R v Hyatt, 2023 ABKB 585

Court of King’s Bench of Alberta Citation: R v Hyatt, 2023 ABKB 585 Date: 20231018 Docket: 190677146Q1 Registry: Edmonton Between: His Majesty the King Crown - and - Chantel Marie Hyatt Accused _______________________________________________________ Reasons for Sentencing of the Honourable Justice Eric F. Macklin _______________________________________________________ I. Introduction [ 1 ] On October 25, 2021, Chantel Hyatt pled guilty to one count of being in possession of methamphetamine for the purpose of trafficking. Her sentencing hearing began on March 21, 2022.

It concludes today. [ 2 ] At the beginning of the sentencing hearing, counsel jointly submitted that a sentence of imprisonment of 2 years less one day was a fit and proper sentence but the Crown submitted that the sentence should be a custodial sentence while the defence argued that the sentence should be served in the community. Considerable effort was then expended by counsel, at the request of the Court, to seek and obtain further information relevant to this Court’s consideration of the appropriate sentence. After concerted effort, numerous court

appearances and consideration of all available information, counsel have now jointly submitted that a CSO would be appropriate. [ 3 ] It is for the Court to now consider whether Chantel Hyatt is deserving of a sentence of less than 2 years and, if so, whether she should be allowed to serve that sentence in the community subject to conditions. II.

Background Facts [ 4 ] On June 29, 2017, the Edmonton Police Service executed a search warrant at a residence occupied by Chantel Hyatt, one other adult and their young child. [ 5 ] Among the items found and seized were: 24.5 g of methamphetamine valued between $1,470 and $6,125; a scoresheet; six functioning digital scales; drug use paraphernalia; 6 g of fentanyl; .2 g combined fentanyl and methamphetamine; 33.3 g of GHB; and 1.8 g of marijuana. [ 6 ] During surveillance, 20 different individuals and 10 different vehicles were identified going to and from the residence. [ 7 ] A search of Ms.

Hyatt’s cell phone disclosed many stored text messages relating to the sale and purchase of illegal drugs by some of the individuals identified. [ 8 ] These facts were admitted by Ms. Hyatt in a comprehensive Agreed Statement of Facts. III. Sentencing in Drug Cases [ 9 ] The purpose and principles of sentencing are set out in ss 718 , 718.1 and 718.2 of the Criminal Code of Canada . The fundamental purpose of sentencing is to have respect for the law and the maintenance of a just, peaceful, and safe society.

When imposing sanctions, the Court should strive to achieve the objectives therein set out, with particular emphasis in cases such as this on denunciation, deterrence and rehabilitation. [ 10 ] The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Individualization is central to the proportionality assessment. It recognizes that each offence is committed in unique circumstances by individuals with unique profiles.

As such, the determination of a just and appropriate sentence is a highly individualized exercise: R v Lacasse , 2015 SCC 64 para 53 , 58. [ 11 ] The Controlled Drugs and Substances Act ( CDSA ) provides in s 10(1) that the fundamental purpose of any sentence for an offence under

Part I 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 ] Methamphetamine is a

Schedule I drug and s 5(3) specifies a maximum sentence of life imprisonment for the offence of being in possession of it for the purpose of trafficking. An offender who fits within one of a number of enumerated categories is subject to a minimum punishment of imprisonment for one or two years. Ms. Hyatt does not fall into any of those categories. [ 13 ] While the Alberta Court of Appeal has directed a 3 year sentence for trafficking in methamphetamine as an appropriate starting point, it has also held that 12 months may be a fit sentence for an offender in some circumstances, particularly where there may be applicable Gladue factors: R v L’Hirondelle , 2018 ABCA 33 . [ 14 ]

Section 742.1 of the Criminal Code gives a sentencing court discretion to permit offenders who meet certain criteria to serve their sentences in the community, rather than in jail, subject to certain compulsory conditions and additional discretionary ones.

A conditional sentence order is only available when the Court is satisfied that: service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing; the court would have otherwise imposed a sentence of imprisonment of less than two years; and the offender was not convicted of one of those offences identified in s 742.1(b)-(f). [ 15 ] Parliament’s principal objectives in enacting this legislation were to reduce sentences of imprisonment and to expand the use of restorative justice principles in sentencing.

Section 718.2(

e) and the conditional sentencing regime in s 742.1 were aimed at achieving these goals. In 2012, Parliament amended s 742.1 by adding s 742.1(

c) making conditional sentences unavailable for an offence for which the maximum term of imprisonment is 14 years or life. The Supreme Court of Canada held this provision to be constitutional: R v Sharma , 2022 SCC 39 . [ 16 ] However, in 2022, Parliament again amended s 742.1 and removed the prohibition of conditional sentence orders where the maximum term of imprisonment is 14 years or life, except for certain specific offences, none of which apply in this case. As a consequence, a conditional sentence order is available to Ms.

Hyatt if the other mandatory criteria are satisfied, and the principles and objectives of sentencing set out in the Criminal Code and the CDSA are met. IV. Chantel Hyatt [ 17 ] A Presentence Report and a Gladue Report have been entered as exhibits. [ 18 ] Ms. Hyatt was born on April 16, 1983. From the age of five, she and her younger brother were raised by their paternal

grandmother. Her biological parents had divorced and her mother suffered from drug addictions. She has two children: a son born in 2003 and a daughter born in 2015. [ 19 ] Ms. Hyatt has a criminal record which includes a number of unrelated offences but, notably, also includes four convictions for drug trafficking, the last of which was in 2007. There are no convictions on her record between then and her conviction in this case. [ 20 ] The father of Ms. Hyatt’s son had gang affiliations and their relationship was characterized by his alcohol addiction and abuse of her.

Her son was apprehended by Children’s Services and placed in foster care. Permanent guardianship was then awarded to Ms. Hyatt’s paternal grandmother, with whom he continues to reside. [ 21 ] Ms. Hyatt’s relationship with the father of her daughter dissolved in 2021 and also involved emotional and verbal abuse. Ms. Hyatt shares custody of her daughter with the father and the daughter resides with her. [ 22 ] Ms. Hyatt stopped attending school in grade 8 having been a victim of bullying and suffering from a lack of assistance with schoolwork.

While in custody following a 2007 conviction, she upgraded her academic standing, completed several courses, and earned certificates of completion. She also completed a three-month Medical Office Assistant Program in 2012. [ 23 ] Chantel Hyatt has had various short-term jobs at a vehicle auction, in oilfield camps as a cook and as a receptionist at a Diagnostic Centre following the completion of her Medical Office Assistant Program. At present, she is receiving income support benefits. [ 24 ] Ms. Hyatt continues to struggle with the impact of her early upbringing.

She was sexually abused as a teenager and was faced with a non-believing mother when she reported it. The incident was never reported to the authorities. [ 25 ] Chantel Hyatt has been diagnosed with Bipolar Disorder, Attention Deficit Hyperactivity Disorder and Post Traumatic Stress Disorder. [ 26 ] Ms. Hyatt has a history of substance abuse and addiction. She began experimenting with marijuana at the age of 15. She became addicted to cocaine when she was 18. She began using methamphetamine to end her cocaine use.

Her use of methamphetamine stopped following her incarceration in 2007 and she abstained from all illegal drugs until early 2017 when she was offered heroin by a coworker. She accepted it in an attempt to deal with the death of a close relative. She became addicted again which precipitated her involvement in the offences for which she is now being sentenced. [ 27 ] Ms. Hyatt indicates that she has been abstaining from all illegal drugs for about three years. She entered an Opiate Dependency Program in 2017 where she was prescribed methadone. She was switched to Suboxone which she continues to receive.

She continued to access addictions counselling in 2018 and 2019. [ 28 ] Ms. Hyatt recognizes the need to “do better” for the sake of her young daughter. She wants her to have a better life. Ms. Hyatt speaks of the need to enter a residential treatment facility where she can continue to work on recovery from substance abuse. She is concerned, however, about the care of her daughter while she is in treatment. [ 29 ] The Gladue Report highlights those unique systemic or background factors relating to Ms. Hyatt’s Indigenous roots which bear upon her moral culpability and blameworthiness for the offence.

Her maternal grandmother attended a Residential School as did many other members of her maternal family. They continue to struggle with substance abuse and criminal activity. Ms. Hyatt’s mother, in particular, has struggled greatly with substance abuse and, on one occasion, she recalls having to “tie off” her mother’s arm in order for her mother to inject drugs. [ 30 ] Ms. Hyatt’s parents separated when she was a child. On the pretense of simply dropping her and her brother off for a visit, they left her at her paternal grandfather’s home to reside. Ms.

Hyatt suffered from strong feelings of abandonment by both parents, and particularly by her father who began and raised a new family while refusing to include her as part of it. Ms. Hyatt recalls her mother kidnapping her from school on one occasion when she was young. When her mother was arrested for an unrelated offence, Ms. Hyatt was left alone without anyone knowing of her whereabouts. [ 31 ] While Ms. Hyatt has struggled with substance abuse, she has gone through successful periods of abstinence.

As indicated, she suffered a relapse in 2017 when she was introduced to heroin to cope with the death of her grandmother. It was shortly after this relapse that Ms. Hyatt committed the subject offence. [ 32 ] Chantel Hyatt has been diagnosed with a long history of borderline personality/dependent traits with comorbid ADHD. She exhibits symptoms of a major depressive disorder and anxiety. [ 33 ] There can be no doubt that Ms.

Hyatt’s Indigeneity has had significant impact on her susceptibility to those unique systemic and background factors that have brought her and many in the Indigenous community before the courts. She has struggled in all aspects of her life and continues to do so. V. Future Treatment and Care [ 34 ] Ms. Hyatt expresses great concern for the care, health and education of her seven-year-old daughter. She recognizes that the only way in which she can address that concern is to address her own care, health and education. [ 35 ] Ms.

Hyatt is prepared to attend and actively participate in any recommended programs of assessment, counselling and treatment, particularly as they relate to substance abuse and psychiatric or psychological help. She wishes to attend a community drug and alcohol treatment program such as an outpatient counselling service for adults dealing with addictions and mental health concerns. She does express concern about entering a residential treatment facility unless accommodation for her daughter can also be provided.

[ 36 ] Ms. Hyatt also wishes to participate in a Reconciliation/Healing Circle to which her family can be invited. Programs and services are offered by Native Counselling Services of Alberta to promote the resilience of Indigenous individuals and their families and to reclaim their interconnectedness, reconciliation and self-determination. She believes a healing Circle would be beneficial in helping her to move through some of her feelings of abandonment with her father and to promote a healthy future within her family for both herself and her daughter. [ 37 ] Ms.

Hyatt would also like to attend the Indigenous Wellness Clinic, a culturally informed and safe environment for patients to receive care and work towards the best possible health within a multidisciplinary team. Specifically, she wishes to address her physical and mental health as well as her addiction issues. [ 38 ] Ms. Hyatt is currently enrolled as a full-time student at Sundance College and is in good standing. She is expected to graduate on June 30, 2023 with an Addictions & Community Health Professional (ACHP) diploma.

She has successfully completed a parenting course and has regularly attended 12 step meetings to address her addiction issues. She is clearly exhibiting the requisite desire to address and quash her demons, become a contributing and respected member of both her community and the community at large and continue in her role as a caring and nurturing mother to her daughter. VI. The Appropriate Sentence [ 39 ] As stated, counsel had agreed that the appropriate sentence to impose upon Ms. Hyatt is a period of incarceration of two years less one day.

The initial disagreement between counsel centered around whether the period of incarceration should be served in jail or in the community subject to court-imposed conditions. [ 40 ] At the direction of the Court, additional independent information was sought and obtained regarding Ms. Hyatt’s present use of drugs and steps she has taken to address her addiction and other health issues. [ 41 ] Counsel for the Crown now jointly submits with counsel for Ms. Hyatt that it would be appropriate for Ms.

Hyatt to serve the sentence in the community, subject to the compulsory conditions set out in s 742.3 of the Criminal Code and specified additional conditions. [ 42 ] It is first incumbent upon me to consider whether a sentence of two years less one day is an appropriate sentence to impose upon Chantel Hyatt for committing the offence of being in possession of methamphetamine for the purpose of trafficking. [ 43 ] I am satisfied on considering all of the circumstances as outlined above, and the recognition of the applicable Gladue factors, that a period of incarceration of two years less one day is the appropriate sentence to impose upon Chantel Hyatt.

I must now consider whether it is appropriate for her to serve the sentence in the community. [ 44 ] It must first be recognized that a conditional sentence is imprisonment, though without actual incarceration. The Supreme Court of Canada has emphasized that no offences are excluded from conditional sentence consideration except those with minimum terms of imprisonment, nor is there a presumption in favour of or against a conditional sentence for specific offences: R v Proulx , 2000 SCC 5 para 127 . There is no minimum sentence prescribed for the offence committed by Ms.

Hyatt. [ 45 ] I am satisfied that the safety of the community would not be endangered by Ms. Hyatt serving her sentence in the community. I am further satisfied that the imposition of a conditional sentence with appropriate conditions will have a salutary denunciatory effect and will not detract from the deterrent effect of the sentence. Importantly, ordering Ms. Hyatt to serve her sentence in the community will satisfy s 718.2(

d) as it is a less restrictive sanction than actual incarceration and it will further satisfy s 718.2(

e) as it is reasonable in the circumstances recognizing Chantel Hyatt’s Indigenous roots. [ 46 ] Finally, and not insignificantly, a conditional sentence will better achieve the restorative objective of rehabilitation, a process that Ms. Hyatt has begun, and which would be thwarted, with possible irreparable regression, if it were to be interrupted by time in jail. That is, a custodial sentence would not advance the rehabilitation objective in s 718(d), the remedial purpose of s 718.2(

e) of the Criminal Code or the rehabilitation and treatment objectives set out in s 10 of the CDSA . [ 47 ] While I have borne in mind Ms. Hyatt’s Indigenous roots and the applicability of Gladue factors, I believe that in sentencing, the restorative objective of rehabilitation mandated in s 718 of the Criminal Code and s 10 of the CDSA should be given greater consideration and emphasis in all cases of individuals whose otherwise antisocial actions have resulted directly from their addictions.

This is of particular importance when appropriate treatment and counselling has not been available for the offender. [ 48 ] This Court sees many individuals in situations similar to that of Chantel Hyatt. They are addicts. They have never been fully or properly treated and counselled for their addictions. They have little or no income. They have few, if any, employment opportunities. They must support themselves and, in many cases, others. They have nowhere to go and no one to turn to for assistance.

They are left to fend for themselves, and they turn to the only thing that they can do in order to feed both their addictions and themselves. They sell drugs. Most of them need help, not jail. [ 49 ] Ms. Hyatt is not unlike many of those individuals. She is an addict. She has never been properly or fully treated or counseled for her addictions. She has little or no income. She must try to support herself and her daughter. She has nowhere to go and no one to turn to for assistance. She has been left to fend for herself and her young daughter. She sold drugs to survive.

She needs help, not jail. [ 50 ] I agree with counsel that the appropriate sentence to impose upon Chantel Hyatt for committing the offence of possession of methamphetamine for the purpose of trafficking is a period of imprisonment of two years less one day. That sentence is to be served by Ms. Hyatt in the community subject to the compulsory conditions set out in s 742.3 and those other conditions set out in the Conditional Sentence Order entered as a sentencing exhibit.

[ 51 ] This sentence reflects the gravity of the offence and the degree of responsibility of Ms. Hyatt. It is both fair and just. Accordingly, it will not bring the administration of justice into disrepute or otherwise be contrary to the public interest. [ 52 ] Finally, I wish to express my gratitude to counsel. Counsel for the Crown and Counsel for Chantel Hyatt patiently worked hard to seek, obtain and put forward the information necessary for this Court to consider all sentencing possibilities.

They acted in the finest traditions of the profession, and their respective roles within it, by working together and with the Court to achieve a fair and just result. Heard on October 25, 2021, March 21, 2022, January 12, 2023 and October 18, 2023. Dated at the City of Edmonton, Alberta this 18th day of October, 2023. Eric F. Macklin J.C.K.B.A. Appearances: Darcie Charlton for the Crown Anna Konye for the Accused