R. v. Oldham, 2012 NSSC 326

SUPREME COURT OF NOVA SCOTIA Citation: R. v. Oldham, 2012 NSSC 326 Date: 20120912 Docket: CRH 393604 Registry: Halifax Between: Her Majesty the Queen v. Wayne Oldham Judge: The Honourable Justice Michael J. Wood Heard: September 6, 2012, in Halifax, Nova Scotia Decision: September 12, 2012 (Orally) Written Release of Decision: September 17, 2012 Counsel: Rachael Furey, for the Crown Stanley W. MacDonald, Q.

C., for the Accused By the Court : (Orally) [ 1 ] On May 24th, 2012, Wayne Oldham entered guilty pleas to two counts of trafficking in a prohibited substance, contrary to s. 5(1) of the Controlled Drugs and Substances Act . This is my decision on sentence following a hearing which took place on September 6th, 2012. Neither the Crown nor defence called any evidence with the exception of seventeen letters of reference tendered on behalf of the defence. Mr. Oldham also made brief comments when given the opportunity to do so by the Court.

[ 2 ] Counsel for the Crown submitted that Mr. Oldham ought to be sentenced to a two year term of incarceration. The defence submitted that an appropriate punishment would be incarceration for two years less a day to be served in the community, with Mr. Oldham to be subject to various restrictions during that period. [ 3 ] In order to the assess the submissions of counsel and ultimately determine an appropriate sentence for Mr. Oldham, it is necessary to examine the circumstances of the offences as well as the personal circumstances of Mr. Oldham.

The parties have agreed on a brief statement of facts which is contained in the defence sentencing brief and consists of the following: STATEMENT OF FACTS 1 On May 24, 2012, Wayne Oldham entered guilty pleas to two counts of trafficking contrary to s. 5(1) of the Controlled Drugs and Substances Act (“ CDSA ”). 2 Mr. Oldham admitted that he sold hydromorphone and dilaudid to an undercover police officer on two occasions. 3 On February 24, 2011, two police officers went to the back window of Mr. Oldham’s house and Mr. Oldham came to the window. After some conversation, Mr.

Oldham sold the undercover police officer five (5) 4 mg pills of dilaudid, wrapped in tinfoil, for a total of $60.00. 4 On the second occasion, on October 4, 2011, an undercover police officer contacted Wayne Oldham and arranged to meet him at Windsor Street and Almon Street in Halifax. Approximately 15 minutes later, while sitting on a bench on the southwest corner of Windsor Street and Almon Street, Wayne Oldham sold the police officer one (1) 12 mg capsule of hydromorphone for $20.00. 5 After pleading guilty to these offences on May 24, 2012, Mr.

Oldham’s sentencing was set for September 6, 2012 at 11:00 in Nova Scotia Supreme Court. 6 Wayne Oldham is 66 years of age. He has no previous record. [ 4 ] When considering trafficking offences, courts in Nova Scotia have established a general system of categorization which has proven helpful in defining the nature and extent of the trafficking activities. In R. v. Fifield , [1978] N.S.J. No. 42 , the Nova Scotia Court of Appeal describes the categories to be used as follows:

(1) The young user sharing drugs with a companion;

(2) The petty retailer who is not shown to be involved in full-time or large scale commercial distribution;

(3) Large scale retailers and commercial wholesalers. [ 5 ] It was agreed by counsel that Mr. Oldham ’ s activities in this case would fall in the second category and I have no difficulty accepting that proposition. In this case, the quantity of drugs was very small and the financial total for both transactions was $80.00. There was no evidence of any other indicia to suggest a large scale or commercial operation. [ 6 ] Information with respect to Mr. Oldham ’ s personal circumstances are found in the various letters of reference as well as the presentence report dated August 30th, 2012. In addition to being 66 years old with no previous criminal record, Mr. Oldham is a father

and grandfather, and has the support of both his ex-wife and his adult children. He is an alcoholic who finally obtained help for hisalcohol abuse 16 years ago. Since that time, he has been active in Alcoholics Anonymous and, by all reports, has provided considerableassistance to others through that organization. [7] Mr. Oldham has a grade eight education and has held a variety of jobs. He is currently unemployed and has not worked for anumber of years. He is in receipt of Old Age Security benefits. There have been times when he has been quite anxious concerning hisfinancial circumstances.

He resides in his own home which is not encumbered. [8] In light of the defence request that I consider a conditional sentence of imprisonment, I need to examine the requirements ofs.742.1 of the Criminal Code which deals with such orders.

Section 742.1 states as follows: 742.1 Imposing of conditional sentence - If a person is convicted of an offence, other than a serious personal injury offence as definedin

section 752, a terrorism offence or a criminal organization offence prosecuted by way of indictment for which the maximum term ifimprisonment is ten years or more or an offence punishable by a minimum term of imprisonment, and the court imposes a sentence ofimprisonment of less than two years and is satisfied that the service of the sentence in the community would not endanger the safety ofthe community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2, thecourt may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in thecommunity, subject to the offender’s compliance with the conditions imposed under

section 742.3. [9] In R. v. Proulx, 2000 SCC 5 , [2000] 1 S.C.R. 61, the Supreme Court of Canada set out the proper approach to theapplication of s.742.1. In that case the court outlined a two-stage process to be followed. The first stage was to determine whether asentence of imprisonment for a term of less than two years was appropriate. This requires the sentencing judge to reject both aprobationary order and a penitentiary term as suitable sentences.

If satisfied that imprisonment for less than two years should be ordered,the court would then assess whether such imprisonment should be served conditionally in the community. [10] In this case, the Crown has strongly argued that imprisonment for at least two years is required and appropriate. Counsel forthe Crown does not take this position because of a concern that Mr. Oldham is a risk to reoffend or poses a risk to the safety of thecommunity.

She says that the nature of the offences are such that the principles of denunciation and general deterrence requireincarceration in a federal institution. [11] There are two fundamental propositions which underlie the Crown’s position. The first is that trafficking in dilaudid should betreated as equivalent to trafficking in cocaine or heroin, and the second is that courts have established a sentencing range for suchactivities which starts at two years unless there are exceptional circumstances. [12] The Crown’s first proposition is simply that there should not be a hierarchy of

Schedule I drugs such that trafficking in somewill not be considered to be as serious as others. Counsel for Mr. Oldham argues that there are legitimate reasons why some drugs mightbe considered more dangerous than others. By way of illustration, he points out that as a prescription medication, dilaudid is not asdangerous because it is manufactured in a regulated environment, whereas crack cocaine is not. [13] In my view, the Court should not create subcategories of

Schedule I drugs and treat them differently for sentencing purposesand, to that extent, I accept the Crown’s proposition that trafficking in dilaudid should be treated just as seriously as trafficking incocaine. I adopt, with approval, the following comments from this Court in R. v. Calder, 2011 NSSC 312: [56] Our Appeal Court has continued to state that there are no exceptional circumstances when it comes to cocaine and I would saythe same applies to dilaudid. [57] Any effort to distinguish between cocaine and dilaudid in these circumstances would be fruitless.

They are both substances thatcause much devastation in the community and they are highly addictive. They also spurn great violence in our community.

[ 14 ] The Crown ’ s second fundamental proposition is that the courts have established a sentencing range for cocaine (and by extension, dilaudid) that starts with two years incarceration. Counsel for the Crown argues that only if exceptional circumstances are established should a penalty below that range be considered. [ 15 ] I have carefully reviewed all of the case authorities referred to me by both counsel and I am not satisfied that the Crown ’ s proposition is an accurate reflection of the law as it currently exists. There is a wide range of activities that fall within the scope of trafficking.

The development of the Fifield criteria was an attempt to provide some degree of categorization which could assist in the sentencing process. [ 16 ] I accept that trafficking activities which fall within the third Fifield category (i.e. large scale retailers and commercial wholesalers) will result in a range of sentence starting at two years in a penitentiary except in exceptional and rare circumstances. That is what our Court of Appeal expressly found in R. v. Knickle , 2009 NSCA 59 at para. 28 . I have not been referred to any case which says that for a petty retailer, such as Mr.

Oldham, the normal range starts at two years incarceration. In fact, a survey of the case law discloses multiple examples of petty retailers who received lesser sanctions. [ 17 ] A comprehensive review of Nova Scotia sentencing decisions dealing with trafficking offences is found in the recent decision of Judge Tufts in R. v. Scott , 2012 NSPC 6 . He refers to a number of trial decisions where conditional sentences were imposed for trafficking offences.

The Nova Scotia Court of Appeal does not appear to have dealt with the sentencing of a petty retailer who has no prior criminal record. [ 18 ] In other jurisdictions, appellate courts have approved conditional sentences for trafficking which would appear to fall in the highest Fifield category. For example, in R. v. Byrne , 2009 NLCA 3 , the Newfoundland and Labrador Court of Appeal approved a conditional sentence of two years less a day for possession of cocaine for the purpose of trafficking where the offender had drugs valued at $18,000.00, cash of $10,000.00, scales, score sheets and drug paraphernalia.

There did not appear to be any obvious exceptional circumstances. [ 19 ] In R. v. Ramos, 2007 MBCA 87 , the Manitoba Court of Appeal substituted a conditional sentence of two years less a day where the offender had cocaine valued at $10,000.00 to $20,000.00 in his possession. The offender had no prior record and presented a low risk to reoffend, but there were otherwise no apparent exceptional circumstances. [ 20 ] In R. v. MacKinnon, 2009 PECA 3 , the Prince Edward Island Court of Appeal substituted a conditional sentence of 18 months for a conviction of conspiracy to traffic crack cocaine.

The offender acted as a courier moving drugs from Nova Scotia to PEI. The value of the cocaine in question was $7,200.00. The offender had a previous conviction for possession of marijuana, entered a guilty plea and had a positive presentence report. [ 21 ] In R. v. Pang, 2010 BCCA 500 , the British Columbia Court of Appeal upheld a conditional sentence of two years less a day plus probation for a conviction of possession of methamphetamine for the purposes of trafficking.

The offender was engaged in a sophisticated dial-a-dope trafficking operation and had in his possession drugs with a street value of $67,000.00 to $135,000.00. He had a prior conviction for possession of ecstasy. The offender plead guilty and had strong family support. There did not appear to be any other exceptional circumstances. [ 22 ] Having carefully considered the above jurisprudence and the other authorities referred to me by both counsel, I do not believe that there is any legal impediment which would prevent me from considering a sanction of imprisonment for less than two years for Mr. Oldham.

If it were necessary for me to find exceptional circumstances I would do so. [ 23 ] In many respects, Mr. Oldham ’ s life has been a difficult path. He has limited education and has experienced times of financial anxiety and stress. He suffered from an addiction to alcohol which contributed to the failure of his marriage. There were undoubtedly many occasions when his life could have taken a turn for the worse, perhaps resulting in resort to illegal behaviour. Despite this, he has no criminal record, owns his own home and has the support of his family including, his ex-wife. Mr.

Oldham has found a way to use his own life experiences to help others as a mentor with Alcoholics Anonymous. He has provided ongoing strength and support to a number of people struggling with addiction.

[ 24 ] The activities which resulted in these charges started with a misdirected attempt to provide help to a woman who desperately needed it. Mr. Oldham does not match the stereotypical profile of a drug trafficker in any respect. He did not appear to be motivated by greed in the sense that he was looking for a lavish lifestyle. He did, however, use the proceeds of his activities to put food on his table. [ 25 ] Those who provided letters of reference were shocked to hear of the charges against Mr. Oldham. Such activities were completely out of character for him.

His family and friends expressed the view that he has much to contribute and they are afraid that this may not be possible if he receives a custodial penitentiary term. If necessary, I have no difficulty concluding that these circumstances are, indeed, exceptional and would justify departure from any minimum custodial term of two years imprisonment should such exist. [ 26 ] The principles of sentencing are set out in s.718 of the Criminal Code . Those which are particularly relevant include denunciation of Mr. Oldham ’ s conduct, deterrence of both Mr.

Oldham and other persons from committing similar offences in the future and rehabilitation. There is an overriding principle in s.718.1 that the sentence be proportionate to both the gravity of the offence and the degree of responsibility of the offender. [ 27 ]

Section 718.2 sets out other sentencing principles to be considered. Those that are specifically relied upon in this case are as follows: (

b) A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. (

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

e) All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders with particular attention to the circumstances of aboriginal offenders. [ 28 ] Counsel for the Crown submits that it is an aggravating factor that Mr. Oldham was engaged in trafficking for financial gain, and I agree despite the relatively small amounts which appear to have been involved. In addition, Mr.

Oldham ’ s personal experience with addiction and his counselling of those suffering from alcoholism should have led him to appreciate the harm which he was causing by selling addictive drugs to vulnerable persons. [ 29 ] It is also an aggravating factor that he is trafficking to strangers in a residential neighbourhood. By doing so, he was exposing his neighbours and their families to risk of harm. [ 30 ] By way of mitigation I would note that Mr. Oldham has pled guilty and accepts complete responsibility for his actions.

He acknowledges his mistake in judgment and has expressed genuine remorse in court and during the preparation of the presentence report. He has no criminal record and has provided important support and guidance to others in need over many years. [ 31 ] In considering the possibility of imposing a conditional sentence, I must be satisfied that doing so would not endanger the safety of the community. In Mr.

Oldham ’ s case, I do not believe that such a risk would arise, nor did counsel for the Crown seriously suggest otherwise. [ 32 ] After considering all of the circumstances, I am satisfied that the objectives and principles set out in s.718 can be satisfied in the present case by imposing a total sentence of imprisonment of two years less a day to be served in the community. With a significant period of house arrest, I believe that the requirements for denunciation and general deterrence can be satisfied. [ 33 ] In addition to the case authorities previously discussed, I have also relied on the decisions in R. v.

Scott , 2012 NSPC 6 , R. v. Knoll, 2001 ABQB 69 , and R. v. Dormevil , 2011 ONCJ 323 , where conditional sentences were given for trafficking offences. In Scott and Dormevil, the activities were more serious than those of Mr. Oldham here. I am satisfied that the conditional sentence imposed here conforms with the consistency principle found in s. 718.2 of the Criminal Code .

[ 34 ] The conditional sentence will be subject to Mr. Oldham ’ s compliance with the following conditions: (

a) Keep the peace and be of good behaviour. (

b) Appear before the court when required to do so. (

c) Report to a supervisor within five working days of the date of the conditional sentence order and thereafter when required by the supervisor and in the manner directed by the supervisor. (

d) Remain within the jurisdiction of this court unless written permission to go outside the jurisdiction is obtained from the court or the supervisor. (

e) Notify the court or the supervisor in advance of any change of name and address and promptly notify the court or supervisor of any change of employment or occupation. (

f) Abstain from the consumption of alcohol and the consumption of drugs except in accordance with a medical prescription or legal authorization. (

g) Perform 200 hours of community service as approved by the supervisor to be completed on or before December 31, 2013. (

h) Be subject to house arrest for the first 15 months of his sentence and thereafter be subject to a curfew from 10:00 p.m. to 6:00 a.m. Present yourself at the door of your residence when the police attend at any time during the house arrest portion of the conditional sentence order to ensure compliance with the house arrest component of the sentence. During the term of the house arrest he would only be permitted to leave his residence and property for the following exceptions: (

i) When dealing with a medical emergency or medical appointment involving him or a member of his household and travelling to and from it by a direct route. (ii) When attending a scheduled appointment with his lawyer, his supervisor or a probation officer and travelling to and from the appointment by a direct route. (iii) When performing community service work arranged with his supervisor and travelling to and from the location by a direct route. (iv) When attending meetings of Alcoholic ’ s Anonymous or engaging in counselling, as approved by his supervisor and travelling to and from the location by a direct route. (

v) For not more than five hours a week approved in advance by his supervisor for the purposes of attending to personal needs. [ 35 ] I also impose the mandatory firearms prohibition under s.109 of the Criminal Code and require Mr. Oldham to submit a DNA sample pursuant to s. 487.06 of the Criminal Code. I will also grant the requested waiver of the victim surcharge fee pursuant to s.737(5) .

____________________________ Wood, J.