R. v. Russell, 2019 NSSC 353

SUPREME COURT OF Nova Scotia Citation: R. v. Russell , 2019 NSSC 353 Date: 20191108 Docket: CRBW No. 468760 Registry: Bridgewater Between: Her Majesty the Queen v. William Oswald Russell Judge: The Honourable Justice Mona M.

Lynch Heard: March 12 and 13, 2019, in Bridgewater, Nova Scotia Final Written Submissions: Oral Decision: October 25, 2019 November 8, 2019 Counsel: Josh Bryson, for the Crown Nicholaus Fitch, for the Defence By the Court: ORALLY FACTS: [ 1 ] In June of 2016 the Integrated Street Crime Unit received confidential information about pill trafficking involving three individuals, Murray Heath, Frank Hebb and William Russell. The unit began an investigation by conducting inquiries and by physical surveillance. They understood that Hebb received a prescription on Mondays and that Heath and Hebb resided together.

On the first Monday morning of surveillance the police missed the pick-up but saw Heath and Hebb arrive at their residence. Heath then left their residence and drove to William Russell’s residence. The police set up surveillance again the next Monday and saw the same pattern, Hebb picked up his prescription, he and Heath arrived home and Heath left and went to Mr. Russell’s residence. The police moved in and arrested all three. Constable Munro, the arresting officer, searched William Russell and found a cell phone, a wallet containing $100, a knife and $40 loose.

Constable Munro was also present for the search of the accused’s residence, after a search warrant was obtained. A pill bottle containing 18 12 mg hydromorphone capsules was seized from the table to the left of the chair where Mr. Russell was seated when Constable Munro first observed Mr. Russell in the residence. [ 2 ] The search warrant included searching the cell phone of Mr. Russell and text messages were in evidence at the trial. Some from Murray Heath. [ 3 ] The accused gave a statement on June 27, 2016 indicating he found the hydromorphone capsules in his yard.

Then he said he got them from Heath but they were for his own use. [ 4 ] The expert, Corporal Kuchta, testified that some of the text messages were consistent with trafficking in hydromorphone. Those are the text messages from the seized cell phone. [ 5 ] On March 12, 2019, after a trial, William Russell was found guilty of possession for the purposes of trafficking in hydromorphone on June 27, 2016. He has been on a recognizance since June 28, 2016 with conditions not to consume alcohol or controlled substances, or have possession of a cell phone or pager.

PRESENTENCE REPORT: [ 6 ] The presentence report shows that William Russell is 68 years old. He grew up with an alcoholic father who was physically

abusive but provided for the family. He quit school and left home at 16 after completing Grade 9. He was married for 47 years. He is currently separated from his wife but they remain friends. He has two children and three grandchildren who live in the area. He is in what appears to be an on again/off again romantic relationship. [ 7 ] Mr. Russell is currently retired after being employed for many years as a truck driver. He receives a disability pension. [ 8 ] He currently suffers from a thoracic aortic aneurysm which can cause life-threatening bleeding.

He has had three heart attacks since he was 50, has three stents and requires daily medication. He has been diagnosed with diabetes. He suffers from depression and anxiety and sees a therapist. [ 9 ] He has had issues with alcohol in the past but currently does not use alcohol. He has no addiction issues with drugs. [ 10 ] He has a peer group and enjoys riding motorcycles and he has support in the community. [ 11 ] He has many prior offences related to illegal tobacco, two weapons offences and one breach of probation. He has been incarcerated on a previous occasion.

LEGAL PARAMETERS: [ 12 ] The impact of opioids on our communities has been devastating. As Corporal Kutcha testified, it is not a recreational drug and the aim is not to get high but once a person is addicted, the drug is needed to live. [ 13 ] The maximum penalty for possession for the purpose of trafficking in a

Schedule I substance is imprisonment for life. POSITION OF CROWN: [ 14 ] The Crown is seeking a term of imprisonment of two years. They indicate that that is the usual sentence for possession for the purposes of trafficking in a

Schedule I substance. POSITION OF DEFENCE: [ 15 ] The Defence is seeking a 36-month suspended sentence or 90 days intermittent and three years of probation. They point out that William Russell has been on conditions for over three years and had no breach allegations. CASELAW: [ 16 ] With regard to the caselaw, the Nova Scotia Court of Appeal has been consistent in saying that the primary considerations for sentences involving trafficking or possession for the purposes of trafficking in

Schedule I substances are deterrence and denunciation and that was reiterated in the R. v. Oickle , 2015 NSCA 87 . [ 17 ] Protection of the public is the ultimate objective in sentencing ( R. v. Bratzer , 2001 NSCA 166 ). [ 18 ] The Nova Scotia Court of Appeal has also emphasized that sentencing is an individualized process depending on the factors present with respect to the circumstances of the offence and of the offender. Also, trafficking in

Schedule 1 offences will frequently attract a period of federal incarceration, however, a sentence of federal incarceration is not mandatory and only to be avoided by exceptional circumstances. ( R. v. Scott , 2013 NSCA 28 ) [ 19 ] Nova Scotia courts have also reiterated that a sentence of less than two years of imprisonment is rare as noted by Justice Warner in R. v. Forward , 2017 NSSC 190 . [ 20 ] Proportionality is central to the sentencing process ( R. v. Solowan , 2008 SCC 62 ).

That means that a sentence not exceed what is just and appropriate given the moral blameworthiness of the offender and the gravity of the offence and it has to be balanced with the need to ensure that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and the harm they caused. “The two perspectives on proportionality thus converge in a sentence that both speaks out against the offence and punishes the offender no more than is necessary” ( R. v. Nasogaluak , 2010 SCC 6 para. 42 ). [ 21 ] The Supreme Court of Canada in R. v.

Lacasse , 2015 SCC 64 : [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. LeBel J. commented as follows on this subject: A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit.

Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community in which the offence occurred. ( Nasogaluak , at para. 44 ) [ 22 ] In R. v. Rushton , 2017 NSPC 2 , Judge Buckle acknowledged that a sentence less than a federal penitentiary sentence was rare for trafficking cocaine but in the circumstances she was dealing with she imposed a suspended sentence with three years of probation. In that case, the person being sentenced was a young adult, an addict, who had taken extraordinary steps toward rehabilitation and turning

his life around. Judge Buckle notes in that case that the caselaw showed that sentences at the lower end of the range usually have one or more of the following – addictions, youth, limited or no record, relatively small amount of drugs, some hope of rehabilitation and an absence of aggravating factors. [ 23 ] Most recently in R. v. Chase , 2019 NSCA 36 , the Court of Appeal upheld a 90-day intermittent sentence followed by three years of probation. The Court noted that sentences outside the normal range do not mean an unfit sentence. Again, that was a situation where Mr.

Chase had completely turned his life around. He had full-time employment, a stable relationship, was expecting a child and had letters attesting to his progress. The Crown was seeking two years and the Defence was seeking a suspended sentence. Parity is secondary to proportionality and proportionality links the accused to the crime in comparing sentences for similar offences in similar circumstances that is grounded in justice and fairness (para. 23). It was noted that the sentencing judge was impressed by the remarkable changes made by the appellant.

The Court noted that Chase took full responsibility and was genuinely remorseful. They noted in Chase that deterrence and denunciation will continue to be the primary objectives and that convictions will normally attract a federal prison term. However, that does not mean that in an appropriate case, depending upon the particular circumstances of the offence and the offender, a lesser sentence cannot be imposed (para. 48).

PRINCIPLES OF SENTENCING: [ 24 ] I have to consider the principles of sentencing which are in s. 10 of the Controlled Drugs and Substances Act as well as ss. 718 , 718.1 and 718.2 of the Criminal Code of Canada . [ 25 ] The purpose of sentencing in s. 718 is to protect society and to contribute to the respect for the law and maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives outlined. [ 26 ] The Nova Scotia Court of Appeal has said that the primary objectives for an offence involving trafficking or possession for the purposes of trafficking in this type of substance is denunciation and deterrence, however I can not lose sight of rehabilitation. [ 27 ]

Section 10 of the Controlled Drugs and Substances Act provides that a fundamental purpose of any sentence is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation and treatment in appropriate circumstances of an offender and acknowledging the harm to victims and to the community. [ 28 ] The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender (s. 718.1). [ 29 ] The sentence must be similar to sentences given for similar offences in similar circumstances to similar offenders.

I must consider the aggravating and mitigating factors relating to the offence and the offender and consecutive sentences should not make the combined sentence unduly harsh or long. The offender should not be deprived of liberty if less restrictive sanctions may be appropriate, and all available sanctions other than imprisonment that are reasonable in the circumstances should be considered. [ 30 ] Those principles have to be balanced in determining an appropriate and just sentence for William Russell.

MITIGATING AND AGGRAVATING FACTORS: [ 31 ] Mitigating Factors : • His most recent offence for which he was sentenced was dated November 2014 and he was sentenced in February 2015. • He has support in the community both from his former spouse and his current partner. • Letters from people in the community indicate that he assisted with their addictions, going above and beyond to assist them. • He has been on a recognizance for 40 months without any breaches. • He has no related convictions. • He has health concerns that could impact incarceration. • He would be considered a petty retailer. [ 32 ] Aggravating Factors: • He is not driven by his own addiction but for profit. • He has a number of prior offences. • The substance is hydromorphone, an opioid with devastating effects on people’s lives.

ANALYSIS: [ 33 ] When I look at this, this is not a case such as Rushton or Chase where Mr. Russell has completely turned his life around. He is not in the category of cases that would justify a sentence outside the usual. As Judge Buckle noted in Rushton , a sentence in the lower end of the range usually have one or more of addictions, youth, limited or no record, relatively small amount of drugs, some hope of rehabilitation and an absence of aggravating factors, which are not present in this case. While the quantity of drugs found at Mr.

Russell’s residence was relatively small and there is some hope of rehabilitation, little else places Mr. Russell into the lower end of sentencing categories. [ 34 ] It cannot be said that Mr. Russell has genuine remorse or he took full responsibility. I understand that is not an aggravating

factor, but a lack of a mitigating factor. [ 35 ] This is not a youthful first offender such as in R. v. Masters , 2017 NSPC 75 and he is not a person with Gladue factors, an aboriginal offender, such as in R. v. Christmas , 2017 NSPC 48 . [ 36 ] Based on the text messages that were put in evidence at the trial, Mr. Russell was quite entrenched in the drug culture in the area. Many people were seeking drugs from him. People such as Johna Cox, Moran, Jerrome, Glen, Wayne, all shown in the text messages. This was not a one off or rare occasion and the text messages show that.

While a petty retailer, he is at the higher end of a petty retailer. While a small quantity of hydromorphone was found, the texts tell a different story. [ 37 ] Opioid use is called an epidemic and a crisis in our society. As I stated above, it is not a recreational drug but rather an addiction which becomes necessary for life. Opioids have led to increased crime, devastating families and communities. In many areas of this country there is an overdose crisis. [ 38 ] Mr. Russell has a record and, while unrelated, it is not small. [ 39 ] Health issues will make a period of incarceration difficult for Mr.

Russell. [ 40 ] He has helped people in the community with their addictions based on the letters submitted. However, he has also contributed to the destruction of other lives by supplying opioids. [ 41 ] The circumstances of this offence are why courts in Nova Scotia have said that a sentence of less than two years of imprisonment is rare. It is the type of case that shows why deterrence and denunciation must be the primary considerations. [ 42 ] A suspended sentence or an intermittent sentence would not be consistent with denunciation and deterrence that is needed in this case.

The sentence must show that society condemns trafficking in opioids and the harm they do to people and to the community. [ 43 ] The aggravating factors here weigh too heavily for less than a period of federal incarceration. ANCILLIARY ORDERS: [ 44 ] Weapons Prohibition s. 109 for 10 years. [ 45 ] DNA Order 487.05 [ 46 ] Forfeiture Order with respect to the cell phone seized under s.16 of the Controlled Drugs and Substances Act. SENTENCE: [ 47 ] Term of imprisonment for two years. Lynch, J.