R. v. Ducharme, 2013 MBPC 1

CITATION: R. v. Ducharme , 2013 MBPC 1 Date: 20130103 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Robert Gosman, ) for the Crown ) and ) ) ) Sabrina Ducharme ) Crystal Antila, Accused ) for the Accused ) ) ) Reasons for Decision delivered ) January 3, 2013 ) Curtis P.J.

Issue : [ 1 ] Sabrina Ducharme was arrested and pled guilty to possession for the purposes of trafficking pursuant to section 5(2) of the Controlled Drugs and Substances Act (CDSA) for smuggling drugs into a federal penitentiary while attending there for a scheduled family visit with her husband. [ 2 ] The Crown seeks a sentence of incarceration of provincial time while defence says a two year less a day conditional sentence of imprisonment to be served in the community is appropriate. [ 3 ] Note: This is not a case in which a two year minimum sentence applies as the offence pre-dates the coming into force of those provisions in November of 2012.

Facts : [ 4 ] On January 10, 2011, R.C.M. Police attended Stony Mountain Penitentiary where they arrested the accused for smuggling drugs into the institution. She was there for a three-day family visit with her husband, Joseph Ducharme. She went through routine screening. Ion screening and a drug detector dog were used. During the screening she showed signs of nervousness. The ion screening tested positive for cocaine, but at a lower amount than the threshold set by the institution. The drug detector dog indicated positive when sniffing her groin area for one of the drugs he is trained to detect.

After sniffing her belongings, he again indicated positive for her groin area. She was interviewed by officers to determine the threat risk and to determine if, and under what circumstances, she would be allowed to visit Joseph Ducharme. During the interview she admitted carrying tobacco, rolling paper and a lighter in her pants which she agreed to surrender. Officers knew the dog would not “indicate” for those things, so she was asked if she had anything else. She admitted to having some morphine pills, which she also agreed to surrender.

After charge and caution and speaking to a lawyer, she was put in a private room with two female officers where she turned over tobacco, rolling papers, and a lighter along with 9x100mg morphine pills. Because it seemed unlikely the dog would “indicate” for that quantity of morphine, she was interviewed further and admitted to holding more internally. After speaking to a lawyer again, she turned over a further:

• 427x100mg tablets of morphine; • 5x10ml vials of testosterone; and • 10 capsules she identified as “male enhancement pills”. [5] She would not say where she got the drugs, other than to say she did not buy them herself. [6] Morphine is a

Schedule I drug pursuant to the Controlled Drugs and Substance Act. [7] According to the Crown, the value of the morphine inside the walls of Stony Mountain at $100.00/pill x 436 would be$43,600.00. Each of the vials of testosterone is valued at $1000 x 5= $5000.00. The rest of the items are not illegal, but are considered“contraband” within the institution and are valued at a total of $630.00. [8] At the time of this incident Sabrina Ducharme had no criminal record although she was on charge for “drive over .08” towhich she subsequently pled guilty and was fined and prohibited from driving.

Crown position: [9] At the outset of his submission the Crown expressed concern that the accused, in speaking to the author of the pre-sentencereport, said she delivered the drugs because of a threat she received that her husband would be killed if she did not do so. It was astatement that arose for the first time in that context. She said nothing of it to the staff at Stony Mountain, and nothing of it to theR.C.M.P. at any time. [10]

Section 724 of the Criminal Code of Canada provides: 724.

(1) In determining a sentence, a court may accept as proved any information disclosed at the trial or at the sentencingproceedings and any facts agreed on by the prosecutor and the offender. Disputed facts

(3) Where there is a dispute with respect to any fact that is relevant to the determination of a sentence, (

a) the court shall request that evidence be adduced as to the existence of the fact unless the court is satisfied that sufficient evidence wasadduced at the trial; (

b) the party wishing to rely on a relevant fact, including a fact contained in a presentence report, has the burden of proving it; (

c) either party may cross-examine any witness called by the other party; (

d) subject to paragraph (e), the court must be satisfied on a balance of probabilities of the existence of the disputed fact beforerelying on it in determining the sentence; and (

e) the prosecutor must establish, by proof beyond a reasonable doubt, the existence of any aggravating fact or any previous convictionby the offender.(emphasis added). [11] The Crown disputes there was a threat. The accused did not call any evidence with respect to the issue. This is not a situationsuch as in R. v. Major, [2002] O.J. No. 5923, where the co-accused McBride claimed duress and took the stand at their joint jury trial.She testified she had been contacted “by thugs” who “threatened to kill Major and harm her daughters if she did not do as they said.”(paragraph 3).

She testified she had discussed the threat with Major, but took both the drugs (three ounces of marijuana and one ballooncontaining an ounce of heroin carried in underpants and bra), and their six year old daughter with her when she went for the family visit.There the jury had the opportunity to see, hear and weigh her evidence which they apparently did not accept, as she was convicted andsentenced to one year in jail. (Appeal for McBride abandoned at the Ontario Court of Appeal (ON CA), [2004] O.J.No. 2651 and leave to appeal denied for Major, [2005] S.C.C.A.

No. 106). [12] In this case, there was no trial, and no opportunity to test Ms Ducharme’s explanation. With the Crown’s objection noted, anddefence acknowledging they are not claiming a defence of duress, those comments of the accused are of neutral value. [13] The Crown argued this is not a situation similar to R. v. Vandenbosch, 2007 MBCA 113, where an 18 year old with no priorcriminal record had her sentence varied from four months incarceration to a two year less a day conditional sentence of imprisonment forsmuggling drugs into Stony Mountain Institution.

There, she had a condom containing 21 grams of marijuana and nine morphine pillswhich she had hidden in her vagina. She also admitted to having smuggled drugs in on a previous occasion. She was young, vulnerable tomanipulation (according to a psychological report), and had strong family support with a good employment record. Another youngwoman by the name of Cook, who was also manipulated by the same inmate, had received a conditional sentence of two years less aday. The Court noted the Crown had not appealed that sentence.

The aggravating factors there were this took place in a prison setting,her actions were intentionally planned and carried out to avoid detection, and the drug was an injection drug (morphine, as it was here). [14] In this case, the accused is (or was at the time), 34 years of age. The context is different because, although she had no priorcriminal record at the time, and has a good employment record (evidenced by reference letters tendered at the sentencing hearing), shewas married to Joseph Ducharme, who was, and/or is, a member of a criminal gang called the Zig Zag Crew.

It was he to whom she wastaking the drugs in prison. While the pre-sentence report describes him being a “former” gang member when they met and married, italso recounts through information from her and others including his family that he returned to gang involvement. When she chose to staywith him, her family, which had until then been supportive, disowned her and have not spoken with her for several years. The Crown’sposition is she chose life with a gangster over her family.

[15] The Crown argued in this case specific deterrence and general deterrence are of primary importance. [16] Defence argued Ms Ducharme at 34 is not someone who has amassed a criminal record. A number of positive letters ofreference from friends and co-workers were entered into evidence. Ms Ducharme is a valued employee who has a good work history, andwho was recently promoted at work. Although she has been in this relationship for some time, she has not been in trouble with the lawand is a law-abiding citizen.

She has the support of her husband’s family who were quite candid with the report writer sayingMs Ducharme would never be in this situation if it were not for their son. If he does not leave the gang lifestyle as he says he will, theywill support her through divorce proceedings, as she has become an integral part of their family. [17] Counsel for Ms Ducharme says this was a wake-up call. Her guilty plea is a sign of remorse. With the positives in her life,rehabilitation should not be ruled out in considering an appropriate sentence.

A conditional sentence of two years less a day would beappropriate as her risk can be managed in the community. The objectives of denunciation, deterrence and rehabilitation can be met by aconditional sentence. The Law: [18] Morphine is a

Schedule I drug pursuant to the Controlled Drugs and Substances Act.

Section 5 of the Act provides that anyonewho possesses a

Schedule I drug for the purpose of trafficking is guilty of an indictable offence and liable to imprisonment for life. Ihave to take into account the sentencing principles of both

section 10 of the CDSA, and

section 718 of the Criminal Code. I am not goingto read them in, but they speak of balancing the need to contribute to the respect of the law, for the maintenance of a just, peaceful, andsafe society and denunciation, deterrence, rehabilitation, and the necessity of separating some people from society, among otherprinciples. [19] I have been referred to several cases on sentence by counsel, and for that I thank them. As often is the case, the result in eachone is essentially unique to its own set of circumstances. They vary from 14 months in R. V.

Mollard, a 1998 unreported decision ofJustice Duval of the Queen’s Bench of Manitoba, which involved a breach of trust, to the two years less a day conditional sentence inVandenbosch, supra. [20] I am also mindful of the direction given by the Supreme Court of Canada in R v. Proulx, 2000 SCC 5 , 2000 S.C.J.

No.6 when considering the appropriateness of a conditional sentence. [21] Lamer, C.J. (as he then was) wrote as follows at paragraphs 114 to 115: 114 Where punitive objectives such as denunciation and deterrence are particularly pressing, such as cases in which there areaggravating circumstances, incarceration will generally be the preferable sanction. This may be so notwithstanding the fact thatrestorative goals might be achieved by a conditional sentence.

Conversely, a conditional sentence may provide sufficient denunciationand deterrence, even in cases in which restorative objectives are of diminished importance, depending on the nature of the conditionsimposed, the duration of the conditional sentence, and the circumstances of the offender and the community in which the conditionalsentence is to be served. 115 Finally, it bears pointing out that a conditional sentence may be imposed even in circumstances where there are aggravatingcircumstances relating to the offence or the offender.

Aggravating circumstances will obviously increase the need for denunciation anddeterrence. However, it would be a mistake to rule out the possibility of a conditional sentence ab initio simply because aggravatingfactors are present. I repeat that each case must be considered individually. [22] In this case there is a large quantity of a very serious drug. The institutional value for someone who is able to traffic what wascarried by Ms Ducharme is huge, close to $50,000.00. A number of cases have made reference to the following passage from the BritishColumbia Court of Appeal in Fieldhouse v.

Kent Institution (1995), (BC CA), 98 C.C.C. (3d) 207, a case thatconsidered the constitutionality of random urine tests administered in penitentiaries (at paragraph 16): ... management problems associated with drug-related assaults, intimidation, underground (the market-place) and overdoses leading todeath; the power exerted by those who control the drug trade, the extent to which property and sexual favours are exchanged for drugs,tension for both staff and inmates; beatings, requests for transfers to protective custody, pressure on visiting family members to importdrugs, younger and weaker inmates being converted to mules for transporting drugs.

And the litany goes on. [23] Without evidence having been called particular to Stony Mountain Institution, the fact the above passage has been accepted andcited by courts (including Vandenbosch and Major, supra), along with common sense make it unsurprising that the introduction of suchan amount of hard drugs into the institution would likely cause many potentially very serious problems. [24] Planning in this situation was detailed. It encompassed a three-stage process. When checked and interviewed, she admitted to,and was prepared to give up the tobacco, rolling papers and lighter.

When further interviewed she admitted possession of nine morphinepills. These were separate and apart from the bulk of the drugs she was carrying. It would seem she hoped surrender of them wouldsatisfy the authorities. The final step was giving up the majority of the drugs which she was carrying internally. Her actions show sheknew what she was doing; actions which took deliberation and planning, not to mention presumably some personal discomfort, but wentahead and took a calculated chance. It failed. [25] No doubt there was pressure or persuasion of some sort for her to bring the drugs.

I am not suggesting this falls under 718.2 ofthe Criminal Code as an aggravating factor of being at the behest of a criminal organization. There is no evidence of that before theCourt. With respect to her husband and his status as a gang member as far as this hearing is concerned, at best it is unclear. I have alreadyindicated my consideration of the purported threat as a neutral factor as there is nothing to support or negate it. But whichever way youlook at it, were it not for their relationship Ms Ducharme would not be in the position she is today.

She spoke in the pre-sentence reportabout her hope that her husband means it when he says he is going to give up the gang lifestyle. She describes a strong bond betweenthem and is prepared to fight for him, as long as he is prepared to fight for himself. If not, she will take divorce proceedings.

[ 26 ] Ms Ducharme through the pre-sentence report and the reference letters has been described as a person who has respect for the law, someone who has managed to lead a pro-social life despite her marital relationship. Given the facts before the Court, and her desire to continue her relationship with her husband, her risk in the community at this point would appear to be tied at least in some part to her husband’s choices. [ 27 ] As I observed when submissions by counsel concluded on the last appearance, there is no disagreement a jail sentence is called for.

It is a matter of whether or not it should be served in the community. The Crown has not asked for a penitentiary term, but rather a sentence of provincial time. Defence asks for two years less a day to be served in the community. [ 28 ] I am satisfied that in this case the primary principles to be addressed are specific and general deterrence. I acknowledge rehabilitation is a factor, but in this case it is superseded by the need to deter Ms Ducharme and like-minded people from putting other people at risk.

The nature of the drugs, the amount, the value of the drugs inside prison walls, and the fact this occurred in a prison setting are aggravating factors. Unfortunately, this is not an isolated incident, as reference to other cases in this and other decisions show. [ 29 ] The sentence I impose today will be one of twelve months to be served in a provincial institution. Original signed by Judge K. M. Curtis P.J.