Her Majesty the Queen v. Nicole Irish, 2020 ONSC 464
COURT FILE NO.: CR–18–9–383
DATE: 20200123
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
NICOLE IRISH
Elizabeth Bellerose, for the Crown
Mary Murphy, for the accused
HEARD: December 12, 2019
REASONS FOR SENTENCE
P.J. Monahan J.
[1] On October 4, 2019, I found Nicole Irish guilty of two counts of possession of a controlled substance for the purpose of trafficking, contrary to s. 5 (2) of the Controlled Drugs and Substances Act.[^1] I also found her guilty of possession of proceeds of crime of a value not exceeding $5000, contrary to s. 354 (1) of the Criminal Code,[^2] as well as with failure to comply the terms of a probation order without reasonable excuse, contrary to s. 733.1 (1) of the Criminal Code. She is before the court today for sentencing on these four convictions.
[2] The Crown seeks a global sentence of two years less a day, while the defence seeks a sentence of between nine and 12 months.
Circumstances of the Offences
[3] On June 28, 2017, police executed a search warrant at Ms. Irish’s apartment, where they found 5.29 grams of cocaine in a small plastic bottle hidden in Ms. Irish’s bra, as well as a further 17.68 grams of cocaine in a safe in Ms. Irish’s bedroom. They also found $2025 in cash in a purse sitting on the arm of the sofa in the living room of the apartment, five digital scales (two of which were on the sofa and three in a kitchen cupboard), and three cellular phones.
[4] Ms. Irish testified and maintained that the 5.29 grams of cocaine found in her bra was intended for her personal use and not for trafficking. She further stated that the 17.68 grams of cocaine found in the safe in her bedroom belonged to her friend, Deborah Middleton, and that she (Ms. Irish) had no knowledge of it. Ms. Middleton also testified and claimed that the safe belonged to her and that she had stored the cocaine in the safe without Ms. Irish’s knowledge.
[5] Ms. Irish acknowledged that the $2025 found in the purse was hers but stated that this was mainly obtained from cashing an ODSP cheque she had recently received, as well as from her activity in the sex trade. She denied that the money represented proceeds obtained through trafficking in cocaine. She also stated that most of the digital scales were not working, and that she used these scales to measure the quantity of cocaine she purchased for her own use in order to ensure she had obtained the correct amount.
[6] In my reasons, I rejected Ms. Irish’s testimony with respect to the purpose for which she was possessing the 5.29 grams of cocaine. Although Ms. Irish acknowledged that she is a daily user of cocaine, she did not suggest that she would use anywhere near 5.29 grams of cocaine in a single day. I found that she was carrying the 5.29 grams of cocaine in her bra so that it would be readily available for sale or distribution to others throughout the day.
[7] I also rejected her evidence that she had no knowledge of the presence of the 17.68 grams of cocaine that were found in a safe in the bedroom of her apartment. I found that there was simply no air of reality to the evidence of Ms. Irish and Ms. Middleton to the effect that Ms. Irish had no knowledge of the cocaine in the safe. Either Ms. Irish herself was storing her own cocaine in the safe, or she was aware of the fact that Ms. Middleton was doing so. In either event, the only rational conclusion to be drawn from the totality of the evidence is that Ms. Irish was aware of the cocaine in the safe and was in possession of it. The quantity of cocaine in the safe is inconsistent with possession for personal use and therefore necessarily supports the conclusion that it was being possessed for the purpose of trafficking.
[8] Ms. Irish acknowledged that she was in possession of the $2025 found in the purse in her living room. The only issue in dispute is whether this money represented proceeds of crime. I found Ms. Irish could not have acquired this quantity of cash from her acknowledged sources of income. Thus, the only rational explanation for this money is that it represented proceeds of Ms. Irish’s drug trafficking activity.
[9] At the time of the offences in question, Ms. Irish was subject to a probation order requiring her to keep the peace and be of good behaviour. Given my findings that she was engaged in drug trafficking activity, it necessarily follows that she was also in breach of this term of the probation order.
Circumstances of Ms. Irish
[10] Ms. Irish is currently 47 years old and acknowledged that she has been addicted to cocaine since she was 16 years old. She continues to use cocaine on a daily basis and supports her habit through her monthly ODSP cheque of approximately $600, activity in the sex trade, as well as through support from relatives and friends.
[11] Ms. Irish has an extensive criminal record, dating back to 1991 when she was 19 years old. Her record includes convictions for possession of controlled substances for the purpose of trafficking in 2003 and 2016, as well as numerous convictions for breach of court orders.
Applicable Sentencing Principles
[12] The purpose and principles of sentencing are set out in s. 718 of the Criminal Code. Parliament has mandated that the fundamental purpose of sentencing is to protect society and contribute to respect for the law and the maintenance of a just, peaceful and safe society. Trial judges are required to impose a just sanction that has one or more of the following six objectives:
a. to denounce unlawful conduct;
b. to deter the offender and others from committing offences;
c. to separate offenders from society, where necessary;
d. to assist in the rehabilitation of offenders;
e. to provide reparations for harm done to victims or to the community; and
f. to promote a sense of responsibility in offenders, and acknowledge the harm done to victims and to the community.
[13] A fundamental principle of sentencing is proportionality, namely, that the sentence imposed be proportionate to the gravity of the offence and the degree of responsibility of the offender. A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. Further, a court that imposes a sentence shall also take into consideration the principle of parity, where a sentence should be similar to sentences imposed on similar offenders for similar offences, committed in similar circumstances; the principle of totality, where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; and the principle that courts should exercise restraint in imposing imprisonment.
Positions of the Parties
A. Crown
[14] The Crown notes that in Woolcock, the Court of Appeal established that, absent exceptional circumstances, the usual range of sentence for trafficking in serious drugs such as cocaine ranges from 6 - 9 months on the low-end to 18 - 24 months at the upper end, depending on the aggravating and mitigating circumstances of the case.[^3]
[15] The Crown argues that in this case there are a number of aggravating circumstances which justify a sentence at the higher end of the Woolcock range. In particular, the Crown points to the fact that Ms. Irish has an ongoing and continuing criminal record, including a conviction in 2016 for trafficking. She has made no effort to change her lifestyle nor has she accepted responsibility or expressed remorse for her actions. She has no plans or prospects for paid employment or furthering her education.
[16] The Crown relies on a number of cases, including the following:
a. R. v. Grant,[^4] where the Court of Appeal upheld a sentence of 2 years less a day for possession of cocaine for purposes of trafficking. The accused in Grant was in possession of approximately 21 grams of cocaine when arrested. The trial judge relied in part on the fact that the accused was trafficking in cocaine for commercial gain rather than to support his drug addiction;
b. R. v. O’Connor,[^5] in which the Court of Appeal upheld a sentence of 18 months for trafficking in cocaine. The accused was 29 years old and was in possession of approximately 19 grams of cocaine when arrested. Although the accused had a criminal record there were no prior drug convictions. In addition, he pleaded guilty to the trafficking charge, thereby accepting responsibility and evincing a willingness to change;
c. R. v. Speziale,[^6] where the Court of Appeal reduced the trial judge's sentence for possession of cocaine for the purpose of trafficking from 5 years to time served, which was 14 months and 9 days. The accused was in possession of 14.87 grams of cocaine and 6 ½ tablets of ecstasy for the purposes of trafficking. In reducing the sentence, the Court of Appeal noted that the accused recognized that he had a drug problem and was regularly attending Narcotics Anonymous. He had also expressed remorse and was a trained and licensed welder with prospects for future employment. The Court of Appeal concluded that the sentence should reflect the accused's positive rehabilitative prospects. The accused needed encouragement to turn his life around in order to continue on a path that he had, at least, started down, and that a penitentiary term of 5 years was unlikely to provide such encouragement;
d. R. v. Williams,[^7] in which a 26-year-old accused with no prior criminal record, who was found to have possessed approximately 5.5 grams of cocaine for the purpose of trafficking, was sentenced to 9 months' incarceration. The court noted that the offender was engaged in commercial drug dealing for gain. He was not an addict and therefore undeserving of the understanding extended to one suffering from a disease, who traffics to support such a habit. Nevertheless, given the fact that this was a first-time offence and involved a relatively small amount of cocaine, the 9- month sentence was found to be appropriate.
B. Defence
[17] Ms. Murphy, on behalf of Ms. Irish, acknowledges that her client has a significant criminal record and continues to be a user of cocaine. However, Ms. Murphy argues that in recent years there has been a decline in her pattern of offending. She also relies on the fact that Ms. Irish is an addict trafficker, attempting to support her own drug habit through trafficking, as opposed to trafficking purely for personal gain. Ms. Murphy also argues that the quantities of cocaine involved in this case are relatively limited.
[18] In support of a proposed sentence of between 9 and 12 months, Ms. Murphy relies on a number of cases, including the following:
a. R. v. Okash,[^8] in which a 22-year-old accused, who was convicted of possession of 250 grams of powder cocaine and 109 grams of crack cocaine for the purpose of trafficking, was sentenced to 30 months' imprisonment. The accused had a prior criminal record involving similar offences and was on probation for those offences at the time of the charges before the court. In arriving at the sentence of 30 months, the court noted his young age and the fact that he had returned to school and worked regularly for a number of months. As such, his life appeared to have taken on a more positive trajectory and he enjoyed the support of his family and was involved in a settled relationship.
b. R. v. Azeez,[^9] in which a 33-year-old accused with a minor related record was found guilty of 4 counts of trafficking in heroin. The court imposed a conditional sentence of 2 years less a day for the first count and suspended sentences for the remaining three counts. In arriving at this disposition, the court relied upon the accused’s post-arrest rehabilitation efforts, as a result of which he had remained abstinent (as verified by laboratory testing) from all non-prescribed drugs for 14 months, while continuing to taper his use of methadone. His physician described the offender as being an active participant in the drug treatment programs, and was of the opinion that his chances of future offending were low;
c. R. v. Khan,[^10] in which a 31-year-old offender had sold cocaine to an undercover police officer on four separate occasions. The accused was a first-time offender who had pleaded guilty and had successfully completed a residential treatment program. At the time of sentencing he had been sober for 103 days. In imposing a sentence of 90 days incarceration, the court relied upon the fact that the accused had made demonstrably successful progress towards controlling his cocaine addiction, was stably employed, and had expressed remorse in the form of a guilty plea;
d. R. v. Figueroa,[^11] in which the accused had sold a small quantity of heroin to an undercover police officer. He was found to be in possession of another 4.83 grams of heroin and 12.19 grams of cocaine. The Court expressed the view that the most important factor in determining an appropriate sentence was whether the offender had admitted responsibility for the offences in question. In this case the accused admitted responsibility and pleaded guilty. He had a prior record as a youth but no recent offences. He had participated successfully in educational drug training programs and had a continuing working relationship with his employer. The accused had been incarcerated briefly and had been under house arrest for a period that was determined to be equivalent to three months in custody. On this basis a suspended sentence was imposed.
Analysis
[19] Both parties agree that a custodial sentence is appropriate and necessary in this case. There is further agreement that a just and appropriate sentence should fall within the Woolcock range, namely, from a low of 6 to 9 months to a high of 24 months' incarceration. Of course, this range is not fixed or immutable but merely serves as a useful starting point and helps to ensure that like cases are treated alike. The overarching duty of the sentencing judge is to determine a “just and appropriate” sentence; this is necessarily a highly individualized exercise, tailored to the gravity of the offence and the moral blameworthiness of the offender.[^12]
[20] In cases where drug trafficking is engaged for the purpose of supporting an addiction, which I believe to be the case with Ms. Irish, the courts have emphasized the importance of an offender's willingness to take responsibility for their behaviour and to take the steps necessary to overcome their addiction. I note, in particular, that in the cases relied upon by the defence, courts have been prepared to impose a sentence at the lower end of the Woolcock range where the offender has demonstrated a genuine commitment to turn their life around.
[21] It is evident that Ms. Irish has faced numerous difficult challenges throughout her life. She has been involved in street-level prostitution activities and has been a drug addict since she was a teenager. At 47 years old, she has limited educational and employment prospects. She has turned to drug trafficking to support her drug addiction, which is ongoing.
[22] The difficulty, however, is that Ms. Irish has given no indication that she is committed to combating her addiction, which is the underlying source of her drug trafficking activity. She did not plead guilty and, at the sentencing hearing, did not express remorse or accept responsibility. Contrary to Ms. Murphy’s submissions, I see no indication that her drug trafficking activity is abating, since she was convicted for drug trafficking in July 2016. I therefore conclude, reluctantly, that she has limited prospects for rehabilitation at this time.
[23] The offences committed by Ms. Irish are serious. While she herself is vulnerable, her drug trafficking activity is preying on the vulnerability of other residents in the community, particularly those who are themselves addicts with limited employment and life options. Given her limited prospects for rehabilitation at this time, I find that the principles of denunciation and deterrence, both general and specific, are the primary considerations in arriving at a just and appropriate sentence.
[24] Taking all the circumstances of this case into account, I find that a global sentence of 15 months' imprisonment is appropriate and necessary to further the objectives noted above. Accordingly, Ms. Irish is sentenced to 15 months' incarceration for each of the two counts of drug trafficking; six months for possession of proceeds of crime; and six months for failure to comply with the terms of her probation. All of these sentences are to be served concurrently, the result being a total period of 15 months.
[25] I also make the following ancillary orders:
a. a weapons prohibition for life, pursuant to s. 109 of the Criminal Code;
b. an order for the taking of a DNA sample, pursuant to s. 487.051 (3) of the Criminal Code, as Ms. Irish has been convicted of a secondary designated offence. I am satisfied that it is in the best interests of justice to make such an order having regard to the nature and circumstances of the offences in question, including the fact that Ms. Irish is a repeat drug trafficker. I also note the minimal impact that this order will have on Ms. Irish’s privacy and security the person; and
c. a forfeiture order with respect to the cell phones, digital scales and cash seized at the time of Ms. Irish’s arrest.
P. J. Monahan J.
Released: January 23, 2020
COURT FILE NO.: CR–18–9–383
DATE: 20200123
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
NICOLE IRISH
REASONS FOR SENTENCE
P. J. Monahan J.
Released: January 23, 2020
[^1]: S. C. 1996, c. 19, as amended (the "CDSA"). [^2]: R. S. C. 1985, c. C – 46 (the "Criminal Code"). [^3]: R. v. Woolcock, [2002] O.J. No. 4927, at para. 15. [^4]: 1997 CanLII 1727 (ON CA), [1997] O.J. No. 3173 (C. A.). [^5]: 2017 ONCA 136. [^6]: 2011 ONCA 580. [^7]: 2010 ONSC 3904. [^8]: 2010 ONCJ 93. [^9]: 2014 ONCJ 311. [^10]: 2019 ONCJ 334. [^11]: [2019] O.J. No. 5693 (OCJ). [^12]: R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 SCR 500 at para. 81.