2023 NBPC 12, 2023 NBPC 12

CANADA PROVINCE OF NEW BRUNSWICK PROVINCIAL COURT Sentencing Hearing Date: February 28 th , 2023 Sentencing Decision Date: June 14 th , 2023 Docket No.: 157349 Neutral Citation: 2023NBPC12 HIS MAJESTY THE KING - and - PAMELA GRACE VICAIRE Decision of the Honourable Judge Scott A. Brittain Provincial Court of New Brunswick Note: Non-substantive editorial/grammatical changes were made to this decision following it being delivered orally on June 14 th , 2023. APPEARANCES: Patrice Desch ênes , on behalf of His Majesty The King Mikael Bernard, on behalf of Ms. Vicaire DELIVERED ORALLY INTRODUCTION 1 .

On September 28 th , 2022, Pamela Vicaire (“Ms. Vicaire”) entered guilty pleas on the following two counts set out in an Information sworn to on July 13 th , 2020: 1. Pamela Grace VICAIRE, on or about the 17 th day of January, A.D. 2020, at or near Eel Ground, in the County of Northumberland and Province of New Brunswick, did unlawfully have in her possession, for the purpose of trafficking, Methamphetamine, a substance included in

Schedule I of the Controlled Drugs and Substances Act , S.C. 1996, c. 19 and did thereby commit an indictable offence, contrary to Section 5(2) of the said Act;

2. Pamela Grace VICAIRE, on or about the 17th day of January, A.D. 2020, at or near Eel Ground, in the County of Northumberland andProvince of New Brunswick, did unlawfully have in her possession, for the purpose of trafficking, Cocaine, a substance included inSchedule I of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 and did thereby commit an indictable offence, contrary toSection 5(2) of the said Act 2. Ms. Vicaire is Mi’kmaq. She is a member of Natoaganeg (also referred to as Eel Ground First Nation), which is located less than 10km from Miramichi, New Brunswick. 3.

The endorsements reflect that Ms. Vicaire elected a judge alone trial before the Court of King’s Bench of New Brunswick on August 31st, 2020 and, further, elected to have a preliminary inquiry. On February 12th, 2021, being the date set for the preliminaryinquiry, Ms. Vicaire waived it and consented to committal. This matter subsequently resided with the Court of King’s Bench of New Brunswick for the next 18 months. On September 28th, 2022, a Notice of Re-Election was filed by Ms. Vicaire and her pleas of guiltywere entered and accepted before me.

A pre-sentence report with a Gladue component was ordered and her sentencing hearing was scheduled for January 13th, 2023. 4. A later than usual sentencing hearing date was set at the joint request of counsel to permit two related developments to unfold: (1)the Supreme Court of Canada had heard but not yet rendered its decision in R. v. Sharma, 2022 SCC 39 , and

(2) Parliament hadgiven first, second and third reading to Bill C-5 -

An Act to amend the Criminal Code and the Controlled Drugs and Substances Act;however, Bill C-5 awaited Royal Assent. 5. Conditional sentences as a sentencing option were first introduced by Parliament in 1996. In 2000, the Supreme Court of Canadaset out the principles that are to guide sentencing courts in assessing whether this type of sentence is appropriate in R. v. Proulx, [2000] 1S.C.R. 525. 6. It is important to consider the reason for the introduction of this type of sentence.

Clayton Ruby in the eighth edition of his leadingtext, entitled “Sentencing”, observes at paragraph 15.2: …in Proulx the Supreme Court recognized that, through the enactment of the conditional sentence provisions, “Parliament has sent aclear message to all Canadian judges that too many people are being sent to prison” and that this problem must be remedied.

In sendingthis message to the courts, Parliament was influenced by many reports in regard to over-incarceration, and mandated that expanded usebe made of restorative principles in sentencing as a result of the general failure of incarceration to rehabilitate offenders and reintegratethem into society. 7. Amendments made to the Criminal Code of Canada (the “Criminal Code”) in 2012 foreclosed the availability of a conditionalsentence for the type of offence that brings Ms. Vicaire before this Court.

In particular, these amendments rendered conditional sentencesunavailable for any offence with a maximum term of imprisonment of 14 years or life. Both offences in this case carry a maximum lifeterm. The constitutionality of these provisions was challenged in R. v. Sharma; however, a majority of the Supreme Court of Canada found them to be Charter-compliant by decision dated November 4th, 2022. Within two weeks of the Supreme Court of Canada’s decision in R. v. Sharma, on November 17th, 2022, Bill C-5 received Royal Assent. Notably, the enactment of

An Act to amend theCriminal Code and the Controlled Drugs and Substances Act, S.C. 2022, c. 15 restored the availability of a conditional sentence as asentencing option in Ms. Vicaire’s case. 8. On January 12th, 2023, Ms. Vicaire’s sentencing hearing was adjourned at the joint request of counsel. On February 28th, 2023, thesentencing hearing proceeded and counsel requested an opportunity to exchange post-hearing briefs, which have been helpful.

Thesepost-hearing briefs focused discretely on what constitutes “exceptional circumstances”, which I will later delve into more deeply, as wellas what I will refer to as the post​-R. v. Sharma/post-Bill C-5 sentencing context for possession for the purpose of trafficking. 9. I do not have before me a joint recommendation on sentence. The Crown recommends a global consecutive sentence of two yearsand Ms.

Vicaire’s solicitor recommends a sentence of two years less a day and, further, that his client be permitted to serve such sentencein the community pursuant to a conditional sentence order followed by two years of probation. THE ISSUE 10. It is my responsibility to determine and impose a fit and appropriate sentence for Ms. Vicaire, having regard to the facts, theapplicable law, her aggravating and mitigating factors, her background as an offender and Gladue considerations. THE FACTS 11. I adopt the facts provided by the Crown and agreed to by Ms.

Vicaire without qualification at the time her guilty pleas wereaccepted. These facts were not particularly extensive. I offer a brief overview for context. 12. On January 17th, 2020, following a police investigation, a search warrant was issued pursuant to the Controlled Drugs andSubstances Act (the “CDSA”) and executed at Ms. Vicaire’s residence in Natoaganeg. 13. Several items were seized, including 24.91 grams of Methamphetamine and two grams of Cocaine, which are both

Schedule Isubstances under the CDSA and are considered “hard drugs”. Drug-related paraphernalia was also seized, including scales, dime bags anda calculator. Moreover, $560.00 was found in the sort of cash drawer one would see inside a cash register. Photographs of the seizeditems were submitted to this Court by the Crown and marked as an exhibit on consent. 14. After her arrest, Ms. Vicaire provided a warned statement to police. She admitted she was in possession of both Methamphetamine

and Cocaine for the purpose of trafficking. 15. In R. v. Oates, , the Newfoundland and Labrador Court of Appeal established a list of relevant factors to assist inidentifying the gravity of possession for the purpose of trafficking in illicit drugs. I have identified each of these factors below and haveannotated them accordingly with reference to the facts of the case: 1. Types of drugs involved: Ms. Vicaire was found in possession of two hard drugs for the purpose of trafficking - Methamphetamineand Cocaine; 2.

Quantities in question: the quantity of Methamphetamine was not insignificant; however, the quantity of Cocaine was on the lowerend; 3. The degree of sophistication of the enterprise: the facts do not suggest an overly sophisticated enterprise given what was seized butthere was a clear and unmistakable element of commerciality to it; 4. Potential for profit: the facts do not meaningfully speak to this; 5.

Length of time the enterprise existed prior to arrest: the facts do not meaningfully speak to this other than indicating this seizure did notoccur by happenstance but, rather, was the outcome of a police investigation followed by the issuance and execution of a search warrant,and 6. The accused’s role or level of involvement in the enterprise: the facts do not meaningfully speak to this. MS.VICAIRE’S BACKGROUND AND GLADUE CONSIDERATIONS 16. Ms. Vicaire is 41 years-old and, as earlier noted, she is Indigenous.

Her Prior Defendant History Report, which was marked as anexhibit on consent, notes one past Criminal Code conviction for

summary assault for which she received a suspended sentence and 12months of probation in 2010. Ms. Vicaire has never been convicted of any drug-related offences. 17. Ms. Vicaire is engaged in cultural activities in Natoaganeg, which include participation in Powwows and other events. She has alsodeveloped a self-taught interest in Indigenous art. 18. On becoming pregnant at the age of 16, Ms. Vicaire left school in grade 11 and never pursued further education. She aspires tocomplete her GED.

She has three brothers and a step brother ranging in age from 26 to 44 and has a close relationship with at least one ofher siblings. 19. Since the age of 18, Ms. Vicaire has been seasonally employed on a consistent basis by the Natoaganeg Band Council where sheworks in the areas of elder care and landscaping. Her income while working is $1,150.00 bi-weekly. She reports “living pay cheque topay cheque”. When laid off, Ms. Vicaire collects $570.00 bi-weekly in Employment Insurance benefits. Ms.

Vicaire also receives yearlyfinancial compensation of an unknown amount in the form of a share of royalties from resources owned by Natoaganeg. 20. Ms. Vicaire does not speak Mi’kmaq (her parents had some limited facility) and attributes this to having attended school fromgrades 7 to 11 outside Natoaganeg, which removed her from her cultural environment and related supports while also exposing her toracism. Her maternal grandparents and several aunts and uncles attended Residential Schools. This and other legacies of colonialismhave had a negative impact on Ms. Vicaire, her family and her community. 21. Ms.

Vicaire’s background has indeed been challenging on several levels. Her parents separated when she was two years-old and shedescribes being shuffled back and forth between her mother and father during her childhood. 22. At age four, Ms. Vicaire’s family home in Natoaganeg was destroyed by fire. This event prompted a move to Moncton, NewBrunswick where her mother pursued studies at the New Brunswick Community College. At this time, at least one of her brothers wasplaced in foster care. 23. After a new family home was built to replace the one destroyed by fire, Ms. Vicaire and her mother returned to Natoaganeg.

Therewas instability in Ms. Vicaire’s home life. Her mother, now deceased, was an alcoholic and was in and out of multiple relationships. Shelived what Ms. Vicaire describes as a “party lifestyle” and the family home was a regular “party spot” where Ms. Vicaire routinelywitnessed physical violence between members of the community. 24. At age nine, Ms. Vicaire was sexually abused by her mother’s boyfriend. She told her mother, who immediately ended therelationship and reported the matter to her social worker. At age 10, Ms. Vicaire was again sexually abused, this time by an uncle.

Shenever reported these latter incidents because, in her words, she was “young and scared”. 25. Ms. Vicaire’s mother is described as having been strict and violent towards her, especially when drinking. At age 15, Ms. Vicairewas severely beaten by her mother for staying out past her curfew. Police were called to respond and took her to the hospital; however,her mother was never criminally charged. These events negatively impacted her already strained relationship with her mother and led toher moving in with her father. She reports having experienced no forms of abuse while under her father’s care. 26.

As earlier noted, Ms. Vicaire became pregnant at age 16. She had moved in with a new partner by the time her daughter, Taylor,was born. He raised Taylor as his own but the residence in which they lived was “falling apart, molding and unsafe”. They left thatresidence and moved to Miramichi, New Brunswick for a couple of years before returning to Natoaganeg to take possession of a homethat was newly built for them. 27. She and this partner had a daughter, MacKenzie, together. They parted ways when MacKenzie was five years old. She reports that

his alcoholism and volatility were factors in the dissolution of their relationship; however, they remained friends until he died of a heartattack two years ago. 28. In 2014, Ms. Vicaire gave birth to a third daughter, Brooklyn. Her relationship with Brooklyn’s father ended in 2018 due to hisalcoholism and ongoing fighting between them. Brooklyn lives in Listiguj, Quebec with her father; however, Ms. Vicaire travels thereevery second weekend and on holidays to see her. As for her oldest two daughters, both have graduated from high school and liveindependently. Ms.

Vicaire reports having been in a stable relationship for the last three years. 29. Ms. Vicaire reports no physical health issues. As for her mental health, she has never been admitted to a mental health facility norhas she been assessed for or otherwise diagnosed with any mental health-related conditions. Understandably, she reports that her mentalhealth has been adversely affected by the abuse she experienced as a child. She has turned to drugs at various intervals in her life to self-medicate and dull the pain of unresolved trauma. 30. Ms.

Vicaire first experimented with alcohol at age 14 but explains she rarely drinks now and that alcohol (at least her consumptionof it) has never had an adverse effect on her. The opposite can be said for drugs. Ms. Vicaire began experimenting with marijuana whenshe was 14 and used that drug daily until she was 20. Over the next decade, she only used marijuana occasionally. At age 22, she firstexperimented with Percocet. She quickly became a regular user and graduated to OxyContin, which she used daily until she was 30.

Ms.Vicaire explains that, at age 30, she arrived at a point where she “could no longer handle the drug use” and sought treatment at theMiramichi Addictions Recovery Clinic. She enrolled in a Methadone Treatment Program and successfully completed same after oneyear. 31. At age 37, after seven-years of being clean, Ms. Vicaire experimented for the first time with Methamphetamine, Speed and Cocaine.Consistent with the tragic pattern that this Court so frequently sees, this experimentation rapidly spiraled into an addiction punctuated bydaily use. This return to drug use, Ms.

Vicaire reports, was brought on by unresolved trauma and the loneliness triggered by her two adultdaughters moving out of the family home. 32. About four years ago, a family friend moved in with Ms. Vicaire for a few months and “showed her the ropes” selling illicit drugs.Her pre-sentence report notes it was an “easy” way to bring in extra money at a time when she was short of funds. These additionalresources were used, at least in part, to service her drug addiction. 33. Ms.

Vicaire’s pre-sentence report offers somewhat limited information regarding her recovery and sobriety, stating that she is“working towards it” and she “feels she is doing well”. THE GLADUE CONTEXT IN NATAOAGANEG AND THE LAW APPLICABLE TO SENTENCING INDIGENOUSOFFENDERS 34. The cascading adverse impact of colonialism on Canada’s Indigenous peoples is systemic and far-reaching, as evidenced by suchfactors as lower educational attainment, lower income, higher unemployment, higher rates of substance abuse, higher rates of suicide andhigher levels of incarceration. 35.

The Supreme Court of Canada has taken judicial notice of these factors and has mandated sentencing courts to consider same infashioning fit and appropriate sentences for Indigenous offenders. Parliament has done the same through the enactment of subsection718.2(

e) of the Criminal Code. 36. Residential Schools worked the outcome of significantly eroding the sacred family cohesion of Indigenous peoples. They were acore component of a devastating strategy designed to achieve assimilation by targeting the most vulnerable segment of the Indigenouspopulation: children. 37. Natoaganeg is a small community consisting of 1,072 members, 492 of whom live off reserve. The population is growing veryrapidly and most demographic factors depart markedly from the overall New Brunswick experience.

For example, 24% of members areunder the age of 15 (as compared to only 15% in New Brunswick more generally). This, too, is reflected in the average age of members,which is 33.2 years-old in Natoaganeg (as compared to 43.6 years-old in New Brunswick more generally). Unemployment amongstmembers of Natoaganeg is high at 23.7% (as compared to 11.2% in New Brunswick more generally). Disparities of a similar magnitudealso prevail respecting nearly every measured educational benchmark. 38.

The pre-sentence report points out that the population of Natoaganeg is young and the community lacks entertainment outlets andrecreational amenities. This, in addition to the systemic factors already canvassed, increases exposure to risky activities involving suchthings as alcohol and/or illicit drugs. Studies consistently show that Indigenous peoples are an especially vulnerable population when itcomes to alcohol and/or illicit drugs. 39. Recently, in R. v. Dedam, 2023 NBKB 24 , Ferguson, J. provided a comprehensive treatment of the principles applicable tothe sentencing of Indigenous offenders.

Beginning at paragraph 50, he writes: [50] To begin, in sentencing an Indigenous offender a trial judge must make two separate inquiries. First, the judge must ask whethersystemic and background factors have affected the degree of responsibility of the offender for the offence committed. Second, whetherdifferent or alternate sanctions are appropriate to fulfill the principles. R. v. Ipeelee, 2013 SCC 13.

In this instance the second inquiry isunnecessary since both sides agree a sentence of more than two years is appropriate. [51] Because this sentencing involves an Indigenous woman, perhaps there is no more appropriate place to begin the substantiveanalysis portion of these reasons than the iconic judgement of the Supreme Court relating to the sentencing of Indigenous offenders inIpeelee. In that judgment, Lebel J. for the Court wrote at paragraphs 37-38:

The fundamental principle of sentencing (i.e., proportionality) is intimately tied to the fundamental purpose of sentencing - themaintenance of a just, peaceful and safe society through the imposition of just sanctions. Whatever weight a judge may wish to accord tothe various objectives and other principles listed in the Code, the resulting sentence must respect the fundamental principle ofproportionality. Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of theoffence. This is closely tied to the objective of denunciation.

It promotes justice for victims and ensures public confidence in the justicesystem. As Wilson J. expressed in her concurring judgment in Re B.C. Motor Vehicle Act, (SCC), [1985] 2 S.C.R. 486, atp. 533: It is basic to any theory of punishment that the sentence imposed bear some relationship to the offence; it must be a "fit" sentenceproportionate to the seriousness of the offence. Only if this is so can the public be satisfied that the offender "deserved" the punishmenthe received and feel a confidence in the fairness and rationality of the system.

Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness ofthe offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadiancriminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense ofthe other. Despite the constraints imposed by the principle of proportionality, trial judges enjoy a broad discretion in the sentencing process.

Thedetermination of a fit sentence is, subject to any specific statutory rules that have survived Charter scrutiny, a highly individualizedprocess. Sentencing judges must have sufficient manoeuvrability to tailor sentences to the circumstances of the particular offence and theparticular offender. Appellate courts have recognized the scope of this discretion and granted considerable deference to a judge's choiceof sentence. As Lamer C.J. stated in R. v.

M. (C.A.), (SCC), [1996] 1 S.C.R. 500, at para. 90: Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court ofappeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. Parliament explicitly vestedsentencing judges with a discretion to determine the appropriate degree and kind of punishment under the Criminal Code. [52] Previously, in R. v.

Gladue, (SCC), [1999] 1 S.C.R. 688, another iconic judgment from the Supreme Court in thisarea of sentencing law, the Court wrote at paragraphs 33 and 79: In our view, s. 718.2(

e) is more than simply a re-affirmation of existing sentencing principles. The remedial component of the provisionconsists not only in the fact that it codifies a principle of sentencing, but, far more importantly, in its direction to sentencing judges toundertake the process of sentencing aboriginal offenders differently, in order to endeavour to achieve a truly fit and proper sentence inthe particular case. It should be said that the words of s. 718.2(

e) do not alter the fundamental duty of the sentencing judge to impose asentence that is fit for the offence and the offender. For example, as we will discuss below, it will generally be the case as a practicalmatter that particularly violent and serious offences will result in imprisonment for aboriginal offenders as often as for non-aboriginaloffenders. What s. 718.2(

e) does alter is the method of analysis which each sentencing judge must use in determining the nature of a fitsentence for an aboriginal offender. In our view, the scheme of

Part XXIII of the Criminal Code, the context underlying the enactment ofs. 718.2(e), and the legislative history of the provision all support an

interpretation of s. 718.2(

e) as having this important remedialpurpose. Yet, even where an offence is considered serious, the length of the term of imprisonment must be considered. In some circumstances thelength of the sentence of an aboriginal offender may be less and in others the same as that of any other offender.

Generally, the moreviolent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing. [53] Further clear direction from the Supreme Court came recently in the judgment in R. v. Sharma, 2022 SCC 39. In 2015, Ms. Sharma,a then 20-year-old Indigenous woman, imported almost two kilograms of cocaine after her partner promised to pay her $20,000 if she didso. She pled guilty to importation. Ms. Sharma had no prior record.

She was a single mother facing eviction and was motivated to importthe drugs by her impending homelessness. A pre-sentence report indicated Sharma's grandmother was a residential school survivor, hermother had been in foster care and Sharma had been sexually assaulted and had dropped out of school due to financial difficulties. Theissue before the Court was whether the provisions of the Code denying an accused charged with importation of drugs the possibility of aconditional sentence was unconstitutional. The Court held that the Criminal Code provisions on this issue were not unconstitutionalsaying that Ms.

Sharma had not demonstrated the provisions created or contributed to a disproportionate impact, such as increasedimprisonment, on Indigenous offenders, relative to non-Indigenous offenders to warrant being struck down. [54] The important portions of the judgment relevant to this sentencing are found at paragraphs 5, 79, 105-106 and 108: In June 2015, Ms. Sharma, a woman of Ojibwa ancestry and a member of the Saugeen First Nation, arrived in Toronto on aninternational flight. Upon inspection, her suitcase was found to contain 1.97 kilograms of cocaine.

She confessed that day to the RCMPthat her partner had promised to pay her $20,000 to bring the suitcase to Canada. At the time, she was two months behind on rent andfacing eviction. Ms. Sharma was 20 years old, with no prior criminal record. It is undisputed that the sentencing judge must take account of the particular circumstances of Indigenous offenders, as that is whatParliament has directed in s. 718.2(e).

How this is to be done may take various forms and the Criminal Code provides judges broaddiscretion to craft a proportionate sentence, given the offender's degree of responsibility, the gravity of the offence and the specificcircumstance of each case (R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 58). For instance, sentencing judges may considerother non-carceral options such as suspended sentences and probation. They may also reduce sentences below the typical range.

As we have explained, in enacting the impugned provisions, Parliament intended to enhance consistency in the conditional sentencingregime by making imprisonment the typical punishment for certain serious offences and categories of offences. Given this purpose, theCourt of Appeal erred in three ways. First, maximum sentence is a suitable proxy for seriousness. Second, the definition of a seriousoffence is a normative assessment in respect of which Parliament must be granted significant leeway.

And finally, the Court of Appealconfused seriousness of an offence with the circumstances of an offender and their moral culpability. We explain each point in turn.

First, this Court has repeatedly accepted that the maximum sentence for an offence is a reflection of, and a proxy for, its seriousness (R.v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500, at paras. 36 and 56; R. v. Friesen, 2020 SCC 9, at paras. 95-96; R. v.Parranto, 2021 SCC 46, at para. 60; R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at para. 60; Chiarelli v. Canada (Minister ofEmployment and Immigration), (SCC), [1992] 1 S.C.R. 711, at p. 734).

In many areas, Parliament has structured policiesusing maximum sentence as the measure for seriousness -- e.g., the availability of absolute and conditional discharges (Criminal Code, s.730(1)); record suspensions (Criminal Records Act, R.S.C. 1985, c. C-47, s. 4(2)(b)); and inadmissibility to Canada in the immigrationcontext (Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 36(1)(a)). In the present case, Parliament's primary aim was toenhance consistency in sentencing. It determined that bright-line rules, drawn by reference to the maximum sentence, are the best way toachieve this goal.

Deference towards Parliament is particularly apt given that the concept of "serious offences" is not subject to precisedefinition. Finally, to the extent the Court of Appeal pointed to Ms. Sharma's circumstances as demonstrative of Parliament's overreach, it collapsedthe concept of seriousness of the offence into the concepts of circumstances of the offender and particulars of the crime. On this point,we endorse the sentencing judge's comments: "[Ms. Sharma] committed a serious offence in importing cocaine; a reality undisturbed byher personal culpability or mitigating factors" (para. 141 (emphasis added)).

The Court of Appeal for Saskatchewan made a similar pointin R. v. Neary, 2017 SKCA 29, [2017] 7 W.W.R. 730: "The gravity and seriousness of the offences are not attenuated by the personalcircumstances of the accused" (para. 39). We accept entirely that the circumstances which led Ms. Sharma to import drugs are tragic andthat her moral culpability was thereby attenuated (which was reflected in a sentence of 18 months rather than the six years initiallyproposed by the Crown). But those facts do not make importation of a Sch.

I substance, particularly in the quantity she carried, any lessserious. (emphasis added) POSITIONS OF THE PARTIES The Crown’s Position 40. In support of its recommendation that a two-year sentence is fit and appropriate for Ms. Vicaire having regard to the applicable lawand all of the circumstances, including Gladue considerations, the Crown emphasizes that the Court of Appeal of New Brunswick, inCormier v. R., 2018 NBCA 38 , set out a general framework to guide sentencing courts in cases of possession for the purpose oftrafficking in hard drugs. 41.

Though the Court of Appeal of New Brunswick declined the invitation of counsel to set a definitive sentencing range for suchcriminality in Cormier v. R., Quigg, J.A. went on to highlight several principles to assist sentencing courts in cases involving hard drugs.These principles are considered in detail at paragraphs 32 through 52, inclusive; however, I note that the three main guiding principlesare as follows: 1. Only “rarely and exceptionally” will individuals “escape a sentence of imprisonment.

This is so because of the emphasis courts mustgive to the sentencing objectives of denunciation and deterrence for these types of crimes on account of the devastating effects thesesubstances have on society in general and on those who fall victim to their nefarious and highly addictive properties in particular” (seeparagraph 32); 2. Particular consideration must be given to the type(

s) of hard drugs, including factors such as how addictive, dangerous and harmfulthey are (see paragraph 33), and 3. “…certain ranges can nevertheless be extrapolated from the jurisprudence through ascertaining broadly comparable cases. In doing so,a sentencing judge can certainly consider ranges established in other provinces and tailor these to the particular circumstances of thisprovince. Obviously, sentencing judges in New Brunswick must also consider sentences imposed in this province” (see paragraph 42). 42. The Crown links the above-noted observations in Cormier v.

R. with the specific guidance the Court of Appeal of New Brunswickearlier gave to sentencing courts when dealing with requests for conditional sentences in cases of possession for the purpose oftrafficking. In R. v. Frost, 2012 NBCA 94 , Quigg, J.A. emphasized the longstanding predominant sentencing principles ofdenunciation and deterrence for the type of criminality under consideration in this case, then went on to observe at paragraph 12 thatonly in “exceptional circumstances” is a conditional sentence appropriate: 12.

A review of recent decisions in our Province reveals there have been cases in which a sentencing judge has decided to impose aconditional sentence, contrary to jurisprudence which indicates such a sentence is inappropriate in circumstances concerning traffickingor possession for the purpose of trafficking, unless there are exceptional circumstances.

This Court has a long history of jurisprudencewhich dictates that, absent exceptional circumstances, when sentencing drug traffickers, courts must give “great weight” to the principleof general deterrence and “lengthy jail sentences are necessary to deter persons from entering this highly lucrative and hard to detectactivity” (see R. v. Madore (1986), (NB CA), 75 N.B.R. (2d) 230, [1986] N.B.J. No. 146 (C.A.) (QL)). In the casebefore us, it is clear the sentencing judge did not believe Mr. Frost was a danger to the community and, as such, was a candidate for aconditional sentence.

In my view, the sentencing judge committed an error in principle by imposing a conditional sentence. (emphasisadded) 43. Continuing at paragraph 20 and speaking of so-called “soft drugs”, which are devastating but less so than hard drugs, Quigg, J.A.observed as follows: 20. Those convicted of possession for the purpose of trafficking or trafficking so called “soft drugs” should, where the quantity of drugs

is significant, where there is evidence of long-term criminal activity, or where there is evidence of significant profit, face incarcerationabsent exceptional circumstances. Sentencing judges should keep in mind the following: • Circumstances which are exceptional enough to forego a sentence of incarceration and impose a conditional sentence will be rare; • They should clearly identify the exceptional circumstances relied upon; and • Low level or single transaction instances involving trafficking of so-called “soft drugs” may, in appropriate cases, constituteexceptional circumstances.

In this case, we are faced with a large scale, long term, for-profit enterprise. It does not in any way involve exceptional circumstances.(emphasis added) I pause to note the focus here was on soft drugs. Even in low level or one-off cases of trafficking in soft drugs, the Court of Appeal ofNew Brunswick has established that the “exceptional circumstances” threshold remains high and will not often be satisfied. 44. Determining precisely what constitutes “exceptional circumstances” is, in some respects, illusory.

The Court of Appeal of NewBrunswick has not defined or otherwise inventoried those factors or circumstances that meet the threshold of exceptionality. This, it hasbeen explained, is a function of design in order to preserve some measure of elasticity (see: R. v. Murdock, 2015 NBCA 38 atparagraph 44). 45. In R. v. Murdock, the Court of Appeal of New Brunswick observed at paragraph 49 that “exceptional circumstances” relate tomitigating factors that tend to lessen guilt or the seeming seriousness of the offence or that have to do with the motive of the accused incommitting the offence (see also: R. v.

Chaulk, 2005 NBCA 86 at paragraph 6). 46. In R. v. Shriver, 2016 NBCA 13 , at paragraph 33, Drapeau, C.J. (as he then was) agreed with the sentencing court that partof the blame for the offence in that case was linked to the offender’s vulnerability, which consisted of urgent demands for financialassistance from her mentally ill son. This factor worked the effect of lessening the offender’s moral blameworthiness, thereby justifying,on its own, a finding of exceptionality. 47. In summarizing its position respecting what constitutes “exceptional circumstances”, the Crown analogizes the circumstances ofMs.

Vicaire to those of the accused in R. v. Sharma and observes that this Court must “reflect and recognize the unfortunate position ofan accused at the time of the offence” and look at “mitigating factors that tend to lessen guilt or the seriousness of the offence”.Essentially, says the Crown, this Court “needs to look at the motive of the offender and all of their vulnerabilities, which can lessen theblameworthiness of the accused, thereby justifying a finding of exceptionality”. Ms. Vicaire’s Position 48. Ms.

Vicaire’s solicitor recommends a sentence of two years less a day and, further, that his client be permitted to serve this sentencein the community pursuant to a conditional sentence order followed by two years of probation. 49. In making this recommendation, he concurs with the Crown’s articulation of the evolution of “exceptional circumstances” in NewBrunswick and goes on to cite the decision of the British Columbia Court of Appeal in R. v. Voong, 2015 BCCA 285 .

In thatcase, a 22-year-old accused was found to meet the requirements of “exceptional circumstances” when he sold 1.04 grams of Cocaine toan undercover police officer for $100.00 as part of a “dial-a-dope” operation. He was arrested shortly afterwards, and found to have$190.00 on his person (which included the $100.00 from the earlier sale). He had no other drugs in his possession, pleaded guilty to theoffence at an early opportunity and had no prior criminal record. He had a steady work history and, at the time of sentencing, wasrunning a legitimate business.

Considerable emphasis was placed by the sentencing court on the fact that this accused had carried outthese actions to help a friend who had found himself in the unenviable position of owing money to his superiors in the drug traffickingoperation. He was found to be “at a very low end of the trafficking business”. 50. Below, I have reproduced paragraph 59 in R. v. Voong, which states: [59] In

summary, absent exceptional circumstances, the sentence for a first offence or with a minimal criminal record, dial-a-dopedrug seller will be in the range of six to eighteen months imprisonment, depending on the aggravating circumstances. Exceptionalcircumstances may include a combination of no criminal record, significant and objectively identifiable steps towards rehabilitation forthe drug addict, gainful employment, remorse and acknowledgement of the harm done to society as a result of the offences, as opposed toharm done to the offender as a result of being caught.

This is a non-exhaustive list, but at the end of the day, there must be circumstancesthat are above and beyond the norm to justify a non-custodial sentence. There must be something that would lead a sentencing judge toconclude that the offender had truly turned his or her life around, and that the protection of the public was subsequently better served bya non-custodial sentence. However, Parliament, while not removing a non-custodial sentence for this type of offence, has concluded thatCSO sentences are not available.

Thus, it will be the rare case where the standard of exceptional circumstances is met. (emphasis added) 51. Ms. Vicaire’s solicitor submits that “exceptional circumstances” are present in his client’s case by reason of the fact that she is anIndigenous offender with a limited, dated and unrelated criminal record who is successfully confronting her addiction. He further notesthat Ms. Vicaire took to selling hard drugs because she needed extra money to, at least in part, service her addiction in an effort to self-medicate and cope with unresolved trauma. 52.

Anchoring his sentencing recommendation in the post​-R. v. Sharma/post-Bill C-5 context, Ms. Vicaire’s solicitor has providedsome recent authorities. 53. In R. v. Davidson, 2023 PESC 12 , MacPherson, J. of the Supreme Court of Prince Edward Island gave a sentence of twoyears less a day to be served in the community in circumstances involving a 32-year-old non-Indigenous offender who was found in

possession of 1,000 Methamphetamine pills for the purpose of trafficking. He was not previously known to police but came undersurveillance owing to his interactions with individuals associated with crime. Upon the execution of a search warrant, the accused wasfound to be in possession of several items that are hallmarks of drug trafficking, such as digital scales, a taser, a knife, ammunition, 100small plastic bags, two notebooks containing names of individuals and numbers, multiple cellphones, and a Magic Bullet blender withwhite powder inside the cup.

Sentencing was imposed after a finding of guilt following trial. The accused represented himselfthroughout. 54. The circumstances underlying the imposition of a conditional sentence order were reviewed by MacPherson, J. at paragraphs 14 to19 of her decision. In short, the accused was severely injured in an accident in 2017 in which he collided with a transport truck whiledriving a motorcycle. He sustained a broken back and a traumatic brain injury. Notwithstanding his age, MacPherson, J. considered himto still be a “youthful offender”.

The challenges of his lengthy recovery led to serious mental health issues, including suicidal ideation.He made significant progress in regular treatments between 2018 and 2020 but access to those resources was abruptly cut off with theonset of the COVID-19 pandemic. This caused the accused to plunge into the use of hard drugs by August of 2020 in order to self-medicate, which quickly became a serious addiction. Without any income or family support, he turned to selling hard drugs. This led tohis arrest the following month.

From the date of his arrest in September of 2020, the accused had abstained from illicit drug use, securedemployment and began living a responsible and lawful lifestyle while rekindling family relationships. He went to work for an elderlycouple who own an off-grid farm, assisting them as a “jack-of-all-trades”. This couple advised they would be unable to operate theirfarm without his help, adding that they “have a difficult time finding dependable farm hands” and “feel blessed to have met him”. 55.

At paragraph 49, MacPherson, J. found as follows: [49] I remind myself that sentencing is a highly individualized exercise. I am imposing a sentence for a particular offence on a particularoffender. The offence is serious, and Mr. Davidson has been found guilty. However, I conclude that rehabilitative prospects for him arestrong. All indications are that he has learned life altering lessons from this experience.

He is on a path to living as a mature, responsible,productive member of society and I have decided that it is fit and proper to allow him to continue on that journey, without the risk ofbeing derailed by spending a lengthy period of time incarcerated in a correctional facility. 56. In R. v. Ramos, 2023 ONSC 1094 , the accused pleaded guilty to possession for the purpose of trafficking Cocaine togetherwith possession of a prohibited firearm. In this case, the hard drugs were found in a car belonging to a Mr. Williams. The accused hadgotten into Mr.

Williams vehicle to find a place to live after getting out of an abusive relationship with an ex-boyfriend who had been her“pimp” in the commercial sex trade, abused her and fed her addiction to drugs. She had stolen some drugs from her ex-boyfriend forpersonal use before leaving him but also attempted to take responsibility for a substantial quantity of other drugs and weapons found inMr. Williams vehicle when it was searched; however, Goldstein, J. found that she was covering for Mr. Williams regarding the otherdrugs and weapons in his vehicle. 57.

In this case, it was found that a sentence of less than two years was fit and appropriate and that it would not be contrary to the publicinterest to allow that sentence to be served in the community. Relevant factors included that the accused was 25 years-old, showedremorse, was suffering at that time from a severe drug addiction and had been forced into the sex trade. Despite all of these challengesand with no family or community support, she had managed to quit drugs and was looking for work and opportunities to upgrade hereducation. 58.

At paragraph 71, Goldstein, J. justified the imposition of a lengthy conditional sentence order based on the following reasoning: 71. …I find that Ms. Ramos has made strides toward rehabilitation. After a difficult upbringing, and a disastrous start to youngadulthood, Ms. Ramos quit hard drugs. That is an exceptionally difficult thing to do. Ms. Ramos was on bail for almost five years.During that time period she re-offended once by trafficking drugs.

Justice Pringle, who was aware of these charges during the sentencingprocess - as I was aware of the charge before Justice Pringle during this sentencing process – sentenced Ms. Ramos to a period ofprobation. There have been no other breaches. Ms. Ramos committed these crimes at a time when she was either in the sex trade, or hadjust left the sex trade, while at the hands of an abusive partner. 59. In R. v. Smith, 2023 NSPC 17 , the accused was found guilty after trial of two firearms-related counts and possession forthe purpose of trafficking Cocaine.

Seized drug paraphernalia included scales that tested positive for cocaine, a 10-gram weight, twospoons containing cocaine residue, a cell phone with coded language, cash, imitation firearms, a taser, dime bags and a larger bag withCocaine residue. Additionally, six grams of Cocaine, and a safe containing $3,000.00 were found in the accused’s residence. 60. The accused was employed, had strong support from the community and a limited and unrelated criminal record.

Moreover, she hadthe responsibility of raising several young children and, importantly, it was believed that it was her husband who had been leading thedrug operation with her role being minimal at best. Taking all of the circumstances into account, she was sentenced to a lengthyconditional sentence. THE GENERAL PRINCIPLES AND PURPOSES OF SENTENCING 61. Sentencing has been described as “one of the hardest tasks confronting a trial judge” (see R. v. Gardiner, (SCC) atparagraph 108).

The Supreme 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” (see R. v. Lacasse, 2015 SCC 64, at paragraph 3). 62. The task is governed by the provisions of the Criminal Code and the CDSA. It involves “the exercise of a broad discretion by thecourts in balancing all the relevant factors in order to meet the objectives being pursued in sentencing” (see R. v. Bosco, 2016 BCCA 55,at paragraph 29).

The purpose and principles of sentencing, as set out in the Criminal Code, allow for “sentence individualization" and

guide the sentence this Court must impose. 63 . In particular,

section 718 of the Criminal Code describes the fundamental purpose of sentencing. It 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 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. 64 . Moreover, subsection 10(1) of the CDSA provides as follows: 10

(1) 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. 65 . What constitutes an appropriate sanction and which of the objectives may be most important is not dictated by strict guidelines or rigid imperatives. Rather, the imposition of a just sentence requires “sufficient manoeuvrability to tailor sentences to the circumstances of the particular offence and the particular offender” ( see R. v.

Ipeelee , 2012 SCC 13 , at paragraph 38 ). Put another way, sentencing is more art than science. 66 . I will address the objectives and principles of sentencing and later highlight those that are predominant in this case given the specific nature of the offences committed by Ms. Vicaire. 67 . The objectives described in

section 718 of the Criminal Code 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” ( see R. v. Lacasse , 2015 SCC 64 , at paragraph 5 ). When denunciation becomes predominant, courts may “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” ( see R. v. Lacasse , 2015 SCC 64, at paragraph 6).

I am required to attribute to the objectives of denunciation and deterrence their proper predominant influence in the crafting of a just sentence. 68 . Deterrence is subdivided into specific and general elements. Specific deterrence is designed to convince the offender not to re- offend. The circumstances of the offender and the prospects for rehabilitation must be considered. The sentencing court must look at the individual, their record and attitude, their motivation and their reformation and rehabilitation. 69 .

General deterrence is aimed at persuading others who may be inclined to commit the same offence from so doing. If this is the aim, the sentencing court must consider the gravity of the offence, the incidence of the crime in the community, the harm caused by it either to the individual or to the community and the public attitude toward it. 70 . The separation of an offender from society is sometimes necessary. The application of the objective must be read in concert with subsection 718.2 (

e) of the Criminal Code , which requires that imprisonment be the sentence of last resort. 71 . The maintenance of a just, peaceful and safe society, as is mandated by

section 718 of the Criminal Code , can often best be achieved by the rehabilitation of offenders. As the Supreme Court of Canada has held, “[r]ehabilitation is one of the fundamental moral values that distinguish Canadian society from the societies of many other nations in the world” ( see R. v. Lacasse , 2015 SCC 64 at paragraph 4 ). 72 . The Criminal Code also holds that the fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. This is a codification of the proportionality principle and is found at

section 718.1 of the Criminal Code . 73 . Other principles are important in crafting an appropriate sentence here. First, subsection 718.2(

b) of the Criminal Code states that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”. This is a codification of the parity principle. 74 . Subsection 718.2 (

a) of the Criminal Code indicates that a “sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender”.

Section 718.2 also dictates that: (

d) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

e) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

f) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. (emphasis added)

75. The “totality principle” strongly militates against the imposition of “unduly long”, “disproportionate” or “crushing” consecutivesentences, as is codified in subsection 718.2(

d) of the Criminal Code. In effect, the “totality principle” safeguards against a “pile on”,which can present in a wide variety of circumstances including those where the offender faces multiple charges committed in rapidsuccession and/or the offender is serving a consecutive sentence or consecutive sentences already. The applicable principles andcorresponding approach to totality were recently re-emphasized by the Court of Appeal of New Brunswick in Brown v.

R., 2022 NBCA33 , where the following was noted at paragraph 23: [23] A framework for the principled application of the totality principle was addressed by this Court in R. v. Peterson, 2017 NBCA29, [2017] N.B.J. No. 152 (QL), per Quigg J.A., which adopted the guidelines set out in R. v. Hutchings, 2012 NLCA 2, [2012] N.J. No.12 (QL), per Green C.J.N.L., as he then was.

These guidelines (Hutchings, at para. 84) may be summarized as follows: 1. identify a sentence for each offence, applying proper sentencing principles; 2. consider whether any of the individual sentences should be made consecutive or concurrent, on the ground that they constitute asingle criminal adventure; 3. if this results in two or more sentences being served consecutively, take one “last look” at the combined sentence to determinewhether it is unduly long or harsh, in the sense that it is disproportionate to the gravity of the offence and the degree of responsibility ofthe offender, having regard to the following factors:

a) the length of the combined sentence in relation to the normal level of sentence for the most serious of the individual offencesinvolved;

b) the number and gravity of the offences involved;

c) the offender’s criminal record;

d) the impact of the combined sentence on the offender’s prospects for rehabilitation, in the sense that it may be harsh or crushing, and

e) such other factors as may be appropriate to consider to ensure that the combined sentence is proportionate to the gravity of theoffences and the offender’s degree of responsibility; 4. if the combined sentence is not unduly long or harsh and is proportionate to the gravity of the offences and the offender’s degree ofresponsibility, the sentence must stand; 5. where the combined sentence is unduly long or harsh, determine the extent to which the combined sentence should be reduced toachieve a proper totality by, first, attempting to adjust one or more of the sentences by making it or them concurrent with othersentences, but if that does not achieve the proper result, in addition, or instead, reduce the length of an individual sentence below what itwould otherwise have been; and 6. in imposing individual sentences adjusted for totality, the judge should be careful to identify:

a) the sentences that are regarded as appropriate for each individual offence applying proper sentencing principles, withoutconsiderations of totality;

b) the degree to which sentences have been made concurrent on the basis that they constitute a single criminal adventure; and

c) the methodology employed to achieve the proper totality that is indicated, identifying which individual sentences are to be madeconcurrent or to be otherwise reduced. 76. These are the general principles that inform the sentencing of Ms. Vicaire. In my application of the law below, I will delve moredeeply into those that figure most prominently in cases of possession for the purpose of trafficking in hard drugs and, of course, alsooutline how Ms. Vicaire’s background, Gladue factors and other considerations have been weighed and considered in fashioning what Ibelieve to be a fit and appropriate sentence.

AGGRAVATING AND MITIGATING FACTORS Aggravating Factors 77. Having regard to the principles of law earlier canvassed, I find the following circumstances to be aggravating in this case: a. Ms. Vicaire was engaged in possession for the purpose of trafficking in more than one hard drug and was doing so in Natoaganeg,which I recognize is her home community but also a community which disproportionately experiences the multi-faceted adverse effectsof hard drug use. b. I note that none of the statutory aggravating factors set out in subsection 10(2) of the CDSA are present in this case. Mitigating Factors 78.

I find the following circumstances to be mitigating in this case:

a. Ms. Vicaire has pleaded guilty to these offences, albeit not at the earliest of stages; b. Ms. Vicaire has a limited, dated and unrelated criminal record; c. Ms. Vicaire has expressed contrition for her criminality; d. Ms. Vicaire was addicted to hard drugs at the time these offences were committed. I accept, at least in part, that her foray into thisillicit sideline was motivated by a need to support her addiction; e. Ms. Vicaire has reportedly made positive strides in her recovery and sobriety since these offences were committed, stating she is“working towards it” and she “feels she is doing well”; f. Ms.

Vicaire is Indigenous. My earlier extensive review of her personal background, as viewed through the lens of her Indigenousidentity, causes me to conclude there are Gladue factors at play that work some mitigating effect and/or speak to her moralblameworthiness. APPLICATION OF THE LAW 79. The Court of Appeal of New Brunswick has consistently emphasized denunciation and deterrence, both specific and general, as thepredominant purposes of sentencing in cases involving possession for the purpose of trafficking in hard drugs.

This is so because of itsseriousness and the devastating and far-reaching toll that it visits upon society. 80. Parliament has also emphasized the seriousness of this offence by establishing that it carries a maximum term of life imprisonment.The Supreme Court of Canada has consistently held that “the maximum sentence for an offence is a reflection of, and a proxy for, itsseriousness”. Moreover, at paragraph 108 of R. v.

Sharma, the Supreme Court of Canada observed that “[t]he gravity and seriousness ofthe offences are not attenuated by the personal circumstances of the accused” in the case of an Indigenous offender. 81. In R. v. Parranto, 2021 SCC 46 , the Supreme Court of Canada recently examined the extensive and multi-faceted effectsof hard drug crime at paragraphs 87 to 92: [87] The dangers posed by trafficking in hard drugs, such as heroin and cocaine, have long been recognized in Canada.

Over the past fewdecades, however, society’s awareness of the true gravity of trafficking in such drugs has grown to the point that we are reminded, on adaily basis, of the death, destruction, and havoc it causes in communities across Canada. [88] Trafficking in such substances causes both direct and indirect harms to society. Directly, the distribution and abuse of hard drugsleads to addiction, debilitating adverse health effects, and, all too frequently, death by overdose.

As Lamer J. (as he then was) astutelyobserved, where addiction and death occur - as they so often do - those who oversee the distribution of these drugs are personally“responsible for the gradual but inexorable degeneration of many of their fellow human beings” (R. v. Smith, (SCC),[1987] 1 S.C.R. 1045, at p. 1053). [89] Trafficking also leads indirectly to a host of other ills, including an increase in all manner of crime, committed by those seeking tofinance their addiction, as well as by organized crime syndicates (Pushpanathan v.

Canada (Minister of Citizenship and Immigration), (SCC), [1998] 1 S.C.R. 982, at paras. 85-87, per Cory J., dissenting, but not on this point; R. v. Kang-Brown, 2008 SCC18, [2008] 1 S.C.R. 456, at para. 184, per Deschamps J., dissenting, but not on this point). Given that much of this criminal activity isviolent, trafficking has come to be understood as an offence of violence, even beyond the ruinous consequences it has for those whoabuse drugs and in the process, destroy themselves and others.

Indeed, as Doherty J.A. has explained, violence is such a predictableconsequence of the illicit drug trade that it cannot be dissociated from it: Cocaine sale and use is closely and strongly associated with violent crime. Cocaine importation begets a multiplicity of violent acts.Viewed in isolation from the conduct which inevitably follows the importation of cocaine, the act itself is not a violent one in the strictsense. It cannot, however, be disassociated from its inevitable consequences. [Emphasis added.] (R. v. Hamilton, (ON CA), 72 O.R. (3d) 1 (C.A), at para. 104)

See also, R. v.

Pearson, (SCC), [1992] 3 S.C.R. 665, at pp. 694-95, where the Court relied on the Groupe de travail surla lutte contre la drogue (1990), Rapport du groupe de travail sur la lutte contre la drogue, at pp. 18-19, which noted that it is a mistaketo view drug trafficking under the control of organized crime as less serious than more openly violent crimes. [90] A further and perhaps even more devastating consequence of the hard drug trade is its impact on families and the intergenerationaltrauma it causes: Trafficking in drugs, and in particular hard drugs such as cocaine, is a crime whose victims can be found far beyond the individuals whobecome addicted to the drugs.

Families can be torn apart by either the loss of the individual to the addiction itself or to the violence thatall too often accompanies the drug trade… Children suffer immense harm from the effects of addiction in their home, whether this addiction be from pre-natal impact or fromphysical and/or emotional violence in the homes that they should be safe in. The future of these children and their families is damagedand all of society pays the price. (R. v. Profeit, 2009 YKTC 39, at paras. 25-26 ) See also M.

Barnard, Drug Addiction and Families (2007), at pp. 14-17, explaining that children whose parents abuse drugs are at anincreased risk of physical abuse, emotional abuse, and neglect. [91] Finally, the trafficking of hard drugs leads to “significant if not staggering” costs to society in terms of health care and lawenforcement expenses, as well as lost productivity (Pushpanathan, at para. 89; see also R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130, atpara. 82).

In 2017, for example, it is estimated that abuse of opioids and cocaine in Canada resulted in total costs of $9.6 billion(Canadian Substance Use Costs and Harms Scientific Working Group, Canadian Substance Use Costs and Harms (2015-2017) (2020), atp. 1). [92] Trafficking in hard drugs is thus a “crime with such grievous consequences that it tears at the very fabric of society” (Pushpanathan,at para. 79). Significant penitentiary sentences are regularly imposed for individuals who traffic in large quantities of such drugs, which,as we shall see, are far less deadly than fentanyl… (emphasis added) 82. In R. v.

Mazerolle, 2022 NBQB 38 , a recent decision involving possession for the purpose of traffickingMethamphetamine originating out of Miramichi, New Brunswick, Ferguson, J. canvassed the sentencing principles that apply and thecorresponding progression of the common law at paragraphs 45 to 55 before arriving at a 66-month sentence for the accused incircumstances that I acknowledge are distinguishable from those of Ms. Vicaire. I adopt, however, his examination of the applicable lawwithout repetition. 83.

After considering the law as it pertains to sentencing in this context, Ferguson, J. made several observations about the prevalence ofMethamphetamine in the region of New Brunswick that includes Natoaganeg, noting as follows at paragraphs 57, 72 and 73: [57] …methamphetamine use in this judicial district, where I have been a resident judge for eighteen years, is problematic.

Ourcriminal and family courts are filled with cases involving its use, its trafficking and the human toll addiction to the drug causes toindividuals and their families… ***** [72] As said, the conclusions reached in the concurring judgment in Parranto are the sad reality that exists in this community ofMiramichi today. Never before has such societal disablement and deconstruction been seen or experienced here due to hard drugaddiction. One would wish that the wreckage of the hard drug scourge was otherwise but, sadly, it is not.

The common traits andelements of it are as pervasive here as they are across this country. [73] It is my firm belief, having watched the societal landscape change over a lengthy period of time, that methamphetamine poses asserious a risk as cocaine in any form. Moreover, it is dangerously cheap to buy and that fact alone poses a serious danger to the segmentof the drug addicted or vulnerable public who are without financial means to buy more expensive illicit drugs such as cocaine. Its abilityto takeover an addicted person’s lifestyle and world is indisputable. (emphasis added) 84.

As devastating as Methamphetamine is in Miramichi, New Brunswick and, indeed, in all parts of this Province, it is clear thatNatoaganeg and other Indigenous communities are disproportionately experiencing the scourge of this and other hard drugs owing to the

vulnerabilities and factors earlier canvassed. Methamphetamine is cheap, accessible, extremely addictive and plays a central role in thecommission of a high volume and wide range of criminal activity. Though Cocaine is a more expensive hard drug, its path of devastationand destruction is similarly varied and extensive. 85. I observed this first-hand during the short time I was a resident judge in Miramichi, New Brunswick. In R. v. Bourgeois, 2022NBPC 2 , I imposed a 42-month sentence for possession for the purpose of trafficking involving two hard drugs.

At paragraph40, I noted as follows: [40] …The destructive toll wrought by drug addiction in this community cannot be understated. Put bluntly, it is the root cause of mostcriminality and functions like a metastatic tumor. It is endemic and that needs to be recognized and addressed accordingly”. (emphasisadded) 86.

It is also clear from the guidance of the Court of Appeal of New Brunswick that in order to depart from the conventional sentencingrange for possession for the purpose of trafficking in hard drugs, such as Methamphetamine and Cocaine, which typically runs fromaround two years up to the mid to high single digits depending on the circumstances of the offence and offender, “exceptionalcircumstances” must be demonstrated. 87. The words used by the Court of Appeal of New Brunswick at paragraph 12 of R. v. Frost and paragraph 32 of Cormier v.

R.powerfully underscore the high bar that must be cleared to permit a finding of exceptionality which, in turn, enables the sentencing courtto then consider a conditional sentence as a legitimate and permissible sentencing option for possession for the purpose of trafficking inhard drugs. 88. As Dysart, J. recently observed in R. v.

Allen, 2022 NBQB 143 , sentencing courts are frequently presented in NewBrunswick with case law from other provincial jurisdictions where their appellate courts appear to have either dispensed with orsignificantly softened the requirement of “exceptional circumstances” as a precondition to imposing a conditional sentence forpossession for the purpose of trafficking in hard drugs. 89. The prevailing jurisprudence in New Brunswick clearly demonstrates that is not the case here. Sentencing courts have an obligationto discharge their functions within the bounds set at the appellate level.

It is, at the end of the day, the task of sentencing courts to applythe law rather than to make it. When sentencing courts permit the wide berth and latitude they are given to fashion fit and appropriatesentences to reach beyond the parameters established at the appellate level and/or by Parliament for the exercise of those functions, theytread into the domain of committing reversible errors. At paragraphs 72, 78 and 79 of R. v. Allen, Dysart, J. states: [72] While counsel for Mr. Allen has cited the Nova Scotia Court of Appeal decision in R. v.

Scott, 2013 NSCA 28, where that Courtheld that exceptional circumstances are not a precondition to avoiding a lengthy prison sentence for trafficking in

Schedule I drugs, thatapproach has not been taken in this Province. In New Brunswick, according to our Court of Appeal, a lengthy prison sentence is thenorm, absent the rare occasion where “exceptional circumstances” exist. ***** [78] In addition to Sharma, the Defence has cited some cases from Nova Scotia: R. v. Smith, 2022 NSPC 11: First-time offender; youthful (20 years old); petty retailer; early guilty plea; good prospects forrehabilitation; completed educational training and secured employment; co-parents a young son; self-referred to counselling which heattends consistently.

Sentence: suspended 36-month probation. R. v. Waterhouse, 2020 NSSC 78; affirmed at 2021 NSCA 23: offender had agreed to allow an acquaintance to store a quantity of drugsin his garage for a $2000 payment. He played no active role in trafficking. The judge’s description of this bad decision as “impulsive”and without thought of the consequences was supported by the record. The respondent was an otherwise law-abiding first-time offenderwith full-time employment, a favourable pre-sentence report and community support.

The trial judge imposed a 90-day intermittentsentence with two years probation. [79] Again however, it would seem that Nova Scotia’s Court of Appeal has eliminated the need to show exceptional circumstances,whereas in New Brunswick that requirement persists. (emphasis added) 90. Denunciation and deterrence, both specific and general, are clearly the predominant sentencing purposes that apply to Ms. Vicaire’scommission of these two very serious offences. I am dealing here with a circumstance where Ms.

Vicaire became part of the focus of apolice investigation for possession for the purpose of trafficking in hard drugs. More than one hard drug was seized from her Natoaganegresidence upon the execution of the search warrant issued in furtherance of what was learned during the police investigation. Though thequantity of Cocaine seized was on the lower end, the quantity of Methamphetamine was not insignificant. Her operation, though on thesmaller end of the scale, had an unmistakable element of commerciality to it. These details, when considered together, are highlyconcerning. 91. I have already reviewed Ms.

Vicaire’s challenging background and, more broadly, the applicable Gladue factors. She has had adifficult life and a number of those difficulties have either been shaped or informed by the legacy of colonialism. Ms. Vicaire is not ayouthful offender. She began selling hard drugs in her late thirties to, at least in part, service her own addiction. She found this sideline tobe an “easy” way to supplement her employment and other income at a time when she was “living pay cheque to pay cheque”.

Ms.Vicaire has been in a stable and positive relationship for three years and is to be commended for the considerable distance she hastravelled down the road to recovery and rehabilitation. 92. As Ferguson, J. noted at paragraph 50 in R. v. Dedam, “[i]n sentencing an Indigenous offender, a trial judge must make two separateinquiries. First, the judge must ask whether systemic and background factors have affected the degree of responsibility of the offenderfor the offence committed. Second, whether different or alternate sanctions are appropriate to fulfill the principles”.

93. Having regard to the first of these inquiries, and being sensitive to the approach to sentencing required under subsection 718.2(

e) ofthe Criminal Code, I am of the view that systemic and background factors have indeed affected Ms. Vicaire’s degree of responsibilityand moral blameworthiness for these offences; however, her level of moral blameworthiness is still substantial. 94. The second inquiry invites my consideration of whether these systemic and background factors, when considered alongside theearlier identified aggravating and mitigating factors and within the broader context of this case, brings Ms. Vicaire within the scope of“extraordinary circumstances”.

In considering this, I am mindful of the Supreme Court of Canada’s observations in R. v. Gladue that“particularly violent and serious offences will result in imprisonment for aboriginal offenders as often as for non-aboriginal offenders”and “the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals andnon-aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing” (see paragraphs33 and 79).

I am dealing here with extremely serious offences that invite a correspondingly significant sentence. 95. Turning to the parity principle, I have also considered a number of New Brunswick authorities in addition to those cited by counsel,some of which I have summarized below. 96. In R. v.

Frenette, 2009 NBQB 81 , Leger, J. sentenced a 59-year-old real estate agent who was active in the communitywith no previous criminal record to a term of two years less a day for trafficking a single gram of Cocaine on three separate occasionswithin the span of a week to an undercover police officer, each time in exchange for a payment of $80.00. I note that this decisionpreceded both R. v. Frost and Cormier v. R. 97. In R. v. Donovan, 2020 NBPC 1 , Gunn, PCJ sentenced a 39-year-old addict with no criminal record to two years fortrafficking a small quantity of Methamphetamine.

On arrest, a small baggy containing .1 grams of Methamphetamine, referred to as apoint, was found. In addition, police discovered 100 dime bags, a digital scale and $220.00. 98. In R. v. Smith, 2023 NBPC 7 , Richard, PCJ recently sentenced a 23-year-old accused to two years. In that case, theaccused was stopped after driving erratically and was found to be in possession of 18 grams of Cocaine, dime bags, a small portableelectronic scale and $390.00.

He pleaded guilty to possession for the purposes of trafficking in Cocaine, had no criminal record and wassupported by his family and employer, the latter of whom described him as “a responsible and trustworthy employee” and a “valuedmember of the team”. Richard, PCJ rejected the recommendation of a conditional sentence from the accused’s solicitor, finding that thecircumstances did not meet the requirement of exceptionality and that a federal sentence ought to be imposed. 99.

The above-noted decisions demonstrate that even where the quantities of hard drugs are low and the mitigating factors are strong,the consequences are significant for possession for the purpose of trafficking in hard drugs and militate strongly towards a federalsentence. I have also considered the recent decision of Petrie, J. in R. v. Bradstreet, 2023 NBKB 76 and the earlier noteddecision of Dysart, J. in R. v. Allen. These authorities, considered together, lead me to conclude that the Crown’s sentencingrecommendation for Ms. Vicaire is entirely in alignment with the parity principle. 100.

As for the proportionality principle, I have already discussed the gravity of these serious offences at paragraph 15 above and Ms.Vicaire’s degree of responsibility for same. Though Gladue factors work the effect of diminishing her moral blameworthiness, I am notconvinced that the total matrix present in this case brings Ms. Vicaire within the ambit of “exceptional circumstances”. Indeed, I am ofthe view that the Crown’s recommendation in this case is both measured and reasonable. I share the Crown’s view that this not a casethat invites a sentence of less than two years.

But for the various factors already considered, these offences would invite a globalconsecutive sentence in the 30 to 36-month range. 101. For the reasons earlier stated in this decision, I impose the following sentence on Ms. Vicaire: a. On Count #1, I impose a sentence of 24 months to run consecutively to any other sentence; b. On Count #2, I impose a sentence of 24 months to run concurrently to any other sentence; c. Pursuant to

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

section 16 of the CDSA, I order that all items seized during the execution of the search warrant on January 17th, 2020be forfeited to His Majesty the King in right of Canada. The Crown shall prepare that order and submit it to this Court for execution. e. Both offences are “secondary designated offences” and the Crown has made application for a DNA Order. I make such orderpursuant to paragraph 487.051(3)(

b) of the Criminal Code, being satisfied that it is in the best interests of the administration of justice todo so. f. Finally, I waive the imposition of the victim fine surcharges for both offences.

102 . In passing this sentence, I note that I have considered the totality principle and followed the guidance of the Court of Appeal of New Brunswick respecting same. I also note that I have given strong consideration to rehabilitative and restorative considerations in arriving at what I have concluded to be a fit and appropriate sentence for Ms. Vicaire. 103 . In conclusion, Ms. Vicaire, I wish you continued success on the road to recovery and rehabilitation and I hope that you will avail yourself of the counselling, educational and other resources at the institution where you will be serving your sentence to further build on this positive trajectory. BRITTAIN, PCJ