Ruling says Whitney Carswell ‘caught up in,’ but not involved with, drug trade
A woman has been handed the mandatory minimum two years behind bars for delivering a bag of MDMA to a location on the grounds of the Saskatchewan Penitentiary.
Whitney Carswell was sentenced in February for the offence, which occurred on June 11, 2014.
According to the written decision by Justice Currie, Carswell delivered the bag containing the drugs to a location on the prison grounds with the intent it would be picked up by an inmate and taken into the penitentiary.
Because the location of the drugs was at the penitentiary, it triggered a mandatory minimum sentence of two years behind bars.
Carswell’s lawyer, Patrick McDougall, argued the mandatory minimum sentence violates her Charter rights to not be subjected to cruel and unusual punishment or treatment under Section 12 .
According to Currie, Carswell was not involved with the drug trade at the time, and was not looking for an opportunity to get involved in the drug trade, nor was she looking for a way to make money.
Scott Simpson, a penitentiary inmate and father of Carswell’s child, made several phone calls begging for her help in delivering the drugs. She declined initially, eventually agreeing to the scheme.
Without her permission of knowledge, Simpson arranged for a package containing 100 MDMA pills and other items, to be delivered to her home. While initially reluctant to make the delivery, in two phone calls with Simpson, Carswell raised the topic of being compensated. At one point, she proposed that she should keep 20 of the pills. Simpson disagreed, saying she should be paid instead.
After making the delivery, Carswell spoke with Simpson again. She said the delivery was worth more than a couple of hundred dollars.
“It must be said, though, that even in the face of … comments to Simpson about compensation for making the delivery, it does not appear that she made the delivery for financial gain,” Currie ruled.
“It is more likely that, even when she asked Simpson about payment … that question was less about money and more about making the point that he had put her at risk.”
Currie wrote that evidence did not show why Carswell ultimately decided to get involved. She was not under duress and Simpson did not threaten her, the written decision said. He did not exercise any power or authority over her.
“It may be that her eventual decision to make the delivery stemmed from Simpson being the father of her child,” Currie wrote. “She might have decided to make the delivery for old times’ sake. She might have done it because her boyfriend at the time wanted to, and she jut went along with him. For whatever reason, Carswell eventually formed the intention to deliver the MDMA to the penitentiary grounds, expecting that it would be taken inside and made available to the prison population, and she acted on that intention.”
The offence has been identified by parliament as a serious one, Currie found in his ruling, compounded by its commission on the grounds of the penitentiary. He also wrote that Carswell’s culpability is high because she planned for and deliberately delivered drugs for distribution to inmates in the penitentiary.
A security intelligence officer at the penitentiary described the harm caused by the availability of drugs, including violence, sometimes with weapons, from unpaid debts. It also includes requests for segregation from those who fear violence, and eventual transfers out of prison. There are also concerns around the spread of communicable disease and overdoses from drugs consumed behind bars.
“In Carswell’s favour is the fact that, rather than being involved in the drug trade, she got caught up in it,” Currie wrote.
“Carswell told me these events occurred at a rough time in her life. She had lost her mother, and was in a kind of depression. She was not in a good frame of mind to make proper decisions.”
Carswell has no criminal record, has family support and has separated herself from the bad influences in her life, in part by moving to a different city and starting her own business.
“She had created what she describes as a safe and stable environment for her child,” Currie wrote. “I do not doubt that, if she is separated from her child by having to serve time in prison, both Carswell and her child will suffer the effects of that separation.”
Despite her circumstances, Currie found that the mandatory minimum sentence was “not grossly disproportionate” in this case, and thus did not infringe upon Carswell’s Charter rights.
In ruling that Carswell serve two years, Currie found that it appropriately addresses the need for deterrence and denunciation of the crime.
