R. v. Arbeau, 2011 ONCJ 135

COURT FILE No.: 09-F19862 Citation: R. v. Arbeau , 2011 ONCJ 135 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — AMANDA ARBEAU Before Justice Dianne M. Nicholas Reasons for Judgment released on March 9, 2011 Ms. B. Luke................................................................................................................. for the Crown Mr. P.

Beach.................................................................................... for the accused Amanda Arbeau NICHOLAS J.: [ 1 ] On January 22/ 2010 Arbeau pled guilty to 3 counts of trafficking in crack cocaine on July10, July 14, and August 10 th . She was sentenced on April 29, 2010 to a 12-month conditional sentence, in addition to the 57 days of pre-trial custody she had already served, for the 3 rd trafficking charge. She has a long- standing drug problem and history of bad associations. She is 32 but looks older due to her lifestyle, and traumatic youth.

As arranged she was immediately transported to Empathy house following her release. [ 2 ] I had dealt with her previously. In that case she had agreed to treatment at Norwood house and had done fairly well. As in this case, she was committed to seeking treatment and did glowingly well for several months. To date she seems incapable to go the distance successfully and make a break from the lifestyle which might eventually take her life. It has already largely ruined it.

With respect to these charges, she was turned down by the Drug Treatment Court because of the nature of her charges and her record. [ 3 ] That record is extensive and commences in 1996 as a youth. She has struggled since then with alcohol dependency and drug addiction. Her counsellor’s stress that she needs to address the underlying causes from her childhood that have led to her substance abuse. She has been convicted of twenty-five offences on 11 different sentencing dates at the young age of 32.

Her record is filled with breach charges, failing, property offences, the usual multiple failing to appear in Court convictions, as well as five previous drug offences. One of those are for simple possession, three for possession for the purpose of trafficking and her recent 2010 conviction for trafficking for which I sentenced her to a 12 month conditional sentence. This is a very tragic portrait of a life marginalized by drug addiction and the crimes it inevitably leads to. Her counsel had persuaded me to try the incentive approach again with her. It was a risky proposition.

We know that Arbeau is strong willed and can do very well in treatment. To date, unfortunately, she lacks to commitment to go the distance. I sentenced her on one of her trafficking charges and adjourned the other two. Our hope was to rehabilitate her through the detailed conditional sentence she has now breached and that I have revoked. [ 4 ] The transcript of that sentencing makes plain that she was to reside at Empathy house only and not change that address without my specific approval. In the initial months the reports were highly favourable as exhibits 7&8 demonstrate.

I made plain to her that she would be given credit for time spent in treatment when I sentenced her on the two remaining trafficking charges. I also warned her in fairly clear terms that this was her last chance for a community-based sentence. I warned her that, with her record, she might face a pen sentence on the remaining charges.

[ 5 ] Without my knowledge or approval she commenced the process of discharging herself from Empathy House, partially influenced by a “boyfriend” who came back into her life and encourage her to move in with him. This was the beginning of the end of her successful journey to the straight world. Once again, good intentions but bad choices. Regrettably, through an alarming but unintentional oversight, her probation officer had not read through all of the strict conditions of her sentence and did not put an end to her departure from Empathy House. He believe that he could support her departure.

It was rather disappointing to review the sporadic level of actual supervision of a person serving a conditional sentence for a drug trafficking offence.. The Supreme Court has made plain that serving a conditional sentence must entail some restrictions more significant than simply being on probation. It would appear that, in this city that may not always be the case. In this case an experienced officer overburdened by his workload, had very little contact with her following her return to the community and nothing in the community was put in place for her.

She was essentially free as bird with only monthly reporting which at times was by telephone. Despite his inadvertent error in not preventing her departure from Empathy House, as he should have done, the blame rest entirely with Arbeau who knew full well what the deal was, and has acknowledged that to me in Court. [ 6 ] She did, in fact, graduate from at least a portion of the program and has provided her certificate of completion. Nonetheless her departure was not sanctioned or recommended by the treatment facility. To her credit, she does not have any outstanding charges since her return to the community.

She served her conditional sentence in the community from April 29, 2010 until January 27 th when I revoked it. She will serve the remainder of that sentence in custody [ 7 ] I must now sentence her on the two remaining trafficking charges. The synopsis for those offences reveals her to be the directing mind of these transactions, taking the phone calls and arranging the buys. As I have already indicated in a previous decision, the sale of crack has hit this city like a bomb, and left many victims in its path. The first traffic involves $40.00 of crack, which he personally handed to the buyer.

One the second occasions she agreed, over the telephone, to a 40$ transaction with an undercover officer. With crack, the small amount of the deals is less significant than with powder because these are the quantities that destitute street addicts can afford. This addiction is life destroying and reduces its addicts to a very base existence. A high level of street crime, involving property and violent offences, in Ottawa stems from the traffic of this drug. The streets in our downtown and market areas bear witness to the destructive force of this drug. Those who deal in it must be consequenced.

Our Ontario Court of Appeal has set a range of 6 months to two years in the Woolcock decision, which was a possession for the purpose of trafficking in crack case. [ 8 ] The Crown’s original position in this matter was for a 12-month sentence on a plea before trial. She now seeks a 12-18 month sentence in addition to the time spend on the conditional sentence both in and out of custody. She has served 288 days in the community and 43 days in custody on her custodial sentence. She will serve the remainder of it in custody.

She has not been breached in over 10 months or charged with any new offences while out of jail. A plea has been entered. I impose a sentence of 12 months of each of the trafficking charges to be served concurrently. I strongly recommend that she serve this sentence at the Vanier Institute for Women and receive support for post traumatic stress and substance abuse issues. There are many agencies such as E Fry who continue to support her. I impose an s. 109 weapons prohibition order for life. I order her to provide a sample of her DNA for inclusion in the data bank.

Given the manner in which she deceived and misled her probation officer with respect to her departure from the treatment facility, and the fact that she has been placed on probation for a total of six years in the past, and on conditional sentences for a total of 19 months without having been rehabilitated, I will not impose further probation. She will inevitably be breached and repeat the pattern of being in and out of jail. She needs to take charge of her life plan and future. Ms Arbeau is a strong and capable woman when motivated. She has exhausted our resources.

Sobriety and health living, two things I strongly wish for her, must now come from her owns strengths and commitment and not court ordered rehabilitation. Released: March 9, 2011 ____________________________________ Signed: “Justice Dianne M. Nicholas”