R. v. Jones, 2023 ONSC 486

CITATION : R. v. Jones, 2023 ONSC 486 COURT FILE NO.: 8541/22 DATE: 2023/04/21 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) HIS MAJESTY THE KING ) Lindsay D. Marshall, Federal Crown ) ) ) ) - and - ) ) ) CYNTHIA JONES ) Kenneth G. Walker , Counsel for the Accused ) Accused ) ) ) HEARD: December 7, 2022 rasaiah j. reasons for sentence INTRODUCTION [ 1 ] The accused entered pleas of guilty on August 17, 2022, that she: 1. On or about the 3rd day of March in the year 2020 at the First Nation of Garden River in the said region, unlawfully did, for the purpose of trafficking, possess a substance included in

Schedule I of the Controlled Drugs and Substances Act , to wit: cocaine, contrary to section 5(2) of the Controlled Drugs and Substances Act ; 2. On or about the 3rd day of March in the year 2020 at the First Nation of Garden River in the said region, unlawfully did, for the purpose of trafficking, possess a substance included in

Schedule I of the Controlled Drugs and Substances Act , to wit: crystal methamphetamine, contrary to section 5(2) of the Controlled Drugs and Substances Act ; 3. On or about the 3rd day of March in the year 2020 at the First Nation of Garden River in the said region, unlawfully did, for the purpose of trafficking, possess a substance included in

Schedule I of the Controlled Drugs and Substances Act , to wit: fentanyl, contrary to section 5(2) of the Controlled Drugs and Substances Act ; 7. On or about the 3rd day of March in the year 2020 at the First Nation of Garden River in the said region , unlawfully did have in her possession a prohibited weapon, to wit metal baton without being the holder of a licence under which she may possess it contrary to section 91(2) of the Criminal Code ; 8.

On or about the 3rd day of March in the year 2020 at the First Nation of Garden River in the said region, did have in her possession proceeds of property Canadian Currency of a value not exceeding five thousand dollars knowing that all of the proceeds of the property were obtained by the commission in Canada of an offence punishable by indictment contrary to section 354(1) (

a) of the Criminal Code . [ 2 ] The sentencing hearing was held December 7, 2022. [ 3 ] At issue is the appropriate sentence in this case. The parties agree that a term of imprisonment is called for. The principal issue is whether it should be a sentence of incarceration or a term of imprisonment to be served in the community, a conditional sentence order. [ 4 ] I have considered all the evidence, the factors, relevant authorities/legal principles, and submissions of counsel although I may not refer to every single piece/one. DISCUSSION/CONSIDERATIONS/ANALYSIS

LAW/LEGAL PRINCIPLES/AUTHORITIES [ 5 ] The purposes and principles of sentencing are set out in

section 718 of the Criminal Code as well as

section 10 of the Controlled Drugs and Substances Act . [ 6 ] Section 10(1) of the Controlled Drugs and Substances Act provides: 10(1) Without restricting the generality of the Criminal Code , the fundamental purpose of any sentence for an offence under this

Part is to contribute to the respect for the law and the maintenance of a just, peaceful, and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community. [ 7 ]

Section 718 of the Criminal Code provides as follows: The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and maintenance of a just peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to the victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community. [ 8 ] Any sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender having regard to the relevant aggravating and mitigating circumstances related to both the offence and the offender; and a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [ 9 ]

Section 718.2 of the Criminal Code addresses the principles of totality, parity and the principle of restraint among other factors.

Section 718.2 also addresses specific aggravating and mitigating factors that shall be taken into consideration based on certain enumerated principles. T [ 10 ] T he Supreme Court of Canada in R. v. Lacasse , 2015 SCC 64 , at para. 4 wrote: One of the main objectives of Canadian criminal law is the rehabilitation of offenders. Rehabilitation is one of the fundamental moral values that distinguish Canadian society from the societies of many other nations in the world, and it helps the courts impose sentences that are just and appropriate. [ 11 ] The Court must consider the offender’s Indigenous heritage pursuant to

section 718 .2(

e) of the Criminal Code . The Court must consider the extent to which factors affecting Indigenous people in Canadian society have impacted upon the offender’s moral blameworthiness and the types of sentencing procedures and sanctions that may be appropriate in the circumstances for the offender because of her Indigenous heritage and connection. This approach, however, does not necessarily mandate a different result even taking into account these concepts of sentencing.

I remained mindful not to erroneously interpret this generalization as an indication that the Gladue principles do not apply to serious offences and that there is no discretion as to whether to consider the unique situation of an Indigenous offender. I must consider the unique systemic or background factors which may have played a

part in bringing the particular offender before the court; and the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of her particular Indigenous heritage and connection. Courts must “take judicial notice of the systemic and background factors affecting Aboriginal people in Canadian society”, including “such matters as the history of colonialism, displacement, and residential schools”: R. v.

Parranto , [ 2021] SCC 46 at para. 80. [ 12 ] It is well-established that the primary objectives in cases of this nature are general deterrence and denunciation. General deterrence is an established sentencing objective based on the premise that the sentence imposed on an offender will discourage people who may otherwise consider committing a similar offence. Denunciation requires that a sentence communicate society’s condemnation of the offender’s conduct R. v.

Proulx , [ 2000 ] SCC 5 at para. 102 . [ 13 ] In Proulx , at paragraphs 41 to 43, the court commented on the fact that a conditional sentence should not be viewed as a lenient punishment or that it has no denunciatory or deterrent effect. At paragraph 113, the Court wrote: 113 In sum, in determining whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing, sentencing judges should consider which sentencing objectives figure most prominently in the factual circumstances of the particular case before them.

Where a combination of both punitive and restorative objectives may be achieved, a conditional sentence will likely be more appropriate than incarceration.

In determining whether restorative objectives can be satisfied in a particular case, the judge should consider the offender’s prospects of rehabilitation, including whether the offender has proposed a particular plan of rehabilitation; the availability of appropriate community service and treatment programs; whether the offender has acknowledged his or her wrongdoing and expresses remorse; as well as the victim’s wishes as revealed by the victim impact statement (. . .).

This list is not exhaustive. [ 14 ] In Parranto , the Supreme Court of Canada wrote at paras. 9-12, the court wrote: [9] This Court has repeatedly expressed that sentencing is “one of the most delicate stages of the criminal justice process in Canada” ( R. v. Lacasse , 2015 SCC 64 , [2015] 3 S.C.R. 1089 , at para. 1 ). More of an art than a science, sentencing requires judges to consider and

balance a multiplicity of factors. While the sentencing process is governed by the clearly defined objectives and principles in

Part XXIII of the Criminal Code , it remains a discretionary exercise for sentencing courts in balancing all relevant factors to meet the basic objectives of sentencing ( Lacasse , at para. 1 ). [10] The goal in every case is a fair, fit and principled sanction. Proportionality is the organizing principle in reaching this goal. Unlike other principles of sentencing set out in the Criminal Code , proportionality stands alone following the heading “Fundamental principle” ( s. 718.1 ).

Accordingly, “[a]ll sentencing starts with the principle that sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender” ( R. v. Friesen , 2020 SCC 9 , at para. 30 ). The principles of parity and individualization, while important, are secondary principles. [11] Despite what would appear to be an inherent tension among these sentencing principles, this Court explained in Friesen that parity and proportionality are not at odds with each other.

To impose the same sentence on unlike cases furthers neither principle, while consistent application of proportionality will result in parity (para. 32). This is because parity, as an expression of proportionality, will assist courts in fixing on a proportionate sentence (para. 32).

Courts cannot arrive at a proportionate sentence based solely on first principles, but rather must “calibrate the demands of proportionality by reference to the sentences imposed in other cases” (para. 33). [12] As to the relationship of individualization to proportionality and parity, this Court in Lacasse aptly observed: Proportionality is determined both on an individual basis, that is, in relation to the accused him or herself and to the offence committed by the accused, and by comparison with sentences imposed for similar offences committed in similar circumstances. [para. 53] Individualization is central to the proportionality assessment.

Whereas the gravity of a particular offence may be relatively constant, each offence is “committed in unique circumstances by an offender with a unique profile” (para. 58). This is why proportionality sometimes demands a sentence that has never been imposed in the past for a similar offence. The question is always whether the sentence reflects the gravity of the offence, the offender’s degree of responsibility and the unique circumstances of each case (para. 58). [ 15 ]

Section 742.1 of the Criminal Code includes: 742.1 Where a person is convicted of an offence, except an offence that is punishable by a minimum term of imprisonment, and the court (

a) imposes a sentence of imprisonment of less than two years, and (

b) is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the offender’s complying with the conditions of a conditional sentence order. . . [ 16 ] I recognize the submission that conditional sentences are now available, and that full consideration is to be given to the principle of restraint and the Gladue principle, which requires the court to consider all other available sanctions that are reasonable in the circumstances, with particular attention to the circumstances of Indigenous offenders.

I also recognize the growing consensus in Canada that addiction is a public health issue that includes requiring a health-focussed response in cases of simple possession. [ 17 ] While I agree that one of the policy reasons for the reforms included the demonstration of disproportionate and negative impact on the Indigenous and other marginalized communities, the repeal of the mandatory minimum sentences, the reforms restore the ability of courts to consider each case that comes before them and determine an appropriate sentence based solely on the facts of the case which could include incarceration where appropriate. [ 18 ] Regarding fentanyl, in Parranto at paras. 97-98 the Supreme Court of Canada wrote: [97] The scale of fentanyl’s devastating impact becomes even more apparent when one considers that, between 2016 and 2020, there were approximately 3,400 homicides across Canada, a number far below the number of fentanyl-related deaths (Statistics Canada, Table 35-10-0069-01 — Number of homicide victims, by method used to commit the homicide , July 27, 2021 (online)).

This disparity makes clear that, in a very real way, those individuals responsible for the largescale distribution of fentanyl within our communities are a source of far greater harm than even those responsible for the most violent of crimes. [ 19 ] In Parranto at paras. 58 and 61, the court wrote, on sentencing serious drug offences: [58] Moreover, the core offence in this case — drug trafficking — is not new.

As the Crown points out, “[d]rug trafficking as an offence is easily quantifiable by reference to a variety of independent factors such as volume of drugs, price, and level of commerciality” (R.F., at para. 92). Another key factor in the categorization of drug offences, both in relation to criminality and sentencing, has always been the nature of the drug at issue. The composition and dangers of the drugs trafficked may change quickly.

As the harms caused by the substance speak directly to the gravity of the offence, appellate courts may step in to provide guidance to ensure sentences reflect those harms, even where the drug is relatively new. We underscore the importance of this fact because harm-based analyses are not an unfamiliar judicial exercise in the sentencing context ( Friesen , at para. 114 ). … [61] … starting point is just “one tool among others that [is] intended to aid trial judges in their work” ( Lacasse , at para. 69 ).

Sentencing judges are free to depart from the starting point and move up or down from this marker based on the specific characteristics of the offender in order to meet the primary sentencing principle of proportionality. [ 20 ] A conditional sentence order is a sentence of incarceration of less than two years that may be served in the community under strict conditions (for example, a curfew; house arrest; abstaining from the consumption of drugs and alcohol; abstaining from owing,

possessing, or carrying a weapon). [ 21 ] Conditional sentence orders were first enacted in 1996 to address the overreliance on incarceration, and the overrepresentation of Indigenous persons in correctional institutions, as well as to reflect the objectives of rehabilitation and restorative justice at sentencing. [ 22 ] When I set out the above, I acknowledge that greater use of conditional sentence orders does not translate to create a risk to public safety and that strict conditions that are restrictive of the offender’s liberty are common with these sentences.

However, before imposing a CSO, the Court must still be satisfied that a sentence of imprisonment of less than two years is appropriate, and that its imposition would not endanger public safety and would be in keeping with the fundamental principles of sentencing. [ 23 ] Public safety concerns for the most serious drugs remains a concern in sentencing drug offences based on the current state of the crisis that still exists in relation to them.

SUMMARY OF AGREED FACTS [ 24 ] In March of 2020 police received information that the offender was selling drugs from her residence located at 129 Eagle St, Garden River, First Nation (“the residence”). [ 25 ] On March 3, 2020, a telewarrant to search the residence was granted by Justice of the Peace Rerup. The warrant was executed on March 3, 2020. [ 26 ] Upon entry, the offender and a Myriah Beaulieu were found in the offender’s bedroom. They were arrested for possession for the purpose of trafficking for cocaine. The offender’s children were present in the residence at the time.

She has four children, who at December of 2022 were reported as being 22, 19, 16 and 14.

In 2020, they would have been 20, 17, 14 and 12 by December of 2020 accordingly. [ 27 ] A search of Myriah Beaulieu’s purse revealed a dime bag containing 1.8g of suspected purple fentanyl, a small baggie containing 17.6g of crystal methamphetamine, a functioning digital scale and numerous empty dime bags of various colours. [ 28 ] A search of the offender’s person revealed a dime bag containing 1g of purple fentanyl, a small zip loc bag containing 30.3g of cocaine and a sandwich bag containing 14.5g of purple fentanyl. [ 29 ] A search of the offender’s bedroom revealed a sandwich bag containing 17.4g of suspected cocaine located on the table beside a functioning digital scale.

There was also methamphetamine and dime bags for packing. $730 in cash was found in an Adidas backpack. There was also 0.96g of crack cocaine near the foot of the bed, and an expandable baton found in the night table. [ 30 ] The items seized by police included 17.3g of fentanyl, 55.96g of cocaine, 1g of crack cocaine, 17.98g of crystal methamphetamine, three digital scales, packaging materials, $730 cash, two cellphones, one tablet, and the expandable baton.

PRESENTENCE REPORT ASSESSMENT (“PSR”) [ 31 ] The following contains excerpts/information from the PSR. [ 32 ] It is noted that the author’s report is comprehensive, and the author consulted 11 sources for the preparation of the report. [ 33 ] The offender is a now 40-year-old. [ 34 ] She is not a first-time offender with criminal convictions from 2002, 2012 and 2016, for offences related to substance use. [ 35 ] The offender understands the offences she has pleaded guilty to and attributes her actions to addiction issues. [ 36 ] The offender was born to the union of her parents who were from the Garden River First Nation; however, they parted ways before she was born.

The offender stated that she did not meet her father until she was around eight or nine years of age but maintained a relationship with him until his passing in 2012. She recalled that her mother had several relationships over the years where substance use, and physical violence were present. She said that she lived with both parents at various times in her life, more so following incidents of domestic violence in her own relationship. [ 37 ] The offender met her former husband at the age of 13 and they became young teenage parents. The relationship bore four children and ended in divorce in 2016.

Substance use and domestic violence were present, and as a result, a child protection agency was involved with the family-on and off. The offender currently resides with three of her children, in the same residence, a house in Garden River First Nation where she has resided the past 15 years. Her oldest daughter and young granddaughter reside on their own. [ 38 ] The offender left high school due to pregnancy. She attended an adult education program and attended the education centre on Reserve before obtaining her GED.

She completed the College Entrance (Native) Program and enrolled in two college programs; however, she withdrew both times because of pregnancy/birth. She attended Continuing Education, and her last educational enrollment was in 2019 at Adults in Motion. Transcripts reflect that the offender fared well academically when she attended her courses. [ 39 ] The offender entered the workforce when her eldest child was born. Previous employment includes working at a call centre, hotels, and bingo hall with pauses due to the births of her children.

She gained employment at the Band Office for the first time from 2014 to 2016. She said she was rehired in 2018 and went on a medical leave prior to her arrest. She disclosed that substance use had become problematic during periods of her employment. She obtained part-time employment in March 2022 at Trailblazing Beads until she gained full-time employment at Garden River First Nation as a receptionist in September 2022 in the Band’s office. The offender continues to work at the Band Office. [ 40 ] The offender said she started drinking alcohol at age 13 around the time she met the father of her children.

By her twenties,

she was using crack cocaine on and off when her partner would bring it home. By her mid-thirties onward, she used crystal methamphetamine. [ 41 ] The offender attended a residential treatment program five years ago (she was interviewed in 2022 making that 2017) and stayed sober approximately four months, explaining she did not address the issues that led to her use. [ 42 ] The offender’s drinking and drug use spans 20 to 27 years and is a longstanding issue. [ 43 ] The offender reached out to Mamaweswen, North Shore Tribal Council, Niigaaniin Services in May 2021.

She participated in a 12-week group in May/June 2021. She completed another 12-week group in September/October 2021. She attended a 10-day land- based detox program in November 2021 followed by a 28-day residential treatment program in November/December 2021. From January to March 2022, she attended a 12-week after-care group. She attended 16 weekly one to one sessions from December 2021 to April 2022 followed by monthly counselling sessions. She continues to attend counselling.

This history undoubted reflects extensive rehabilitation efforts but at the same time it has been a struggle. [ 44 ] The offender provided a fulsome account of her connection to her community, family and traditional practices as related to her Indigenous heritage. These prosocial linkages and pursuits were reported as hampered at times by the offender’s struggles with addiction over the years. [ 45 ] The offender has been working on restoring family relationships that have been impacted by addiction.

She has reconnected with her Indigenous culture and participates in cultural activities such as Ceremonies and Sweats. She has distanced herself from negative peers and continues to surround herself with positive influences. She remains hopeful and positive for her future. [ 46 ] The offender and collateral sources have described the offender as an individual with strong ties to the community, family, and employment. They feel she has made significant changes over the past 18 months and remains connected to community supports.

They are reported as feeling that she appears to be committed to sobriety and leading a healthy lifestyle. [ 47 ] The offender indicated to the writer that she would comply with court ordered conditions should she require supervision in the community and that she is committed to leading a healthy pro-social lifestyle. [ 48 ] The PSR author deems the offender to be a suitable candidate for community supervision, however, assessed that she would not benefit from any services provided by Probation and Parole other than monitoring ongoing involvement and connection to community supports, cultural practices and employment.

GLADUE REPORT [ 49 ] The following include excerpts/information from the Gladue Report. [ 50 ] The author’s report was comprehensive, and the author consulted 8 individuals and numerous documentary sources for the preparation of the report.

There are no real inconsistencies between this report and the PSR concerning upbringing, employment, family, supports, substance abuse and violence the offender was subjected to, substance abuse issues of the offender, the attitude of the offender, remorse and rehabilitative steps taken. [ 51 ] The author, in the event the court considered conditional sentence, however made some recommendations.

Other recommendations were also made by the writer if incarceration was determined. [ 52 ] The report provided more in-depth detail. [ 53 ] The offender’s aboriginal community is Garden River First Nation, also known as Ketegaunseebee. [ 54 ] The information reflects that the offender’s upbringing did involve participation in cultural activities and events. [ 55 ] The offender’s father Marvin Vince Pine, Netaawaash (Soaring Eagle) passed away June 7, 2012, at the age of 56.

The offender shared her knowledge of her father’s time at residential school: My dad used to go to residential school at Shingwauk, and he’d be like, he was like the kid that would run away all the time, he would take off every weekend. Come back home, hide out for the weekend, and then go back on. They, they come pick him up. Monday morning came where if it’s time to go back to school then he’d be like OK. You’d get bulled up there by all the other kids or by the teachers and then you now, all that kind of stuff.

He said it wasn’t good up there and that’s why he’d always run away. [ 56 ] Additional and confirmatory information was provided regarding the offender’s father’s time at Shingwauk by three other family members. The additional information outlined the abuse he suffered.

His siblings also attended residential school and were subjected to abuse, as well as his mother. [ 57 ] The family members interviewed provided confirmatory information regarding the offender’s upbringing including her changes of residency, and subjection to substance abuse and domestic violence. [ 58 ] The information reflects continuous and frequent subjection to substance abuse and domestic violence.

The information reflects many struggles related these abuses and other issues, such as absent parenting, lack of food, different babysitters, and changing of schools. [ 59 ] The information reflects the offender’s past reliance on her sisters and fear of her mother’s various partners as she was growing up. [ 60 ] The offender expressed greater connection to her maternal grandparents. However, drinking also occurred in that home.

[ 61 ] The offender shared her experience regarding the care she was given as a child: Very neglected on my needs and my personal well-being. Like I said, we’re raised by ourselves and then no rules, no nothing, no structure, no anything. I just did what I wanted, whenever I wanted it. It was definitely neglect that caused a lot of it. [ 62 ] The offender recalls times in her childhood about food insecurity and people coming and going from the house, The offender states: There was a lot of drinking. There was a lot of wondering who the people were. There was.

There was times when we didn’t have a lot of food, but then there was times when we had a lot of food. [ 63 ] The offender shared her experience with abuse as a child and feeling scared. The offender stated: Physically, I wasn’t beaten as a child from my parents. I did wake up naked. Not knowing what happened , for sexual abuse. Mental abuse and emotional abuse. Yes, definitely. Like I said, life was scary. I didn’t know what was going on and then there’s times that I ahh, just blocked out like. I don’t even remember.

That is hard to say. [ 64 ] The report reflects that the offender disclosed sexual abuse to her sister recently. [ 65 ] The report outlines the very difficult relationship that the offender had with her ex-husband. It was very unsteady and precarious. It involved domestic violence, sexual abuse, and substance abuse. They were very young when they started their relationship. By age 17 the offender became pregnant with their first child. The report outlines many break-ups and reconciliations. During the break-ups they would have relationships with others.

Some of the domestic violence between them resulted in the offender suffering broken ribs and a broken jaw. There were many instances of pushing and punching. [ 66 ] The toxic relationship between the offender and her ex-husband continued, off and on, for 22 years. It would cause the offender, after attempting to be healthier, to slip back into making unhealthy choices. [ 67 ] The writer of the report remarked as follows: Children exposed regularly to violence in their homes have long lasting impacts into adulthood of physical , mental, and emotional harm.

The exposure can lead to a risk of crime and violence and an increase in girls that experience abuse and neglect. Child maltreatment or violence among parents can demonstrate poor parental attachment. Children learn what is acceptable behaviour and learn those characteristics at a young age. [ 68 ] A police officer from the offender’s community was interviewed. She recalled the instances of domestic spousal violence involving the offender and her former husband, one instance resulting in the offender’s former husband being imprisoned.

She recalled the offender’s situation worsening; the offender abusing alcohol and illegal drugs/opiates. [ 69 ] The report outlines the offender having to deal with trauma her children suffered while in the care of her ex-husband. Guilt, the offender states, led her to continue to abuse drugs and alcohol. The offender is noted as stating that her upbringing and her mother’s parenting mirrored her parenting: There was a lot of traumas in there, in between of people and then a little bit of the stories when the kids would be able to tell me something.

I would feel so guilty that I would drink and I would not be able to stop. Like I, I know I left for five days at a time, like you know, drinking and the kids not knowing where I was. Like you know, I know I did everything my mom did to me and it was hard. It was hard to realize that. [ 70 ] The writer of the report highlighted: Children that attended Residential Schools were separated from their parents, family and community resulting in a lack of identity and connection to their culture.

Inadequate care giving that was received at the schools and the limited or nonexistent access to return home to stay connected to traditional family practices resulted in what is now called intergenerational trauma. Intergenerational trauma has impacted many Indigenous people across Canada. A common factor is the resulting unhealthy parenting or neglect that carried forward when the children that attended the schools had their own children. [ 71 ] The offender is outlined as having made a paradigm shift in her life. [ 72 ] The report indicates the offender has had stable residency in the same location since 2006.

It is not lost on me for clarity, that the offender reported trafficking from this residence and that many of the items/drugs in this case were found and seized from same. [ 73 ] The report indicates that the offender now has positive associates to draw on for companionship and support. The offender has reconnected with supportive family members. [ 74 ] Given what was reported, I agree, which is not contested by the Federal Prosecutor, that there is no question that the offender has suffered intergenerational trauma and was impacted by same.

In this case, the issues go back four generations supported by the interviewed police officer speaking on some levels from personal observations/involvement with the family throughout her career which she started in 1990. [ 75 ] The offender has attended treatment over the years, the most recent being a residential treatment program where she engaged in therapeutic activities connected to her culture.

The offender is reported as having now accessed many cultural programs in her home community. [ 76 ] The offender has attempted to educate herself over the years and to be employed in the customer service sector, housekeeping, and office administration.

[ 77 ] The offender is currently employed full time with Garden River First Nation as a receptionist. She has been reported as presenting herself professionally at this job.

As for long-term goals, the offender expressed desire to help others and be involved with a group home that offers a safe place for men and women, a place to learn life skills and their culture. [ 78 ] The offender is reported as expressing remorse, acknowledging the unhealthy cycles she has fallen into during her life, and making strides to pull away from negative influences and people. [ 79 ] The offender’s friends and family are reported as having accounted for positive changes in the offender and who she is today. The changes have been described as the offender being one hundred percent different.

The officer interviewed for this report remarked comments made to her by a co-worker with the OPP as the offender presenting to that OPP officer as “a whole 100% different” version of herself. [ 80 ] At the time of assessment, the writer reports the offender as being in good mental and physical health. [ 81 ] On personal attributes and other resources, the report highlights the offender’s varied job experiences that have provided her with many skills. The writer reports the offender as having overcome many challenges including but not limited to sexual abuse, physical abuse, and neglect as a child.

The offender demonstrates possessing resiliency rooted in a strong work ethic. The offender has reconnected with herself and her culture. The offender is demonstrating that she is finding positive ways to contribute to her community and stay healthy. She has a strong support system connected to her culture and professional supports including counselling to continue her efforts towards relapse prevention and aftercare programs.

The offender has been seen at traditional cultural events making efforts to understand and embrace her culture. [ 82 ] As to attitude and the offences she committed the writer reports that the offender is very remorseful and recognizes those who were harmed by her actions. She apologizes and recognizes that she affected many people as a supplier and that these people too were probably going through similar things she was going through. She feels she passed her burdens onto them, albeit unintentionally. I interpreted this to mean that she did not mean to but did not realize that then.

She welcomes people learning lessons from the wrongs she has committed. She recognizes that she affected more than just the people she supplied drugs to, she negatively affected the lives of her family, friends, and herself. She wishes she could take back many things she has done. Accordingly, she consistently presents as taking accountability, understanding, and expressing regret/remorse in respect of the commission of the offences. [ 83 ] The offender is reported as understanding the work she must do personally to stay on the path she now finds herself on.

She has set goals related to her recovery, employment, career, and personal growth as an Anishinaabe woman. [ 84 ] I agree, which is acknowledge by the Federal Prosecutor, that the offender has made strides in terms of rehabilitation and her life.

She has support, has employment, and is involved in her community and culture. [ 85 ] I considered all of the above and remained mindful of the offender’s history, which has informed me of the offender’s personal circumstances and community, and the impact of the disadvantages and systemic racism that contributed to her interaction with the criminal justice system. [ 86 ] The Gladue Report has provided me with context for understanding and evaluating the individual offender, the bearing of her unique circumstances on her culpability and how it should influence the ultimate sentence.

I find that it has “reduction” bearing and should influence the ultimate sentence. OTHER CONSIDERATIONS [ 87 ] The offender has entered a plea of guilty, indicative of remorse. [ 88 ] She came to court with support of family and the Band. [ 89 ] The criminal record of the offender is limited, spread out, with the last entry being approximately four years before the commission of the offences. As stated in the PSR, it does present as related to substance abuse.

It is as follows: a. 2002 - Assault; possession of substance: suspended sentence and 12 months probation. b. 2012 - Drive while ability impaired cause bodily harm: $1500 fine and 2-year prohibition order. c. 2016 - Drive while ability impaired: 30 days intermittent and probation [ 90 ] There are no reported issues while the offender was on release related to these charges and/or since her date of arrest on these charges. [ 91 ] As much as the Gladue Report and the PSR are positive and present mitigating factors and influencing value, this is a case involving three types of hard drugs,

Schedule I drugs, including fentanyl, and I had to remain mindful also that it is a very serious drug that has and continues to cause very serious public safety concerns, which is very prevalent in our local community.

The substances, the quantities of the substances, the impact on the community and that fact that the offender was trafficking, although charged with possession for the purpose, are all aggravating. [ 92 ] There is no question that the offences in this case are serious and the harms to the community considerable which speaks to significant gravity of these offences. [ 93 ] In terms of culpability, the offender was the target of the investigation that resulted in the charges before the court. She was the one housing the drugs, and “supplying” as she phrased it.

While certainly not classified as a large-scale supply and recognizing the offences are possession for the purpose of trafficking, the amounts of drugs seized are not insignificant. I recognize there is connection

between her being an addict and the “supplying” she engaged in. She has admitted to using crack cocaine and crystal methamphetamine as part of her substance abuse issues. She also identified alcohol as an issue. [ 94 ] The offender was suspected of trafficking from her home. This is the home where she resides with 3 of her children. While certainly not a firearm, she did have a weapon readily available to her in her bedroom.

The baton in this case was located in the offender’s nightstand. [ 95 ] The items seized by police included 17.3g of fentanyl, 55.96g of cocaine, 1g of crack cocaine, and 17.98g of crystal methamphetamine, three hard and highly addictive types of drugs. Police seized three digital scales, packaging materials, $730 cash, two cellphones, one tablet, and an expandable metal baton. [ 96 ] There is no question that the seized drugs were destined for our community on the evidentiary record on this sentencing.

The offender was aware she was involved in supplying to members of our community. [ 97 ] Some of the drugs and packaging and scales were out in the open on tables and/or at the end of the offender’s bed in her bedroom. [ 98 ] The offender also had drugs on her person. [ 99 ] In terms of public safety concerns, the Crown filed several articles that reported the seriousness of opioid use in the community, and the impact same has had on our community. [ 100 ] High rates of opioid related deaths across Canada have been a significant and longstanding national public health issue.

The filings report that in 2019, there were almost 4,000 opioid-related deaths across the country, of which over 94 percent were accidental. In the months following the State of Emergency declaration in Ontario on March 17, 2020, there was a significant acceleration in the number of opioid-related deaths observed across Ontario. During the pandemic (March 2020-December 2020) fentanyl was a direct contributor in 87 percent of opioid deaths.

This was a very significant increase from 75 percent pre-pandemic. [ 101 ] Algoma Public Health was among the list of health units that had statistically significant rises in rates, and the highest population-adjusted rates of opioid-related deaths during the pandemic.

Algoma Public Health had to issue an opioid alert for the region because of the rise in the number of suspected opioid related poisonings and emergency department visits in Algoma. [ 102 ] Our local area has had the third highest opioid death rate in the province. [ 103 ] There is no question that the offences in question committed by the offender were serious offences.

The offender has pleaded guilty to trafficking, including trafficking one of the most serious dangerous drugs, a drug that was destined for vulnerable members of our community which is still struggling and in crisis because of it – a community that has suffered many deaths because of this drug, at a rate much higher than most areas in all of Ontario. [ 104 ] On the issue of quantity, defence suggested in essence that Public Service Prosecution of Canada is “out of touch” with personal use purchases in respect of quantities purchased by individuals.

Whether this is the case or not, this is not relevant, especially in this case, a case of possession for the purpose of trafficking. This is not a simple possession case. This offender has pleaded guilty to possession for the purpose of trafficking, hard drugs, in not insignificant quantities, including a serious dangerous drug, a drug that was destined for vulnerable members of a community that is still struggling and in crisis because of it – a community that has suffered many deaths because of this drug, at a rate much higher than most areas in all of Ontario.

This argument also ignores the studies and statistical findings that even a small amount of fentanyl can cause death and/or serious harm to an individual. It is the role of Public Prosecution Service of Canada to continue to prosecute cases involving serious drugs that engage serious public safety concerns. Bill C-5 was not intended to change that. [ 105 ] The repeal of mandatory minimum sentences does not alter the fundamental obligation of a sentencing court to impose a fit sentence in all cases.

While defence did not dispute the standing range of three to five years as the range that has been emanated from the caselaw, the defence argued that theses authorities which provide guidance on appropriate sentences are no longer reliable for assessing fit sentences because of Bill C-5. I do not agree.

Bill C-5 in my view, does not remove the jurisprudence’s guidance on the principles with respect to sentencing serious drug offences that engage public safety concerns, deterrence, and denunciation of same and/or the application of the principles/case authorities guiding application of Gladue principles and/or the assessment of appropriate sentences.

In my view, this argument further does not distinguish the features of simple possession versus trafficking and/or acknowledge the many studies in the last years on the increased awareness of the devastating effects of fentanyl. [ 106 ] I am unable to conclude that a sentence of less than two years is within the appropriate range in the offender’s circumstances and that to do so would be consistent with the fundamental purpose and principles of sentencing. In my assessment, denunciation and deterrence objectives figure most prominently. The offender’s conduct and role in these offences was not minimal.

The gravity of the offences is significant. The nature of the offences is very serious. The harm these types of drugs, especially fentanyl, have caused in our local community has been devastating. This is a public health crisis. Fentanyl is killing people, even small amounts of it, with the supply of drugs of this nature or drugs containing drugs of this nature. And as a side note, the factor of the nature of the drug is important.

While I appreciate distinguishing features of responsibility and have started with the applicable range for that in question as guided, it appears that the more that is learned about this drug, its derivatives and their impacts, the health crisis and risk of death to members of our community is not always predicated on and/or diluted by the size of the drug operation in a community of individuals who may have unknown distinct reactions. [ 107 ] I state that this has not been an easy conclusion to reach.

I truly admire and respect the steps that the offender has taken, changes she has made, and the rehabilitation efforts sustained in the last year. I acknowledge the offender’s seemingly enlightened understanding of her actions, her consistent expression of remorse, and the impact of the offender’s personal unique circumstances on culpability. I fully understand that imposing a sentence of more than two years in custody is one that will pull the offender from the environment that she is presently in, but against all of what this community has and is still enduring, and what all of the decisions and statistical

information I have reviewed have articulated/presented, considering all the facts and circumstances, leads me to the conclusion that this sentence requires a period of incarceration for more than two years with the starting point as being the range presented by the Federal Prosecutor of 3 to 5 years. [ 108 ] Accordingly, on the unique circumstances of this case and the offender, I fix the sentence globally, in this case, at three years which is the lowest end of the range because of all of the unique circumstances presented and all of the other mitigating factors I have considered with respect to this offender in these reasons.

ANCILLIARY/OTHER ORDERS DNA [ 109 ] Counts 1, 2, 3 and 7 are enumerated and/or generic secondary offences. The making of a DNA order as being in the best interests of the administration of justice favouring making the order given the nature and circumstances of the offences outweighing impact on the offender’s privacy and security was not opposed or challenged. I am of the opinion that the granting of same is favoured.

I am satisfied that the privacy and security of Cynthia Jones would not be grossly disproportionate to the public interest in the protection of society and the proper administration of justice and that I am satisfied that it is in the best interests of the administration of justice to do so, based on the nature of the offences and the circumstances of their commission as outlined by the facts presented at the hearing.

SECTION 109 of the CODE [ 110 ] A mandatory order for 10 years in duration is applicable in this case based on the offender’s record. FORFEITURE ORDER [ 111 ] Drugs, drug paraphernalia, a weapon and currency were seized. [ 112 ] The prosecutor seeks forfeiture of all items seized and there was no contest regarding same being chemical and non-chemical offence-related property beyond a reasonable doubt. VICTIM FINE SURCHARGE [ 113 ] The applicable victim fine surcharge is $1,000. My sentence will place the offender in a position of not being able to pay same in my view, and as such, it will be waived.

SENTENCE [ 114 ] I hereby impose on and sentence Cynthia Jones to imprisonment for a term of three years. [ 115 ] On counts 1, 2, 3 and 7, being a secondary designated offences, I order that a DNA order shall issue pursuant to

section 487.04 of the Criminal Code of Canada , in the prescribed form, authorizing the taking of from Cynthia Jones, the number of samples of bodily substances that is reasonably required for forensic DNA analysis. [ 116 ] Pursuant to s. 109 (2) of the Criminal Code of Canada , I order that: a.

Cynthia Jones shall be prohibited from possessing any firearm other than a prohibited firearm or restricted firearm, and any cross- bow, any prohibited weapon, restricted weapon, ammunition, and explosive substance for a period of ten years beginning of the day of release from imprisonment after conviction for the offences and ending not earlier than ten years after; and b. any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life. [ 117 ] Pursuant to

section s.16 of the Controlled Drugs and Substances Act I hereby order all items seized are forfeited and the appropriate order of disposition shall issue in favour of His Majesty the King in Right of Canada. [ 118 ] The applicable victim fine surcharges are hereby waived. OTHER [ 119 ] At the request of the Federal Prosecutor the remaining counts on the indictment are hereby marked withdrawn. Rasaiah J. Released: April 21, 2023 CITATION : R. v. Jones, 2023 ONSC 486

COURT FILE NO.: 8541/22 DATE:2023/04/21 ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING – and – CYNTHIA JONES REASONS FOR sentence Rasaiah J. Released: April 21, 2023