On May 25, 2013, Krista Danielle Sargent was caught trying to bring four grams of marihuana, four Tylenol 4s and three Tylenol 3s into the Edmonton Maximum Penitentiary located north of Edmonton, Alberta. On September 11, 2015, she pleaded guilty to two counts of possession of a controlled substance for the purpose of trafficking and was sentenced by Justice V.O. Ouellette in the Court of Queen’s Bench of Alberta to concurrent terms of 90 days imprisonment to be served intermittently. That meant she would serve a total sentence of 90 days on weekends. The Crown appealed.

On April 12, 2016, the Alberta Court of Appeal released its split 2-1 ruling reported as R v Sargent, 2016 ABCA 104 where the majority, Justice J.D. Bruce McDonald and Justice Thomas W. Wakeling, increased the sentence to one year imprisonment. Justice Ronald L. Berger dissented. Nowhere in the opinions did the court analyze the nature of the crime here. So let’s begin with that.

1. What was Sargent’s crime?

The majority opinion, at paras. 16-7, described the crime as smuggling but that does not say what Sargent did in the language of the law. Domestic smuggling is not a crime in Canada. The offence here was possession for the purpose of trafficking. To understand what the law prohibits we have to turn to the Controlled Drugs and Substances Act, SC 1996, c. 19 (CDSA) and the Corrections and Conditional Release Act, SC 1992, c. 20 (CCRA).

The Tylenol pills contained codeine which is a Schedule I drug. Cannabis (marihuana) is a Schedule II drug. The word traffic is broadly defined in s. 2 of the CDSA as, “…sell, administer, give, transfer, transport, send or deliver…”. The word contraband is also broadly defined in s. 2(1)(a) and (e) of the CCRA as an “intoxicant” and, “…any item…that could jeopardize the security of a penitentiary or the safety of persons, when that item is possessed without prior authorization.” Under s. 59(2) of the CCRA, if a staff member suspects on reasonable grounds that a visitor is carrying contraband, he or she may be required to submit to a consensual strip search after being given the option of leaving the penitentiary. That is what happened to Sargent. A drug sniffer dog reacted positively and she cooperated with the authorities. The drugs were in her vagina. Bringing drugs into a prison in Alberta is considered to be an aggravating circumstance in sentencing. It is not, however, an element of the crime. (See: R v Gargas, 2013 ABCA 245 per O’Brien J.A., at para. 7)

Sargent was not a drug dealer. She did not possess the drugs for the purpose of selling them. She possessed the drugs for the purpose (or with the intent) of giving them to her boyfriend. It emerged later that her boyfriend had threatened her by saying: “I know where you live.” As noted by Justice Berger in his dissenting opinion, at para. 27, it was conceded by the Crown Attorney that she was, “…pressured through manipulation short of duress.”

The inclusion of the word give in the definition of trafficking has always been problematic and embraces circumstances such as a group of friends sharing a joint around a coffee table. Passing a joint from one to another is giving and giving is trafficking. In Drug Offences In Canada (4th ed., 2015) the authors define give as, “…providing something to someone, with nothing in return. It’s a gift.” They go on to elaborate this way, at s. 5:40.80, p. 5-6:

“In the context of the CDSA, the word ‘give’ as a form of trafficking operates independently of and without reference to the ownership or change of ownership of the drug. The evidence need only establish the simple act of giving the drug. The Crown is not required to lead evidence as to the accused’s purpose or reasons for doing so. Nor is there a burden on the Crown to establish that the ‘giving’ was done for the purpose of promoting the distribution of the drug from one person to another. The simple act of giving necessarily involves promoting the distribution of the drug; once the drug is given, the offence is made out. The culpability net even extends to a group of persons who pooled their money to purchase drugs in bulk for later joint consumption.”

The constitutionality of trafficking by giving under s. 7 of the Charter of Rights is an open question. The Ontario Court of Appeal has declined to rule on the issue in two cases because the evidence established trafficking by other means. (See: United States v Saad (2004), 183 CCC (3d) 97 (Ont CA) per Rosenberg J.A., at para. 37; and, United States v Saad (2007), 216 CCC (3d) 393 (Ont CA) per O’Connor A.C.J.O., at paras. 23-5)

The crime that Sargent committed, then, consisted of possessing four grams of marihuana and seven Tylenol pills for the purpose of trafficking by giving to her boyfriend. That her boyfriend was in prison is an aggravating circumstance on the issue of her sentence. And the evidence of duress, falling short of a complete defence, is a mitigating factor on sentence.

2. Who was Sargent?

The majority reasons of Justices McDonald and Wakeling state, at para. 5, that Sargent had no previous criminal history. She was a first offender. She had been a nurse at the Edmonton Remand Centre but terminated that employment before her arrest. There is also a brief reference, at para. 18, to her “emotional health” that was treated as a mitigating factor by Justice Ouellette who described it as “issues of potential depression and/or self-esteem”. Sargent’s emotional health was treated dismissively by the majority because, in their view, she did not assert it when asked by the sentencing judge. Beyond these brief references, Sargent is a stranger in the majority opinion. It is not until we turn to the dissent that we get a sense of her as a person.

I will pause here to say this. The brief Memorandum of Judgment in this case consists of 7 pages and a total of 35 paragraphs. The only time where any compassion emerges is in Justice Berger’s dissenting opinion, at paras. 25-30:

“The respondent has no criminal record. She had been diagnosed with Post Traumatic Stress Disorder and depression. At the time of the incident she was recovering from an opioid addiction and was on methadone treatment. The pre-sentence report recommended community supervision and mental health counselling. The offence was out of character and the respondent was clearly remorseful. She knew her actions were wrong and felt guilty about her negative choices…There can be no question that her mental health and addiction issues, coupled with a previous abusive relationship made her vulnerable to the pressures brought to bear by her incarcerated boyfriend. At the time of her sentencing the respondent had considerable family support and was living with her parents. She is employed as a manager at Pet Smart. One can well appreciate the enormous impact of the consequences of her admitted guilt on her reputation as well as her profession and employment as a nurse.”

During the sentence hearing before Justice Ouellette the Crown Attorney sought a sentence of 9 to 12 months imprisonment. Defence counsel argued for a term of probation with conditions similar to a conditional sentence order that would have allowed her to serve the sentence in the community and may have included a period of house arrest. Let’s now turn to the appellate opinions.

3. The Appellate Opinions

The core of the majority opinion seems to be this. Under s. 5(3)(ii)(B) of the CDSA, a person convicted of possession for the purpose of trafficking in a prison is liable to imprisonment for a minimum of two years. But notice of the possible imposition of a minimum punishment had not been given by the Attorney General under s. 8 of the CDSA before Sargent’s plea. That prompted this lament from the majority, at paras. 11-2: “For reasons that were not explained, the Crown did not issue the mandatory notice to invoke the two year minimum provision in this case…A sentence harsher than that proposed by the Crown would have been fit.”

Justices McDonald and Wakeling acknowledged, at para. 10, that proportionality is the fundamental principle that governs the objectives of sentencing. But nowhere did they analyze why a 12 month term of imprisonment is proportionate having particular regard to the nature of the offence. On the scales of justice, why is 12 months imprisonment proportionate and 90 days not; why 90 days and not probation? And nowhere did they analyze any of the principles of sentencing contained in s. 718 of the Code. Broadly speaking, the obligation to provide reasoned decisions is inherent in the judicial function. It is part of a judge’s accountability for the discharge of the responsibility of the office of judge. It required them to engage in logical reasoning by application of the common law doctrine of ratiocination. As Justice Bertha Wilson said in Re B.C. Motor Vehicle Act, [1985] 2 SCR 486, at p. 533: “It is basic to any theory of punishment that the sentence imposed bear some relationship to the offence; it must be a ‘fit’ sentence proportionate to the seriousness of the offence. Only if this is so can the public be satisfied that the offender ‘deserved’ the punishment [s]he received and feel a confidence in the fairness and rationality of the system.” In that sense the opinion of Justices McDonald and Wakeling is irrational. (See: R v Sheppard, [2002] 1 SCR 869 per Binnie J., at para. 55; and, R v Ipeelee, [2012] 1 SCR 433 per McLachlin C.J., at paras. 36-7)

Deprived of the legal basis on which to invoke the two year mandatory minimum punishment the majority could only increase the sentence by ignoring the individualization requirement in the sentencing process, by failing to defer to the discretion of the sentencing judge and by parsing the sentencing factors. All of that received a pointed response from Justice Berger, at paras. 22-4 and 32, that I will condense as follows:

“The majority opinion reflects the persistent disregard in a number of judgments that this Court has issued of the clear and unequivocal directions of the Supreme Court of Canada that emphasize the importance of individualized sentencing and limit appellate intervention in the exercise of sentencing discretion by trial judges. In R. v. Lacasse, 2015 SCC 64 the Supreme Court explained that a sentence that falls outside a particular range is not demonstrably unfit…The Court also discussed the limits on appellate intervention and emphasized that the balancing of aggravating and mitigating factors is ‘strictly within the sentencing judge’s discretion’.

With great respect, my colleagues minimize the significance of the mitigating factors relied upon by the sentencing judge for which there is ample support in the record. By way of example, the absence of a prior criminal record is considered by them to be ‘more than offset by the fact that she well knew the serious ramifications of her smuggling the drugs in question.’ Such parsing of factors and weighing one against the other by the appellate court is a flagrant usurpation of the role of the sentencing judge and a clear breach of the admonition of the Supreme Court of Canada.”

Within days significant events occurred on the national and international stage that amplify how disproportionate Sargent’s sentence is.

4. What happened post-Sargent?

The first development was legal. On April 15, 2016, three days after Sargent was decided, the Supreme Court of Canada released its ruling in R v Lloyd, 2016 SCC 13 where, in a 6-3 majority opinion written by Chief Justice Beverley McLachlin, s. 5(3)(a)(i)(D) of the CDSA was declared unconstitutional. That sub-section, a companion to the one in Sargent, created the mandatory minimum sentence of one year imprisonment for trafficking or possession for the purpose of trafficking in the case of a person who was convicted of a designated substance offence within the previous ten years. Chief Justice McLachlin described the range of conduct snared by the minimum sentence this way, at para. 32:

“At one end of the range of conduct caught by the mandatory minimum sentence provision stands a professional drug dealer who engages in the business of dangerous drugs for profit, who is in possession of a large amount of Schedule I substances, and who has been convicted many times for similar offences. At the other end of the range stands the addict who is charged for sharing a small amount of a Schedule I drug with a friend or spouse, and finds herself sentenced to a year in prison because of a single conviction for sharing marihuana in a social occasion nine years before. I agree with the provincial court judge that most Canadians would be shocked to find that such a person could be sent to prison for one year.”

Let’s put that in the context of Sargent. A recovering addict, with no prior criminal record, brought four grams of marijuana and seven Tylenol pills into a prison to give to her boyfriend who pressured and manipulated her into doing it. Most Canadians would be shocked to learn that such a person could be sent to prison for two years. This section of the CDSA ought to receive the same fate as the one in Lloyd.

The second development was political. On April 19, 2016, the Canadian government announced that it will introduce legislation in 2017 to begin the process of legalizing and regulating marihuana. The announcement was made on a day when thousands of people were preparing to gather on Parliament Hill for the annual celebration of cannabis culture – and smoke a little in plain view of the police. And on April 20, 2016, in an impassioned speech to the United Nations General Assembly special session on global drug policy, Canada’s Health Minister Jane Philpott said: “We know it is impossible to arrest our way out of this problem.” (See: Joanna Smith. Marijuana legislation coming to Canada next spring. Toronto Star. April 20, 2016)

Tell that to Krista Danielle Sargent while the cell door is closing on her for a pot ‘n pills crime.