Court File and Parties
Court File No. 1982/18
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
KAREN EBEL-SAVAGE
R E A S O N S F O R S E N T E N C E
BEFORE THE HONOURABLE JUSTICE J. GEORGE
on September 19, 2019, at SARNIA, Ontario
APPEARANCES:
M. Robb Counsel for the Federal Crown
D. Rows Counsel for the Provincial Crown
D. Stoesser Counsel for Karen Ebel-Savage
0087 (rev.07-01
Table of Contents
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
Transcript Ordered: .................... September 25, 2019
Transcript Completed: .................. September 27, 2019
Ordering Party Notified: ............... September 27, 2019
Reasons for Sentence
THURSDAY, SEPTEMBER 19, 2019
R E A S O N S F O R S E N T E N C E
GEORGE, J. (Orally)
Karen Ebel-Savage pleaded guilty to counts two and three on the Indictment before me. Count two charges that on or about August 9th, 2017, she trafficked in Fentanyl, contrary to Section 5(1) of the Controlled Drugs and Substances Act. Count three charges that on or about August 9th, 2017, she unlawfully, by criminal negligence, caused Daniel Lapointe’s death. Upon hearing the facts and upon counsel acknowledging the accuracy of those facts on Ms. Ebel-Savage’s behalf, I found her guilty.
This is a brief summary of those facts. Daniel Lapointe and his girlfriend, Stacey Raymond, met with Ms. Ebel-Savage to purchase drugs. They obtained from her a gram and a half of what they believed was Cocaine. In a text message exchange that precipitated this transaction, Ms. Ebel-Savage referred to the drug as a “real head-spinner”. Later that same evening, Mr. Lapointe and Ms. Raymond retired to a bedroom in their residence where they ingested the drugs. After Ms. Raymond left the room, and while watching T.V., she heard a loud thud. She responded and found Mr. Lapointe lying unconscious and unresponsive. She attempted resuscitation efforts and poured water on him. 911 was called. Emergency Medical Service personnel attended. Mr. Lapointe was taken to the hospital where he, sadly, passed away. The police then became involved. Through its investigation, the police learned of the drug transaction and the participants. A warrant was obtained to search Ms. Ebel-Savage’s residence. Ms. Ebel-Savage was arrested. She provided a statement to the police after speaking with counsel. She acknowledged selling drugs to Mr. Lapointe and Ms. Raymond. She, however, denied mixing drugs and denied knowing that the drugs she sold was laced with Fentanyl.
Pathology and toxicology reports confirmed that the drugs the deceased ingested contained Fentanyl, and that his death was caused by a cardiac arrest fuelled by a Fentanyl overdose.
Ms. Ebel-Savage expressed remorse to the police, as she did at this sentencing hearing. The basis of her plea is that she was wilfully blind. It rests in large part on her comment to Mr. Lapointe and Ms. Raymond that the drugs were a “real head-spinner”. That is, while she did not know that it contained Fentanyl, she knew there was something different about the drug that would enhance its effect.
Wilful blindness, of course, is the intentional act of keeping oneself unaware of something that, if known, would render them culpable. The difficulty for Ms. Ebel-Savage - which she acknowledges through her guilty plea - is that being wilfully blind does not absolve her. Intentional ignorance satisfies the requirement of knowledge.
The Provincial Crown seeks a three-year jail sentence for the criminal negligence count. The Federal Crown seeks a concurrent one-year jail sentence for the trafficking offence. The defence focusses on the fact Ms. Ebel-Savage was not engaged in a commercial enterprise and draws a sharp distinction between knowingly selling Fentanyl and merely being reckless about its presence. I did not in any way get the sense that defence counsel was attempting to minimize what his client had done. Rather that, since we must, for the purposes of sentencing, place conduct on a spectrum, Ms. Ebel-Savage’s conduct is less morally culpable than someone who knowingly traffics in Fentanyl. That is his position. The Crown, Mr. Rows, concedes that that is a conclusion I could legitimately arrive at.
I have the benefit of a Pre-Sentence Report. I also received a Victim Impact Statement prepared by Mr. Lapointe’s mother and just received today a Victim Impact Statement from his brother.
While there is very little jurisprudential guidance on the sentencing of Fentanyl traffickers who cause death, I have been provided Justice Heeney’s decision in the William Knapp case where he imposed a two and a half year sentence.
But before I get there, I will begin with the Pre-Sentence Report. It details Ms. Ebel-Savage’s background and personal circumstances. She is 59 years of age with a limited education. Her employment history is minimal, largely because of a medical condition that has prevented her from working. She has a record. While there is a gap, it is almost entirely related. In 2008, she was convicted of three counts of possessing drugs, which attracted fines and a period of probation. In 2010, she was convicted of a whole host of offences, including breaches, three counts of possessing drugs, and one count of possessing a Schedule 1 substance for the purpose of trafficking. She was sentenced to a period of incarceration followed by probation.
While there are some positive aspects of the Pre-Sentence Report, several things trouble me. While there has been a fairly impassioned plea to be lenient and to allow her an opportunity to engage in rehabilitation, one cannot help but wonder why this has become such a pressing goal on the eve of sentencing. So far as I can tell very little, if anything, has been done to address her substance issues and she has had ample time to at least make some effort in this regard. The report also details her prior involvement with probation. Following her convictions in 2010, and while she was subject to supervision, the report notes that her reporting practices were adequate and, as it relates to her attendance at programming, notes that “the subject either cancelled or did not show”. The report’s author writes that she “questions Ms. Ebel-Savage’s motivation and sincerity regarding her desire to address her substance abuse issues as to date since her charges before the Court, the subject has made no effort to engage in any substance abuse programs.”
Furthermore, while I do not doubt that Ms. Ebel-Savage feels badly for what happened – who wouldn’t? - I am skeptical of the claim that this was not a commercial enterprise. I know what defence counsel meant when he pointed this out, but this is a question of degree. If the point was Ms. Ebel-Savage’s business model was on a small scale, I accept that. However, she herself acknowledges that she did not need to sell drugs to support herself. That is, financial stress was not a factor. She also claims that she sold drugs for two reasons, one of them being to “help her friends”. My sense is that this was advanced to the report’s author because Ms. Ebel-Savage thought it would help her cause. She honestly believed that the reason she trafficked was a mitigating factor. In my view, it is anything but.
Not only that, it appears as if she has engaged in this type of behaviour over a protracted period of time. This was not a one-time event. She was, in addition to supporting her own habit, “helping her friends” out. The report notes that “she disclosed that she sold the victim crack Cocaine once per week for years”. Furthermore, she acknowledged to the police that she was a drug dealer and had been for some time. I want to be careful here because in the normal course, an offender should be given credit for being honest and forthright to probation officers who are preparing reports. It is essential that the Court have a complete picture before attempting to formulate a fit and proper sentence. But I need to highlight this point: This was not a one-off. It was not a single mistake with tragic, but unforeseeable, consequences. Ms. Ebel-Savage has been dealing drugs for years and not just to support her habit - which is what we often see and which will almost always garner some sympathy from me - but she has been propping up other addicts. In this case, she assisted in sustaining Mr. Lapointe’s destructive lifestyle, which lead directly to his untimely demise. It is not enough to simply say everyone should have known better. Of course they should have, but that is not the point. Ms. Ebel-Savage was criminally negligent in causing Mr. Lapointe’s death. To say that she should have known better would apply to every offender who commits any crime in any circumstance. For her role in Mr. Lapointe’s death, she must be held to account and the consequences must be significant.
I have struggled with this case – as I found Mr. Stoesser’s submissions compelling - but after giving this matter serious and considerable thought I, again, conclude that the consequences must be significant. This is unavoidable.
I return to the issue of wilful blindness. Much has been made of this and, of course, this was the basis of Ms. Ebel-Savage’s plea. But what does this mean? What is its import? Even the Crown, Mr. Rows, acknowledged that because of this, I could conceivably arrive at the conclusion that Ms. Ebel-Savage is less morally-culpable than someone like, for example, Mr. Knapp. But I am not so sure. Remember that wilful blindness is a term that describes someone who, in an attempt to escape criminal liability for a wrongful act, intentionally keeps themselves unaware of facts that would render them liable. In this case, while I accept Ms. Ebel-Savage did not know the Cocaine she sold contained Fentanyl, she surely knew something was different and unusual about it. It was, as she says, a “head-spinner”. And lets just use some basic common sense here and think about what could have possibly rendered Cocaine, a dangerous and destructive drug in its own right, even more potent? Only the introduction of a more powerful pharmacological agent could possibly do that. And how many drugs could have that effect on cocaine? I am not trying to be cute here, but we all need to step back and consider what wilful blindness means in this context and in these circumstances. Ms. Ebel-Savage knew something was askew and she made the decision to roll the dice in dealing that drug on that fateful day to Mr. Lapointe. This might be, as everyone seems to concede, a mitigating factor, but in my view, barely, if at all.
I will spare everyone the speech about Fentanyl and its destructive and lethal effect on people and communities. Anyone who is paying any attention knows that it is, without question, the most destructive drug on the streets today. Its sheer power far exceeds any other substance. It kills. That is what it does.
I will add this about the lack of jurisprudential guidance. While similar cases move through the system, sentences for those who cause death by dealing Fentanyl will surely be met with harsh consequences. I would suspect that dispositions in the range of mid to upper single digit penitentiary sentences, and sometimes higher, will be called for. And while the mitigating factors present here - including Ms. Ebel-Savage’s recent health challenges, her guilty plea, and the fact she did not know the Cocaine contained Fentanyl - takes her sentence below what I suspect will become the norm, a suspended sentence with probation (which is what Ms. Ebel-Savage seeks) is completely out of the question. Moreover, leniency is not the order of the day. Denunciation and deterrence are. Moreover, rehabilitation must take a backseat for another reason, which is, I have absolutely no confidence at all that Ms. Ebel-Savage will do anything constructive to address her long-standing addiction issues.
For these reasons, Ms. Ebel-Savage will be stepping into custody today. The question is, for how long? I agree with Justice Heeney’s comments in the Knapp decision that make it clear Mr. Knapp’s sentence should hold no precedential value. It does not, and I am not guided by it in any way. Two and a half years is not the baseline for Ms. Ebel-Savage.
Therefore, in the result, after considering the objectives and principles of sentencing, and after taking into account all of the relevant factors, I impose a three-year sentence. I will subtract from that the equivalent of 12 days Ms. Ebel-Savage has already served in custody, which leaves, by my count, 1,083 days. This is the sentence on count three. On count two I am not noting any pre-plea custody, but there will be a concurrent one-year jail sentence. On count three, I make a D.N.A. order.
I take it, Mr. Rows, count one is to be marked withdrawn.
MR. ROWS: Yes, that’s the other C.D.S.A. offence.
THE COURT: Yes.
MR. ROWS: Thank you, yes. Sorry, did – to clarify for Madam Clerk’s benefit, because I don’t think she was here on the last occasion; the D.N.A. order; this would be a secondary-designated offence.
THE COURT: Yes, secondary on count three.
MR. ROWS: On count three.
THE COURT: Yes.
MR. ROWS: And sorry, did Your Honour impose the 109?
THE COURT: I am sorry. I have not addressed that yet.
MR. ROWS: All right.
THE COURT: The applicable section is s. 109?
MR. ROWS: Mr. Robb advises me that the 5(1) or 5(2) count that’s been the subject of a plea incurs a Section 109 order and she has previously been the subject of that, so it’d be for life.
THE COURT: I make that order. Anything else?
MR. ROWS: No, thank you, Your Honour.
THE COURT: Thank you.
...WHEREUPON THIS MATTER IS COMPLETE.
Certificate of Transcript
FORM 2
Certificate of Transcript
Evidence Act, Subsection 5(2)
I, Annie Sheehan, certify that this document is a true and accurate transcription of the recording of R. v. Karen Ebel-Savage in the Superior Court of Justice held at 700 N. Christina Street, Sarnia, Ontario taken from Recording No. CD#: 1711_CrtRm201_20190919_084005__10_GEORGEJON.dcr which has been certified in Form 1.
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