COURT FILE NO.: CR-20-17 DATE: 2023/08/03
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – STEPHANIE SLACK Defendant
COUNSEL: P. Lambert-Bélanger, for the Crown G. Clark, for the Defendant
HEARD: March 3 and June 7, 2023
REASONS FOR DECISION ON SENTENCE M.G. Ellies R.S.J.
OVERVIEW
[1] Stephanie Slack pleaded guilty to one count of trafficking fentanyl, contrary to s. 5(1) of the Controlled Drugs and Substances Act, 1996, Chap. 19. She is before me now for sentencing.
[2] The Crown and the defence agree that the sentence should involve a period of time in custody. The contentious issues are whether the custody should be served in a custodial facility or in the community under strict house arrest, and for how long.
[3] For the following reasons, I have determined that Ms. Slack should serve her sentence in the community for a period of two years less one day and thereafter be subject to a probation order for a period of two years.
FACTUAL BACKGROUND
[4] On August 20, 2018, Ms. Slack met a friend of hers, Brandi Aultman, in the parking lot at a local mall. Ms. Aultman, who was 34 years old at the time, was a hairdresser who had just started working for an employer in the mall. She and Ms. Slack had known each other for 8 to 10 years. They each had children. Ms. Slack would occasionally babysit Ms. Aultman’s daughter.
[5] Ms. Aultman and Ms. Slack were both drug addicts. In the days leading up to their meeting in the parking lot, Ms. Aultman sent separate texts to Ms. Slack and another individual, Lisa Cormier, telling both of them she was suffering from withdrawal symptoms and seeking to purchase fentanyl from each of them.
[6] On August 17, 2018, Ms. Aultman purchased $40 worth of fentanyl from Ms. Cormier. In the afternoon of August 20, 2018, she purchased $30 worth of fentanyl from Ms. Slack. At approximately 5:45 p.m. that same day, emergency services responded to a 911 call placed by Ms. Aultman’s employer. The call was placed after Ms. Aultman was found on the floor of the bathroom at her workplace, with vital signs absent. It was later determined that she had died from acute fentanyl and ethanol intoxication.
POSITIONS OF THE PARTIES
[7] The Crown concedes that it has not been proven that the fentanyl in Ms. Aultman’s system at the time of her death was the fentanyl she purchased from Ms. Slack earlier that afternoon. Had that been proven, there would likely be no issue as to where Ms. Slack's sentence should be served.
[8] However, the Crown submits that, regardless of the role it played in Ms. Aultman's death, the dangerous nature of fentanyl itself requires that Ms. Slack be incarcerated at a provincial custodial facility. Mr. Lambert-Belanger asks the court to impose a sentence of two years less a day to be followed by a period of probation of three years.
[9] On behalf of Ms. Slack, Mr. Clark submits that Ms. Slack's rehabilitation since the death of Ms. Aultman constitutes exceptional circumstances as that term has been defined in the jurisprudence and warrants an onerous conditional sentence of significantly less than two years.
ANALYSIS
[10] The Crown and the defence have provided me with more than 20 cases dealing with sentencing for trafficking in hard drugs. Many of the cases to which I have been referred go on at considerable length about dozens of other cases dealing with drug sentencing. It seems to me that the length of the reasons in many of these cases is directly related to the degree to which the court seeks to justify a sentence that falls outside of the usual range. I do not believe it is necessary for me to do likewise. In my view, perhaps because of the hard work of many of these judges, the principles at play are well-settled and need not be developed at length to be relied upon.
[11] The fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: Criminal Code, R.S.C. 1985, c. C-46, s. 718.1. The fundamental purpose of sentencing is to protect society, to contribute to respect for the law, and to maintain a just, peaceful, and safe society: Criminal Code, s. 718. Section 718 of the Code sets out a number of objectives to be achieved in fulfilling the fundamental purpose of sentencing. They include denunciation of the unlawful conduct and the harm caused by it, deterrence of the particular offender and others, and the rehabilitation of offenders.
[12] Generally speaking, courts have held that sentences for trafficking in hard drugs should involve incarceration: R. v. Ward (1980), 56 C.C.C. (2d) 15 (Ont. C.A.). This is especially true when it comes to trafficking fentanyl. In R. v. Parranto, 2021 SCC 46, the Supreme Court of Canada dealt with the use of sentencing ranges and starting points by courts of appeal. The legal issues in Parranto revolved around a factual context in which two accused individuals had been convicted of wholesale trafficking in large amounts of fentanyl. Writing for the minority on the issue of whether starting points were acceptable, Moldaver J. cited some stunning statistics about fentanyl with which none of the other justices disagreed. At paras. 93-96, he wrote:
Synthetically produced and readily available on the illicit market, fentanyl is an extremely dangerous and powerful painkiller and sedative. As with other opioids, such as heroin and morphine, it is a highly addictive substance, which, when taken outside of controlled medical environments, puts its users at risk of serious harm, including brain damage, organ damage, coma, and death. Fentanyl’s potential for harm is, however, significantly greater than other opioids. It is, for example, estimated to be 80-100 times more potent than morphine and 25-50 times more potent than pharmaceutical grade heroin. Given its strength, a lethal dose will often be less than two milligrams, an amount as small as a single grain of salt. The risk of overdose and death from fentanyl is thus extremely high, particularly for naïve users or where it is taken in combination with other substances, such as alcohol or other opioids. The risk of overdose is also one that can be difficult to guard against, as traffickers often surreptitiously mix small amounts of fentanyl with other substances to create a cheaper product with the same effects, thereby drastically increasing their profitability. This deceptive practice leaves users vulnerable and unaware, especially as fentanyl is physically indistinguishable from other hard drugs, such as heroin, oxycodone, and cocaine.
Beyond its mere potential to cause harm, however, fentanyl has had — and continues to have — a real and deadly impact on the lives of Canadians. Indeed, trafficking in fentanyl is so deadly that various courts have described it as a national crisis, reflective of an increased understanding of the gravity of the harm it causes. This heightened understanding is supported by the available statistical evidence… [F]ederal statistics on opioid-related deaths show that, between January 2016 and March 2021, approximately 23,000 Canadians lost their lives due to accidental apparent opioid-related deaths, with fentanyl involved in 71 percent of these deaths. The epidemic also shows no signs of abating, with over 6,000 accidental deaths occurring in 2020 alone, 82 percent of which involved fentanyl. These figures throw into stark relief the dark and inescapable reality that “[e]very day in our communities, fentanyl abuse claims the lives of Canadians”. [Citations omitted.]
[13] The dangerous nature of fentanyl dictates that denunciation and deterrence must be the paramount objectives in sentencing for fentanyl trafficking. However, even where denunciation and deterrence must be prioritized, rehabilitation remains a relevant consideration. A sentencing judge retains the discretion to accord significant weight to factors other than deterrence and denunciation in arriving at a fit sentence: R. v. Friesen, 2020 SCC 9, at para. 104. Wherever possible, the sentence imposed for fentanyl trafficking should attempt to further all these goals. As set out in s. 10 of the Controlled Drugs and Substances Act:
Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Part 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. [Emphasis added.]
[14] Although sentences for trafficking fentanyl usually involve a jail sentence, that is not always so. Many courts have held that, in exceptional circumstances, a jail sentence may not be appropriate: see, for e.g., R. v. McGill, 2016 ONCJ 138; R. v. Walker, 2018 ONSC 7461. In some of these cases, the prospect that a jail sentence will interfere with an accused's rehabilitation has been held to constitute such exceptional circumstances: McGill; R. v. Munroe, [2016] O.J. No. 5800 (Ont. C.J.); R. v. Dos Santos, 2017 ONCJ 855; R. v. McLauchlan-Peeler, 2017 MBPC 48. So, too, has the fact that the transaction was not one undertaken for commercial gain: R. v. Strutt, [2018] O.J. No. 5184 (Ont. S.C.).
[15] However, it is important to point out most of the caselaw in which exceptional circumstances were found to exist were decided when conditional sentences were not available for offences involving the trafficking of heroin, cocaine, or fentanyl. That is no longer true. [^1] Where conditional sentences are available, courts have imposed them even in the absence of exceptional circumstances: R. v. Mori, 2020 ONCJ 620; R. v. Shearer, 2022 ONCJ 288. This is because, as the Supreme Court of Canada held in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at paras. 41, 102 and 107, where sufficiently punitive conditions are imposed, conditional sentences can have significant denunciatory and deterrent effects. As the Supreme Court also held in Proulx, at paras. 80 and 81, there is no common law presumption against the imposition of a conditional sentence in trafficking cases.
[16] Thus, in my view, I need not find that exceptional circumstances exist to conclude that a conditional sentence is appropriate. However, if I am wrong in that belief, I would find that they exist in the circumstances of this case.
[17] Ms. Slack is presently 36 years old. After completing high school, she first went to university and then opted to attend a hairstyling and aesthetics school. Although she obtained a diploma from that school, she later decided to become a dental assistant and obtained her degree in that discipline from Canadore College in North Bay. She is presently employed full-time as a dental assistant, a fact to which I will return shortly.
[18] At about the age of 20, Ms. Slack began using opioids. She suffered from anxiety and depression and found that oxycontin made her feel better. She soon became an addict and has been one ever since. Her addiction led to a set of convictions in 2016 for uttering forged cheques to pay for her drugs, for which she received a conditional sentence of 60 days and was placed on probation for 10 months. There is no indication that she ever failed to comply with the terms of that sentence.
[19] Ms. Slack was an addict by the time her first child was born in 2008. She has two other children from a man she met later and married. Partially due to her addition, her parents now have legal custody of her children. Until recently, she saw them frequently. However, her parents have moved to Southern Ontario to be close to her brother and sister-in-law, who are both recently graduated physicians. Ms. Slack would like one day to join them there.
[20] Ms. Slack has been on a methadone program off-and-on for the past 16 years or so. In addition, she has attended two inpatient treatment programs. She attended the first one in 2019, at GreenStone, in Bala, after being charged with impaired driving due to fentanyl intoxication. That program was 45 days long. She testified that she was doing well after completing the program. She became employed full-time as a dental assistant and started seeing a man after going through a difficult divorce from the father of her youngest two children. However, her boyfriend passed away suddenly in 2020. A short while later, her employment ended as a result of the onset of the COVID-19 pandemic. She testified that these events caused her to "fall back" to using opioids.
[21] In 2021, Ms. Slack attended another treatment program for 90 days. She testified that this program gave her the tools she needed to make better decisions. She has been on the methadone program continuously since then. She has been fully compliant with the program, as evidenced by a letter from the supervising physician. She has been employed full-time as a dental assistant with a different employer since June 2022. The author of a letter from her employer describes Ms. Slack as a "valued employee who will undoubtedly remain in our employ for as long as she chooses." A friend of 20 years with whom Ms. Slack works writes in a letter that Ms. Slack "has turned her life around".
[22] Ms. Slack's parents appear to be fully supportive of her continued rehabilitation. Letters from each of them show that they have not ignored their daughter's addiction and are alive to the fact that it will be a lifelong struggle. They both speak to the progress she has made since attending her last treatment program and of the central role that Ms. Slack's employment has played in her recovery.
[23] Ms. Slack testified that she sold Ms. Aultman the fentanyl believing that it would help her. She knew that Ms. Aultman had been going through a difficult time in the days leading up to the transaction. Ms. Aultman had been in the hospital recently suffering from problems with one of her legs, had just started a new job, and was having trouble getting through her shifts because of her withdrawal symptoms. Ms. Slack testified that she was not selling drugs to anyone else at the time and there is no allegation to the contrary. She said she took the drugs from her personal supply and sold Ms. Aultman the smallest amount she was able to give her, for no profit. Her evidence in that respect is borne out by the agreed facts and the evidence that Ms. Cormier sold a similar amount of the same drug for more money.
[24] In my view, the circumstances surrounding the offence and those now surrounding the offender mitigate against the imposition of a jail sentence. This was not a commercial transaction, motivated by greed or the need to feed Ms. Slack's own habit. It was an effort by one addict to help another. Incarcerating Ms. Slack in a provincial facility now, five years later, is certain to result in the loss of her employment and likely to make re-employment in her chosen field more difficult. Because her employment has been so important to her recovery, it threatens not only to impair it, but to stop it entirely. I do not believe that is necessary to achieve the fundamental purpose of sentencing in this case.
[25] I believe that I can fashion a sufficiently long, sufficiently restrictive conditional sentence to satisfy the need for denunciation and deterrence, while at the same time preserving the progress that has been made towards rehabilitation by ensuring that the sentence does not prevent Ms. Slack from continuing her employment or, perhaps one day, finding similar employment near her children.
CONCLUSION
[26] For these reasons, Ms. Slack is hereby sentenced to a term of imprisonment of two years less one day, to be served in the community under s. 742.1 of the Code, subject to the following conditions in addition to the conditions set out in s. 742.3(1) of the Code:
(1) She is to remain in her place of residence and not to leave that place except for the purposes of going to, remaining at, and returning from employment, attending a place of worship, seeking emergency or scheduled medical care, or for attending scheduled counselling.
(2) She may leave her place of residence one day per week for a period of three hours to obtain the necessaries of life, such as food, which hours she shall arrange beforehand with her supervisor.
(3) With the written permission of her supervisor, she may leave her place of residence and travel directly to that of her parents for the purpose of spending time with her children no more than one weekend per month. While doing so, she must remain in the company of one of her parents at all times.
(4) With the written permission of her supervisor, she may leave her place of residence for the purpose of applying for a job near to the residence of her children, but only in the event that the supervisor agrees that supervision under the order may be transferred to the proposed new venue.
(5) She shall not purchase, possess, or consume any alcoholic beverages or non-prescription drugs.
(6) She shall participate in such counselling as is recommended by her supervisor and shall grant permission to the counsellor to share information about her counselling with the supervisor, unless the counsellor is of the view that doing so will interfere with the counselling.
[27] In addition, she will be placed on probation for a period of two years, which will take effect at the end of the conditional sentence by virtue of s. 732.2(1)(c) of the Code, subject to the following conditions in addition to those set out in s. 732.1(2) of the Code:
(1) She shall participate in such counselling as is recommended by her supervisor and shall grant permission to the counsellor to share information about her counselling with the supervisor, unless the counsellor is of the view that doing so will interfere with the counselling.
[28] Finally, she will be subject to the following ancillary orders:
(1) She will provide a sample of her DNA under s. 487.051(3) of the Code;
(2) She will be prohibited under s. 109 of the Code from possessing anything mentioned in s. 109(2) for a period of 14 years; and
(3) She will forfeit any property referred to in s. 16 of the Controlled Drugs and Substances Act.
M.G. Ellies R.S.J. Released: August 3, 2023
[^1]: Amendments to s. 742.1 of the Code that took effect on January 1, 2003, precluded conditional sentences for offences involving the trafficking of drugs with respect to which the maximum sentence was more than 10 years. Under s. 5(3) of the Controlled Drugs and Substances Act, the maximum sentence for trafficking a Schedule I or II substance is life imprisonment. According to the decision in Parranto, at para. 168, relying on Proulx, at para. 83, the previous conditional sentencing regime was disproportionately vulnerable to the determination of “the gravity of the offence and insufficiently on the moral blameworthiness of the offender.” In R. v. Sharma, 2020 ONCA 487, the Court of Appeal held that these provisions were unconstitutional in certain circumstances. The Court of Appeal's decision was overturned by the Supreme Court of Canada in R. v. Sharma, 2022 SCC 39. The provisions were repealed by Parliament effective November 17, 2022.
