SUPREME COURT OF NOVA SCOTIA
Citation: R. v. Reddick - 2013 NSSC 70
Date: 20130111 Docket: Cr. No. 341059
Registry: Halifax
Between:
Her Majesty the Queen
-and-
Alexander John Reddick
Sentencing
Decision
Judge: The Honourable Justice Robert W. Wright
Heard: January 11, 2013 at Halifax, Nova Scotia
Oral
Decision: January 11, 2013
Written
Decision: February 28, 2013
Counsel: Crown Counsel - Angela Nimmo
Defence Counsel - Bradley Sarson
Wright, J., (Orally)
[1] The offender Alexander John Reddick is being sentenced today after having plead guilty on June 12, 2012 to a single count of unlawfully trafficking in hydromorphone, commonly known as dilaudid, contrary to s.5(1) of the Controlled Drugs and Substances Act.
[2] Mr. Reddick was originally charged with a single count of trafficking in cocaine, but the indictment was formally amended on June 12, 2012 by substitution of the drug hydromorphone, to which he entered his plea of guilty.
[3] The facts surrounding the commission of this offence are set out in my decision on a voir dire cited as 2011 NSSC 235 which I need not repeat here. However, some further facts have since come to light, partly through an agreement of counsel related to the court this morning and partly through the testimony heard this morning from Mr. Reddick.
[4] The additional facts agreed to by counsel are that on May 1, 2010 Mr. Reddick trafficked a single dilaudid pill to Mr. Wilson in exchange for either a small quantity of crack cocaine for his individual use or the $20 found on Mr. Reddick by the police following his arrest which he intended to use to feed his own cocaine habit. Whichever of the two it was, as a quid pro quo for the dilaudid, will have no material effect on the outcome of this hearing.
[5] The testimony of Mr. Reddick heard this morning was centred on the question of whether or not he had obtained the dilaudid pill lawfully through a medical prescription which he then used as an asset to trade for a hit of crack cocaine.
[6] Mr. Reddick testified that he was involved in a car accident in 1980 in which he sustained a serious knee injury resulting in a permanent disability. He had a pronounced limp taking the witness stand. Mr. Reddick further testified that he fractured his other leg in a fall back in 2003 or 2004.
[7] As a result of both accidents, he has been trying to manage his pain ever since. Documentary evidence was introduced to prove that he has been prescribed dilaudid from his doctor since late 2011. However, he testified that he had on occasion been given short term prescriptions for dilaudid by emergency room doctors at the hospital prior to the commission of this offence in May of 2010. Defence counsel acknowledges that Mr. Reddick cannot otherwise establish having had a current prescription for dilaudid at the time of this offence but maintains that Mr. Reddick is now, and has been, a lawful user of dilaudid for the same permanent injuries he continues to suffer from.
[8] Although Mr. Reddick’s credibility has legitimately been brought into question by the Crown on cross-examination, given the severity of his injuries and their permanence, the fact that he has been on disability benefits ever since the car accident, and the fact that he is currently on a dilaudid prescription, I find that it is entirely possible, if not probable, that the dilaudid pill trafficked here was one lawfully obtained by him for pain management.
[9] The court was provided with a pre-sentence report dated October 19, 2012 in anticipation of the originally scheduled sentencing date of October 23rd. However, the hearing had to be postponed until today.
[10] I will now summarize the highlights of that report.
[11] Mr. Reddick is 55 years of age and at the time of the offence, had been residing on his own at the Salvation Army shelter facility in Halifax. He has a number of adult children, some of whom he remains in contact with.
[12] He has a grade 10 education which he hopes to upgrade to a GED grade 12 or equivalent. He has also taken a couple of courses in past years while living in Ontario.
[13] The pre-sentence report also indicates that Mr. Reddick has been on disability benefits since he sustained a serious knee injury in a car accident in 1980. He is in receipt of disability benefits in the amount of $535 per month which paid his accommodations at the Salvation Army facility. He has also done a few odd jobs over the years, most recently at Centennial Pool in Halifax doing security in the locker rooms.
[14] According to the pre-sentence report, Mr. Reddick advised the probation officer who authored it that he had a problem with the drug dilaudid for some time after being prescribed it some two years earlier by a physician. He stated that he developed an addiction to it along with a bigger addiction to crack cocaine which he started using in 2003 after his mother passed away.
[15] The probation officer, at Mr. Reddick’s request, contacted two individuals for their comments for purposes of his report. He spoke with both a counsellor and a clergyman at the Salvation Army facility. It was reported that Mr. Reddick had then been residing at the shelter for about 10 months and that during his most recent stay, he had demonstrated many positive changes in assisting with the care and well-being of some of the more vulnerable residents, as well as various charitable events undertaken by the Salvation Army. Mr. Reddick indicated to the probation officer that he is trying to change his lifestyle and to address his addictions which had been at the forefront of his life all too often.
[16] The purpose and objectives of sentencing of drug offenders is set out in s.10 of the CDSA in conjunction with the more general principles of sentencing codified in ss. 718, 718.1 and 718.2 of the Criminal Code. Under the former, the stated fundamental purpose in the sentencing of drug offenders is to contribute to 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.
[17] Section 718 of the Criminal Code similarly sets out a number of sentencing objectives to be attained, namely, (a) denunciation, (b) deterrence (both specific and general), (c) separation of offenders from society where necessary, (d) rehabilitation, (e) reparation to victims and the community, and (f) the promotion of a sense of responsibility in offenders.
[18] Section 718.1 embodies the principle of proportionality. It reads that “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”.
[19] Section 718.2 codifies other sentencing principles to be taken into consideration, including any aggravating or mitigating circumstances relating to the offence or the offender, and the requirement that the sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.
[20] The Nova Scotia Court of Appeal has made several pronouncements on the appropriate range of sentence to be imposed on drug traffickers engaged in the drug trade for financial gain, and the purpose and objectives sought to be thereby achieved. The two most recent such cases are R. v. Jamieson 2011 NSCA 122 and R. v. Knickle 2009 NSCA 59.
[21] Those cases involved the offences of trafficking in cocaine, and possession of cocaine for the purpose of trafficking respectively. However, no distinction is to be made in the applicable sentencing principles in cases involving dilaudid as opposed to cocaine (see, R. v. Calder [2012] N.S.J. No. 15 and R. v. Oldham [2012] N.S.J. No. 494).
[22] In Knickle, the Court of Appeal stated (at para. 18) that:
Numerous other sentencing decisions from this court repeatedly and consistently emphasize that persons involved in trafficking in cocaine will be subject to sentences of incarceration. This has been absolutely clear since the very first case heard by this court involving trafficking in cocaine: R. v. Merlin,[1984] N.S.J. No. 346, 63 N.S.R. (2d) 78. See also, for example: R. v. Dawe, 2002 NSCA 147 (CanLII), 2002 NSCA 147; R. v. Jones, 2008 NSCA 99 (CanLII), 2008 NSCA 99; R. v. Stokes, 1993 CanLII 3115 (NS CA), [1993] N.S.J. No. 412, 126 N.S.R. (2d) 66; and R. v. J.B.M., 2003 NSCA 142 (CanLII), 2003 NSCA 142.
[23] The Court of Appeal further stated (at para. 28) that:
The range of sentencing for a higher level retailer of cocaine starts at two years in penitentiary. It does not include two years less a day or any other sentence that is available to be served in the community.
[24] Also in Knickle, the Court of Appeal again reiterated the importance of deterrence in the sentencing of cocaine, and by extension, dilaudid traffickers. Numerous cases were cited to this effect, including R. v. Steeves 2007 NSCA 130.
[25] In Jamieson, the Court of Appeal reduced the offender’s sentence from two years in a federal penitentiary to two years less two days imprisonment. The exceptional circumstance at play there was that the original sentence of serving federal time had the unintended consequence of denying the offender the opportunity to exercise his immigration appeal rights. To preserve those appeal rights, and thus avoid consequences that would be patently unjust, the court reduced the sentence on appeal by two days.
[26] In so doing, however, the court reaffirmed that “Persons who seek to profit by trafficking in cocaine, or possessing it for the purpose of trafficking, will upon conviction be virtually guaranteed a prison term in a federal penitentiary”.
[27] In relying upon these and other cases (including the unreported NSSC decision in R. v. Hartley), the Crown in the present case seeks a sentence in the range of two to two and one half years incarceration in a federal penitentiary.
[28] The Crown submits that there is only one range of sentence for cocaine, and by extension dilaudid traffickers of any level, regardless of their fit in the Fifield categories, and it starts at two years. The Crown recognizes that a person may be given a sentence outside the range if they find themselves in exceptional circumstances, none of which the Crown says are present here.
[29] The Crown also points to, as an aggravating factor, the offender’s lengthy and substantial criminal record for a wide array of offences dating back to 1974, which resulted in his incarceration on a number of occasions. None of these convictions, however, were for drug offences.
[30] Defence counsel, on the other hand, proposes a jail sentence between six and nine months in the Correctional Centre, based on the relatively unusual facts of this case and the mitigating factors at play.
[31] In his submission, there is a dearth of case law to assist this court in determining an appropriate sentence based on the facts presented here, namely, the trafficking of a single dilaudid pill to an acquaintance, for which Mr. Reddick appears to have had a medical prescription at the relevant time, with no money exchanging hands (or at least not for financial profit or gain in the commercial sense). Defence counsel cites the recent decision of Justice Wood in Oldham where he stated (at paras. 15 and 16):
[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 (CanLII), 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.
[32] Because the offender in Oldham was such a minor trafficker (having sold a total of six dilaudid pills over two transactions for a combined $80), he was given a Conditional Sentence order of two years less a day as proposed by the defence..
[33] In addition to the cases therein cited, defence counsel here has also referred to other cases involving petty retailers in other jurisdictions, including one appellate decision from Saskatchewan, cited as R. v. Keepness 2000 SKCA 136. There, the Appeal Court dismissed a Crown appeal of a sentence of a twelve month Conditional Sentence (with house arrest) for convictions on two counts of trafficking in circumstances where the offender, in two separate transactions, sold two dilaudid pills for $40 and one Ritalin pill for $40.
[34] The central thrust of the defence submission is that Mr. Reddick was not here engaged in the drug trade. Unfortunately, he had a crack cocaine habit and had very few financial resources to support it. The one resource he did have on the night in question was a dilaudid pill which he used as an asset to exchange for the acquisition of a hit of crack cocaine.
[35] While this meets the legal definition of trafficking, it is emphasized that this transaction was not for profit in any commercial sense or for monetary gain. Defence counsel therefore submits that the length of the sentence here should lean more towards those imposed for the offence of possession.
[36] As a further mitigating factor in the present case, it is noted that Mr. Reddick did plead guilty to the offence charged in the amended indictment. However, this amendment, and the guilty plea taken, occurred just after jury selection had taken place.
[37] The discretion of the court to be exercised in sentencings must always be tailored both to the individual offender and to the particular circumstances surrounding the commission of the offence. Central to the sentencing process is the principle of proportionality embodied in s.718.1 of the Code. There is a very helpful discussion of this principle found in the recent decision of the Supreme Court of Canada in R. v. Nasoguluak [2010] S.C.J. No. 6 (at paras. 40-42):
[40] The objectives of sentencing are given sharper focus in s. 718.1, which mandates that a sentence be “proportionate to the gravity of the offence and the degree of responsibility of the offender”. Thus, whatever weight a judge may wish to accord to the objectives listed above, the resulting sentence must respect the fundamental principle of proportionality.
Section 718.2 provides a non-exhaustive list of secondary sentencing principles, including the consideration of aggravating and mitigating circumstances, the principles of parity and totality, and the instruction to consider “all available sanctions other than imprisonment that are reasonable in the circumstances”, with particular attention paid to the circumstances of aboriginal offenders.
[41] It is clear from these provisions that the principle of proportionality is central to the sentencing process (R. v. Solowan, 2008 SCC 62 (CanLII), 2008 SCC 62, [2008] 3 S.C.R. 309, at para. 12). This emphasis was not borne of the 1996 amendments to the Code but, rather, reflects its long history as a guiding principle in sentencing (e.g. R. v. Wilmott (1966), 58 D.L.R. (2d) 33 (Ont. C.A.)). It has a constitutional dimension, in that s. 12 of the Charter forbids the imposition of a grossly disproportionate sentence that would outrage society’s standards of decency. But what does proportionality mean in the context of sentencing?
[42] For one, it requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence. In this sense, the principle serves a limiting or restraining function. However, the rights-based, protective angle of proportionality is counter-balanced by its alignment with the “just deserts” philosophy of sentencing, which seeks 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 (R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para. 81; Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486, at pp. 533-34, per Wilson J., concurring). Understood in this latter sense, sentencing is a form of judicial and social censure (J. V. Roberts and D. P. Cole, “Introduction to Sentencing and Parole”, in Roberts and Cole, eds., Making Sense of Sentencing (1999), 3, at p. 10). Whatever the rationale for proportionality, however, the degree of censure required to express society’s condemnation of the offence is always limited by the principle that an offender’s sentence must be equivalent to his or her moral culpability, and not greater than it. 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.
[38] The Nova Scotia Court of Appeal has made it loud and clear that the sentencing norm in this province in cases involving the trafficking of cocaine, or by extension drugs like dilaudid, is a term of imprisonment in a federal penitentiary for those who engage in it as a higher level retailer or who seek to profit from it as a trade. However, depending on the circumstances, the court has discretion to depart from that norm. It is implicit in Knickle that this discretion also extends to abnormal cases where the level of trafficking is very minor (i.e., at the very low end). This is necessarily so to give effect to the overarching principle of proportionality in individual cases.
[39] The facts of this case are indeed distinguishable from most of the reported cases for this offence. They do not fit nicely into any of the three Fifield categories. Here, we are dealing with a situation where the quantity of the Schedule 1 substance was limited to a single dilaudid pill on a single occasion. It was not trafficked for profit or gain in any commercial sense but rather was an exchange whereby Mr. Reddick could acquire a small quantity of crack cocaine to feed his habit that night. He cannot be said to have thereby engaged in the drug trade in the ordinary sense.
[40] There is no evidence that Mr. Reddick obtained the dilaudid pill illegally. It is more likely that he did obtain it through a medical prescription, given the history, severity and permanence of his disabling injury and the fact that he has established having had a dilaudid prescription since 2011, in respect of the same old injuries. Although he has a lengthy and unenviable criminal record, he has no prior drug convictions.
[41] The weight of these mitigating factors is sufficient, in my view, for the court to depart from the norm of two years plus, to be served in a federal penitentiary, for such an offence. Yet, at the same time, the court must reaffirm its message of denunciation and deterrence for trafficking in Schedule 1 substances.
[42] The challenge is in finding the right balance between the two perspectives on proportionality above recited in Nasoguluak that “converge in a sentence that both speaks out against the offence and punishes the offender no more than is necessary”.
[43] All things considered, I have concluded that a fit and appropriate sentence in this case, tailored to the relatively unusual circumstances presented here, is a term of imprisonment in the Correctional Centre of 16 months. No credit is sought by defence counsel for the time Mr. Reddick has spent on remand since last October following revocation of his bail.
[44] The Crown also seeks as part of this sentencing two ancillary orders, namely, a weapons prohibition order under s.109 of the Criminal Code for ten years and a DNA Sampling Order. Those ancillary orders are not contested by the defence and will be granted by the court in the usual form. Given Mr. Reddick’s personal circumstances, there will be no victim fine surcharge imposed against him.
J.