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| John L. Hill |
Kathryn Kaiser’s home was searched by police, who found and seized 40.6 grams of cocaine, scales, packaging materials and cash. The 45-year-old “petty retailer” was charged with possession of cocaine for the purpose of trafficking. She pleaded guilty. The woman had no criminal record. Defence counsel proposed a conditional sentence of two years less a day to be served in the community. Crown counsel asked for a two-year penitentiary
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Justice Anne S. Derrick, writing for a unanimous three-judge panel of the Nova Scotia Court of Appeal, allowed Kaiser’s appeal and replaced the original sentence with a sentence of time served plus three years’ probation. Justice Derrick explained that the Appeal Court identified both a substantive error and a legal error, permitting the Court of Appeal to intervene and impose a new sentence.
In reviewing the positions presented to the court by the appellate lawyers, Crown counsel emphasized that the court should focus on what Kaiser had done. She was a trafficker in hard drugs and deserved a penitentiary sentence.
Kaiser’s defence lawyer focused on why she committed the crime. She left home at 13, experienced homelessness and was sexually assaulted. She has ongoing mental health issues that could be challenging if she were incarcerated. She also has a substance dependency and has been living on the margins, relying on benefits from workers’ compensation due to a workplace injury. In March 2022, the appellant sustained a concussion from a fall while working as a Purolator driver. A workers’ compensation plan to gradually transition her back to work in May 2022 was unsuccessful: she was overwhelmed by anxiety as her shifts increased, and after a month, she left her job never to return.
She suffered a head injury in 2022 and continued to experience mental health issues, leading to aggressive encounters with various people. A neuropsychology assessment dated Aug. 16, 2023, by Dr. Stephen Douglas, detailed an extensive history following the appellant’s workplace accident, including consultations with physicians, occupational therapists and mental health professionals such as a psychiatrist. She was prescribed multiple medications for an “evolving” bipolar disorder — quetiapine and risperidone. The appellant told Douglas she discontinued the psychiatric medicines on her own. She also reported ongoing pain from a severe ATV accident in 2019, during which she suffered numerous fractures, including a pelvis fracture. She indicated “an extensive history of alcohol and drug misuse.”
The Nova Scotia Court of Appeal accepted that a fundamental purpose in sentencing was to ensure respect for the law and to maintain a just, peaceful and safe society (R. v. Friesen, 2020 SCC 9). But the sentence cannot exceed what is just and appropriate when considering the moral blameworthiness of the offender (R. v. J.W., 2025 SCC 16).
Sentencing reform in 1996 incorporated principles of restorative justice into the sentencing process. The Supreme Court of Canada, in R. v. Proulx, 2000 SCC 5, acknowledged the “increased prominence” given by Parliament to the principle of restraint in using prison as a sanction through the enactment of s. 718.2(d) and (e) of the Criminal Code. The court observed that s. 718.2(d) states that “an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances” and s. 718.2(e) notes that “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.”
Restraint is reflected in how the balancing of the gravity of the offence and the moral blameworthiness of the offender to achieve proportionality “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).
The sentencing judge’s failure to consider restraint was an error in principle. Restraint must always be taken into account, especially when sentencing a first-time offender. The judge erred by employing a binary approach — deciding solely between a penitentiary term or a conditional sentence. She was obliged to consider all alternatives to incarceration, particularly since the accused had never been imprisoned before. The shortest possible sentence should have been imposed (R. v. Hoang, 2024 ONCA 361).
The sentencing judge placed too much emphasis on the statement in R. v. Lacasse, 2015 SCC 64 that the objectives of denunciation and deterrence “are particularly relevant to offences that might be committed by ordinarily law-abiding people.” Denunciation and deterrence are only the initial considerations in evaluating a wider range of sentences (R. v. Parranto, 2021 SCC 46).
The Appeal Court was satisfied that public protection is best achieved through rehabilitation and not undue punishment. This Appeal Court looked at why the wrong was done and not just the fact of its commission.
John L. Hill practised and taught prison law until his retirement. He holds a JD from Queen’s and an LLM in constitutional law from Osgoode Hall. His most recent book, Acts of Darkness (Durvile & UpRoute Books), was released July 1. Hill is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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