COURT FILE NO.: CR-20-00000545-0000
DATE: 20221209
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
SARAH RICHER
Defendant
D. Morlog, for the Crown
R. Guerts, for the Defendant
HEARD: October 31, 2022, and December 1, 2022 (virtually via Zoom)
MCCARTHY J.
Background
[1] Sarah Richer is before me today for sentencing.
[2] On June 29, 2022, she was convicted of trafficking fentanyl, a controlled substance, by a jury at Newmarket.
[3] The amount of fentanyl in question was 1 ounce. Expert evidence at trial established that the street value of the quantity of drugs was about $3,000.
[4] The evidence established that Ms. Richer participated in a drug purchase involving an undercover officer DC Wong and individuals by the name of Jolly and Kolchanska on May 10, 2019, in the parking lot of an apartment complex. While Sarah testified at trial that she was under duress from her former partner Duncan Mastro at the time of the transaction, the defence of duress was unavailable to her on the evidence before the court. Implicit in the jury’s verdict was a finding that Ms. Richer either participated in or aided the trafficking of the banned substance. That conclusion was amply supported by the evidence.
[5] Ms Richer is presently 35 years old. She has a 12-year-old child. She recently completed a Health Care PSW course at Georgian College. She is currently employed full time at a retirement home. She has been in a relationship with her present partner for two years.
The Principles of Sentencing
[6] The principles of sentencing are set out in ss. 718, 718.1 and 718.2 of the Criminal Code, R.S.C. 1985, c. C-46. As this is a controlled substance trafficking offence, the sentencing principles and factors found at s. 10 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, must also form part of my analysis. I am mindful that the principles of deterrence and denunciation must guide the court in crafting a just sentence for drug trafficking offences.
Materials Before the Court
[7] The court received the submissions of both Crown and Defence counsel; a pre-sentence report; letters of support from various people in Sarah’s life; and her own letter and statement given in open court. Ms. Richer is to be commended for overcoming her drug addiction and remaining clean since March 2021; for returning to school and embarking on a new career; for disassociating herself from former acquaintances who may still be involved using and trafficking drugs; and for prioritizing the needs of her son and the quality of her relationship with him. The court was also furnished with the Crown’s case law compendium on sentencing; a brief report from forensic toxicologist Karen Woodall; and a police pamphlet entitled “The Impact of Fentanyl in the Regional Municipality of York June 2020”. Ms. Richer was afforded the opportunity to address the court at this hearing.
[8] On December 1, 2022, the court heard additional sentencing submissions, from both Crown and Defence counsel, to address recent changes to the law. On November 4, 2022, the Supreme Court of Canada released its decision in R. v. Sharma, 2022 SCC 39, and on November 18, 2022, Parliament amended the Criminal Code through Bill C-5, An Act to amend the Criminal Code and the Controlled Drugs and Substances Act, 1st Sess, 44th Parl, 2022.
Analysis
[9] My overriding impression is that Ms. Richer continues to lack insight into the gravity of her offence and the devastating impact that fentanyl can have on users. As at trial, Ms. Richer was bent on deflecting blame for her involvement in the drug transaction that evening onto her former partner and citing her addiction as a major factor in her decision to “introduce” Jolly and the undercover officer to Kolchanska. By continuing to insist that she did not see the amount of product that was being dealt, disclaiming any knowledge of its cost, and emphasizing that she was not in Kolchanska’s vehicle at the time of the actual exchange, Ms. Richer at the sentencing stage continues to minimize or even trivialize the crucial role she played in the transaction. Worse, Ms. Richer chooses to remain blind to the potency of the drug she was trafficking and the harmful effects it can have on unknown users down the chain. While her written statement to the court contains an expression of regret about her past lifestyle, her associations and her negative actions that may have hurt those around her, and although the statement alludes to accountability, it is sorely lacking in recognition of the harm she might have caused to any number of victims.
[10] This is unsettling to say the least; one would think that if part of the reason Ms. Richer participated in the transaction was to feed her addiction, she would realize with vivid clarity just how devastating an effect fentanyl can have on one’s life.
[11] There are some mitigating factors here: Ms. Richer has by all accounts been clean and sober for almost two years; she is in a relationship; she has gone back to school and is presently employed; she has stayed away from the drug culture and those mixed up in it; and she has the support of family and friends. She has won the admiration of family support worker Brenda Powling. She has therefore made strides in her rehabilitation. I find that she remains a fair candidate for continued rehabilitation.
[12] In respect of the drug transaction of May 10, 2019, she was not the principal dealer. There is no evidence to suggest that she was high up in the transaction chain. She is a first-time offender and has no criminal antecedents.
[13] On the other hand, I would not minimize Sarah’s role by classifying her as a mere runner or courier. The evidence of DC Wong coupled with the content of the audio recording satisfy me that she was instrumental in the transaction. She arranged for an alternative location for the deal; she showed samples of the product to DC Wong; she was prepared to vouch for the participants on both sides; she advised the undercover officer that he would have to show the money before the drugs were exchanged, that leaving his car keys would not be enough; she let both Jolley and DC Wong know when it was appropriate to proceed to Kolchanska’s vehicle; she provided assurance to the purchaser that things would unfold smoothly; it was obvious by the context in which the deal unfolded that she had the confidence and trust of both sides of the deal.
[14] I am convinced that she used a cell phone that evening to help facilitate the transaction. This is supported by the reference to Jolly as “babe” in the received text message; not terminology that one would have expected to come from Duncan Mastro. The evidence established that Sarah Richer did much more than simply facilitate an introduction. As DC Wong suggested, the deal that night would not have taken place but for the involvement of Sarah Richer. The entire circumstances of the transaction gave it a commercial character.
[15] That being the case, I would categorize her role in the drug transaction in question as that of a broker, an intermediary, a facilitator --- and critically, as found by the jury, a trafficker. I do not accept Ms. Richer’s evidence at trial, the gist of which was reiterated during the sentencing hearing, that she was so under the suasion of Duncan Mastro that she felt compelled to go out at the last minute of a drug deal and make an introduction. That evidence lacked an air of reality; it was completely unsupported by any contemporaneous, independent, and verifiable evidence. In fact, there was nothing about Ms. Richer’s temperament or actions on the evening of the deal which would even hint that she was being coerced. I agree with the Crown that the fact that Duncan Mastro was seen days after the transaction in question emerging alone from the same apartment to attend upon a vehicle in the parking lot, in what undoubtedly was a drug deal, serves to discredit Sarah’s testimony that Duncan Mastro was coercing her into participating in deals on his behalf.
[16] The court simply cannot ignore the startling fact that police attributed approximately 73.5% of opioid related deaths in York Region in 2019 to fentanyl use. According to Karen Woodall, toxicity can easily result from fentanyl use often with fatal consequences.
[17] As stated in by the court in an extremely chilling fashion in R. v. Frazer, 2017 ABPC 116, 58 Alta. L.R. (6th) 185 at para.11:
Trafficking in fentanyl is almost the equivalent of putting multiple bullets in the chambers of a revolver and playing Russian roulette. It is the most efficient killer of drug users on the market today.
[18] The Defendant urges upon the court to impose a conditional sentence. When sentencing submissions were first heard, the Defendant put forth the decision of the Ontario Court of Justice in R. v. Mori, 2020 ONCJ 620, where exceptional circumstances led the judge to impose a conditional sentence for possession for the purpose of trafficking a 38.66-gram powder mixture of fentanyl and heroin. Shortly after this hearing, the basis for the conditional sentence in the Mori decision was overturned by the Supreme Court of Canada in R. v. Sharma, 2022 SCC 39, and Parliament amended the Criminal Code by repealing ss. 742.1(e) and 742.1(f) and making a conditional sentence available to the Defendant.
[19] At the second sentencing hearing on December 1, 2022, the Defendant argued that the changes eliminated any restrictions on imposing a conditional sentence and that Ms. Richer was the type of offender that Parliament had in mind for such a sentence. The Crown argued that the mere availability of a conditional sentence did not mean it was an appropriate sentence for Ms. Richer and a conditional sentence would not comply with the sentencing principles of denunciation and deterrence.
[20] I find that a conditional sentence is not at all appropriate in these circumstances. Sarah Richer’s moral blameworthiness is too high. The need for denunciation and general deterrence is too great. Traffickers in fentanyl need to be forewarned that extremely strict sentences await them should they freely choose to traffic drugs in any capacity. If Sarah Richer were to be handed anything less than a penitentiary sentence, the principles of deterrence and denunciation would be frustrated. The message would be too easily construed that the punishment for trafficking a drug which is killing people and ruining lives in our society is a non-custodial sentence.
[21] The Mori case is greatly at odds with other cases where similar quantities of Fentanyl were trafficked and where penitentiary sentences were handed out. A careful look at the reasons in Mori reveals that the sentencing judge was most impressed with the structure and resources available to the Defendant and the future plan supported by two individuals whose statements were tested by cross-examination. That type of tested and scrutinized evidence was absent here. While the letters of support from Ms. Richer’s family appear genuine and heart-felt, I find them to be merely variations on the same theme: Sarah’s own victimization and lack of blameworthiness. While Sarah’s efforts to clean up her life are noteworthy, they are hardly stellar. Specific deterrence is required here to both prevent and discourage Sarah Richer from relapsing or drifting back into a world where easy profit from drug handling might prove attractive.
[22] I recognize the need for restraint here; as well, proportionality to the gravity of the offence is a paramount consideration.
[23] Still, some time ago, the ONCA offered the following guidance on sentencing of first-time offenders for fentanyl trafficking in R. v. Loor, 2017 ONCA 696, at para. 50:
I think it is fair to say that generally, offenders – even first offenders – who traffic significant amounts of fentanyl should expect to receive significant penitentiary sentences.”
[24] In Loor, the offender had trafficked 45 patches of fentanyl worth $18,000 to $20,000 and received a 6-year sentence.
[25] The sentencing range for trafficking an ounce of fentanyl makes a conditional sentence wholly inappropriate in this case. Section 742.1 of the Criminal Code provides that a conditional sentence is available where a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years. The guidance in Loor, and the absence of exceptional circumstances that can serve to spare Ms. Richer from a penitentiary sentence, place her outside of this range.
[26] At the additional sentencing hearing, the Defendant submitted R. v. Chivers, 2017 ONCJ 904, R. v. Greene, [2002] O.J. No. 5976 and R. v. Hillier, 2018 ONCJ 397 in support of a suspended or conditional sentence. Ms. Richer’s circumstances can be readily distinguished from these cases.
[27] In R. v. Chivers, the Defendant pled guilty to trafficking in fentanyl patches. The Defendant received a suspended sentence with 3 years of probation. He originally started using pain medication in response to an accident at work where he was electrocuted. After becoming reliant on fentanyl patches, he provided some of these patches to his brother-in-law to help him manage severe back pain. He was then caught by his pharmacy while returning fabricated patches. At sentencing, the Defendant showed remorse for the jeopardy he put his brother-in-law in. Ms. Richer’s circumstances are not comparable. She engaged in a commercial transaction handling illegally obtained fentanyl. She has not shown any remorse for the harm she might have caused. Ms Richer has failed to demonstrate that she has any insight into the harmful effects that fentanyl use might have on unknown victims.
[28] In R. v. Greene, the ONCA reduced the defendant’s sentence for breaking and entering from two years less a day to one year on the basis that the sentencing judge was overly critical of the offender’s criminal record and unsuccessful attempts at rehabilitation. This case is of little assistance in sentencing Ms. Richer as she did not commit a “relatively minor offence” and I have considered her mitigating circumstances: see para. 7. I have both acknowledged and weighed Ms. Richer’s progress in her rehabilitation in crafting a sentence.
[29] In R. v. Hillier, the defendant, who pled guilty to one count of possession of fentanyl for the purpose of trafficking, was handed a suspended sentence, coupled with 3 years probation because of the minor role she played in comparison to her Co-Defendant, the absence of criminal antecedents, the defendant’s recovery from opiate addiction and her “uniquely tragic and appalling” personal circumstances and background: see para. 174. The Defendant was remorseful, accepted responsibility for her involvement in the crime and came to recognize the “seriousness and dangerousness of fentanyl to herself, her children and to the community at large”: see para. 163. These circumstances differ from those of Ms. Richer: her role in the subject deal amounted to far more than a driver, and she trafficked an ounce of fentanyl as compared to the 3.5g in Hillier. Her personal circumstances and her lack of insight provide for a much higher moral blameworthiness.
[30] There are several cases that can be of greater assistance to this court. In a different case of the same name, R. v. Hillier, 2021 ONCJ 634, the defendant pled guilty to trafficking in an ounce of Fentanyl alongside 19.7g of Methamphetamine, and 9.2g of cocaine. She was sentenced to 4.5 years of incarceration. The trial judge described this as the shortest jail sentence which would reflect the defendant’s overall culpability as a mid-level fentanyl dealer. The judge noted the offender’s genuine remorse and insight into his criminal conduct. Even so, the trial judge acknowledged that some would view the sentence as being on the lower end of the acceptable range.
[31] In R. v. Piri, 2020 ONSC 920, the offender pled guilty to six counts of trafficking various substances including just under 1 ounce of fentanyl. The court accepted that the Crown’s proposed sentence of 7.5 years for the first-time offender trafficking in heroin and fentanyl was reasonable; however, the court found that 6 years was an appropriate sentence in light of the offender’s young age and having regard to the guidance offered by Rosenberg J.A. who in R. v. Borde (2003), 2003 CanLII 4187 (ON CA), 63 O.R. (3d) 417 (Ont. C.A.), at para. 3 stated that a “first penitentiary sentence should be as short as possible.” See also R. v. Shaheen, 2022 ONCA 734, at para. 14, where the ONCA reiterated the principle of restraint for sentencing first-time drug offenders.
[32] In R. v. Moore, 2017 ONCJ 801, an offender was convicted of trafficking 14.98g of fentanyl. The offender was sentenced to 6 years. It was aggravating that the offender was a drug dealer, that he had a long and serious criminal record and that he had served a prior penitentiary sentence for a similar offence. It was mitigating that he was an addicted trafficker and that he had a 3-year gap in his record before the offence occurred.
[33] In R. v. Haj, 2022 ONSC 1457, the offender was convicted of 2 counts of trafficking fentanyl and sentenced to six years on a joint submission. The offender had sold 1.6 grams of fentanyl to an undercover officer and another amount to an individual who later overdosed. He pled guilty. The overdose, multiple sales, a breach of bail and a prior record were aggravating.
[34] In R. v. Bieber, 2022 ONCJ 53, the 25-year-old accused pled guilty to possession of 14.1g of fentanyl for the purpose of trafficking and other charges. He was sentenced to 42 months imprisonment. It was aggravating that the substances were seized while the accused was operating his vehicle and was in possession of a weapon. An early guilty plea, his status as a first-time offender, genuine remorse, rehabilitation, and family support were mitigating factors in that defendant’s favour.
Disposition
[35] Ms. Richer please stand.
[36] In all of the circumstances, given the gravity of the offence, the Defendant’s key role in the drug transaction in question, the lethal consequences of fentanyl abuse, the principles of sentencing, the aggravating and mitigating circumstances, the sentences handed down in similar cases and the guidance offered by the ONCA, I find that a moderate penitentiary sentence is a just and fit sentence which advances the twin principles of denunciation and deterrence.
[37] Sarah Richer I sentence you to four years incarceration in a penitentiary. In addition to this there shall be a s.109(2) weapons prohibition for 10 years from the date of your release from custody.
[38] And that is the sentence of the court.
McCarthy J.
Released: December 9, 2022
NOTE: As noted in court, on the record, this written Ruling is to be considered the official version and takes precedence over the oral reasons read into the record. If any discrepancies between the oral and written versions it is the official written Ruling that is to be relied upon.