COURT FILE NO.: CR-22-90000655-0000
DATE: 20231211
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
ELIZABETH CULLINGWORTH
Jacqueline Porter, Counsel for the Crown
Lydia Riva, Counsel for the Accused
HEARD: May 10 and December 11,2023
M.A. CODE J. (ORALLY)
ENDORSEMENT
[1] The accused Elizabeth Cullingworth’s case first came before me at two JPTs on February 22 and April 5, 2023. Resolution discussions began at that time, that is, prior to setting a date for trial. One month later, on May 10, 2023, Ms. Cullingworth pleaded guilty to Counts One and Two in the Indictment. Those two counts alleged a break and enter at a residence on October 2, 2021 and possession of fentanyl for the purpose of trafficking on October 5, 2021. An Agreed Statement of Fact was filed setting out the factual basis for the two guilty pleas. I then adjourned sentencing for a further six months, in order to allow Ms. Cullingworth to continue on the path of treatment and reformation that she was on, recovering from a severe drug addiction, but also to test her resolve in abstaining from drugs. On December 11, 2023, I heard sentencing submissions.
[2] The Crown is seeking a four-year penitentiary sentence and the defence is seeking a two-year less a day conditional sentence, so there is some distance between the parties.
[3] The facts of the case are unusual. Ms. Cullingworth is now a 47-year-old first offender with no prior involvement in the criminal justice system. She was of otherwise good character for all of her life, until she became addicted to opioids. On October 2, 2021, she broke and entered a residence at 2771 Victoria Park Drive and stole four small paintings, a pair of running shoes, a clothes steamer, two trolley bags on wheels, and a messenger bag. Three days later, on October 5, 2021, she attended at the next door residence (2773 Victoria Park Drive) and apparently attempted to break and enter that residence. The police were called and she was arrested in the yard between these two residences. She was in possession of 30.99 grams of fentanyl (just over an ounce), admittedly for the purpose of trafficking but also for her personal use. Some of the stolen goods from the October 2, 2021 break and enter were recovered by the police during a search of Ms. Cullingworth’s home.
[4] The explanation for Ms. Cullingworth’s criminal behaviour on these two days in October 2021, after an otherwise law-abiding 45 year life, derives from her drug addiction. Ms. Cullingworth was born in June 1976, she married and gave birth to two children (a daughter and a son now aged 23 and 21), and she worked at a variety of jobs until 2017. She divorced from her husband but they remain close. He lives near her home and he attended court with her and remains supportive. She raised both of their children after the divorce. The two now adult children have remained very close to and are supportive of their mother. Her 21 year old son still lives with Ms. Cullingworth and her 23 year old daughter recently gave birth to Ms. Cullingworth’s first grandchild.
[5] In 2010, at age 34, Ms. Cullingworth formed a relationship with a new partner, one Chris Galea, and they began to live together. In 2012, she and Mr. Galea were involved in a serious motorcycle accident. Both of them required surgery, which resulted in a permanent disability to Ms. Cullingworth. Her doctor prescribed opioids for the resulting pain. She began taking oxycontin and then percocets during the early stages of her addiction. Mr. Galea was also consuming opioids and he introduced Ms. Cullingworth to fentanyl in 2019. Two years later, in May 2021, Mr. Galea died of a fentanyl overdose. Ms. Cullingworth was overcome with grief after the death of her partner. She began increasing the amount of fentanyl that she was using. She was receiving ODSP, as a result of surgery from her accident and as a result of her disability. She was also trafficking fentanyl in order to support her own use of drugs at the time of the present offences in October 2021, which was only five months after Mr. Galea’s death. Ms. Cullingworth has no recollection of the break and enter and attempt break and enter on October 2 and 5, 2021 and she cannot explain her behaviour. I am told that she appeared very unwell in the booking video at the police station.
[6] Ms. Cullingworth was released on “house arrest” bail on October 7, 2021. Her two children quickly became concerned about her condition and they took her to the Birchmount Hospital in Scarborough. The earliest hospital report is dated October 13, 2021, six days after her release on bail. It states that she “was seen in the ER due to confusion, agitation, hallucinations as well as paranoid delusions and some psychotic features/episodes.” The report states that she had been seen in the ER on October 9, 2021, two days after her release on bail, due to seizures and “what sounds like acute psychotic episodes.” The diagnosis was that these were “withdrawal symptoms” from her fentanyl use, and that “drug-induced psychosis” was a possibility. She was referred to the hospital’s psychiatry department, where she was eventually stabilized on methadone. She had previously taken methadone off and on, since the earlier stages of her addiction, but she had always relapsed back into using fentanyl. She was released from the hospital on October 29, 2021, some three weeks after her release on bail. The doctor who released her stated in his report that, “she is at high risk of destabilization, given her severe opioid use disorder.” The release plan stated that she had improved in the hospital and it was recommended that she continue receiving methadone, under the supervision of Dr. Lao, and that she also engage in various counseling programs recommended by the medical staff.
[7] The result of Ms. Cullingworth’s treatment, and her commitment to that treatment program during the two years and two months that she has been on bail, has been remarkable. It appears that her arrest caused her shame and humiliation, that her two children supported her and helped her to engage in the treatment program, and that the birth of her first grandchild inspired her. All these factors helped her to commit fully to the treatment program. I have received three reports from Dr. Lao, filed at the sentencing hearing, stating that she has been “free of illicit drug use” throughout this over two year period while she has been on bail, and that her “weekly urine drug screens have all been negative.” Dr. Lao states that she is “compliant on the program and is clinically stable”. In addition, she has completed four separate medically recommended counseling programs and has enrolled in a fifth program, all during this same period while she has been on bail. These five counseling programs are as follows: a drug withdrawal management program completed in late 2021; a mindfulness program completed in 2022; a cognitive behaviour program for depression completed in 2023; a stress management program in 2023, that is still continuing at present; and a grief healing program that will begin in January 2024.
[8] The principles of sentencing are set out in ss. 718 to 718.2 of the Criminal Code and I am bound by those principles. The fundamental principle of sentencing is “proportionality”, that is, the sentence must be “proportionate to the gravity of the offence and the degree of responsibility of the offender”, as set out in s. 718.1.
[9] I agree with the Crown that the two offences in this case are serious and that the normal sentence would be a term of imprisonment in the penitentiary. In particular, fentanyl is an extremely dangerous drug. Trafficking fentanyl causes death. The quantity of the drug in this case was just over an ounce, which is significant. It was worth over $6,000, and it could produce over 1,500 “hits” to users, depending on its purity (which is not in evidence). In these circumstances, denunciation and deterrence are the predominant sentencing values. The Crown helpfully reviewed five leading authorities from the Ontario Court of Appeal that all bear some similarities to, but also some differences from, the present case:
• R. v. Disher and Weaver (2020), 2021 ONSC 2370, 396 C.C.C. (3d) 419, where four years in jail was imposed on appeal;
• R. v. Lu, 2016 ONCA 479, where two-and-a-half years in jail was imposed at trial and upheld on appeal;
• R. v. DeMarco, 2020 ONCA 718, where two years in jail was imposed at trial and upheld on appeal;
• R. v. Sauvé, 2023 ONCA 310, where an effective sentence of two years in jail was imposed at trial and upheld on appeal; and
• R. v. Klammer, 2017 ONCA 416, where 20 months in jail was imposed on appeal.
[10] I note that in all five of these cases, the accused went to trial and did not have the mitigating effect of guilty pleas. As will be noted below, this is a significant mitigating circumstance in the present case, which immediately distinguishes it from the above five cases. I also note that the four-year sentence in Disher and Weaver was imposed on an offender (Weaver) who not only went to trial but who had prior involvement in the criminal justice system, who was on probation at the time of the offence, and who had only just started a methadone treatment program five months prior to the sentencing hearing. As a result, any enduring strength of Weaver’s potential reformation from drug addiction could not be evaluated in the same manner as Ms. Cullingworth’s.
[11] Based on the above authorities, I am satisfied that two years less a day is within the appropriate range of sentence for this offence and this offender, albeit at the lower end of that range. I am also satisfied that Ms. Cullingworth is not a danger to “the safety of the community”, as I am satisfied that she is completely reformed and rehabilitated from the drug addiction that led to her criminal behaviour. Accordingly, the only s. 742.1 requirement for a conditional sentence that is seriously in issue, in my view, is whether it “would be consistent with the fundamental purpose and principles of sentencing”. In that regard, it is well established that a conditional sentence can achieve the needs for denunciation and deterrence, in some cases, depending on the length and the terms of the conditional sentence, and depending on how “pressing” the needs for denunciation and deterrence in the particular case. See R. v. Collins, 2023 ONSC 5768 at paras. 94-96 where I recently set out my understanding of the leading authorities on this point.
[12] In conclusion, I am satisfied that a maximum conditional sentence with strict punitive terms is the appropriate sentence in this case. In my view, it is an unusual and exceptional case because of the totality of the following eight mitigating factors:
• first, the accused is a 47 year old first offender who led an unblemished pro-social life for 45 years before she committed the present offences on two nights in early October 2021;
• second, the accused entered guilty pleas at a very early stage, prior to setting a date for trial. She also sincerely expressed her remorse, shame, and regret for her criminal conduct in her statement to the Court. There is a backlog of serious criminal trials in this Court at the present time, due to a number of contributing causes, and guilty pleas (especially early guilty pleas) have considerable value to the administration of justice. As a result, they have significant mitigating effect;
• third, the accused suffered from a severe opioid addiction that manifested itself in apparently psychotic episodes in and around the time of the present offences;
• fourth, the accused has engaged in a remarkable program of recovery from her addiction, while under medical supervision, during her two years and two months on bail. It is well known that opioid addiction is very difficult to overcome, and Ms. Cullingworth did not begin to overcome it until she was arrested in October 2021. The length, depth, variety, and duration of her various treatment programs convinces me that she has truly recovered;
• fifth, she has been under strict “house arrest” terms of bail that significantly affected her liberty for the past two years and two months. There has been no suggestion of any breaches or relapses in her behaviour;
• sixth, the facts relating to the offences are odd and unusual. They appear to suggest some lack of connection with reality. Ms. Cullingworth was in possession of a large and valuable amount of fentanyl for the purpose of trafficking, and yet she was committing break and enters of residences and was then returning to the same locations, where she was easily apprehended. Rather than being independently mitigating, these factors relating to the nature of the offences simply tend to confirm the third mitigating factor set out above, namely, Ms. Cullingworth’s obvious mental suffering at the time of the present offences;
• seventh, there is a real risk that a jail sentence, at this stage of Ms. Cullingworth’s path to reformation, would have a negative effect. She is presently engaged in one counseling program and she has another counseling program scheduled to begin in January 2024, all while under the ongoing supervision of her doctor. This supervision by her doctor includes methadone maintenance and weekly urine drug screens. It would be unwise to disrupt this successful program, unless truly necessary; and
• eighth and last, Ms. Cullingworth has the support of her two adult children and her ex-husband, who all attended court with her. In addition, her new grandchild has had an equally positive effect and has inspired her to change. These supports are close to her home and they will continue to assist her ongoing reformation.
[13] For all these reasons, the concurrent sentences to be imposed on both Count One and Count Two will be conditional sentences of two years less a day. The main term is “house arrest” for the entire period of the sentence, with very few exceptions, in order to achieve the required punitive character of a denunciatory and deterrent sentence. I will hear submissions from counsel as to any appropriate exceptions to the two years less a day term of “house arrest”, aside from the obvious one of attending at counseling and medical treatment. As noted, these exceptions will be few in number and they will be narrowly defined, so as not to detract from the punitive intent of “house arrest”.
[14] The Crown has requested three ancillary Orders – DNA, s. 109, and forfeiture of certain seized property. I will hear submissions as to any objections to these three requested Orders.
[15] I would like to thank both counsel for their excellent work throughout this case.
M.A. Code J.
Released: December 11, 2023
COURT FILE NO.: CR-22-90000655-0000
DATE: 20231211
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
ELIZABETH CULLINGWORTH
ENDORSEMENT
M.A. Code J.
Released: December 11, 2023