Court and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20220207 DOCKET: C69329

Paciocco, Nordheimer and Sossin JJ.A.

BETWEEN

Her Majesty the Queen Appellant

and

Paul Lynch Respondent

Counsel: Sarah Egan, for the appellant Christopher Morris, for the respondent

Heard: January 14, 2022 by video conference

On appeal from the sentence imposed by Justice Malcolm McLeod of the Ontario Court of Justice on April 8, 2021.

Nordheimer J.A.:

1The Crown seeks leave to appeal the sentence of four years imposed on Mr. Lynch from his convictions for various drug offences, including trafficking in cocaine, trafficking in fentanyl, possession of cocaine for the purpose of trafficking, and possession of the proceeds of crime. For the following reasons, I would grant leave to appeal, allow the appeal, and increase the sentence to six years.

A. Background

2The respondent sold an undercover officer fentanyl or cocaine on six occasions. Prior to the completion of the seventh transaction, he was arrested and charged with the various drug offences I have mentioned. The respondent pleaded guilty to the offences. In doing so, he accepted responsibility for a total of 965.01 grams of cocaine, 149.28 grams of MDMA and 41.37 grams of fentanyl. The trial judge sentenced the respondent to four years. The Crown had sought a sentence of ten years. The defence had sought a sentence of three years.

3The trial judge gave detailed reasons for the sentence that he imposed. In the course of his reasons, the trial judge expressed a general dissatisfaction with the approach to sentencing in drug cases. He referred to statistics relating to the over-incarceration of individuals who commit drug offences. He also criticized what he perceived to be the overuse of penitentiary terms of imprisonment for some drug offenders.

4The trial judge then went on to express other concerns with the current state of the law on the sentencing of persons convicted of drug offences. Among other things, the trial judge said:

[T]he punitive sanction of incarceration should be reserved for a narrowly defined category of serious offences. The extent to which we have ignored that instruction has created the crisis of over-incarceration.

Mr. Lynch was convicted of serious offences for which the punitive sanction of incarceration is required. But in determining the harshness of the sentence, it is important to pay attention to the big picture and acknowledge that our over-reliance on the punitive sanction of incarceration is rooted in the fact that we place undue weight on the principles of denunciation and deterrence.

Despite the obvious inference that the punitive strategy applied to heroin distribution contributed to the crisis resulting from oxycontin distribution and then fentanyl; the criminal justice system determined that the same approach must be applied, with even greater rigor.

It would be contrary to principles of justice to impose a harsh punitive sanction on a lower level drug trafficker as if he was the representative of the principals of the trafficking enterprise. Harsh punitive sanctions are required for lower level traffickers in fentanyl, but those sanctions should be within the range established for low level traffickers in dangerous drugs.

It must be borne in mind that the fact that the OCA issued a blanket endorsement of the practice of punishing an offender more severely than he deserved is difficult to reconcile with the principles of justice and fairness. [Emphasis added.]

5The trial judge proceeded to consider the range of sentence for the offences that were before him. He reviewed the existing case law and concluded that the range of sentence for a mid-level trafficker (which he considered the respondent to be) dealing in fentanyl was five to eight years. He compared that to what he found to be the range for a mid-level trafficker dealing in cocaine, four to six years.

6The trial judge then considered the impact that the respondent’s guilty plea should have on the ultimate sentence. He expressed the view that a guilty plea “must be given significant weight” and that it “must result in a sentence which is significantly lower” than would be imposed on a person found guilty after trial. The trial judge then criticized what he viewed as the practice of failing to give the appropriate weight to a plea of guilt. He said:

By the same token, it is hard to imagine that in such a case, the criminal justice system could be permitted to simply accept the plea as providing the opportunity to impose a harsh sentence of incarceration in the upper penitentiary range simply to send a message. What would the message be? That he was a sucker for thinking that our purpose was to promote a sense of responsibility in offenders, or that we were interested in restorative justice and mitigating the harm done to society by acting on principles of justice and fairness?

7Finally, the trial judge noted that appellate courts have “frequently supported sentencing judges who chose a harsh punishment as their preferred message, finding it to be a matter of discretion”. The trial judge commented that this discretion “must cut both ways”, a result that he appeared to believe had not been happening.

8Ultimately, the trial judge imposed a sentence of four years. He acknowledged that he might have chosen a sentence at the upper limit of the range, that is, six or seven years, but that there was “no basis to think it would constitute a more effective message to others in the community”.

B. Issues on Appeal

9The Crown seeks leave to appeal the sentence and alleges three errors committed by the trial judge: first, that he erred by failing to give sufficient weight to the principles of denunciation and deterrence; second, that he erred by overemphasizing the respondent’s guilty plea; and third, that he imposed a sentence that was demonstrably unfit.

C. Analysis

10In my view, the trial judge made fundamental errors in his reasons leading to the sentence he imposed. Among others, he misidentified the range of sentence for mid-level traffickers in cocaine and then used that erroneous range in drawing his comparison to the range of sentence for mid-level traffickers in fentanyl, thereby misapprehending the gravity of the offence. He also erred in principle in evaluating the respondent’s degree of moral blameworthiness. The trial judge also gave erroneous consideration to the respondent’s guilty plea, including by failing to take into account that one of the reasons underlying a range of sentence is that the lower end of the range has already made some effort to account for specific mitigating factors, such as a plea of guilt.

11Before turning to those errors, I must comment on the general tenor and approach of the trial judge’s reasons. There is an existing debate over the appropriateness of judges in lower courts negatively commenting on, or criticizing, the reasons of higher courts. Some argue that the only appropriate place for such criticism is in law review articles or similar forums, but it is not appropriate in judicial reasons. Others argue that it is appropriate, in certain circumstances, for such criticisms to be included in judicial reasons, but within defined limits.

12I do not propose to weigh into that debate. I will say that I can certainly appreciate that trial judges may, from time to time, become frustrated with a particular approach that is developed by appellate courts. Trial judges are on the front lines of the justice system and they will be the first to see if a particular approach is either not working or has become outdated. Measured expressions of that frustration may be a mechanism whereby appellate courts can become aware of the problem and, hopefully, correct it. After all, our approach to sentencing is not, and should not be, fixed in stone. Sentences may increase or decrease as societal and judicial knowledge and attitudes about certain offences change: R. v. Parranto, 2021 SCC 46, 463 D.L.R. (4th) 389, at para. 22. Trial judges are likely to be the first to become aware of such changes. It may also be that the expression of that frustration by trial judges will draw the attention of those in government who may choose to legislate a correction.

13However, to the degree that a judge of a lower court considers it necessary to critically comment within their judicial decisions on the decisions of higher courts, it is important that this be done with discretion and in measured terms. Unless undertaken with care, criticisms by lower courts of the decisions of higher courts can undermine confidence in the administration of justice by needlessly denigrating the fairness of the law, or the authority of those who administer it. In this case, the trial judge, while expressing some very legitimate concerns about the current approach to sentencing, crossed over the line. Indeed, some of the comments made by the trial judge enabled the Crown to argue credibly that the trial judge paid lip service to the principles of denunciation and deterrence but ignored them in application. Given the errors in principle that I am about to describe, I need not pursue this ground of appeal, so I will say no more about it.

(1) The trial judge’s specific errors

14Returning then to the errors involved, the trial judge erred in concluding that the range of sentence for mid-level traffickers of cocaine is four to six years. Decisions of this court have established that the range for such offenders is five to eight years: see, for example, R. v. Maone, 2020 ONCA 461, at paras. 12-13. Further, fentanyl is a more dangerous drug than is cocaine. To the degree that the trial judge used his comparison of these ranges to justify a lower sentence in this case, he erred.

15To be clear, the trial judge initially correctly identified the sentencing range in this case as between six and eight years. However, he then incorrectly lowered that range by his erroneous comparison to what he thought was the comparative range for cocaine. He appears to have adopted this approach because of his view that all dangerous drugs should be treated the same when it comes to sentencing. That view itself reflects error. It is a well-established principle that drugs vary in the degree of danger that they represent to those who consume them. Consequently, the more dangerous the drug being trafficked, the higher the penalty that will be imposed. Fentanyl is now known to be a much more dangerous drug than almost any other. That reality directs that a sentence imposed for trafficking in fentanyl should be as long or longer than a corresponding sentence for trafficking in cocaine: R. v. Olvedi, 2021 ONCA 518, 157 O.R. (3d) 583, at para. 56, leave to appeal to S.C.C. requested, 39854.

16Relatedly, the trial judge engaged in erroneous reasoning in situating the respondent’s moral blameworthiness, a key consideration in determining his degree of responsibility and hence a proportionate and fit sentence. First, the trial judge made extensive comments about the level of culpability of “lower level traffickers in fentanyl”, notwithstanding his finding that the respondent was a mid‑level trafficker. The comments he made about low-level traffickers are concerning, and clearly influenced his perception of the respondent’s level of moral blameworthiness. The trial judge suggested, for example, that “in large part, the culpability of lower level traffickers in fentanyl were similar to lower level traffickers in other drugs, because they are usually the same people.” Even if true, the fact that fentanyl traffickers may be the same people that traffic in other drugs has no bearing on their moral blameworthiness for choosing to traffic in fentanyl, a particularly dangerous drug. As the majority recognized in Parranto, at para. 70, moral culpability rises with the risk of serious harm the trafficker is prepared to expose others to.

17There is good reason for this. The problems that dangerous drugs pose for our society are well known. They involve drug addiction, adverse health consequences and, unfortunately all too often, death. Further, drugs are often sold to already vulnerable people thereby exacerbating their difficult circumstances. Still further, there are the indirect costs to society through increased health care expense, increased demands on the health care system, increases in robberies or other forms of criminal activity, and increases in violence. Simply put, the greater those risks are when a particular drug is being trafficked, the greater the offender’s culpability or moral blameworthiness for choosing to traffic in that drug.

18The trial judge also erroneously downplayed the respondent’s role in all of these consequences when he said that the respondent was not “the representative of the principals of the trafficking enterprise”, who “[produce] fentanyl as a more powerful opioid”. Of course, those at the top of the supply chain deserve harsher sentences. But the fact that the respondent was not at the pinnacle of the drug dealing empire does not reduce the respondent’s level of moral blameworthiness or mean that his actions are not serious. The producers of a product cannot get it into the hands of the consumer if there is no one to sell and deliver it.

19I also do not accept the trial judge’s apparent effort to diminish the moral blameworthiness of the respondent’s conduct by suggesting that his “culpability as a drug trafficker doesn’t increase because of the number of times the police set him up for transactions before finally making an arrest”. This is not a situation where the police provided an irresistible opportunity to the respondent to do something that he would not otherwise have been inclined to do, as that concept is discussed in entrapment cases. Nor is it a case where the police simply engaged repeatedly in similar conduct to escalate the number of counts that could be laid. What the multiple occasions, on which he sold drugs to the undercover officer, served to show was that the respondent was an active drug dealer who was not only prepared, but able, to scale up his supply of drugs to meet the demands of his customer, even when the transactions engaged significant sums of money or included fentanyl. The initial transaction was for the sale of 1.55 grams of cocaine for $150. Transactions involving more cocaine followed. Then came the fentanyl trafficking. The last proposed transaction was for $12,300 of cocaine. Upon his arrest, the respondent and a second male were found in possession of a total of 572.29 grams of cocaine and 149.28 grams of MDMA. The respondent ultimately took responsibility for all drugs sold or seized, including the drugs seized from the second male. In my view, rather than lessening the respondent’s moral blameworthiness through repetition, the repeated transactions, increasing in seriousness, exposed the scale of his drug trafficking enterprise and amplified his moral blameworthiness.

20The trial judge also erred in overemphasizing the guilty plea in this case. He did so in at least two respects. The first is that the mitigating effect of a guilty plea will vary in weight from case to case: R. v. Daya, 2007 ONCA 693, 229 O.A.C. 291, at para. 15. A guilty plea where there is a genuine issue for trial may be worthy of more weight than a guilty plea in a case where the outcome of a trial is evident to all concerned. Similarly, a guilty plea in a complicated case, where the trial may take many weeks of court time, may also be worthy of greater weight than one given in the context of a case where the trial would last a day or two. Simply put, one cannot adopt a universal approach to the significance of a guilty plea as a mitigating factor. There is no indication that the trial judge gave any regard to the circumstances surrounding the respondent’s guilty plea, which came in the face of an overwhelming case.

21Second, the trial judge erred in evaluating the effect that the guilty plea should have on how the respondent should be sentenced relative to the sentencing range. In saying all of this, I recognize that simply departing from a range of sentence may not itself constitute an error justifying appellate intervention: Parranto, at para. 29. Appellate intervention is warranted, however, where the reason for the departure is an erroneous understanding of the factors leading to the adoption of the range or a rejection of the range as flawed. In this case, the trial judge committed both of these errors.

22The trial judge failed to recognize that the range of sentence allows for the application of mitigating factors such as guilty pleas. That is why there is a range. Sentences at the lower end of the range will be justified by the individual mitigating factors of the case. Indeed, mitigating factors may justify going below the bottom end of the range. Among those mitigating factors is a guilty plea. However, the fact that the accused person has pleaded guilty will not, by itself, generally justify going below the bottom of the range, particularly not in a case such as this where, as the trial judge recognized, the respondent’s “background and circumstances do not entitle him to exceptional leniency”.

23These errors infected the sentence that was imposed. They rendered the sentence an unfit one, given the circumstances underlying the offences. It thus falls to this court to determine the appropriate sentence.

(2) The appropriate sentence

24While the Crown asked for a ten-year sentence before the trial judge, and repeated that request in its factum, at the hearing the Crown reduced the request to a sentence of eight years. This reduction resulted, at least in part, from the recent decision of Parranto where the Supreme Court of Canada upheld ten-year sentences for individuals who were higher level drug dealers than the respondent was.

25The Crown’s requested sentence is not unreasonable in the circumstances of this case. Indeed, it reflects the level of sentence suggested by this court: “generally, offenders — even first offenders — who traffic significant amounts of fentanyl should expect to receive significant penitentiary sentences”: R. v. Loor, 2017 ONCA 696, at para. 50. In fashioning an appropriate sentence, it must not be forgotten that the respondent was also convicted of trafficking in almost a kilogram of cocaine.

26However, the Crown’s requested sentence fails to give adequate consideration to the fact that the respondent pleaded guilty. While the trial judge and I might differ on the level of mitigation that should be applied for a plea of guilt in these circumstances, I do not quarrel with him that it is a significant mitigating factor. I am also cognizant of the fact that the respondent has a criminal record consisting of only a single entry, unrelated to drug activity. He is also relatively young – 29 years of age at the time of the offences. Consequently, after accounting for these mitigating factors, I would impose a sentence of six years.

D. Conclusion

27The motion for leave to appeal the sentence is granted. The appeal is allowed. The sentence of four years is set aside, and, in its place, a sentence of six years is substituted. The credit of six months for time spent on strict bail is not challenged so the ultimate sentence to be served is five and one-half years.