HER MAJESTY THE QUEEN - v. -, 2020 NBPC 1

PROVINCIAL COURT JUDICIAL DISTRICT OF MIRAMICHI Citation: 2020 NBPC 01 Date: February 6th, 2020 Docket: 154982, 155071 Between: HER MAJESTY THE QUEEN - and - HEIDI DONOVAN Before: His Honour Cameron Gunn Date of Sentencing: February 6th, 2020 Appearances: Melanie Ferron, counsel for - Her Majesty the Queen, Canada Alana Napke, counsel for - Her Majesty the Queen, NB Maude Woods, duty counsel - Heidi Donovan 1. Sentencing has been described as "one of the hardest tasks confronting a trial judge"' and "the gist of the proceeding"?

TheSupreme Court of Canada has recognized that the fitness of a sentence imposed can establish or diminish the "credibility of the criminal justice system in the eyes of the public".3 2. The task is governed by the provisions of the Criminal Code and, in cases such as the one before the Court, the Controlled Drugsand Substances Act, as well as the jurisprudence of the Supreme Court of Canada, our Court of Appeal and other courts, but ultimately itinvolves "the exercise of a broad discretion by the courts in balancing all the relevant factors in order to meet the objectives being pursued in sentencing."4 3.

The purpose and principles of sentence allow for "sentence individualization"5. The unique circumstances of the offence and theoffender mean that while sentences for different accused may be similar there are seldom identical. Each offender and each offencepresent a factual matrix that requires the balancing of the competing interests constantly at play in the criminal justice system. 4. Heidi Donovan comes before the Court for the imposition of sentence as a first-time offender having pleaded guilty to a crime thathas been recognized as requiring deterrence and denunciation.

The need for rehabilitation must not, however, be ignored. The Charges 5. Ms. Donovan appeared before the Court for trial having been charged with three separate offences on two separate informations.She was alleged to have, between the 10th day of July and the 12th day of October 2018, at or near Red Bank, New Brunswick,unlawfully trafficked in methamphetamine, a substance included in

schedule I of the Controlled Drugs and Substances Act, committingthereby an offence contrary to in violation of paragraph 5 (1) of that Act. R. v. Gardiner, (SCC), [1982] 2 SCR 368, at para. 108. 2 Gardiner, at para. 107. 3 R. c. Lacasse, 2015 SCC 64, at para. 3. 4 Lacasse, at para. 1. 5 R. v. Knott, 2012 SCC 42, at para. 47. 2 6. She was also accused that she did unlawfully have in her possession for the purpose of trafficking methamphetamine contrary toparagraph 5(2) of the Controlled Drugs and Substances Act. 7. Finally, in a separate information, Ms.

Donovan was charged that she, on or about the 29th day of August, 2018 at or near Blackville,New Brunswick, did have in her possession property, to wit: tools and a USB stick of the value not exceeding $5000 knowing that all theproperty was obtained by the commission in Canada of an offence punishable by indictment committing a

summary conviction offencecontrary to and in violation of

section 355(b)(ii) the Criminal Code of Canada.

8 . On September 4, 2019, the accused withdrew her plea of not guilty on count number two of the two count information, possession for the purpose of trafficking methamphetamine, and entered a plea of guilty. In exchange the prosecutor representing the Public Prosecution Service of Canada withdrew count number one; the charge of trafficking. 9 . On September 5, 2019 the accused pleaded guilty to the charge of possession of stolen property.

The imposition of sentence on both matters was set over until October 31, 2019 to allow for the preparation of a pre-sentence report and a victim impact statement with respect to the Criminal Code offence. 10 . On the original date set for sentence the accused indicated that she wished to apply to withdraw her guilty pleas and asked that her lawyer be discharged from the record. I granted the motion for the removal of her counsel and set a date for the hearing of a motion for the withdrawal of her guilty pleas. 11 . After some delay the hearing with respect to the second motion was conducted.

I denied her application to withdraw the guilty plea with respect to the offence under the Controlled Drugs and Substances Act and granted it with respect to the offence of the Criminal Code . Ms. Donovan later re-entered her plea of guilty with respect to the Criminal Code offence, I heard submissions with respect to the imposition of sentence and set the matter over to today's date to deliver my decision. 3 The Circumstances of the Offence 12 . The accused was stopped while driving a motor vehicle on October 12, 2018 as a result of a drug trafficking investigation.

At the time of the stop she was placed under arrest for possession for the purpose of trafficking and was searched incident to that arrest. 13 . The search of Ms. Donovan revealed, in her purse, a small baggy containing .1 grams of methamphetamine, referred to as a point. In addition, police discovered 100 small bags, known as dime bags used for packaging drugs for resale, a digital scale and $220. 14 . In addition to the above, her cell phone, which she admitted belonged to her, was seized and eventually analysed. Forensic analysis of cell phone revealed evidence of trafficking going back to July 2018.

There were messages using known trafficking jargon and messages that indicated that she was clearly in the business of trafficking. 15 . The police conducted an interview with Ms. Donovan where she admitted trafficking in methamphetamine for the previous month or month and a half 16 . The value of the methamphetamine would be $20 on the street. 17 . With respect to the Criminal Code conviction a break and enter had occurred at a facility owned by a company constructing municipal improvements in the village of Blackville. The vehicle used during that break and enter was registered to Ms. Donovan.

During a traffic stop items found in her vehicle, a claw hammer, pipe wrench and blue USB stick, were identified as having been stolen in the break and enter. A subsequent search of her house revealed a Hitachi leaf blower also taken in the other offence. The accused in the break and enter has been previously convicted and sentenced. The Position of the Parties 18 . The Public Prosecution Service of Canada (PPSC) submits that the appropriate range of sentence in this case is 18 months to 2 years of imprisonment for the offence under the Controlled Drugs and Substances Act.

It submits that the court must give primary consideration to the objectives of denouncing this unlawful conduct and deterring Ms. Donovan and others from committing such offences. Pursuant to the negotiated plea, and 4

despite Ms. Donovan's attempt to resile from that plea, PP SC have recommended a sentence of 18 months in jail. 19 . The Public Prosecution Service of New Brunswick (PPS NB) submits that the appropriate sentence for the Criminal Code offence is 15 days in jail concurrent to any other sentence imposed. 20 . Duty counsel, speaking on behalf of Ms. Donovan, acknowledges that denunciation and deterrence are the primary applicable principles of sentencing in this case but that, as Ms.

Donovan is a first-time offender and based upon the contents of the presentence report, she should be sentenced to a conditional sentence order allowing her to serve the jail sentence in the community. Alternatively, if I am to impose a jail sentence and not allow it to be served pursuant to a conditional sentence order, she asks that the sentence be two years in jail which would allow her to serve her time in a federal penitentiary system, which she asserts has better programming to assist in Ms. Donovan's desire to address her addiction. The Law The Fundamental Purpose of Sentencing 21 .

Sentencing in this case is guided by the provisions of the Criminal Code and the Controlled Drugs and Substances Act.

Section 718 describes the fundamental purpose of sentencing and reads: 718. 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 hami 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; 5

(

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. 22 . The provisions of the Criminal Code that follow s. 718 provide further guidance with respect to the creation of an appropriate sentence.

Section 718A states that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender, while 718.2 dicates principles that must be taken into consideration. They include that (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender (some of which are statutorily described though none of those are present in this case); (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (c)where consecutive sentences are imposed the combined sentence should not be unduly long or harsh; (d)an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders with particular attention to the circumstances of aboriginal offenders. 23 . In this case, the most serious offence is the one contrary to the Controlled Drugs and Substances Act. That Act contains a provision guiding sentence - s. 10 - which begins by establishing that "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." 24 . The Act goes on to describe aggravating factors, none of which are present in this case. 5 25 . The objectives described in s. 718 and s. 10 may have predominance in a set of circumstances dictated by the offence, the offender or both.

On some occasions the objective of denunciation (often along with deterrence) "must be emphasized to convey society's condemnation"' and in such cases "courts have very few options other than imprisonment for meeting these objectives, which are essential to the maintenance of a just, peaceful and law-abiding society."' 26 . Methamphetamine is a substance listed in

Schedule I of the Controlled Drugs and Substances Act and, pursuant to section 5(3)(

a) of the Act, an accused found guilty of the one for which Ms. Donovan is being sentenced is liable to a maximum sentence of imprisonment for life. 27 . The Court of Appeal of New Brunswick has consistently held that general deterrence and denunciation are the guiding sentencing principles in cases dealing with drug trafficking and the possession of drugs for the purpose of trafficking. This compels, they have held, that absent exceptional circumstances, a significant period of incarceration should be imposed for such convictions. 8

28. The guidance of the Court of Appeal has been clear and unrelenting. Recently, in R. v. Cormier9 the Court reaffirmed their positionand went further to consider the creation of a sentencing range for the possession of "hard drugs" for the purpose of trafficking. Theintention was to "facilitate an informed application of the principle of parity codified in s. 718.2(b)" which requires that "a sentence be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances."10 29. Ultimately, the Court declined "to set a definitive range for sentencing offenders who traffic in or are in possession of

Schedule I drugs"11 due to the absence of a "clear line of demarcation between the types of dealers who engage in these crimes."I2 6 Lacasse, at para. 5. Lacasse, at para. 6. 8 R. v. Madore, (NB CA), [1986] N.B.J. No. 146 (N.B. C.A.), R. v. Frost, 2012 NBCA 94, at para. 8 and R. v. Martin,2012 NBCA 95; R. v. Lennon 2013 NBCA 19. 9 R. v. Cormier, 2018 NBCA 38 10 Cormier, at para. 28. II Cormier, at para. 30. 12 Cormier, at para. 30. 7 30.

Despite the lack of the creation of a sentencing range, a circumstance that to some degree contradicts the Crown's assertion here thata range would be 18 months to 2 years in jail, the Court did identify principles intended to guide sentencing courts. They are as follows: 1) those who traffic in or who possess

Schedule I substances for the purpose of trafficking, will only rarely and exceptionally escape asentence of imprisonment.

This is so because of the emphasis courts must give to the sentencing objectives of denunciation anddeterrence for these types of crimes on account of the devastating effects these substances have on society in general and on those whofall victim to their nefarious and highly addictive properties in particular;13 2) Among the hard drugs, crack cocaine requires particular consideration due to its high addiction rate and low cost," a combination thatis "so corrosive to the social fabric that sentences must reflect deterrence above all other considerations, even when the offender [...] has no previous record"15; 3) Until the Court of Appeal sets a range for trafficking or possession for the purpose of trafficking, certain ranges can nevertheless beextrapolated from the jurisprudence of other provinces, tailored to the particular circumstances of this province, and considering sentences imposed in this province.16 31.

To better illustrate the third principle the Court reviewed the sentencing ranges in other provinces (with respect to crack cocaine specifically). They describe them as follows:17 1) Alberta: trafficking hard drugs will typically result in sentences from three years to four- and one-half years of imprisonment; 2) British Columbia: nine months to three years; 3) Saskatchewan: eighteen months to four years; 4) Manitoba: three to five years for street-level cocaine trafficking (even for first-time offenders); 13 Cormier, at para. 32. " Cormier, at para. 33-41 13 R. v. Carver)), [1991] N.S.J. No. 501 (N.S.

CA.) as quoted in Cormier, at para. 41. 16 Cormier, at para. 42. 17 Cormier, at paras. 45-51. 8

5) Ontario: 18 months to four years depending on the amount of drugs recovered and the offender's prior record; 6) Quebec: six months to fifty-four months of imprisonment 7) Nova Scotia: two years or more 32. The Court also dictated that a sentencing judge must look to New Brunswick sentencing cases and helpfully provided a list of decisions. These cases establish that trafficking in, or possession of crack cocaine, for the purpose of trafficking will result in a sentence of two years less a day to six years, eight months. 33.

Finally, the Court adopted a Newfoundland and Labrador Court of Appeal decision which established a list of relevant factors to help identify the level of one's participation in the distribution of drugs. They are as follows: 1) Types of drugs involved; 2) Quantities in question; 3) The degree of sophistication of the enterprise; 4) Potential for profit; 5) Length of time the enterprise existed prior to arrest; and 6) Accused's role or level of involvement in the enterprise. I8 Application of the Law to the Circumstances of the Case 34.

I begin by acknowledging that the decision of the Court of Appeal in Cormier is related to crack cocaine. Despite this I take the guidance of the Court, in that case and the others quoted above, to relate to drug trafficking and possession of drugs for that purpose generally. While the second principle the Court describes is that crack cocaine requires particular consideration due to its high addiction rate and low cost is the principle is, in my view, equally applicable to methamphetamine for the same reasons. 18 Cormier , at para. 54 . 9 35.

Counsel for PPSC offered as exhibits three news articles (Exhibit P-1) by consent. Initially, counsel invited me to take judicial notice of the fact that there is a significant methamphetamine problem in the Miramichi area. After a brief exchange where I raised the Court of Appeal's guidance, and cautions, about a sentencing judge taking judicial notice of the prevalence of crime&it was agreed that I might receive and consider the articles as a reflection of the perceptions of the prevalence of methamphetamine in the area.

To that extent it is apparent that health care professionals, politicians, police and the general public view the prevalence of the use and distribution of methamphetamine as a crisis. 12. While that perception is in no way governing, the fundamental purpose of sentencing is to protect society and to contribute to respect for the law and the maintenance of a just, peaceful and safe society. Given this, the perception of a crime in the community is a relevant consideration for a sentencing judge. Circumstances of the Offender 0. Ms. Donovan is 39 years of age. She has no criminal record.

She had a positive upbringing and has the support of her family. She has two children aged 12 and 8. Her children were taken into the care of the Minster of Social Development, and placed with their paternal grandmother, due to concerns for Ms. Donovan's drug use and associates. She struggles with addictions, with her use of hard drugs beginning 15 years ago, though her drugs screens in relation to her children's status have produced 10 of 12 clean screens with codeine being the only drug noted in the other 2. She had been referred to a Mental Health and Addictions Counsellor, and though

attendance has been sporadic, she is reported to be actively engaged in the sessions when present. Aggravating and Mitigating Circumstances 13. I consider it mitigating that the accused pleaded guilty and by so doing expressed her remorse. This is somewhat muted by her attempt to withdraw those pleas, but nonetheless 19 R. v. Mallory, 2004 NBCA 72 . 10 it remains. It is also mitigating that she is a first-time offender and that she has the support of her family. I find it a mitigating factor that she has made efforts to address her addictions.

Duty Counsel, speaking on Ms, Donovan's behalf, has provided some materials that support her contention that there is more expansive programming available in a federal institution. This material has not been challenged and counsel for PPSC has previously indicated that 2 years remains within the range of appropriate sentence. 39. The aggravating circumstances here relate to the nature of the drug offence itself I adopt the criteria identified by our Court of Appeal to assess the level of Ms. Donovan's participation in the distribution of drugs: 1) Types of drugs involved: As mentioned above Methamphetamine is a

schedule I drug; 2) Quantities in question: The quantity here was very small, though there was evidence of sustained trafficking over a period of several months; 3) The degree of sophistication of the enterprise: There is little evidence that this was a sophisticated enterprise; 4) Potential for profit: It is difficult to determine but in absolute terms it appears that all trafficking involves the potential for profit; 5) Length of time the enterprise existed prior to arrest: The accused acknowledged trafficking for approximately 1 month to six weeks but the evidence on her phone suggests a longer enterprise of several months in duration; and 6) Accused's role or level of involvement in the enterprise: The accused seems to have been solely responsible for the enterprise in this

case. Sentence 40. Given the above, I find that the appropriate sentence is as follows:

i) For the offence contrary to Section 5(2) of the Controlled Drugs and Substances Act: 11 a. 2 years in jail. I find that a conditional sentence is not appropriate based upon the guidance of Court of Appeal and a consideration of the factors above; b. Pursuant to

section 109 of the Criminal Code I make an order that Ms. Donovan be prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for a period of 10 years; c. Pursuant to

section 16 of the Controlled Drugs and Substances Act I order that the methamphetamine, 100 dime bags, digital scales, $220 in cash and the cellular telephone seized from Ms. Donovan be forfeited to Her Majesty the Queen in right of Canada. ii) For the offence contrary to s. 355 of the Criminal Code , I am imposing a sentence of 15 days in jail concurrent to any other sentence iii) I am waiving the victim fine surcharges for both offences as the

section authorizing the same, in force at the time of the offences, was declared unconstitutional and recent amendments reinvigorating that

section do not apply to Ms. Donovan.