COURT FILE NO.: CR-24-08
DATE: 20241210
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
KEARSTEN LUMLEY
Defendant
Kimberly Miles, for the Crown
Jeffrey Fisher, for the Defence
HEARD: December 10, 2024
REASONS FOR SENTENCE
LEIBOVICH J.
[1] On December 2, 2024, Ms. Lumley pleaded guilty to possession of cocaine for the purposes of trafficking and breach of an undertaking. The Crown seeks a total sentence of 7 years and a DNA order, a s.109 order for life and the appropriate forfeiture order. The defence has no quarrel with the ancillary orders but seeks a sentence of 4.5 years. Sentencing submissions were heard on December 2nd and the matter was adjourned to today for my decision.
Circumstances of the offence
[2] Ms. Lumley was on bail pending her appeal for her prior conviction of possession for the purposes of trafficking. She was appealing her sentence. She was released in November 2022, with a condition not to possess any illicit drugs. On June 22, 2023, the police were investigating her and stopped her while driving on Highway 11. A search of her car revealed 509 grams of cocaine in a vacuumed sealed package. Brass knuckles were also found.
Circumstances of the offender
[3] Ms. Lumley is 31 years old. She graduated from high school and she had a number of jobs in the retail sector. When she was 21, the trajectory of her life changed when she began dating a drug user and she developed a drug addiction. She has a daughter and her daughter was apprehended from her because of her drug addiction. Ms. Lumley has now been clean for three to four years.
[4] She has a criminal record. It is as follows:
(a) On September 16, 2015, she was convicted of over 80.
(b) On July 16, 2018, she was convicted of fraudulent use of a credit card.
(c) On September 12, 2018, she was convicted of failing to attend court.
(d) On December 5, 2018, she was convicted of failing to attend court.
(e) On June 4, 2019, she was convicted of fraudulent use of a credit card and failing to attend court.
(f) On January 29, 2021, she was convicted of possession of a scheduled substance for the purposes of trafficking. The scheduled substance was cocaine. She was also convicted of possessing another substance. On February 3, 2021, she was again convicted of possessing cocaine for the purposes of trafficking and fail to comply with an undertaking. She received a total sentence of 15 months.
[5] Ms. Lumley read a lengthy letter to the court. She apologized for her actions and for the harm that she has caused. She explained that when she beat her addiction, she then traded that feeling for the fast life, causing her to seek instant gratification. She described the progress that she has made in jail and her commitment to continue that work and then to help those involved in the drug community. She wants to speak at churches and help at soup kitchens and the Salvation Army. She wants to be a strong presence in her daughter’s life.
[6] Ms. Lumley also filed an affidavit describing the conditions at the Central North Correctional Center (“CNCC”). She started serving her sentence on the current offences in January 2024, as she was previously serving the remnant of her prior trafficking conviction. Since January 1, 2024, she has been triple bunked for 200 days and she has been subject to 108 lockdowns. Her lockdown dates are confirmed by the records from CNCC. She described the effects of the triple bunking:
It is very stressful and difficult to be triple bunked in a cell designed for two people. There is no room to pace in the cell. When anyone uses the toilet, the other two inmates are in very close proximity. Given that there are three people in the cell, this occurs often. The only access to fresh air is through a small hatch in the door of the cell. It is closed from 5:30 p.m. - 8:00 a.m. When it is closed, the room is very stuffy and claustrophobic.
The combination of triple bunking and lockdowns is especially hard. There have been episodes in which up to five days have gone by without access to shower and phone, despite the fact that we are supposed to have access to a shower and phone at least once every three days when on lockdown.
Aggravating and mitigating factors
[7] The following are the mitigating factors:
i) Ms. Lumley pleaded guilty and has shown remorse for her actions;
ii) Ms. Lumley has the support of her parents, and I believe she can be rehabilitated;
iii) Ms. Lumley was subject to exceptionally harsh conditions while serving her pre-sentence custody: R. v. Marshall, 2021 ONCA 344.
[8] The following are the aggravating factors:
i) Ms. Lumley was found in possession of a large amount of cocaine, over ½ a kilogram;
ii) The amount of drugs found supports the conclusion that this was a premediated crime;
iii) Ms. Lumley was on bail pending appeal for her prior conviction for possessing cocaine for the purposes of trafficking, when she committed the current offence; and
iv) Ms. Lumley has a related criminal record. This is her third conviction for possessing cocaine for the purposes of trafficking and she has a number of prior convictions for breaching court orders.
Law and analysis
[9] The purpose of sentencing is set out in s. 718 of the Criminal Code:
The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
a. to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
b. to deter the offender and other persons from committing offences;
c. to separate offenders from society, where necessary;
d. to assist in rehabilitating offenders;
e. to provide reparations for harm done to victims or to the community; and
f. to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
[10] Further, s. 718.1 of the Criminal Code provides that:
A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[11] Section 10 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 provides the following with respect to the purpose of sentencing:
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.
[12] The court must ensure, as stated in s. 718.1 of the Criminal Code, that the sentence imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender. In order to ensure this, courts look to sentences given in other cases. The parity principle, which is required now by s. 718.2(b) of the Criminal Code, requires that similar offenders who commit similar offences in similar circumstances be given similar sentences. Past cases, or precedents, create sentencing ranges to help guide the court. But sentencing is an individualized process and sentencing ranges are not meant to handcuff the court; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089. Proportionality "has a restraining function" because it helps "guarantee that a sentence is individualized, just and appropriate:" R. v. Bissonnette, 2022 SCC 23, 80 C.R. (7th) 127, at para. 51.
[13] The amount of cocaine is a critical factor in establishing the range of sentence. In R. v. Bryan, 2011 ONCA 273 the Court of Appeal noted, “Normally, in cases of this nature, sentences of 5 to 8 years would reflect the proper range for someone, without a record, convicted of possession for the purpose of trafficking in slightly more than a pound of cocaine.” This range has been restated in numerous appellate cases since. R. v. Wawrykiewicz, 2019 ONCA 21, at para. 15; R. v. Brown, 2021 ONCA 35, at para. 9; R. v. Morgan, 2021 ONCA 812, 407 C.C.C. (3d) 147, at para. 20; R. v. Lynch, 2022 ONCA 109, and R. v. England, 2024 ONCA 360 at para. 99.
[14] In Lynch, the Court commented again on the harm caused by the illegal drug trade at para. 17:
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.
[15] Counsel for Ms. Lumley submits that given the range and given Ms. Lumley’s guilty plea, expression of remorse and prospects of rehabilitation a sentence of 5 years is appropriate. However, the sentence should be 4 and ½ years given the mitigation resulting from the harsh prison conditions.
[16] The defence’s position fails to account for a number of serious aggravating factors: Ms. Lumley is not a first-time offender. She has prior convictions for possessing cocaine for the purposes of trafficking. Critically, she was on bail pending appeal when she committed the current offence. At a time when she should have been on her best behaviour, she committed her worst and most serious offence.
[17] I do agree that Ms. Lumley is extremely remorseful and can be rehabilitated. She impresses as a smart individual who has started down the long path of doing the required work to become a productive member of society and a mother to her daughter. The sentence I impose will consider these mitigating factors. However, the sentence I impose must denounce and deter others. Ms. Lumley’s offence was profit motivated. It was a planned and premediated venture despite, as described earlier, the harm it causes society. As expressed by Justice Code in R. v. Graham, 2018 ONSC 6817, at paras. 44-46:
In terms of the range of sentence for this separate offence, cocaine is a hard drug because it is addictive and because it causes significant direct and indirect damage to users, to their families, and to the safety and security of society. As a very experienced trial judge, Bassel J., put it in R. v. Amour [2004] O.J. No. 1537 (O.C.J .),
o This was a lifestyle or life conduct choice or course of action, for profit. I agree with the submission of Mr. Devlin that the cocaine offence is not a victimless crime. One only has to walk through the Old City Hall here to see three courts dedicated to drug offences in the main, involving the possession and sale of cocaine. The devastating health effects on cocaine drug users, the terribly addictive aspect of this drug, the disastrous effects on their families, and the ruination of their lives, all reflect very real victims, which is an aggravating factor. In addition, the terrible addiction and need for money to feed the addiction is a significant underlying cause of many crimes that are prosecuted in the courts, including thefts, robberies, break-and-enters, soliciting for the purpose of prostitution, assaults, with a whole other category of victims. A very tragic but graphic illustration of the misery flowing from this drug is seen daily with numerous addicts pleading guilty and receiving sentences of incarceration for street-level transactions of small amounts of cocaine.
Another important feature of drug trafficking offences is that they are rationally premeditated commercial crimes driven by the profit motive. Because of the significant harms and violence associated with cocaine trafficking, and because it is a planned and premeditated commercial crime, the courts have repeatedly stressed that denunciation and deterrence are the most important sentencing principles in these cases: see R. v. C.N.H. (2002), 2002 CanLII 7751 (ON CA), 170 CCC (3d) 253 at paras 35-6 (Ont. C.A.); R. v. Hamilton, supra at paras 103-106; and R. v. Finlay and Grelette, [1985] O.J. No. 236 (C.A.). [emphasis added]
[18] I agree with the Crown that a total of seven years would be an appropriate sentence having regard to the aggravating and mitigating factors; except it doesn’t take into account two factors: a) that this sentence is in effect being served consecutive to her previous sentence; and 2) that Ms. Lumley was subject to harsh pre-sentence conditions.
[19] Ms. Lumley was arrested in June 2023. She served the remnant of that sentence and has as of January 2024 started serving this sentence. So while the sentence I impose will not be consecutive to a sentence that is currently being served ( R. v. Johnson, 2012 ONCA 339 at para. 19) some mitigation should be given to reflect that Ms. Lumley will in effect be serving back to back sentences.
[20] Regarding the harsh pre-sentence conditions, as stated by the Court of Appeal for Ontario in R. v. Marshall, 2021 ONCA 344, at para. 50, 52:
A "Duncan" credit is given on account of particularly difficult and punitive presentence custody conditions. It must be borne in mind the 1.5:1 "Summers" credit already takes into account the difficult and restrictive circumstances offenders often encounter during pretrial custody: Summers, at paras. 28-29. The "Duncan" credit addresses exceptionally punitive conditions which go well beyond the normal restrictions associated with pretrial custody. The very restrictive conditions in the jails and the health risks brought on by COVID-19 are a good example of the kind of circumstance that may give rise to a "Duncan" credit: R. v. Morgan, 2020 ONCA 279.
The "Duncan" credit is not a deduction from the otherwise appropriate sentence, but is one of the factors to be taken into account in determining the appropriate sentence. Particularly punitive pretrial incarceration conditions can be a mitigating factor to be taken into account with the other mitigating and aggravating factors in arriving at the appropriate sentence from which the "Summers" credit will be deducted. Because the "Duncan" credit is one of the mitigating factors to be taken into account, it cannot justify the imposition of a sentence which is inappropriate, having regard to all of the relevant mitigating or aggravating factors.
[21] Any mitigation given to such conditions cannot skew the sentence or take an unwarranted significance that would result in an unfit sentence; R. v. Cunningham, 2023 ONCA 36, at paras. 59-62.
[22] Ms. Lumley was locked down for a third of her time in pre-sentence custody for this offence. She was subject to triple bunking for two-thirds of that time. The reason for the lockdowns, according to the records that I have been provided, are staff shortages. No reasons have been provided for the triple bunking.
[23] What was supposed to be exceptional has now become the norm, not just for Ms. Lumley but legions of others. It cannot be forgotten that Ms. Lumley was subject to these conditions at a time when she was presumed innocent. The situation is simply unacceptable. It cannot continue.
[24] The following description by Justice Fuerst in R. v. Perry, 2020 ONSC 8173, at paras. 43 and 44 are equally applicable to the situation before me:
Based on sentencing proceedings I have conducted and sentencing decisions of judicial colleagues I have read, it is clear that staffing shortages at CECC have become a predictable reality. CECC has adopted an operational model that responds to staffing shortages by locking down all or parts of the institution. This means that inmates are confined to their cells sometimes for an entire day and even for sequential days, because of staffing shortages.
Judges have repeatedly warned in sentencing decisions that lockdowns in response to staffing shortages are inhumane and unacceptable. Despite those warnings, CECC continues to resort to lockdowns as a means of addressing its persistent staffing shortages. It is perplexing that the Ministry of the Solicitor General seems not to have taken steps to ensure that this institution, which holds a large population of inmates awaiting trial before GTA courts, is adequately staffed.
[25] I find that the harsh pre-sentence conditions is a significant mitigating factor.
[26] In my view having regard to all the aggravating and mitigation factors a sentence of 6 years and 3 months is appropriate less credit for pre-sentence custody.
Conclusion
[27] Ms. Lumley, you are sentenced on count 1 (possession for the purposes of trafficking) to 5 years less credit for pre-sentence custody. You have served 344 days in custody. You will receive credit of 516 days. You will also be subject to a DNA order, a forfeiture order and a lifetime s.109 order. I note that you have already been subject to two prior s.109 orders. On count 3 (fail to comply with release order) you will receive a sentence of 15 months, consecutive.
The Honourable Justice H. Leibovich