Court File and Parties

Court File No.: CR-24-00000765-0000 Date: 2024 05 22

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING v. REBECCA BROWN

REASONS FOR SENTENCE

BEFORE THE HONOURABLE JUSTICE C. CONLAN on May 22, 2024, at GUELPH, Ontario

Appearances

• S. Di Martino Counsel for the Federal Crown
• P. Keen Counsel for the Provincial Crown
• L. Ohara Counsel for Rebecca Brown

Transcript Information

Table of Contents

REASONS FOR SENTENCE 1

Legend

• [sic] – Indicates preceding word has been reproduced verbatim and is not a transcript error.
• (ph) – Indicates preceding word has been spelled phonetically.

Transcript Ordered: July 3, 2024 Transcript Completed: July 24, 2024 Ordering Party Notified: July 24, 2024

Reasons for Sentence

WEDNESDAY, MAY 22, 2024

...PROCEEDINGS RECORDED BUT NOT TRANSCRIBED ...EXCERPT OF PROCEEDINGS

CONLAN J. (Orally):

I would like to thank all counsel for your submissions on sentence. They were very helpful on behalf of each of the three counsel who spoke.

I am going to begin by outlining the ancillary orders that are being made as part of the sentence.

Ancillary Orders

All victim fine surcharges are waived. The forfeiture order presented by the Crown is issued. I have signed it.

There is a s. 109 Criminal Code firearms and weapons prohibition order for life. Counts 1, 2, 4, and 5 on the indictment all give rise to a s. 109 order and hence the lifetime order is made.

A s. 110 Criminal Code firearms and weapons prohibition order is issued for a duration of 10 years. That order runs concurrent with the s. 109 order. Count 19 on the indictment attracts the s. 110 order.

There is a secondary DNA order issued. All of the following counts are susceptible to the DNA order, counts 1, 2, 4, 5 and 19, and thus the secondary DNA order is made.

With regard to count 19, the firearm charge, there is a mandatory forfeiture order under s. 491 of the Criminal Code. That order is made.

With regards to counts 22 and 26 on the indictment, there is a three-year driving prohibition order issued by the Court. Those are the ancillary matters.

Pre-sentence Custody Credit

Next, I want to deal with the pre-sentence custody and the credit that the Court will be giving Ms. Brown for the pre-sentence custody.

Without opposition by the Crown, the Court accepts the calculations provided by Mr. Ohara. Ms. Brown has served 496 real days of pre-sentence custody, that will be enhanced at the usual rate of 1.5 days for every 1 real day served, which equals 744 days. Further, the Court accepts Mr. Ohara’s submissions to grant Ms. Brown an additional 28 days of credit for pre-sentence custody on account of the conditions at the correctional facility, including but not limited to the number of lockdowns as evidenced in the records filed from the Elgin Middlesex Detention Center. 744 days plus 28 days equals a total credit for pre-sentence custody of 772 days.

Sentences on Specific Counts

Next, I will be going through the various counts that Ms. Brown has been found guilty of and is now being convicted of and give the bottom-line sentence on each count. Afterwards, I will give some reasons for the sentence. All counsel and Ms. Brown will note that when I am outlining the sentence of imprisonment for each conviction, I use days, not years or months. The warrant of committal will employ days.

• Count 2: Possession for the purpose of trafficking fentanyl out of Minto. The sentence of the Court is 1,825 days imprisonment, that amounts to 5 years, less 772 days credit for pre-sentence custody resulting in a net sentence from today of 1,053 days imprisonment. As we go through, you will note that all of the pre-sentence custody is attributed on that conviction, count 2, the possession for the purpose of trafficking fentanyl out of Minto. So to repeat the sentence on count 2, 1,825 days imprisonment less 772 days pre-sentence custody, resulting in a net sentence from today of 1,053 days imprisonment.

• Count 1: Possession for the purpose of trafficking methamphetamine out of Minto. The sentence of the Court is 1,053 days imprisonment concurrent with the sentence imposed on count 2. I will repeat that. On count 1, possession for the purpose of trafficking methamphetamine out of Minto, 1,053 days imprisonment concurrent with the sentence imposed on count 2.

• Count 4: Possession for the purpose of trafficking methamphetamine out of Howick. The sentence of the Court is 730 days imprisonment consecutive to the sentences imposed on counts 1 and 2. To repeat, on count 4, possession for the purpose of trafficking methamphetamine out of Howick, the sentence is 730 days imprisonment, effectively two years consecutive to the sentences imposed on counts 1 and 2.

• Count 5: Possession for the purpose of trafficking fentanyl out of Howick. The sentence of the Court is 730 days imprisonment concurrent with the sentence imposed on count 4. Again, on count 5, possession for the purpose of trafficking fentanyl out of Howick, 730 days imprisonment concurrent with the sentence imposed on count 4.

• Count 19: Possession of the firearm out of Howick. The sentence of the Court is 300 days imprisonment concurrent with the sentence imposed on count 4. To repeat, on count 19, possession of the firearm out of Howick, the sentence is 300 days imprisonment concurrent with the sentence imposed on count 4.

• Count 22: Fail to stop for police. The sentence is 300 days imprisonment concurrent with the sentence imposed on count 4. To repeat on count 22, the fail to stop for police, the sentence is 300 days imprisonment concurrent with the sentence imposed on count 4.

• Count 26: Operation of a conveyance while prohibited from doing so. The sentence is 300 days imprisonment concurrent with the sentence imposed on count 4. To repeat, the sentence is 300 days imprisonment concurrent with the sentence imposed on count 4.

Global Sentence

Globally, so that everyone including, most important, Ms. Brown, understands the sentence is 2,555 days imprisonment or 7 years, less 772 days pre-sentence custody equals a net sentence from today of 1,783 days imprisonment, which is the equivalent of about 4.88 years in custody from today.

In summary. Ms. Brown, the Court has accepted the position advanced by Mr. Ohara on your behalf and has imposed a global sentence of seven years imprisonment less pre-sentence custody.

Facts of the Offences

In terms of the facts of these offences, they are outlined in the agreed statement of facts that was filed as an exhibit. In summary, as of April 2021, police had been investigating Ms. Brown for narcotics offences in Huron and Perth counties. It was suspected that Ms. Brown regularly attended the Greater Toronto Area to pick up large quantities of fentanyl and methamphetamine to disperse in and around the Huron area. Surveillance was conducted on Ms. Brown. She was observed operating a grey Mazda motor vehicle and attending several areas in the GTA for short frequent trips. As a result of the investigation, reasonable and probable grounds were formed to arrest Ms. Brown for narcotics offences. A traffic stop was conducted. Ms. Brown was the driver and there was an unknown male passenger. Ms. Brown was arrested for the possession of a schedule 1 substance for the purpose of trafficking. The male passenger was also arrested. The vehicle was towed back to the OPP detachment to be searched. A search of the motor vehicle yielded 139 grams of methamphetamine, 152 grams of cocaine, 26 grams of fentanyl, $2,160 in Canadian currency, a digital scale with drug residue, and various packaging consistent with drug trafficking, and a pill press. The total value of the seized drugs was more than $42,000. Ms. Brown was released on an undertaking.

On August 23, 2022, police were in the vicinity of Brussels Line and Amberley Road in the Municipality of Morris-Turnberry. Police observed a motorcycle traveling southbound being operated by a female. The female operating the motorcycle also had a male passenger on the back. The motorcycle was stopped by the police. A license plate on the front of the motorcycle was not authorized for the vehicle. Before it could be actually stopped by the police, the vehicle had to be pursued by the police in what was undoubtedly a dangerous pursuit for everyone involved, including other members of the public. The motorcycle proceeded in a high rate of speed despite lights from the police vehicle and obvious attempts by the police vehicle to stop the motorcycle. Eventually, police arrived at a long-term care facility in Brussels and located the silver motorcycle from earlier in the day. The officer observed Ms. Brown leave on foot away from the motorcycle with her son, Jacob. The offender exposed the child, Jacob, only 14 years old to this dangerous endeavour. At the time, Ms. Brown was bound by a probation order out of Stratford made on May the 18th, 2022, which included a condition that she keep the peace and be of good behaviour, which condition she did not abide by. There was another condition that she not occupy the driver seat or have care or control of any motor vehicle, which condition she also violated. As well, she was subject to a two-year driving prohibition order from the Ontario Court of Justice from related convictions. She violated that order as well. Upon arrest, she was held for bail and subsequently released on a release order with a surety.

On February 2, 2023, police began a drug investigation of Ms. Brown in Wroxeter, Ontario. She was suspected of trafficking drugs again. A warrant was obtained to search the residence. It was executed on that date, February 2, 2023. Ms. Brown was found inside the residence and arrested on reasonable grounds of possession of a schedule 1 substance for the purpose of trafficking. On search of the residence, police found hidden in a container of chocolate milk 5 grams of fentanyl, 1 ounce of methamphetamine, $500 in cash, numerous zip top baggies, a digital scale, a 22-caliber hinge action rifle, 22-caliber bullets, 9 shotgun rounds, prohibited knives, and brass knuckles. At the time, Ms. Brown was the subject of that probation order out of Stratford. She violated that order. She was also subject to the Form 11 release order with conditions that included a prohibition against possession of any weapon, including a pellet gun, a BB gun, and an imitation firearm. She violated that order. She was also subject to a weapons prohibition order under s. 109 of the Criminal Code for life and a s. 110 Criminal Code order for 10 years, stemming from a related s. 5(2) Controlled Drugs and Substances Act conviction. She violated that order. She was arrested and this time, for good reason, she was not granted bail.

Circumstances of the Offender

In terms of the circumstances of the offender, the Court has the benefit of a pre-sentence report. It indicates the following information. Ms. Brown is currently 35 years old. She is a Canadian citizen. She has a criminal record which includes several convictions between 2007 and 2022, including highly related convictions out of Stratford in May of 2022. Those convictions included convictions for dangerous operation of a conveyance, possession of a schedule 1 substance for the purpose of trafficking, flight from police, and possession of an imitation weapon. Nearly a carbon copy of some of the convictions that this Court has now registered against Ms. Brown.

The pre-sentence report indicates that Ms. Brown had a difficult childhood which included her being the victim of physical abuse. Her mother passed away several years ago. Her father passed away more recently. Child protective services were involved with Ms. Brown throughout her early life. There were several incidents of intimate partner abuse suffered by Ms. Brown. Ms. Brown had her children placed in the care of her sister for some time. Ms. Brown has had three long term intimate relationships, but all of them have involved intimate partner violence. Ms. Brown has three children. She completed secondary school. She has been diagnosed with learning difficulties. She has a diagnosis of attention deficit hyperactivity disorder. She has been diagnosed with a learning disability. Prior to her arrest, Ms. Brown was financially supported by social assistance. Ms. Brown has a lengthy history of addictions, including to alcohol, crystal methamphetamine, and cocaine. She was consuming many different illicit substances at and around the time of these offences. She did indicate to the author of the report that she is open to receiving treatment for addictions. According to the author of the report, Ms. Brown expressed accountability for the offences.

Ms. Brown has serious mental health issues. These are separate and apart from the other diagnoses that I mentioned earlier. Ms. Brown has been treated for schizophrenia, as confirmed by Elgin-Middlesex Detention Centre. She has also been treated for depression, severe depression. While she was at Elgin-Middlesex, she was under the care of a psychiatrist. She has been prescribed medication for her mental health and substance abuse concerns.

Aggravating Factors

In terms of the aggravating factors in this case, in my view, they include most notably the following.

First, the criminal history for Ms. Brown, which includes recent related convictions. She is not a first-time offender, nor is she close to being described as a first-time offender.

Next and perhaps even more important in my view, aggravating is the constellation of the facts in this case. The facts are very serious. They include a cocktail of deadly narcotics like fentanyl and methamphetamine, combined with a firearm, which is a dangerous combination, combined with someone who is breaching a firearms prohibition order, breaching a probation order, in the one case, breaching a release order, fleeing from police and breaching a driving prohibition order. Very serious facts that, in my view, are highly aggravating in this case.

Mitigating Factors

There are on the other side of the coin significant mitigating factors in this matter and it is the presence of these mitigating factors that have persuaded me to accede to the submission put forward by Mr. Ohara, despite the very reasonable position advanced by the Crown. I want to make clear to Ms. Brown that some judges, perhaps many, would have imposed exactly the sentence suggested by the Crown.

I have decided to go a little lower than what was suggested by the Crown on account of these significant factors.

The guilty pleas. The guilty pleas on charges out of two different jurisdictions have saved the system considerable court time. They are in and of themselves expressions of remorse by Ms. Brown, in addition to her allocution here today where she expressed remorse again, but the pleas themselves are expressions of remorse and acceptance of responsibility by Ms. Brown.

In addition to the guilty pleas, there is a lengthy history of addiction by Ms. Brown and the jurisprudence is quite clear that offenders who are themselves addicts ought not to necessarily be treated the same as offenders who themselves are not addicts and engage in the dealing of narcotics purely for commercial gain. Ms. Brown is an addict, a long-time addict, and the sooner she resolves that issue, the better the future will be for her.

And three, very relevant in my assessment, are Ms. Brown’s serious mental health issues. This is not a case where someone comes to court and says merely I have some undiagnosed, unspecified, mental health concerns. Ms. Brown’s concerns have been diagnosed. They have been treated by medication. She was under the care of a psychiatrist at Elgin-Middlesex. Ms. Brown is someone who is an offender, but she is also someone who is far less fortunate than many of us. She has had a difficult past and it is not going to be easy for Ms. Brown given her addictions and her mental health issues.

Principles of Sentencing

In terms of the principles of sentencing, the penultimate goal is to treat sentencing as an individualized process and impose a sentence that is seen as fit for each offender on each set of facts.

In my view, the principles of sentencing that are most relevant here are denunciation; to denounce Ms. Brown’s serious unlawful conduct; general deterrence, to deter other like-minded persons in the community from doing these things; specific deterrence, to deter Ms. Brown from coming back to court ever again in the future; and rehabilitation, because Ms. Brown -- and I want Ms. Brown you to listen to this -- I do not think you are beyond rehabilitation. It is not going to be easy but it is possible even for someone with your history.

Positions of the Parties

In terms of the positions of the parties, the Crown asked for a sentence of eight years less credit for pre-sentence custody, which was a very reasonable sentence to advocate for. The defence asked for seven years, less credit for pre-sentence custody, which I think is also in the range, and I decided at the end of the day to impose the most tempered sentence on Ms. Brown that I thought was fit and that is what was suggested by Mr. Ohara.

Leading Authorities

In terms of the leading authorities, I am grateful for the cases filed by both sides and without taking anything away from any of those decisions, I want to mention only two of them because I think that these two decisions played the most significant role in my decision.

First, the decision of the Supreme Court of Canada in Parranto, 2021 SCC 46. That is really the leading authority in Canada on the general range of sentencing for fentanyl offences. In that decision, the Supreme Court of Canada speaks eloquently about the evils of fentanyl, the dangers of fentanyl, and the Court says that for offenders who deal in fentanyl, there ought to be an expectation that there will be very lengthy penitentiary sentences imposed, very lengthy penitentiary sentences including double-digit penitentiary sentences of 10 years or longer, and including in some cases as the Court points out, life imprisonment.

And the other decision that I find particularly instructive is the decision of the Court of Appeal for Ontario in Lynch, 2022 ONCA 109. In that case, the offender entered guilty pleas just like Ms. Brown. In that case, there were multiple narcotics involved just like Ms. Brown. In Lynch, the substances were cocaine, MDMA, and fentanyl. In Lynch, the quantities of the substances were sizeable, even greater than in the case of Ms. Brown, 965 grams of cocaine, 149 grams of MDMA, and 41 grams of fentanyl.

Now, on the other hand, the offender in Lynch did not have quite the history that Ms. Brown has, but the offender in Lynch had engaged in multiple incidents of trafficking these deadly narcotics. The sentencing judge at first instance in Lynch imposed a sentence of four years in the penitentiary. The Court of Appeal for Ontario decided that that was an error. It was outside the range, it was too low. The Court of Appeal increased the sentence from four years to six years in the penitentiary. The sentence imposed by this Court is longer than six years, it is seven years less credit for pre-sentence custody, which I think is justified because there are some circumstances involved in this case that are more aggravating than those that the Court of Appeal faced in Lynch.

In Lynch, the Court of Appeal for Ontario indicated that the appropriate range of sentence in that matter was six to eight years in the penitentiary. So, that commentary by the Court of Appeal is further proof of the reasonableness of the sentence put forward by the Crown here today. The eight years was well within the range.

This is somewhat of a kindness for Ms. Brown, I want to make that clear. I think it is justified, but it will not be repeated by any court in the future. The next time -- I do not think there will be a next time -- but the next time, Ms. Brown, you come to court, there will be no further leniency extended to you by any judge.

Conclusion

So those are the reasons for the sentence.

Counsel, did I leave anything out? Or is there anything you want clarification of?

MS. DI MARTINO: Nothing requiring clarification, Your Honour. Just with respect to the remaining counts on the indictment, I can also speak on behalf of the Provincial Crown, they can be marked just withdrawn.

THE COURT: Thank you.

MS. DI MARTINO: You’re welcome.

THE COURT: Okay, Ms. Brown, I am statutorily required to ask you some questions, so stand up, please. So, the orders that have been made, the forfeiture order, you understand what that is? Many things you are forfeiting to the Crown, you are not getting them back, okay? The firearms and the weapons prohibition order. This is not the first time that that type of order has been imposed on you, so I do not know if the other judges said this but I am saying it, you must obey that order. If you do not obey that order, you could be charged with a further criminal offence and you will go to jail if found guilty. Do you understand?

The DNA order is usually done 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?

The victim fine surcharge I waived so I do not need to say anything further to you about that.

The three-year driving prohibition order, again it is not the first time that you have had a driving prohibition order. You must obey that order. If you do not, you could be charged with a further criminal offence of breaching the prohibition order and if found guilty of that, you almost certainly would go to jail. Do you understand?

The forfeiture order for the firearm is self explanatory. So those are the ancillary matters.

And the custodial sentence, you understand the custodial sentence that was imposed?

Okay, do you have any questions you want to ask the Court about these orders that have been made?

ACCUSED: No.

THE COURT: Okay. So, I wish you the best, Ms. Brown. You should take advantage of your time in custody, which may sound like a funny thing to say, but it is not. What I mean is you should really look down deep inside. You have a son here with you today. It is not a place for him to be. He is here to support you but it is not fair to yourself or to others, so I hope to never see you back, okay? Thank you.

...END OF EXCERPT

Electronic Certificate of Transcript

FORM 3

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

I, Pauline Leung (Name of Authorized Person) certify that this document is true and accurate transcript of the recording R. v. Rebecca Brown in the Superior Court of Justice (Name of Case) (Name of Court) held at Courtroom 3, 74 Woolwich Street, Guelph, Ontario N1H 3T9 (Court Address) taken from Recording 4611_crtrm#3_20240522_083244__10_CONLANC.dcr , which has been certified in Form 1. July 24, 2024 (Date) (Electronic Signature of Authorized Person(s)) 2567686493 (Authorized Court Transcriptionist 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.