COURT FILE NO.: 14471/17

DATE: 20180202

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – Kevin Shawn Lee Defendant

Ian Greenway, for the Crown

Sevag Yeghoyan, for the Defendant

HEARD: January 29, 30, 31, 2018 SENTENCE DELIVERED: Feb. 2, 2018

Madam Justice S.J. Woodley

REASONS FOR DECISION RE SENTENCING

OVERVIEW

[1] At the commencement of trial on January 29, 2018, Kevin Lee plead not guilty to a two-count indictment containing the following charges:

1. That he, on the 14st day of July, 2015, at the City of Oshawa, did possess a substance included in Schedule 1, namely Hydromorphone, for the purpose of trafficking, contrary to Section 5(2) of the Controlled Drugs and Substances Act; and
2. That he, on the 14st day of July, 2015, at the City of Oshawa, did possess a substance included in Schedule 1, namely Oxycodone, for the purpose of trafficking, contrary to Section 5(2) of the Controlled Drugs and Substances Act.

[2] On the third day of trial, Mr. Lee plead guilty to simple possession of a substance included in Schedule 1, namely Hydromorphone, contrary to Section 4(3) of the Controlled Drugs and Substances Act, being the lesser included offence on Count One. The Crown accepted the guilty plea and asked that the charge relating to Count Two be dismissed.

[3] The Crown read into the record those facts that supported a finding of guilt with respect to the guilty plea of simple possession. Mr. Lee by his counsel accepted and adopted the version of the facts as read in by the Crown.

[4] Following the plea enquiry I accepted Mr. Lee’s guilty plea.

[5] Count 2 of the Indictment was dismissed on consent.

[6] Counsel for the Crown and Mr. Lee made sentencing submissions and Mr. Lee’s counsel filed several medical letters and character references letters that spoke to Mr. Lee’s addiction, rehabilitation and general good character.

[7] Mr. Lee provided his personal statement to the Court and expressed his deep remorse for his actions.

[8] These are my Reasons for Sentencing.

THE ISSUE

[9] The sole issue before me is what is the appropriate sentence considering all of the facts and circumstances of this case?

THE FACTS

The Offence

[10] The Durham Regional Police conducted a drug investigation on July 13, 14 and July 15, 2015. During the course of the investigation the police formed grounds to arrest a person who had spent some time with Mr. Lee during the investigation. Following the arrest of this first person, the police arrested Mr. Lee.

[11] At the date of his arrest Mr. Lee was found to be in possession of the following substances and funds:

1. 71.5 - 8 mg of hydromorphone pills (commonly known as dilaudid);
2. 2 - 80 mg oxycodone pills;
3. 6 – 18 mg hydromorphone pills;
4. 15 – 10 mg oxycodone pills;
5. $224 USD; and
6. $490 CDN.

[12] As a result of the arrest a warrant was issued for the search of Mr. Lee’s residence. As a result of the search the police located a further 100 – 8 mg hydromorphone pills.

The Offender

[13] On July 14, 2015, Mr. Lee was 49 years old and employed full-time as a labourer at a steel mill, where he had worked for 26 years. Mr. Lee had no prior criminal record.

[14] On the date of the arrest, Mr. Lee was subject to ongoing daily pain from a 2015 car accident as well as pre-existing injuries suffered in the work place, affecting his shoulder, back and knee, and took daily doses of pain medications.

[15] Mr. Lee previously had a prescription for hydromorphone, however, the prescribing doctor’s medical license was suspended fin 2009 and Mr. Lee began obtaining his medication through non-prescription sources.

[16] Mr. Lee lived in Newcastle, Ontario, with his common law spouse, and their three dogs.

[17] Following his arrest Mr. Lee spent 2 days in custody awaiting bail which is agreed to equal 3 days in custody on an enhanced basis at 1.5:1.

[18] Since the date of Mr. Lee’s arrest, Mr. Lee has remained employed and has now worked 29 years with his company. Mr. Lee began attending counselling through his employer and has continued his counselling privately after his employment benefits were exhausted.

[19] Mr. Lee’s physician, Dr. Bobby Esbin, provided a letter advising that Mr. Lee has been under his care for approximately 18 years for the treatment of pain induced opiate dependency and addiction.

[20] On December 18, 2018, Dr. Esbin reported that Mr. Lee has been “drug free for all drugs of abuse since starting treatment, verified by supervised drug screening. In addition, he has been able to successfully taper his methadone dose by 50%”.

[21] Mr. Lee has made great efforts to aid in his recovery and rehabilitation. In addition to attending a daily methadone clinic and counselling, Mr. Lee has also lost a considerable amount of weight and has made efforts to deal with his hoarding and/or collecting issues.

[22] Mr. Lee is a diabetic who takes blood thinners. Mr. Lee reports to be drug free save and except for his supervised methadone daily dose and prescribed sleeping pills.

[23] Several individuals, including Mr. Lee’s supervisor, reported that Mr. Lee was a kind and considerate individual who is supportive of others and generous with his time and affection.

SENTENCING CONSIDERATIONS

The Crown’s Position

[24] The Crown is seeking a six month conditional sentence followed by two years’ probation with statutory terms, and payment of the victim surcharge fee in the amount of $200.

[25] The terms of the conditional sentence sought are as follows:

1. Months one to three being in the form of house arrest with exceptions for work and a two hour period per week for errands; and
2. Months four to six being in the form of the imposition of a curfew flexible to allow an exception for Mr. Lee’s work schedule.

[26] The Crown submitted that hydromorphone is a very serious drug, known as synthetic heroin, and any sentence needs to consider the seriousness of the drug and the trickle down effect that the use of the drug has on society in general and Durham Region more particularly.

[27] In support of its submissions, the Crown relied by analogy the case of R. v. Slaughter, 2015 ONSC 7869, which is a sentencing decision by Justice Heeney involving hydromorphone where the court discusses the serious nature of the drug. However, as Crown notes, the accused in the Slaughter decision was not convicted of simple possession but for three counts of trafficking hydromorphone.

Mr. Lee’s Position

[28] Mr. Lee is seeking a suspended sentence and a one year term of probation, the payment of a fine between $1,000 and $2,000, and payment of the $200 victim surcharge fee.

[29] Mr. Lee’s counsel submitted that the overarching principles in sentencing are that the sentence should be fit, within the set parameters.

[30] Mr. Lee’s counsel directed the court to several cases involving possession of serious Schedule I drugs, including hydromorphone, where the court imposed suspended sentences with probation. The cases relied upon by the offender’s counsel are: R. v. Abbott, 2017, ONCJ 678; R. v. Cole, 2014 BCSC 2516; and R. v. Doucette, 2006, NBQB 204.

PURPOSE AND PRINCIPLES OF SENTENCING

[31] Section 718 of the Criminal Code sets out the purpose and principles of sentencing.

[32] The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: denunciation; deterrence; separation from society where necessary; rehabilitation of the offender; reparation to the victim of the crime or community; and promotion of a sense of responsibility acknowledging the harm done to victims or the community.

[33] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[34] A sentence shall also take into consideration the following principles:

1. A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;
2. A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
3. An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
4. 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.

[35] In imposing an appropriate sentence on an accused for the wrongful acts committed, the weight assigned to the varying sentencing objectives must be adapted to the circumstances of the case and to the individual offender.

Aggravating Factors

[36] The aggravating factors include:

1. The drug in question is hydromorphone which has been described by the Ontario Court of Appeal as synthetic heroin and therefore falls in the class of the most pernicious drugs that afflict our society; and
2. The amount of drugs found in the possession of the accused was not insignificant. However, as for the amount of drugs seized at the home, I find that the accused did not have knowledge of the drugs found in his home (else he would not have purchased the drugs found on his person) and the drugs found on his person were jointly shared with his common law spouse. Given the offender’s then level of daily drug dosage it was estimated that the drugs seized on his person would have lasted approximately two weeks.

Mitigating Factors

[37] Mitigating factors in the present case include:

1. The offender has no prior criminal record;
2. The offender was originally prescribed hydromorphone to deal with chronic daily pain originally incurred through work place injuries exasperated by a 2015 car accident. As a result of the injuries and the pain medication that was prescribed to him by a licensed physician, the offender developed an addiction to pain medication and in particular hydromorphone;
3. The offender has a strong work ethic and has been gainfully employed at the same company for the past 29 years. The offender’s employer wrote a letter in support of the offender praising his kind and considerate character and work ethic;
4. The offender has a strong supportive community of friends who wrote character letters for him and attended court with the intention to testify on his behalf;
5. The offender has attended a physician for the past 18 years seeking assistance with his opiate dependency; and
6. Following his arrest the offender sought further counselling and has progressed to the point that he has been drug free for all drugs of abuse since starting treatment, verified by supervised drug screening. Additionally, the offender has been able to successfully taper his methadone dose by 50%.

REVIEW AND ANALYSIS

[38] Society has an overriding concern to ensure that offenders are punished and that the sentences meted out properly reflect the objectives of denunciation, deterrence, rehabilitation and responsibility. The goal is to balance all objectives so that we may benefit society, the victim, and ultimately the offender through a just and balanced sentence.

[39] The offence that was committed has a trickle-down effect in society in that it perpetuates drug trafficking and illicit behavior. However, the offence, being simple possession, was driven by an addiction that began as a result of chronic pain caused by work place injuries and a licensed physician prescribing a powerful and highly addictive drug.

[40] With respect to the objectives of rehabilitation and responsibility, the offender has shown both insight into his behavior and a dedication to achieve sobriety and wellness through access to counselling and daily attendance at a methadone clinic. The offender’s behavior reflects very favourably on his rehabilitative prospects.

[41] In determining the appropriate sentence, I have considered the importance of general deterrence and denunciation and note that these principles must be given high regard due to the nature of the drug. However, the fact that the offender was not trafficking but in possession of a drug originally prescribed to him for a lengthy period resulting in his addiction - separates this case from those such as Slaughter, where the offender was in possession for the purpose of trafficking, and favours rehabilitation considerations such as discussed in Abbott and Cole.

[42] In considering the seriousness of the offence, I have also considered the fact that prior to his arrest the offender had been in treatment for 18 years for opiate dependency, yet remained addicted. It may be that the offender’s arrest is the tipping point that has saved his life. The offender’s determined efforts to rehabilitate himself following his arrest reflect favourably on his continued rehabilitative prospects.

[43] I have considered various authorities that deal with both possession of hydromorphone and possession for the purpose of trafficking hydromorphone, to review other sentences as applied to other offenders. (See R. v. Gagnon, 2017 ONSC 7470; R. v. Slaughter, 2015 ONSC 7869; R. v. Reid, 2015 NSSC 276; and R. v. DeWolfe, 2016 NSSC 14; R. v. Abbott, 2017 ONCJ 678; R. v. Cole, 2014 BCSC 2516; and R. v. Doucette, 2006 NBQB 204).

[44] I have also considered the Crown’s request for a conditional 6 month sentence and probation with a term of two years and the offender’s request for a suspended sentence and probation with a term of one year.

[45] In the present case, I have determined that a custodial sentence, of any sort, is not warranted.

[46] It is my view that a suspended sentence and probation for a period of 2 years is an appropriate sentence in the present case. This sentence will allow the offender to continue with his rehabilitative progress while maintaining appropriate supervision over the offender to encourage his complete recovery and continuation as a contributing member of society.

SENTENCE IMPOSED

[47] Having considered the authorities, the provisions of the Criminal Code, and the particular circumstances of this case, I hereby sentence you Kevin Shawn Lee to the following:

1. I have determined that the sentence for the offence of possession of hydromorphone contrary to s. 4(3) of the Controlled Drugs and Substances Act, will be a suspended sentence with probation for a period of 24 months, commencing today. The terms of the 24 month probationary order shall require that you:

   i. Keep the peace and be of good behaviour; ii. Appear before the court when required to do so by the court; iii. Notify the court or the probation officer in advances of any change of name or address, and promptly notify the court or probation officer of any change of employment or occupation; iv. Report to a probation officer within two days of today’s date, and thereafter as directed by the probation order; and v. Attend assessment, counselling and rehabilitation for drug addiction and abuse, as determined by the probation officer and to sign any releases necessary for the probation officer to monitor your medical treatment, rehabilitation and recovery.

[48] Mr. Lee is also required to pay the mandatory victim fine surcharge of $200 for the charge within 30 days of today’s date.

Justice S.J. Woodley

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN – and – Trevor Lee

REASONS FOR JUDGMENT re sentencing

Madam Justice S. J. Woodley

Released: February 2, 2018