Court File and Parties

Court File: CR-23-00000039-0000 Date: 2024 06 05

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING v. JENNIFER DEACON

R E A S O N S F O R S E N T E N C E

BEFORE THE HONOURABLE JUSTICE C. CONLAN on June 5, 2024, at OWEN SOUND, Ontario

APPEARANCES: E. Barefoot Counsel for the Federal Crown

A. Shahabi Counsel for Jennifer Deacon

Reasons for Sentence

WEDNESDAY, JUNE 5, 2024

R E A S O N S F O R S E N T E N C E

CONLAN J. (orally):

These are the court’s oral reasons for sentence in the matter of Jennifer Kathleen Deacon.

The Guilty Pleas

[1] On March 20, 2024, Ms. Deacon entered a guilty plea to and was found guilty of count one on the single-count indictment dated 21 November 2023, namely the offence of breach of undertaking contrary to section 145(4)(a) of the Criminal Code , and further, on the same date, Ms. Deacon entered a guilty plea to and was found guilty of count one on the multi-count indictment of the same date, namely the offence of trafficking fentanyl contrary to section 5(1) of the Controlled Drugs and Substances Act . At court on March 20, 2024, a presentence report was ordered. The sentencing was adjourned to May 24, 2024, at 2 o'clock p.m. in person in Owen Sound, and the remaining counts on the multi-count indictment were put to that same date of May 24 to be spoken to. Unfortunately, on May 24, Ms. Deacon failed to attend court and thus the sentencing could not proceed on that date. The court issued a bench warrant for the arrest of Ms. Deacon, which bench warrant was obviously executed because Ms. Deacon is today in custody. A new sentencing date of today was arranged, June 5, 2024.

The Facts

[2] In terms of the facts on the breach of undertaking charge, the wording of the count in the indictment speaks for itself. In terms of the facts on the fentanyl offence, they are as follows.

On May 11, 2022, members of the West Region Organized Crime Enforcement Bureau, Huron-Perth Community Street Crime Unit and Grey Bruce Community Street Crime Unit, along with the Ontario Provincial Police, began an investigative probe into suspected drug trafficking. The purpose of the investigation was to address suspected drug traffickers in the municipalities, small towns, and rural communities affiliated with Huron-Perth, Bruce, and Grey counties. Undercover members of the Ontario Provincial Police were deployed with the intention of purchasing controlled drugs and substances from various persons and identifying the buyers of those substances in the various communities. Prior to August 11, 2022, contact was made between an undercover officer and a man named George Parker, engaging in discussions regarding the purchase of narcotics including fentanyl. On August 11, 2022, a meeting was arranged between an undercover officer and Mr. Parker. At 12:32 p.m. on that date, the undercover officer attended at 119 Sussex Square in Chatsworth. Another undercover officer also attended but remained in a covert vehicle outside. The one undercover officer approached the front door of the residence. Mr. Parker opened the door and invited the undercover officer to enter. There was a conversation that ensued with Mr. Parker regarding narcotics generally, but specifically regarding fentanyl. Mr. Parker indicated to the undercover officer that the fentanyl would be $1,050. Mr. Parker told the undercover officer that the female inside the residence, Ms. Deacon, would get the fentanyl. Mr. Parker indicated that Mr. Parker would take $50 for the fentanyl at that time and $1,000 was for Ms. Deacon when she gets it. Arrangements were made for the officer to transport Ms. Deacon. Ms. Deacon told the undercover officer they were going to Owen Sound and directed the undercover officer as to where specifically to drive. She called someone on her cellphone and told that person that she would be at the location in approximately 10 minutes. Ms. Deacon directed the undercover officer to a parking lot in a specific location behind 225 14th Street in Owen Sound. Ms. Deacon exited the covert vehicle and said that she would be right back. After taking longer than the undercover officer anticipated, the officer communicated with Mr. Parker, who indicated that everything was fine. The undercover officer had rather extensive discussions with Ms. Deacon about the drug trade generally, not just with regard to fentanyl but with regard to other narcotics like crystal methamphetamine. At one point, Ms. Deacon told the undercover officer that Mr. Parker had already indicated that Mr. Parker would be passing the undercover officer over to Ms. Deacon for Ms. Deacon to be in charge of the trafficking to that person. There were further discussions between the undercover officer and Ms. Deacon with regard to other narcotics including morphine pills. The undercover officer asked Ms. Deacon how much she could get of fentanyl and she replied that she could get the officer an ounce or more. She went on to say that in actuality, she could get the officer whatever quantity the officer wanted. When they returned to the Parker residence, Ms. Deacon and the undercover officer entered the residence and Mr. Parker was inside. They all sat around the coffee table. Ms. Deacon removed a digital scale from her purse and placed it on the coffee table. She turned it on and removed a silver, cylindrical scale weight from her purse and told the officer that the weight was 50 grams, placed it on the scale and it showed 50. She then removed a clear Ziploc bag from her purse which contained purple-coloured fentanyl. She removed the fentanyl from the bag and placed it on the scale, showing that it weighed seven grams. She then placed the fentanyl back in the bag, and the officer handed $1,000 to Parker while Ms. Deacon was weighing the fentanyl. Mr. Parker counted out the money and then handed it to Ms. Deacon once the undercover officer took the fentanyl from Ms. Deacon. There were further text message conversations between the undercover officer and Mr. Parker regarding other narcotics and with regard to other purchases of fentanyl. On August 24, 2022, when the undercover officer returned to the Parker residence, Mr. Parker opened the door to the residence and invited the undercover officer in. The undercover officer asked Mr. Parker about the fentanyl. Mr. Parker indicated that someone else would be bringing it. While the undercover officer and Mr. Parker were discussing further matters with regard to narcotics, Ms. Deacon walked into the room from the hallway. Ms. Deacon indicated to the undercover officer that she would have to go and get the fentanyl. Mr. Parker and Ms. Deacon whispered to each other in the kitchen area and Ms. Deacon told the undercover officer that she needed to go to the Shoppers Drug Mart first and asked if the officer could drop her off to see her kids after the narcotics deal. Ms. Deacon indicated that she needed $1,000 to pay for the fentanyl. She told the undercover officer that the prior time she had the fentanyl already but did not have it this time. The undercover officer drove towards Owen Sound. En route, Ms. Deacon made two calls from her phone. During both calls she referenced to the other person on the line that she was on her way into Owen Sound. Ms. Deacon instructed the officer that they were going to 550 19th Street West in Owen Sound, an apartment building. The officer asked if Ms. Deacon could bring the fentanyl out to the vehicle. Ms. Deacon responded that she would require more trips in and out of the building and that would bring attention to herself. She promised the undercover officer that she would not rip him off, and Ms. Deacon tried to assure the officer by saying that she would leave her purse and the other individual named Josh in the vehicle while she went inside. Once at the location of 550 19th Street West, Ms. Deacon placed some money in the waistband of her shorts and entered the apartment building. This person named Josh, while Ms. Deacon was inside the apartment building, indicated to the undercover officer that the reason Ms. Deacon had asked to stop at Shoppers Drug Mart was so that she could get the fibre powder which is used to cut and cook the carfentanil into fentanyl. Ms. Deacon eventually exited the apartment with another female. Ms. Deacon entered the covert vehicle of the undercover officer. Ms. Deacon handed a tinfoil wrapper to the officer and said, “This is for you.” She then began handing several items to Josh, one of which was a digital scale. The scales came from inside Ms. Deacon’s purse. Ms. Deacon then asked the officer to drop her off to see her children. The officer and Josh continued on to 119 Sussex Square in Chatsworth. The two of them continued to discuss crystal methamphetamine, fentanyl, and other narcotics. Once at the residence at 119 Sussex Square in Chatsworth, Josh placed the digital scale on the coffee table, placed a 10-gram cylindrical weight on it. The undercover officer opened the tinfoil that had been given to him by Ms. Deacon, removed the fentanyl from the tinfoil, placed it on the scale. The fentanyl was a red-pink colour and weighed seven grams. Parker got a Ziploc bag for the undercover officer and the officer placed the fentanyl into the bag and paid some other money for other drugs. On September 21, 2022, a C.D.S.A. search warrant was executed at 119 Sussex Square in Chatsworth. Ms. Deacon was not at the address at the time of the execution of the search warrant but arrived shortly thereafter. Ms. Deacon was arrested at the scene and searched. She had on her person six vials of hydromorphone, as well as a clear plastic baggie containing 18.6 grams of methamphetamine, as well as aluminum foil with 0.5 grams of fentanyl all on her person at the time of her arrest. That is a summary of the facts.

The Circumstances of the Offender

[3] The court has before it a rather extensive presentence report that was prepared. There are no corrections to the report of any substance in terms of potentially affecting the sentence. Ms. Deacon was born on April 9, 1980, which makes her currently 44 years of age. The report indicates that she has two child dependants. Ms. Deacon has what can only be described as a lengthy and miserable criminal history beginning in May of 2006 in Sarnia for simple possession of a narcotic, fail to attend court; London, July 2007, possession of a scheduled substance; Walkerton, 2008, over 80, possession of property obtained by crime under $5,000; Walkerton, 2017, unlawfully in a dwelling, possession of a schedule I substance; Owen Sound, 2017, obstruct police, fail to comply with recognizance, another conviction for fail to comply with recognizance; Owen Sound, 2017, further fails to comply with recognizance, another possession of a schedule I substance, unauthorized possession of a firearm; later in 2017, Owen Sound, possession of property obtained by crime under $5,000; also in Owen Sound, 2017, another breach of recognizance, yet another possession of a narcotic, this time a schedule II substance; 2019, Owen Sound, mischief under $5,000; 2020, Owen Sound, fraud under $5,000; 2021, Owen Sound, fraud under $5,000. The sentences imposed on Ms. Deacon in the past have ranged from modest fines to probation to jail terms, both real jail and a conditional sentence. It appears that one of the lengthiest sentences ever imposed on Ms. Deacon was imposed out of Owen Sound on July 6, 2017, on a conviction for possession of property obtained by crime under $5,000. At that time, Ms. Deacon received a sentence of 16 days in jail, probation for 12 months, but the 16 days was on top of 74 days of presentence custody. So, it is fair to say that Ms. Deacon has a troubled criminal history but has never received what I would describe as being a very lengthy custodial sentence. The presentence report indicates that Ms. Deacon’s biological father died in a motorcycle accident in 1982, when Ms. Deacon was very young. Ms. Deacon reported to have a close relationship with her mother. They currently share a residence or did before Ms. Deacon was arrested on the strength of the bench warrant issued not long ago. Ms. Deacon’s half brother from her paternal side passed away seven years ago due to suicide. Ms. Deacon told the author of the report that she has had three significant relationships in her life. She has two children - her eldest son, born in 2007, another son born in 2009. Ms. Deacon described all of the significant relationships in her past as having been scarred by emotional and physical abuse of Ms. Deacon. Ms. Deacon advised the author of the report that presently, her children are under the care of her youngest son’s father. Ms. Deacon described to the author of the report that she is in a relationship with the co-accused in this matter, Joshua Kenny. Ms. Deacon described for the author of the report a lengthy involvement with Bruce Grey Child and Family Services. Ms. Deacon told the author that she had finished both elementary and secondary school in London, Ontario. She has a limited employment history. Her last employment was four years ago at a hamburger stand in Chesley. Ms. Deacon has been the recipient of Ontario Disability Support Program benefits for the past five years. There is no question that the presentence report confirms that Ms. Deacon has a very serious, longstanding problem with narcotics. By the age of 16, she began to use Percocets on a daily basis. She later transitioned to using Oxycontin and crack cocaine. She told the author of the report that her drug of choice is fentanyl. Ms. Deacon claims that she was selling the drugs to support her own drug addiction. She has never attended an inpatient treatment centre. During the preparation of the report, Ms. Deacon showed up for the first scheduled appointment in person. Following that, she was not cooperative in the process. Further attempts to contact Ms. Deacon by the author of the report were unsuccessful. Follow-up information promised by Ms. Deacon was never provided. As well, the author of the report indicates that there were some discrepancies regarding information provided by Ms. Deacon. Having said that, there is no question that Ms. Deacon has had a very unfortunate life. She told the author of the report that she had been sexually abused on numerous occasions throughout her life. She further reported having been diagnosed with manic depression and bipolar disorder. However, she told the author of the report that she does not take any medication for that. This court reviewed previously the troublesome criminal history of Ms. Deacon. The author of the report also highlights that. At page nine of the report, the author puts it this way:

“The subject has five fail to comply with community supervision orders on her criminal record. She was also found in violation of her conditional sentence order in 2021.”

At page 10 of the report, the author indicates:

“The subject is very entrenched in drug subculture, having used drugs for most of her adult life.”

At page 11 of the report, the author states the following:

“There is a consistent pattern of lack of follow-through on the subject’s part, with frequent missed appointments. This raises questions about her level of motivation to address her addiction significantly.”

The Principles of Sentencing

[4] In my view, the paramount principles of sentencing in this case are denunciation, specific deterrence, general deterrence, the need to separate Ms. Deacon as an offender from society, and finally, rehabilitation. This court must impose a sentence that adequately denounces this serious, unlawful conduct committed by Ms. Deacon, a sentence that sufficiently deters Ms. Deacon, who is a habitual recidivist, from committing further offences in the future, a sentence that sufficiently deters other members of the public from committing these types of offences, a sentence that separates Ms. Deacon from society for a fairly lengthy period of time, but also a sentence that does not crush any hope for rehabilitation for Ms. Deacon.

The Aggravating Factors

[5] In my view, there are two major aggravating factors in this case. One is the nature of the substance, fentanyl. The second is that this was an ongoing enterprise by Ms. Deacon. Make no mistake about that. The facts make it very clear that this was not a one-off or a two-off. It may be true that Ms. Deacon cannot be described as a high-level, perhaps not even a mid-level trafficker, but even as a street-level trafficker, she was an ongoing trafficker of narcotics. This was an operation, an enterprise on the part of Ms. Deacon, Parker, and perhaps others to traffic deadly narcotics to others in this community. So, the nature of the substance and the ongoing nature of the enterprise are the two major aggravating factors.

The Mitigating Factors

[6] There are two chief mitigating factors in this case. The guilty pleas are mitigating. They are signs of acceptance of responsibility by Ms. Deacon and signs of her remorse for having committed the offences. As well, it is mitigating that Ms. Deacon has a substance use disorder and mental health issues. She has been for many years now a person who has been committing criminal offences, and she committed a very serious criminal offence in trafficking the fentanyl. The other part of the context, however, is that the court must recognize that Ms. Deacon has mental health challenges and is a long-time substance abuser. I think it’s fair to say that her trafficking of narcotics has been in part to feed her own addiction to narcotics. I say in part because no doubt she was also motivated by greed; the money, the substantial money that is paid for narcotics.

The Law

[7] In terms of the case law, I have read all of the cases referred to by counsel. They were helpful in arriving at a fit sentence for this offender. I do think that the three cases most influential to this court’s decision are Parranto, the unreported decision of Justice Morneau in Girard and Bell, and the decision of the Court of Appeal for Ontario in Lynch. Parranto, the decision of the Supreme Court of Canada, is instructive because it highlights the dangerousness of fentanyl. The Supreme Court of Canada’s decision in Parranto is at 2021 SCC 46. In that case, there were four opinions authored: Justices Brown and Martin wrote for themselves, for Chief Justice Wagner, and for Justice Kasirer; Justice Moldaver wrote for himself and Justice Côté; Justice Rowe wrote for himself; and in a dissenting opinion, Justice Karakatsanis wrote for herself and Justice Abella. I would like to refer specifically to the opinion authored by Justice Moldaver as part of the majority. At paragraph 87, Justice Moldaver stated the following:

[87] The dangers posed by trafficking in hard drugs, such as heroin and cocaine, have long been recognized in Canada. Over the past few decades, however, society’s awareness of the true gravity of trafficking in such drugs has grown to the point that we are reminded, on a daily basis, of the death, destruction, and havoc it causes in communities across Canada.

[88] Trafficking in such substances causes both direct and indirect harms to society. Directly, the distribution and abuse of hard drugs leads to addiction, debilitating adverse health effects, and, all too frequently, death by overdose. As Lamer J. (as he then was) astutely observed, where addiction and death occur — as they so often do — those who oversee the distribution of these drugs are personally ‘responsible for the gradual but inexorable degeneration of many of their fellow human beings;’ R. v. Smith, [1987] 1 S.C.R. 1045, at p. 1053.

[89] Trafficking also leads indirectly to a host of other ills, including an increase in all manner of crime, committed by those seeking to finance their addiction, as well as by organized crime syndicates. Given that much of this criminal activity is violent, trafficking has come to be understood as an offence of violence, even beyond the ruinous consequences it has for those who abuse drugs and in the process, destroy themselves and others.

[90] A further and perhaps even more devastating consequence of the hard drug trade is its impact on families and the intergenerational trauma it causes.

[91] Finally, the trafficking of hard drugs leads to ‘significant if not staggering’ costs to society in terms of health care and law enforcement expenses, as well as lost productivity.

[92] Trafficking in hard drugs is thus a ‘crime with such grievous consequences that it tears at the very fabric of society.’ Significant penitentiary sentences are regularly imposed for individuals who traffic in large quantities of such drugs, which, as we shall see, are far less deadly than fentanyl.

Justice Moldaver then goes on beginning at paragraph 93 of his opinion to speak about the appropriate range of sentencing for large scale fentanyl trafficking. This court acknowledges that this is not a case of large-scale fentanyl trafficking and that is why I am not quoting from those later paragraphs of Justice Moldaver’s opinion. But the paragraphs I have quoted from are directly relevant to this case in terms of the hideous, dangerous nature of fentanyl. Many of these same sentiments about the dangerousness of trafficking in hard drugs were expressed by Justice Morneau in the Girard and Bell unreported decision relied upon by the Crown. I read that decision. I think it is quite relevant to this case. It is a local decision authored by a very experienced Ontario Court of Justice judge who day in day out sees narcotics offences. In Girard and Bell, the court was not confronted with staggering quantities of narcotics. The fentanyl at issue was 15 grams. The methamphetamine at issue was less than 10 grams. Yet Bell, a relatively low-level trafficker who pleaded guilty, had no criminal record, had already attended residential treatment, and who was employed was sentenced by Justice Morneau to four years in the penitentiary. Now, it is true that Bell put the court through a Charter application that turned out to be unsuccessful, but still, there was no trial for Bell. Girard is in a different position and I don't think it is as relevant to talk about the sentence imposed on Girard, but Bell’s sentence is relevant. And then I agree with Ms. Shahabi that the decision of the Court of Appeal for Ontario in Lynch is relevant. The citation is 2022 ONCA 109, Justices Paciocco, Nordheimer, and Sossin. In that case, the Crown sought leave to appeal the sentence of four years imposed on Mr. Lynch from his convictions for various drug offences including trafficking in cocaine, trafficking in fentanyl, possession of cocaine for the purpose, and possession of proceeds of crime. The Court of Appeal allowed the Crown's appeal and increased the sentence from four to six years against Mr. Lynch. At paragraph 17, the Court of Appeal stated the following:

The problems that dangerous drugs pose for our society are well known. They involve drug addiction, adverse health consequences and, unfortunately all too often, death. Further, drugs are often sold to already vulnerable people thereby exacerbating their difficult circumstances. Still further, there are the indirect costs to society through increased health care expense, increased demands on the health care system, increases in robberies or other forms of criminal activity, and increases in violence. Simply put, the greater those risks are when a particular drug is being trafficked, the greater the offender’s culpability or moral blameworthiness for choosing to traffic in that drug.

At paragraph 18, the Court of Appeal stated the following, and this really is the reason why the Court of Appeal increased the sentence imposed on Mr. Lynch. The court says at paragraph 18:

The trial judge also erroneously downplayed the respondent’s role in all of these consequences when he said that the respondent was not ‘the representative of the principals of the trafficking enterprise,’ who ‘[produce] fentanyl as a more powerful opioid.’ Of course, those at the top of the supply chain deserve harsher sentences. But the fact that the respondent was not at the pinnacle of the drug dealing empire does not reduce the respondent’s level of moral blameworthiness or mean that his actions are not serious. The producers of a product cannot get it into the hands of the consumer if there is no one to sell and deliver it.

The Sentence of the Court

[8] Without opposition by the defence, the following ancillary orders are made. On the section 5(1) C.D.S.A. conviction, there is a section 109 Criminal Code firearms and weapons prohibition order. The length of that order is for life for all items. So, to be clear, under section 109(2)(a)(ii), the length of the order is for life. Under 109(2)(b), the length of the order is for life. On the fentanyl conviction, there is a secondary D.N.A. order issued. On the fentanyl conviction, there is a forfeiture order issued. I have signed it in the form presented by the Crown. The victim fine surcharge for each conviction is waived. On the fentanyl conviction, the sentence of the court is 1,366 days imprisonment, which is the equivalent of 3 years and 9 months, 1,366 days imprisonment less presentence custody of 12 days credited as being the equivalent of 18 days, leaving a net sentence on the fentanyl conviction of 1,348 days imprisonment. I’ll say that again for clarity of the warrant of committal. On the fentanyl, 1,366 days imprisonment, which is approximately 3 years 9 months, less presentence custody of 12 days credited as the equivalent of 18 days, leaving a net sentence of imprisonment of 1,348 days. On the breach of undertaking conviction pursuant to section 145(4)(a) of the Criminal Code, the sentence is 30 days imprisonment consecutive. I recognize that the Crown suggested 15 days imprisonment consecutive on the breach undertaking charge. I am of the view that the sentence ought to be longer than 15 days given the criminal history of Ms. Deacon which includes several prior convictions for breaching court orders and fail to attend court. So, the net sentence from today is 1,348 days imprisonment on the fentanyl plus 30 days imprisonment consecutive on the breach of undertaking. In light of Ms. Deacon’s personal circumstances, this court makes a strong recommendation that at the assessment stage conducted by the Correctional Service of Canada, consideration be given for Ms. Deacon’s substance use disorder and her mental health issues. I recommend that Ms. Deacon be classified in a way that will allow her to serve the penitentiary sentence at a place that has a treatment facility for substance abuse and mental health issues, or at a minimum, extensive treatment programming for substance use and mental health issues. Before I ask Ms. Deacon if she has any questions about the sentence, did I leave anything out, Counsel?

MS. BAREFOOT: No, Your Honour.

MS. SHAHABI: I don't believe so, Your Honour.

THE COURT: Ms. Deacon, the D.N.A. order will be taken by way of a blood sample. You must cooperate with the police in giving the blood sample. If you do not, you could be charged with a further criminal offence and you could go to jail if found guilty. Do you understand that?

JENNIFER DEACON: Yeah.

THE COURT: The firearms and weapons prohibition order, you must obey that order. If you do not, you could be charged with a further criminal offence of breaching the order and you could go to jail if found guilty. Do you understand that?

JENNIFER DEACON: Yes.

THE COURT: The forfeiture order means that you are forfeiting certain property to the Crown. Do you understand that order?

JENNIFER DEACON: No.

THE COURT: Okay. The order indicates that the items to be forfeited are on schedule A and they are a Samsung Galaxy cellphone…

JENNIFER DEACON: Are these things that you already have, Your Honour?

MS. BAREFOOT: Yes.

JENNIFER DEACON: Okay.

THE COURT: …and a blue Motorola cellphone. So, those are the items to be forfeited to the Crown. So, do you understand that order now?

JENNIFER DEACON: I can, yeah.

THE COURT: The victim fine surcharges are waived, so I do not need to ask you anything about that. Do you have any questions about the sentence of imprisonment?

JENNIFER DEACON: No.

THE COURT: Okay. Thank you very much, Counsel, for your able submissions. They were helpful.

MS. BAREFOOT: Thank you, Your Honour.

MS. SHAHABI: Thank you, Your Honour.

MS. BAREFOOT: If the remaining counts could be withdrawn please, Your Honour?

THE COURT: The remaining counts will be marked withdrawn at the request of the Crown.

FORM 3

ELECTRONIC CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2)) Evidence Act

I, Amy Vaillant (Name of authorized person) certify that this document is a true and accurate transcript of the recording of R. v. Jennifer Deacon in the Superior Court of Justice (Name of case) (Name of court) held at 611 9th Ave. E, Owen Sound (Court address) taken from Recording 1011_crtrm#302_20240605_090134__10_CONLANC.dcr , which has been certified in Form 1.

6 June 2024 (Date)

(Electronic signature of authorized person)

4126633622 (Authorized court transcriptionist’s identification number – if applicable)

Ontario, Canada. (Province of signing)

A certificate in Form 3 is admissible in evidence and is proof, in the absence of evidence to the contrary, that the transcript is a transcript of the certified recording of evidence and proceedings in the proceeding that is identified in the certificate.