2016 QCCQ 6925, 2016 QCCQ 6925

Unofficial English Translation R. c. Grenier 2016 QCCQ 6925 JL4312 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF TROIS-RIVIÈRES Locality of Trois-Rivières "Criminal and Penal Division" No: 400-01-070364-138 400-01-070391-131 Date: July 21, 2016 ______________________________________________________________________ PRESIDING: THE HONOURABLE BRUNO LANGELIER, J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutrix v.

KARINE GRENIER Accused ______________________________________________________________________ SENTENCING JUDGMENT ______________________________________________________________________ [ 1 ] On January 27, 2015, the accused pleaded guilty to the following charges: [ translation ] 400-01-070364-138 Count 4: Between July 31, 2011 and January 31, 2013, at Shawanigan, District of Saint-Maurice, arrested in Trois-Rivières, District of Trois-Rivières, did commit the theft of prescription drugs (hydromorphone) from Jean Coutu, the value of which exceeds $5,000.00, thereby committing an indictable offence under paragraph 334 (

a) of the Criminal Code . 400-01-070391-131 Count 1: Between July 31, 2011, and November 5, 2012, at Trois-Rivières, District of Trois-Rivières, did traffic in a substance included in

Schedule I or represented or held out to be such, thereby committing an indictable offence under paragraph 5(1)(3)(

a) of the Controlled Drugs and Substances Act . Count 2: Between November 6, 2012, and January 31, 2013, at Trois-Rivières, District of Trois-Rivières, did traffic in a substance included in

Schedule I or represented or held out to be such, thereby committing an indictable offence under paragraph 5(1)(3)(

a) of the Controlled Drugs and Substances Act . [ 2 ] On February 1, 2013, she was released on an undertaking and a $1,000 deposit. [ 3 ] The more restrictive conditions state that she must remain at her address between 10 p.m. and 6 a.m., except to perform legitimate, paid work. She must not frequent bars, discotheques, or other licensed premises, except for licensed restaurants to eat a meal therein.

[ 4 ] She is also prohibited from possessing or using drugs or other controlled substances, except when validly prescribed by a medical practitioner and she complies with the correct dosage. [ 5 ] She is also prohibited from having a pager, cellular telephone, or other wireless telecommunication devices. [ 6 ] Other conditions are provided; they are, however, less restrictive. [ 7 ] Her undertaking was amended on May 2, 2013, to set her curfew between 11 p.m. and 6 a.m., except to perform legitimate, paid work.

She was then allowed to have a cellular telephone for the purposes of her legitimate, paid work and had to provide her monthly statement to the Trois-Rivières public security investigator every month. [ 8 ] The accused pleaded guilty on January 27, 2015, at which time, the condition respecting the curfew was dropped. [ 9 ] The Court ordered the preparation of a pre-sentence report. [ 10 ] On June 12, 2015, the submissions on sentencing were postponed to October 2, 2015, due to a crowded court calendar.

They were then postponed again to March 21, 2016, to allow the prosecution to present rebuttal evidence. [ 11 ] On March 21, 2016, the sentencing judgment was postponed to May 24, 2016, and then to July 21, 2016. The Facts [ 12 ] To gain a better understanding of the facts and differentiate the accused’s situation from that of her accomplices, Claude Stevens and Lachappelle-Lamy, the Court quotes the facts as outlined by the Court of Appeal in R v.

Stevens , [1] a judgment on the appeal from the sentence imposed at trial. [ translation ] [14] Following a tip that the respondent was still actively trafficking drugs and was now living with Bernier Proulx, the municipal police investigators obtained a search warrant for Proulx’s residence. [15] On January 31, 2013, Proulx was observed leaving his residence. He was then stopped and searched. Twenty-five packets, each containing 0.25 g of cocaine, were found in his coat, as well as a cellular phone. In his vehicle, documents addressed to the respondent and a second cellular telephone were found.

Proulx was then arrested and driven to the police station for interrogation. [16] The search warrant was then executed at Proulx’s residence. The respondent was siting at the kitchen table with Karine Grenier and Mélanie Julien.

The respondent was counting bills that he was about to give Karine Grenier in payment for a container of sixty Hydromorph Contin pills and a container of one hundred Dilaudid pills, which she had in her possession. [17] The respondent was then arrested for offences related to this act of trafficking and for the offences committed on November 28 and 29, 2012 (400-01-070030-135), as well as for breach of conditions related to the offences of November and December 2012 (400-01- 070031-133).

The search revealed that he was in possession of thirty Dilaudid pills, eight Sildenafil (Viagra) pills, a cellular telephone, and $1,870.

Karine Grenier and Mélanie Julien were also arrested. [18] In the apartment where the search was carried out, the police seized 18.75 g of uncut cocaine, eighteen packets containing 0,25 g each of cocaine ready for sale, three hundred and eighty-three 8 mg Dilaudid pills, three notebooks for accounting and front lists, packets for packaging, and an electronic scale. [19] On the respondent’s cell phone, which was in the investigators’ possession, orders came in and were noted by the investigators, including one asking the respondent for thirty Dilaudid pills.

During the search, a person came to the premises and provided a statement saying that, for the last two months, she had been buying cocaine, Dilaudid, and methamphetamine pills from the respondent and Proulx. [20] The respondent exercised his right to silence, but statements were provided by Proulx and Grenier. [21] According to Proulx, the respondent has been living with him only a short while and uses his vehicle to deliver drugs.

Furthermore, he sometimes asks Proulx to make cocaine deliveries in exchange for paying for food and gas for the vehicle. [22] Karine Grenier, f or her part, made the following statements : − She is a laboratory technician in a pharmacy; − She was Lachapelle-Lamy’s girlfriend from the summer of 2009 to January of 2012.

Six months before they separated, she agreed to steal Dilaudid and hydromorphone from her employer to sell them to the respondent; − For six months she stole one container of Dilaudid and one of hydromorphone a week from her employer, which she handed over to her boyfriend from whom the respondent then made the purchase; − After her separation, she dealt directly with the respondent and continued to steal the same quantities, which she then sold him every week; − At the time of the search, the respondent was about to give her $1,500 for the sale of one container of Dilaudid and one of hydromorphone.

[23] In a statement dated February 7, 2013, Lachapelle-Lamy recounted the following : − He knew the respondent as his cannabis provider; − While he was Grenier’s boyfriend, at the respondent’s suggestion, he asked Grenier to steal narcotics from her employer to deliver to the respondent.

Grenier agreed and Lachapelle-Lamy acted as a go-between. − For six months, the respondent paid Lachapelle-Lamy directly for the stolen narcotics, and Lachapelle-Lamy kept 50% of the payment and gave the other 50% to Karine Grenier; − He estimates that he received between $500 and $2000 per month from this scheme, for a total of $10,000 in six months. (Emphasis added.) [ 13 ] To these facts, the Court adds those that are personal to the accused’s situation and that in her opinion are relevant to sentencing. [ 14 ] The accused had been working at the pharmacy for about three years when she was arrested. [ 15 ] She agreed to her boyfriend’s suggestion so that she could make money and go back to school. [ 16 ] In her statement, she claimed the following concerning the modus operandi : [ translation ] There was no supervision, no control, and no inventory because the owner did not have the time.

He signed the narcotics control papers without conducting inventory. That is why I could not get caught. [ 17 ] After she separated from her boyfriend, she continued her illegal activities: [ translation ] Then, the man who asked me to call him “Omer” got my telephone number and called me and from that moment, I did business directly with him. It was for the same quantities. He asked me for as many pills as I could get. When I had some, I would contact “Omer” and we would arrange to meet. [ 18 ] What she received varied greatly because he did not always give her the agreed-upon amount.

The price for hydromorphone varied according to potency per milligram from $4.50 to $10. Dilaudid was less valuable, with a price between $2.50 and $3.50. [ 19 ] She admits that she did not use these drugs; she used marihuana and amphetamines instead.

When she was arrested, she admitted that she had some in her car. [ 20 ] She also admitted to having $5,000 under her car seat and that this money was from the sale of the drugs. [ 21 ] When she was arrested, she was a student and had just begun training as a pharmacy technical assistant. [ 22 ] During her interrogation upon her arrest on January 31, 2013 the accused fully acknowledged her involvement in the trafficking of these substances. [ 23 ] The Court believes that everything in the version she gave the investigator is true.

The accused’s remarks are credible and they lead logically to the testimony she gave during submissions on sentencing, which the Court also characterizes as credible and sincere. [ 24 ] The prosecution filed the statement of Sylvain Giguère, Security Director for the Jean Coutu chain of pharmacies. He estimates that he investigates four to five situations a year concerning the disappearance of narcotics, which generally involve a few hundred or as many as a thousand pills.

As for the present situation, he estimates that a minimum of 15,000 pills disappeared from inventory. [ 25 ] The accused does not believe that she can have stolen so many prescription drugs. Given her state at the time of the arrest, she believes that she may have said just about anything about quantity and frequency. Positions of the parties [ 26 ] To meet the objectives of denunciation and deterrence, which must be predominant according to settled law in matters of drug trafficking, the prosecution asks the Court to impose a thirty-month sentence; it cites R v.

Stevens [2] in particular, which concerns the accomplice of the accused in this case. [ 27 ] Pursuant to subsection 462.37(3) of the Criminal Code , it also seeks to have the Court impose a $35,000 fine because the accused’s incriminating statement revealed that she received that amount from her criminal activities. [ 28 ] In her defence, counsel for the accused suggests a sentence that must not stifle the significant efforts made by the accused, which make a particularly convincing demonstration of her rehabilitation. [ 29 ] He suggests a conditional sentence of between twelve and eighteen months and submits that a stay should be ordered on the

second count of trafficking because the prosecution divided the period of trafficking and as a result, she would no longer benefit from a sentence served in the community on the second count, due to the amendment to 742.1 of the Criminal Code . The accused’s personal situation [ 30 ] At present, the accused is twenty-seven years old. At the time of her offences, she was twenty-two years old. [ 31 ] Having completed a professional sales course and finding that she especially enjoyed being in contact with clients, she applied for a position as a laboratory technician at a Jean Coutu pharmacy in the area.

She worked there for three years, until her arrest. [ 32 ] Presently, she is employed as a full-time decorating consultant at the Entrepôt du Couvre Plancher de Shawinigan, where she has worked since March 11, 2013. [ 33 ] A letter stipulating to this was filed into the Court record. Her employer claims that her services are entirely satisfactory. [ 34 ] During her testimony, the accused stated that everything was going well in her life before she met her boyfriend, Lachapelle- Lamy. [ 35 ] After that, at the age of twenty-two, she left her family home . She had a good job.

Her boyfriend was using drugs and going out to bars three to four times a week. [ 36 ] She then started consuming cannabis and amphetamines. She began using one month after the relationship started and continued until her arrest. [ 37 ] After her arrest, she stopped consuming drugs or alcohol.

She has maintained her sobriety. [ 38 ] She finds it difficult to accept that she stole drugs every week, and in the quantities alleged by the Jean Coutu security investigator. [ 39 ] She claims that she was not in a healthy emotional state when she gave her statement to the police. [ 40 ] After her separation, she continued stealing and trafficking the prescription drugs. [ 41 ] The money found in her car is the profit she made. Stevens owed her $9,000 for drugs she had given him. [ 42 ] When she was still in a relationship with her ex (accused), she would lie to her parents to go out to bars.

She would often get upset and she was under a great deal of strain. [ 43 ] The situation got increasingly worse. She was using drugs and alcohol, which she had never done before meeting him. [ 44 ] After her arrest, she took a few months to do some soul-searching. [ 45 ] She began to work two months after her arrest. She is a decorating consultant. She would like to go back to school to study design. [ 46 ] She lives part-time with her parents and part-time with her current boyfriend. She has been in that relationship for about twenty- one months. [ 47 ] She points out that her boyfriend leads a quiet life.

He does not go out to bars, nor does he consume drugs or alcohol. [ 48 ] Her relationship with her parents is good at the moment. [ 49 ] She and her older brother were raised in a traditional family, where she was given an education based on values that comply with social expectations. [ 50 ] Her parents were surprised and very troubled by this situation.

They testified to explain their daughter’s progress and how she has taken control of her life back. [ 51 ] They provided her with all the support she needed after her arrest. [ 52 ] The author of the pre-sentence report explains her history of consumption: [ translation ] As an adult, it was around the age of twenty-two that the course of her life went on a rather pernicious tangent. At that point, she invested in a romantic relationship that can now be described as unhealthy and excessive. Their primary activity was going out to nightclubs and partying.

Thus, her history of consuming intoxicants reveals a cycle of addiction that began with the recreational use of alcohol during these parties. Over time, this fast-paced life caused physical exhaustion, which she remedied by consuming amphetamines. Moreover, her social network changed and now included more outcasts and drug users. For over two years, she let herself be guided by hedonism, to the detriment of her initial pro-social values. [3] [ 53 ] Her acting out is explained as follows by the author of the pre-sentence report: [ translation ]

The analysis of the accused’s wrongful acts analysis reveals that her behavioral choices were influenced by, inter alia , her addiction to intoxicants. The fact, however, is that the actions recurred over several months, which indicates premeditation and structure in the wrongful acts. [4] [ 54 ] The pre-sentence report entirely reflects her sincerity, her acknowledgment of her involvement, and her full responsibility. The author of the report points out: [ translation ] Grenier provided us with good collaboration in the present evaluation process.

We met a young woman who appears to be ready to assume the penal consequences of her actions. [5] [ 55 ] She adds: [ translation ] The accused’ personal and social history justifies our claim that she does not identify as a structured criminal personality who is bent on crime. The motivations to offend underlying her acting out are circumstantial and are related to, among other things, a period of disorganization marked by hedonism and a certain rashness.

We consider, however, that elements of her personality such as immaturity, egocentricity, and persuadability overwhelmed her judgment, causing her to abandon her moral conscience in favour of deviant values. [6] [ 56 ] Her parents appear to be positive and supportive individuals. The presence of her current boyfriend is a positive factor, as are her chosen friends. [ 57 ] Finally, the author’s report concludes: [ translation ] Considering the changes and adjustments made to her lifestyle, as well as her realizations to date, we believe that she has the necessary capacity to socially reintegrate.

The risk of re-offending appears very low at this point, notwithstanding the prior issue of intoxicant use; abstinence must be continued. Finally, we believe that she will have to learn to manage her outings and responsibilities according to her budgetary constraints. [7] [ 58 ] Having heard the accused, the Court asserts that her testimony is just as convincing as the probation officer’s remarks in her report. [ 59 ] The accused gave testimony that revealed her increased maturity.

Her awareness has allowed her to understand that this criminal activity is serious. [ 60 ] The accused’s social and personal profile, in the Court’s view, does not indicate that she is an individual with criminal personality traits. [ 61 ] The Court believes that she a person in whom society and the Court may henceforth place their trust and that she will respect law and order. [ 62 ] Her rehabilitation is already certainly complete. She must remedy the harm she caused to society, however. She is aware of this and accepts full responsibility.

Analysis [ 63 ] The accused became involved in a particularly serious criminal activity. Hard drug or prescription drug trafficking is considered to have very harmful consequences. [ 64 ] All courts recognize the irreparable harm it does to society, especially to individuals in the grips of serious addiction issues. The accused herself was battling such issues. [ 65 ] Other forms of criminal activities are often committed in tandem with trafficking offences, such as crimes against the person and against property and activities relating to organized crime.

We also must not forget the impact these activities have on the social fabric, including broken families, suicide, mental illness, and drug-related crime. [ 66 ] The trial judge cannot be unaware of such consequences, as his court is a daily witness to the reality and futility plaguing the unfortunates who appear before it. [ 67 ] The Court agrees entirely with the remarks of the Honourable judge Guy Lambert, who stated in his sentencing judgment in R v. Stevens : [8] [ translation ] [33] Taking drugs causes enormous harm to our society. It leads people to commit crimes to get more.

It destroys the lives of young persons and all those who use regularly. It is no exaggeration for the Court to state that about 80% of the people who appear in custody before the Court have addiction issues. (Emphasis added.)

[68] Parliament does not consider this offence to be so objectively serious as to incur life imprisonment. [69] The trafficking in which the accused took

part is objectively serious.

The substances are considered to have seriousconsequences for those who use them. [70] The accused continued trafficking for a period of eighteen months. [71] The principles and objectives of sentencing generally require that priority be given to both individual and general denunciationand deterrence for the crime of trafficking.. [72] Other factors like rehabilitation, individualization, and parity in sentencing are also important elements to consider. [73] The Court’s most difficult task is to balance all of these factors to determine a sentence that appears fair to the accused andtakes into consideration all of the aggravating and mitigating factors. [74] The offence of stealing prescription drugs from the pharmacy to supply Stevens worked from July 2011 to January 31, 2013, aperiod of eighteen months, until the police searched the home where Stevens and his accomplice, the accused, were. [75]

Section 718 of the Criminal Code determines that promoting a sense of responsibility is also one of the objectives whensentencing: ... (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. [76] In R v. Stevens,[9] the Court of Appeal stated: [translation] [34] ... the medications used as drugs trafficked by the respondent have effects similar to those of heroin.

(4) Case law on traffickingcocaine and medications used as drug reveals a range of sentences from a few months’ to four years’ imprisonment.

Within this range, the sentences vary according to the aggravating and mitigating factors.(5) [35] With respect to trafficking in hard drugs, the objectives of denunciation, deterrence and condemnation must take precedence.(6) … [37] Case law recognizes that even if the criteria of denunciation and deterrence take precedence in drug trafficking cases, rehabilitation may become a predominant factor where it is convincingly demonstrated.(9) (Citations omitted) [77] For many years now, this assertion has been repeated on occasion in appellate judgments, and specifically by Otis, J.A. in R v.Lafrance:[10] [translation] With regard to offences relating to trafficking and possession for the purpose of trafficking in narcotics, while general deterrence is aprime consideration, rehabilitation may nonetheless become a major criterion in sentencing where it has been particularly convincinglydemonstrated. (Emphasis added.) [78] The Supreme Court and the Court of Appeal point out that sentencing is a delicate task. [79] The principles in sections 718 to 718.2 of the Criminal Code are drafted in terms sufficiently general to allow the trial judgesome discretion to design the sentence according to the nature of the offence and the individual situation of the offender. [80] To do so, the trial judge must weigh all of the sentencing objectives in a manner that best reflects the circumstances of the case. [81] In R v.

Nasogaluak,[11] the Supreme Court, per LeBel, J., states that no one sentencing objective trumps the others. Thesentence will, however, be pushed up or down the scale of appropriate sentences for similar offences according to the weight assigned toone or more of the objectives, depending on the facts at issue. Aggravating and mitigating factors must be taken into account for the caseto be decided on its facts. [82] According to LeBel, J.A., as he then was, in R v. Lafrance:[12] [translation] The individualization of sentences remains a fundamental principle in the Canadian sentencing scheme.

It undoubtedly elicits muchcriticism, sometimes for disparity in sentencing, which is on occasion made in almost complete ignorance of the particular facts of eachcase. This principle still carries such significance that abstract, standardized sentences that ignore individual factors may constitute anerror of law (see G. Côté-Harper, A. D. Manganas & J. Turgeon, Droit pénal canadien, 3d ed., (Cowansville, Qc: Yvon Blais, 1989) at83; see also: R v. Rohr, (1979) (ON CA), 44 C.C.C. (2d) 353 at 353–354, Martin, J.). ...

... This Court has imposed harsh sentences in drug cases. It has never insisted that they always be so. It has not set aside individual factors or compelled judges to never take into consideration the possible rehabilitation of the accused. [ 83 ] In Yessaian v. R , [13] a case dealing with a conspiracy to import drugs (cocaine), the Court of Appeal reiterates that the principle of individualization of sentences is as important a consideration as parity, taking into account the mitigating factors of a particular situation. [ 84 ] In R v.

M.V ., [14] it notes the following: [ translation ] [9] Admittedly, in drug trafficking cases, the objectives of denunciation and deterrence must be given particular attention.

(6) That said, even for this type of criminal activity, the criterion of rehabilitation remains a sentencing objective and “it falls to the sentencing judge to determine which objective or objectives merit the greatest weight, given the particulars of the case”. (7) (Citations omitted .) [ 85 ] Therefore, these are the sentencing factors relevant to the individualization of the accused’s sentence as well as those the Court sets out here. [ 86 ] The Court has not lost sight of the fact that the offences committed by the accused are particularly serious.

She let herself be persuaded to steal prescription drugs from the pharmacy by her boyfriend, who then gave the drugs to Stevens in exchange, of course, for money. [ 87 ] After that, she continued to deal directly with Stevens and was involved in this activity for eighteen months. The pharmacy’s loss must certainly near $30,000. [ 88 ] The Court is aware that Stevens identified a golden opportunity when he found out that Lachapelle-Lamy’s girlfriend worked in a pharmacy.

Stevens is the individual whose sentence was increased from eighteen to thirty months’ imprisonment by the Court of Appeal. [ 89 ] His situation had significant aggravating factors, and he had been sentenced to prison in the past. [ 90 ] From Stevens’ pre-sentencing report, the Court of Appeal noted: [ translation ] [43] Having seen the conduct and attitude of the respondent, the pre-sentence report considers whether there might be a criminal personality structure in the respondent and finds that his risk of re-offending is “... unmanageable in society” : The subject presents dependant, opportunistic and immature personality traits and raises red flags about the possibility of a criminal personality structure.

His actions appear motivated by the lure of quick and easy money and sustained by the marginal values he embraces. We also note that he has been lax in his compliance with the conditions of his promise to appear. The accused’s criminal behaviour appears to have crystallized since his files came before the courts.. Stevens plans to change his life through honest employment, abstaining from consuming cocaine and staying clear of the underworld. Although his plans appear laudable, they remain clearly insufficient.

The accused also claims to be prepared to assume all the conditions the Court may deem appropriate to impose on him. Considering his many previous failed undertakings, however, we question his ability to submit to controls.

It is our view, given how comfortable the accused is associating with deviant peers and his inadequate motivation, the risk of re- offending appears unmanageable in society. .... [15] (Emphasis added.) [ 91 ] Without spending any more time on the distinctions between Stevens’s situation and that of the accused, the Court believes that his situation was especially negative and the risk of re-offending was high. [ 92 ] The Court is quite convinced that trafficking in prescription drugs like Hydromorph Contin and Dilaudid, which are included in

Schedule I of the Controlled Drugs and Substances Act , is a particularly serious activity. [ 93 ] The Court of Appeal’s statement in R v. Stevens [16] on prescription drug trafficking should be underscored: [ translation ] [36] ...

Whereas generally, the medication consumed as street drugs is obtained through misappropriation by way of doctor shopping, prescription theft, falsification, and home robberies, (8) the respondent recruited a laboratory technician who was in a position of authority in a pharmacy to gain a direct line of supply, without having to go through a medical prescription. (Citation omitted.) (Emphasis added.) [ 94 ] It should not be overlooked that this assistant pharmacy technician was recruited through Lachapelle-Lamy, who was her

boyfriend. [ 95 ] The danger represented by this drug, which resembles heroin, cannot be ignored. [ 96 ] As aggravating factors , the Court accepts: • The objective seriousness of the offences; drug trafficking is punishable by life imprisonment, and theft over $5,000 is punishable by a ten-year prison term; • The nature and quantity of the drugs transacted; • The theft of these prescription drugs, valued at nearly $35,000, while she was working as a laboratory technician; • The abuse of trust of her employer under 718.2 Criminal Code ; • Her total responsibility; • The duration of her criminal activity (eighteen months); • The frequency of the transactions; • Committed out of greed. [ 97 ] As mitigating factors , the Court accepts: • Her guilty pleas to the charges; also, she did not request a preliminary inquiry; • She has no criminal record; • The accused’s criminal behaviour is not part of a chronic criminal lifestyle; • Her cooperation with the police by incriminating herself for the period covered; • She has accepted full responsibility for her actions; • She has complied with her strict release conditions (curfew for two years); • Her significant efforts to take her life in hand; • The positive pre-sentence report showing that the accused’s rehabilitation is complete; • She was herself addicted to drugs. [ 98 ] Considering the individual situation of the accused, the Court is of the opinion that she has presented a particularly convincing demonstration of her rehabilitation. [ 99 ] Despite this observation, the Court is nevertheless of the view that a prison sentence is necessary to meet the criteria of denunciation and deterrence. [ 100 ] Should Grenier’s situation be treated differently from that of her ex-boyfriend at the time the offences were committed ( Lachapelle-Lamy [17] )? [ 101 ] The Court answers that it should, because the sentence must reflect the aggravating circumstances that were not present in Lachapelle-Lamy’s situation. [ 102 ] Lachapelle-Lamy was sentenced by this Court to a twelve-month sentence of imprisonment to be served in the community and a $10,000 donation as a condition of his probation order, because he was able to make to the Court a particularly convincing demonstration of his rehabilitation and, since completing his training, had been employed and earning a high income of around $100,000. [ 103 ] The Court finds that Grenier has also presented the Court with a convincing demonstration of her rehabilitation. [ 104 ] Her situation can be distinguished from that of Lachapelle-Lamy mainly due to the following elements. [ 105 ] It was the police intervention at Stevens’ house [18] that put an end to her criminal activity.

Her activities were also of longer duration, a total of eighteen months, implicating her more deeply in the prescription drug trafficking, as she continued for twelve months after the period during which she trafficked with her ex-boyfriend. [ 106 ] The theft of prescription drugs from her employer, a Jean Coutu pharmacy, is an aggravating circumstance.

The Court must consider the abuse of trust, the quantity of drugs, and the amounts at issue. [ 107 ] Regarding which of these two persons drew the other into the trafficking scheme, the Court accepts that Lachapelle-Lamy, who knew Stevens, went to the latter’s home to buy drugs. [ 108 ] When Stevens learned that Grenier, Lachapelle-Lamy’s girlfriend, was a laboratory technician in a pharmacy, he saw a golden opportunity to obtain prescription drugs through Lachapelle-Lamy, who convinced the accused to steal them so that he could then give them to Stevens.

[ 109 ] The Court certainly accepts that Lachapelle-Lamy involved the accused in this scheme by asking her.

The Court also accepts that Lachapelle-Lamy displayed great discernment, however, by stopping this activity one year before the search at Stevens’ house, whereas the accused continued dealing directly with Stevens, a criminal individual whose profile is one of a hardened offender. [ 110 ] The Court, having heard both Lachapelle-Lamy seventeen months ago and the accused in the context of her current sentencing, cannot say which of the two, either Lachapelle-Lamy or Grenier, has the greater share of moral blameworthiness.

They were both young, with no criminal backgrounds, and dealing with addictions. [ 111 ] The Court finds that in both cases there was a grievous, marked lapse in their moral values.

Their actions were in serious contradiction with the education they had received from their parents promoting prosocial values. [ 112 ] Considering the distinctions listed above, the Court acknowledges that the sentence in Grenier’s case must have a more significant dissuasive aspect than that imposed on Lachapelle-Lamy. [ 113 ] Based on the evidence adduced for sentencing, the Court must also acknowledge that the sentencing principles of rehabilitation and individualization are equally predominant, as it recognizes that the accused has presented a particularly convincing demonstration of her rehabilitation. [ 114 ] Even today, the Court of Appeal acknowledges that this legal concept merits serious consideration. [ 115 ] Since Lafrance , [19] this legal concept can explain why the sentences for the same offences are sometimes more lenient sentences and other times more severe.

The distinction is primarily the result of the principle of the individualization of sentencing, where specific circumstances may lead a trial judge to depart from the normal range of sentences. [ 116 ] When the Court asserted earlier that this legal concept is still available to trial judges to better express the reasons for the sentence they determine to be fit in any given situation, it based itself on the recent remarks of the Court of Appeal in R v. Zawahra : [20] [ translation ] [12] It is common ground that the sentence imposed is outside the applicable range.

The judge’s reasons explain that she acted thus because she was of the opinion that the respondent had shown, in a particularly convincing manner, that he was on the road to rehabilitation. It is the applicable legal test. The appellant concedes that the judgments would have been well-founded had the circumstances allowed predominant weight to be assigned to rehabilitation. In R v.

Lafrance , LeBel, J.A. explained: [ translation ] [54] With regard to offences relating to trafficking and possession for the purpose of trafficking in narcotics, while general deterrence is a prime consideration, rehabilitation may nonetheless become a major factor in sentencing where it has been convincingly demonstrated . [55] The assessment of the offender's chances of rehabilitating depends on the trial judge’s privileged appraisal .

In such cases, the presence of the stakeholders in the court room and the climate in which they live form the backdrop against which the judge, informed by the parties and having weighed the risks, will decide whether to accept these risks and judicially endorse rehabilitation. (3) [Emphasis added] [13] This cannot be seen as too heavy a burden , as the appellant seems to suggest. The expression is well known, and it means that the evidence must be probative as opposed to beyond any reasonable doubt .

(4) This assessment of the evidence was up to the judge, and the only question remaining is whether or not she made a palpable error in finding that the demonstration of rehabilitation was convincing. (Emphasis added by the undersigned.) [14] In R v. Lacasse , the Supreme Court recalled the importance of the curial defence due to trial courts in sentencing matters: [11] This Court has on many occasions noted the importance of giving wide latitude to sentencing judges.

Since they have, inter alia , the advantage of having heard and seen the witnesses, sentencing judges are in the best position to determine, having regard to the circumstances, a just and appropriate sentence that is consistent with the objectives and principles set out in the Criminal Code in this regard. The fact that a judge deviates from the proper sentencing range does not in itself justify appellate intervention.

Ultimately, except where a sentencing judge makes an error of law or an error in principle that has an impact on the sentence, an appellate court may not vary the sentence unless it is demonstrably unfit. (5) [Emphasis added.] … [16] The following remarks from R v. Lacasse apply here: [58] There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded.

The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. Once again, everything depends on the gravity of the offence, the offender’s degree of responsibility and the specific circumstances of each case. ...

(7) [Emphasis added] (Citations omitted.) [ 117 ] The Court reiterates what it had already stated in R v. Zawahra : [21] [ translation ] [18] Our system of law accepts this proposal. In R v. Ruel , the Court recalled that [ translation ] “even faced with a serious offence and consistent case law requiring harsh sentences, rehabilitation is still meaningful in the cases of individuals who display the ability to take themselves in hand”.

(8) This assertion is based on the comments of LeBel, J. in R v.

Lafrance : (Citation omitted.) [ 118 ] The Court accepts that this legal concept does not impose an insurmountable burden of proof on offenders. [ 119 ] The onus may be met by proving, on a balance of probabilities, that rehabilitation has begun, is being achieved, or is already certainly convincing. [ 120 ] The accused was involved in this criminal activity for a period of eighteen months, including a full year during which she dealt directly with Stevens. [ 121 ] The Court accepts the following elements as a particularly convincing demonstration of her rehabilitation. [ 122 ] Her arrest on January 31, 2013, had a salutary effect and had a profound influence on her. [ 123 ] From that time on, she began her rehabilitation by complying with the strict release conditions of her undertaking with deposit. [ 124 ] She respected a strict curfew, which was finally lifted two years later, on January 27, 2015, when she pleaded guilty to the charges. [ 125 ] Her compliance with her strict release conditions, which prohibited her from going out to any bars or nightclubs, certainly shows the Court how serious she was. [ 126 ] Her testimony also convinces the Court that she has become a different person, one who has matured and become aware of all the harm caused to society at large. [ 127 ] She has taken responsibility for her crimes. [ 128 ] She expresses remorse that the Court considers very credible. [ 129 ] She has rebuilt her romantic life with a good man who supports her and is aware of her legal situation. [ 130 ] She quickly found new employment with a flooring company, where she has worked full time since March 11, 2013. [ 131 ] She also explains that her employer knows of her present legal situation.

She has been honest, and her employer has acknowledged that. [ 132 ] The letter filed by the accused informs the Court that her employer is entirely satisfied with her work performance. [ 133 ] The employer eloquently explains why he places great trust in the accused. He points out her positive qualities and claims not to regret giving her a chance despite having been told by the accused about her legal situation.

He concludes that he does not regret trusting her. [ 134 ] The Court reproduces this letter in its entirety to better show how far she has come while she awaits sentencing. [ translation ] I, François Trottier, owner of branches of a flooring warehouse, state that I hired Karine Grenier on March 11, 2013. She has therefore been working for me for two and a half years as an interior decorating consultant, working between 37 and 42 hours per week. On August 2, Ms. Grenier was transferred to my new business, a new concept, located at 3201 Récollet Boulevard, Trois-Rivières. When I hired Ms.

Grenier, she immediately informed me of her situation. I had met her before through one of her friends who worked for me. I knew that, despite what had happened, she was a good person, so I decided to give her a chance to work for me. She began working at my Shawinigan branch. Karine is very punctual and is never late for work. She wants to learn and she quickly found her footing and distinguished herself. Some time later, I gave her the right to have the key to the store and the alarm system codes so she could open the store when the manager was not working.

I also trusted her to add up the receipts at closing time. As she repeatedly proved that my trust in her was justified, I decided to send her to work for two weeks in Cap de la Madeleine to replace the branch manager during her vacation during the construction holidays. She sometimes volunteers to work on her days off to help out, and she also joined the team at the Grand-Mère store. Some time later she was transferred to the Cap de la Madeleine store for most of her time and worked one shift per week at the Grand-Mère branch.

Since she has access to all the branches, Karine transfers merchandise outside store hours to help out. Ms. Grenier is very punctual and responsible. Hard-working and devoted to the flooring warehouse, she gives her work her all and I do

not have any regrets about giving her a chance. I have never had any problems with Karine from the day she began working for me and she gets along marvellously well with all the employees. Always ready to lend a helping hand and make everything work out for the better, she is a great employee who deserves her place here at the flooring warehouse.

Yours truly, [22] (Reproduced in full.) [ 135 ] She has not used any drugs since the shock of her arrest. [ 136 ] Her family has been a great moral support. [ 137 ] The Court also accepts the assertions of the author of the pre-sentence report about the accused. [ 138 ] That said, where the circumstances warrant, the Court must consider the possibility of a less restrictive punishment before ordering a custodial sentence. [23] [ 139 ] Is it necessary to impose the harsh sentence sought by the prosecution to meet the sentencing principles and objectives in

section 718 ? [ 140 ] Paragraph 718(

d) states that sentencing must also assist in rehabilitating offenders. [ 141 ] Considering that the offence in the first count was committed before November 20, 2012, the date of the coming into force of the new provisions prohibiting a conditional sentence for that type of offence, the accused may receive such a sentence. [ 142 ] Would it be adequate to fulfil all the principles and objectives of sentencing?

The Court is satisfied that it would, because it is convinced that the measure would not endanger the safety of the community and would be consistent with the principles set out in sections 718 to 718.2 of the Criminal Code . [ 143 ] On this subject, it is worth noting the remarks of Lamer, J. in R v. Proulx : [24] ... Parliament has sent a clear message to all Canadian judges that too many people are being sent to prison.

In an attempt to remedy the problem of over incarceration, Parliament has introduced a new form of sentence, the conditional sentence of imprisonment. [ 144 ] It must be acknowledged that , Parliament has certainly expressed its disagreement with this statement over the last decade. [41] This is not to say that the conditional sentence is a lenient punishment or that it does not provide significant denunciation and deterrence, or that a conditional sentence can never be as harsh as incarceration.

As this Court stated in Gladue , supra , at para. 72: . . . in our view a sentence focussed on restorative justice is not necessarily a “lighter” punishment. Some proponents of restorative justice argue that when it is combined with probationary conditions it may in some circumstances impose a greater burden on the offender than a custodial sentence.

A conditional sentence may be as onerous as, or perhaps even more onerous than, a jail term, particularly in circumstances where the offender is forced to take responsibility for his or her actions and make reparations to both the victim and the community, all the while living in the community under tight controls. [ 145 ] And he added: [22] The conditional sentence incorporates some elements of non-custodial measures and some others of incarceration.

Because it is served in the community, it will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community, and the promotion of a sense of responsibility in the offender. However, it is also a punitive sanction capable of achieving the objectives of denunciation and deterrence . It is this punitive aspect that distinguishes the conditional sentence from probation, and it is to this issue that I now turn.

(1) Comparing Conditional Sentences with Probation [25] [ 146 ] In light of all these factors, the Court is of the view that a sentence of imprisonment is necessary. The Court believes, however, that it this sentence of imprisonment may be conditional. [ 147 ] Serious corrective measures may allow reduced incarceration.

The Court is aware, however, that a measure such as a sentence to be served in the community cannot be given to those who present a current danger to the safety of the public or those who have not begun serious rehabilitation. [ 148 ] In Proulx , [26] the Supreme Court stated that conditional sentences are not lenient. On the same subject but concerning the objective of denunciation, it added: ... Incarceration will usually provide more denunciation than a conditional sentence, as a conditional sentence is generally a more lenient sentence than a jail term of equivalent duration.

That said, a conditional sentence can still provide a significant amount of denunciation. This is particularly so when onerous conditions are imposed and the duration of the conditional sentence is extended beyond the duration of the jail sentence that would ordinarily have been imposed in the circumstances. I will discuss each point in turn. [ 149 ] To order a conditional sentence under

section 742.1 of the Criminal Code , the Court must be satisfied that there is no applicable minimum term of imprisonment, that the offence is not a serious personal injury offence, etc., that the sentence is less than two years, and that measure does not endanger the safety of the public.

[150] The Court is satisfied that in the case of the accused, the sentence must fall between that received by Lachapelle-Lamy,[27] theaccused’s accomplice and ex-boyfriend, and that imposed by the Court of Appeal on Stevens,[28] a criminal individual. [151] The Court believes that a fit sentence for the accused should be closer to that imposed on Lachapelle-Lamy who, like theaccused, is a young adult without a criminal record who made a particularly convincing demonstration of his rehabilitation, whereasStevens was a mature individual with a lengthy criminal record, including convictions for similar offences, and who has the profile of ahardened criminal. [152] Clearly, in accordance with the proportionality test, the sentence the Court imposes on the accused must be harsher than thatimposed on Lachapelle-Lamy because the Court finds that she continued the offending activity for an additional twelve months. [153] It was only police intervention that put a stop to her dealings with Stevens for the purpose of trafficking. [154] The Court accepts that she was the one to steal the drugs, an aggravating factor under

section 718.2, which constitutes an abuseof trust against her employer while she was working as a laboratory technician. [155] In the accused’s situation, the Court notes that a sentence to be served in the community is possible for only one of the twocounts, namely, trafficking pursuant to paragraph 5(1)(3)(

a) of the Controlled Drugs and Substances Act. [156] The legislative amendments to

section 742.1 of the Criminal Code on November 20, 2012, no longer allow conditionalsentences for the offence of drug trafficking because it is punishable by life imprisonment. [157] The first count covers a period of fifteen months’ activity between July 31, 2011, and November 5, 2012, and predates theamendment to

section 742.1; the second count, for its part, covers almost entirely the period after the November 20, 2012, amendmentuntil her arrest on January 31, 2013.

That three-month period is relatively brief compared to the overall duration of the accused’soffending activity. [158] The Court, while considering all the aggravating and mitigating factors, the teachings of the higher courts in drug traffickingcases, as well as the predominant factors of denunciation, deterrence and condemnation that must be given priority, must also take intoaccount the factors that will assist in her rehabilitation. [159] These factors merit particular attention when a convincing demonstration of rehabilitation has been made to the Court. [160] The Court is of the view that, on the first count, the accused’s situation weighs in favour of a conditional sentence, and that sucha sentence can meet the objectives of denunciation and deterrence without stifling all the convincing efforts she has already made towardher rehabilitation. [161] Concerning the second count of trafficking under paragraph 5(1)(3)(

a) of the Controlled Drugs and Substances Act, even thougha conditional sentence is available, and keeping in mind the objectives of denunciation and deterrence without stifling all the convincingefforts she has already made toward her rehabilitation, the Court draws inspiration from the concepts developed in R v. Middleton[29]and imposes a term of imprisonment to be served intermittently. [162] On this subject, Fish, J. of the Supreme Court stated: [45] ...

Intermittent sentences strike a legislative balance between the denunciatory and deterrent functions of “real jail time” and therehabilitative functions of preserving the offender’s employment, family relationships and responsibilities, and obligations to thecommunity. [46] That balance cannot be sustained indefinitely. Parliament has therefore fixed its duration at a reasonable limit of 90 days.

Beyondthat limit, intermittent sentences lose their purpose: the recurring “taste of jail” becomes disproportionately punitive as a deterrent andcounter-productive as a rehabilitative and correctional alternative to continuous terms of imprisonment. [163] Concerning conditional and intermittent sentences, he adds: [48] On the contrary, it is conceded that their combination in this case served the purposes of both intermittent and conditionalsentences.

This fit combination of sentences harmonizes the differing correctional advantages of conditional and intermittent sentences,while respecting the letter and the spirit of the provisions of the Criminal Code dealing with both: R. v. Power (2003), (ON CA), 176 C.C.C. (3d) 209 (Ont. C.A.). [53] I conclude by emphasizing that conditional and intermittent sentences have overlapping but distinct purposes. I have already dealtwith the sentencing and correctional purposes of intermittent sentences.

With respect to conditional sentences, I am content simply toreiterate here this important passage from Proulx (at para. 41): A conditional sentence may be as onerous as, or perhaps even more onerous than, a jail term, particularly in circumstances where theoffender is forced to take responsibility for his or her actions and make reparations to both the victim and the community, all the whileliving in the community under tight controls.

This case illustrates how intermittent and conditional sentences can be effectively combined to take appropriate advantage of theircomplementary purposes — in full compliance with the statutory conditions by which they are respectively governed. [164] This combination of sentences can certainly meet all of the objectives and principles in sections 718 to 718. 2 of the CriminalCode when ordered with strict conditions; it also answers for the offence committed against her employer. [165] An intermittent term of imprisonment combined with a conditional sentence better represents the seriousness of the offence oftrafficking, which is punishable by life imprisonment, and falls in line with what the Court of Appeal stated in Stevens v.

R.,[30] the case

involving the accused’s accomplice, about the range of sentences. [ 166 ] In the Court’s opinion, this combination of sentences is a relatively harsh sentence overall, but it will allow the accused to maintain her job and her family relationships while also answering to society for her crime. [ 167 ] It must not be forgotten that, for a person with the accused’s profile, the stigma of this conviction will follow her for a very long time. [ 168 ] The Court will not make an order to pay a fine under subsection 462.37(3) , because the accused has no assets.

The Court, however, ORDERS the forfeiture of the $5,580, the amount found inside the vehicle, since it was obtained in connection with the offence for which the accused was convicted.

FOR THESE REASONS, THE COURT: [ 169 ] SENTENCES the accused to serve a conditional sentence of twenty-two months in file 400-01-070364-138; [ 170 ] SENTENCES the accused to serve a conditional sentence of twenty-two on the first count, and a term of imprisonment of ninety days to be served intermittently on the second count in file 400-01-070391-131; with the following conditions attached to the conditional sentence: ✔ Keep the peace and be of good behaviour. ✔ Appear before the court when required to do so by the court. ✔ Report to a probation officer within three working days and thereafter when required and in the manner directed by that officer. ✔ Remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the probation officer. ✔ Notify the Court or the probation officer of any change of name or address, and notify the court or the probation officer of any change of employment or occupation. ✔ Comply with all the instructions of the probation officer respecting the application of the order, including those aiming to act as controls for the conditions, and comply with any agreement entered into with the probation officer. ✔ Be at home twenty-four hours a day, for the first twelve (12) months of the conditional sentence except for the following reasons: - To perform legitimate, paid work; - To meet with your probation officer or any other worker identified by the latter; - For medical or emergency health reasons for yourself, your spouse and your parents; - To purchase food or goods and services necessary for yourself or a member of your immediate family on Sundays between the hours of 12:30 p.m. and 5:00 p.m. - With prior written authorization, on humanitarian grounds. ✔ For the subsequent months, be at home between 11:00 p.m. and 6:00 a.m., except for the following reasons: - To perform legitimate, paid work; - For medical or emergency health reasons for yourself, your spouse and your parents; - With prior written authorization from your probation officer, on humanitarian grounds. ✔ Abstain from contacting or attempting to contact Claude Stevens and Jean-René Lachapelle-Lamy, in any manner whatsoever. ✔ Formally refrain from: - Consuming any alcohol for a period of twelve months; - For the duration of the order, going to bars, discotheques or other licensed premises, including licensed restaurants, except, in the case of licensed restaurants, to eat a meal therein; - possessing or using drugs or other controlled substances, except when validly prescribed. [ 171 ] For the application of her intermittent sentence, there will be a twenty-month unsupervised probation order, subject to the following conditions: ✔ Keep the peace and be of good behaviour. ✔ Appear before the court when required to do so by the court. ✔ Notify the Court or the probation officer of any change of name or address, and notify the court or the probation officer of any change

of employment or occupation. ✔ Make a donation of $1,000 within twelve months, to be distributed between community organizations to be determined at the hearing. ✔ Abstain from contacting or attempting to contact Claude Stevens and Jean-René Lachapelle-Lamy, in any manner whatsoever. ✔ Formally refrain from: - possessing or using drugs or other controlled substances, except when validly prescribed. [ 172 ] PROHIBITS the accused from having in her possession any firearm, ammunition or other explosive substance within the meaning of

section 109 of the Criminal Code , for a period of ten (10) years. __________________________________ BRUNO LANGELIER, J.C.Q. Mtre Julien Beauchamp-Laliberté For the prosecution Mtre Pierre Spain For the accused Dates of hearing: October 2, 2015, and March 21, 2016