydromorphone was not set out in the reasons given by the Ontario Court of Appeal, and the trial judge’s decision is unreported.
d. R. v. MacPherson, 2014 NSPC 13: The offender entered a guilty plea to possession of three capsules of hydromorphone for the purpose of trafficking. He was also found with 256 emptied hydromorphone capsules, and $1,700 in cash. He was 61 years of age and had been receiving Canada Pension disability for an extensive period of time. There was a joint submission for one year incarceration with probation to follow. Notwithstanding, the offender was sentenced to three years’ incarceration.
e. R. v. Paper, 2010 ONCJ 88, aff’d 2011 ONCA 56: The offender was found in possession of many serious and varied drugs for the purpose of trafficking in what was described as a commercial operation which was a “drug store.” Ms. Paper had in her possession 20.6 g of methamphetamine powder; 41.8 g of methamphetamine crystal; 36.05 g of ketamine; 300+ pills including oxycodone, Tylenol 3 and morphine; 2.5 L of GHB; 300 tabs of LSD; 330 ecstasy pills; 220.3 g of marijuana; 29.9 g of cannabis resin or hash; and 200 Valium pills. The offender was sentenced to two years incarceration followed by two years of probation. That result was partly driven by the trial judge’s observation that the rehabilitation of Ms. Paper, who was a first-time offender, would be served by having a term of probation, and that such probation would only be possible with a two year sentence.
f. R. v. Hachey, 2008 NBQB 52, 326 N.B.R. (2d) 172: Mr. Hachey and a co-accused were found guilty of several counts of possession for the purpose of trafficking. The illegal drugs included 71 hydromorphone pills, 39 paper squares of LSD, 28.64 g of cocaine, 26.14 g of marijuana, and 3.48 g of a white powder analysed as both cocaine and methamphetamine. Like Mr. Childs, Mr. Hachey also had a long criminal record but Mr. Hachey’s convictions were primarily for controlled substances. Unfortunately, approximately 10 years prior to the date the offences, Mr. Hachey had been injured in a swimming pool accident where he suffered a broken neck and spine. He was hospitalized for about four months and required the use of a wheelchair thereafter. At the time of sentencing, he continued to receive permanent disability pension benefits. Mr. Hachey was sentenced to imprisonment for two years less a day followed by two years of probation.
[56] In summary, the cases range from sentences of 12 months to five years. I agree with counsel that the cases do not present either an identifiable range or a discernible pattern.
[57] I also agree with the consensus by counsel that, save for exceptional cases, the floor in hydromorphone trafficking cases is about two years given the nature of that drug and its impact upon its direct victims, indirect victims, and society at large.
c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh
[58] This factor does not apply.
d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances
[59] “The principal objective of a prison sentence is punishment . . . [yet] the objectives of and rationale for the supervision of an offender in the community are to ensure that the offender does not reoffend and to protect the public during a period of supervised reintegration into society: see: R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, at para 46.
[60] In these unique circumstances it seems to me that punishment is important. I say that for several reasons. I reiterate that a significant amount of highly addictive drugs were involved. I find that the motive was profit. Mr. Childs has a significant criminal record for crimes motivated by greed. Notwithstanding 11 convictions he has continued committing such crimes. To be clear, I am aware that there has been a significant gap between his last conviction and this conviction.
(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
[61] As said above, the trade in highly addictive drugs has irreparable harm on the community and disproportionately affects societies’ more vulnerable people, often turning them to prostitution, crimes of theft, and other behaviour that tends to diminish the lives of those affected. In the circumstances, I do not find any sanction other than imprisonment would be appropriate.
G. CONCLUSIONS
[62] On the totality of the circumstances, a fit and proper sentence is 3 ½ years.
H. THE SENTENCE
a) [Sentence](https://www.canlii.org/en/ca/laws/stat/sc-1996-c-19/latest/sc-1996-c-19.html)
[63] You shall serve a sentence of 3 ½ years in a federal penitentiary.
b) Credit for Pre-Trial Custody
[64] You have been in custody awaiting sentencing for 31 days. In these circumstances, 1.5:1 credit or 47 days is appropriate for that pre-trial custody: see Summers. As a result, I calculate the portion of your sentence remaining to be 3 years and 135 days.
c) Other Ancillary Orders
[65] I make the following ancillary orders:
A weapons prohibition order for 10 years pursuant to s. 109 of the Criminal Code.
An order pursuant to s. 487.051 of the Criminal Code authorizing the taking of the number of samples of blood that is reasonably required for the purposes of forensic DNA analysis.
An order for the forfeiture of:
a) $4,160 Canadian currency seized from Mr. Childs incident to arrest;
b) $1,000 Canadian currency seized from Mr. Childs’ wallet at 203-271 Lauzon Road, Windsor, Ontario;
c) Samsung phone with “Bluetooth” earpiece, except for the SIM card, which is to be returned to the offender Stephen Childs.
- An order for a victim fine surcharge of $200.
Christopher M. Bondy
Justice
Released: January 31, 2018