Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Erin Vezina
Before: Justice M.A. Sopinka
Heard on: June 9, September 25 and September 26, 2017
Reasons for Sentence released on: November 10, 2017
Counsel:
- Ms. Kathleen Nolan, counsel for the Crown
- Mr. Ryan Heighton, counsel for the accused Erin Vezina
Reasons for Sentence
Charges and Guilty Plea
1Mr. Vezina pled guilty to a number of offences on June 9, 2017 arising from events on January 12 and 13, 2017: possession for the purpose of trafficking in several substances namely methamphetamine, heroin/fentanyl and marijuana, possessing a loaded prohibited firearm, 2 counts of possessing a firearm while prohibited, possessing ammunition while prohibited, possessing a firearm without being the holder of a licence and carrying a concealed weapon.
The Facts
2The facts indicate that Mr. Vezina became the target of an investigation by Waterloo Regional Police in the fall of 2015 related to his involvement in suspected drug trafficking. Police surveillance was conducted which showed activity consistent with the sale of drugs from his residence. Transmission data recorder and tracking warrants were authorized for Mr. Vezina's cell phone through the summer and fall of 2016 and an analysis of information collected was consistent with the sale of illicit drugs.
3Through confidential information, the police became aware of an association between Mr. Vezina and Shane Achilles which was corroborated by surveillance which noted Mr. Vezina attending Mr. Achilles' residence on several occasions.
4On January 12, 2017, Mr. Vezina was followed by police to Mr. Achilles' residence. After Mr. Vezina left that residence, the police formed grounds to arrest him for possession of a controlled substance for the purpose of trafficking. At approximately 8:00 p.m., Mr. Vezina was stopped operating an e-bike and placed under arrest. Following a search incidental to arrest, the police seized the following items:
A concealed, loaded handgun with a total of 5 rounds of ammunition with one round in the chamber. It was later determined by police that this handgun was stolen from the Niagara Region in November 1998.
Suspected fentanyl of a weight of 111.9 grams.
Methamphetamine of a weight of 6.4 grams.
Canadian currency in the amount of $9,284.
A digital scale, four cell phones and drug paraphernalia.
An e-bike and helmet valued at $2,500.
An Ontario driver's licence in the name of Jimmy Theberge.
5On January 13, 2017, a search warrant was authorized to conduct a search of Mr. Vezina's residence at 63 Courtland Avenue East, Unit 5 in Kitchener. The following items were seized pursuant to that search:
Suspected fentanyl/heroin of a weight of 158.4 grams.
A substance originally thought to be methamphetamine of a weight of 365.74 grams which analyzed instead as a common cutting agent. A total amount of methamphetamine was seized, when combined with the earlier seizure on January 12, 2017, of 14.98 grams valued at $1,500 at the point level.
Marijuana of a weight of 2,907 grams valued at approximately $14,535.
Cannabis resin of a weight of 11.36 grams valued at approximately $350.
Psilocybin of a weight of 19.68 grams valued at approximately $20.
Evidence of a marijuana extraction lab.
Three replica firearms (2 handguns and 1 machine gun).
A sawed-off Luger shotgun assembly later found to be operable.
Twenty-four rounds of 12 gauge shotgun shells.
Soft body armour, multiple knives, a bow and several arrows.
An e-bike valued at $1,000.
Drug trafficking indicia including packaging and cutting agents.
Documents to prove Mr. Vezina's residency in the home.
6When the fentanyl seized on both occasions was analyzed, it was determined that the fentanyl was a blend of heroin, fentanyl and cutting agents and weighed 204.49 grams with a street value at the point level of $61,500 and at the gram level of $41,000. Some of the substance initially believed to be fentanyl was in fact cocaine with a weight of 44.74 grams.
7At the time of his arrest, Mr. Vezina was bound by two weapons prohibition orders issued under section 109 of the Criminal Code.
Sgt. Handfield's Medical Distress
8At the sentencing hearing, the Crown alleged that one of the officers involved in the arrest on January 12, 2017 at the roadside was inadvertently exposed to fentanyl and went into medical distress. The Crown was put to its onus to prove this fact beyond a reasonable doubt thus evidence was called from that officer, Sgt. Ben Handfield, Cst. David Bonnell who was the primary investigator and also involved in the arrest and a toxicologist from the Centre for Forensic Sciences, Dr. Karen Woodall.
9The evidence of Cst. Bonnell was that he arrived at the scene shortly after Mr. Vezina's arrest on January 12, 2017. He read the rights to counsel and caution to Mr. Vezina and arranged for him to be handed over to a patrol officer. Cst. Bonnell testified that Mr. Vezina wanted to ensure that officers knew that the handgun he was in possession of was loaded. He also advised that the tool box on his e-bike contained methamphetamine and possibly heroin or fentanyl.
10Sgt. Handfield was assigned the task of seizing the tool box and bringing it along with the firearm to Central Division of Waterloo Regional Police. He testified that he had a discussion with Cst. Bonnell wherein he was advised that the tool box contained methamphetamine, heroin and possibly fentanyl. Sgt. Handfield was wearing standard street clothes and latex gloves. He testified that he wore the gloves to ensure his fingerprints were not left on any exhibits and indicated that he was not thinking about powder drugs at the time. He was not wearing a mask. Sgt. Handfield explained that he had no visual concept of any white powder so his mind did not switch into that safety mode.
11Sgt. Handfield testified that at the scene he dealt with the firearm to ensure it was unloaded and put the firearm into an exhibit bag and into the police van that he was driving that day. He then noted that the tool box was double padlocked and placed it in his van as well. Sgt. Handfield then drove his police van away from the scene and after 15 to 20 seconds he recalled his nostrils burning and he became dizzy and nauseous and his heart was racing. As he approached a stop light he got on the police radio and indicated that he didn't feel well and as he drove up a hill he recalled seeing a vehicle ahead of him that was blurry. At that point he pulled into a parking lot to await an ambulance. Sgt. Handfield estimated that he drove ½ to ¾ of a kilometer until he pulled over. Sgt. Handfield testified that he left the gloves on with which he had handled the exhibits and he did not know why he did so as that was contrary to the proper procedures.
12Sgt. Handfield testified that, at that point in his career, he had done a great deal of fentanyl training and watched numerous videos and he believed that he was suffering the ill effects of exposure to fentanyl.
13Sgt. Handfield was taken to the hospital by ambulance, was monitored by medical staff and underwent testing. He was discharged approximately 4 hours later. He went to work the next day and participated in the execution of the search warrant on Mr. Vezina's home but explained that he still was not feeling one hundred percent. He described feeling "foggy" and his nostrils felt full or open as if he'd taken an allergy medication. Sgt. Handfield testified that after this incident he felt his memory suffered for some months but could not say with any certainty if it was directly related to his suspected exposure.
14Dr. Karen Woodall is a toxicologist with the Centre of Forensic Sciences. She indicated that the symptoms experienced by Sgt. Handfield, specifically nausea and dizziness and the timing of his symptoms relative to his handling of exhibits, were consistent with exposure to fentanyl. Dr. Woodall also assisted with the interpretation of drug testing done at Grand River Hospital in relation to Sgt. Handfield. She noted that there were no drugs found in the testing done, including opiates, but the hospital did not specifically test Sgt. Handfield for fentanyl and ultimately her conclusion was that "the adverse effects described by the officer could be due to exposure of fentanyl".
15There are, in my view, two issues in respect of the suspected exposure of Sgt. Handfield to fentanyl: first, has the Crown proven beyond a reasonable doubt that he was exposed to fentanyl and secondly, if so, is it to be considered an aggravating factor on sentencing.
16On the issue of exposure to fentanyl, in my view the Crown has established that Sgt. Handfield did become distressed medically shortly after he started to operate his police van away from the scene of Mr. Vezina's arrest with two exhibits seized from that arrest in the back of the van: the firearm in an exhibit bag and the tool box containing a number of controlled substances including fentanyl. At its highest, the evidence of Dr. Woodall indicates that Sgt. Handfield's symptoms were consistent with exposure to fentanyl. However, the other evidence led regarding the presence of fentanyl in this situation suggests that the fentanyl was in sealed packaging within sealed plastic bags and in a double locked tool box. It is also known that the fentanyl was in a blend with heroin and Dr. Woodall testified that exposure to both fentanyl and heroin could be by inhalation or absorption through the skin although fentanyl is more easily absorbed in this fashion. What is clear is that the hospital did not test for fentanyl but the testing was negative for heroin. The evidence of Dr. Woodall on this point is that there is always a threshold for testing depending on what specific amino assay tests are used by the hospital relative to the type of drug such that the test might not be sensitive to the presence of heroin even if it was present in the body if the concentration was below the threshold used. While Dr. Woodall was not asked about the threshold in these particular tests, her evidence does suggest that the heroin could be in the system without showing up in the testing but on the evidence led it cannot be determined if the hospital simply used a test where heroin might not be detected or if the testing used meant that heroin was not in Sgt. Handfield's system. Ultimately, given this evidence, I find it does raise a doubt as to how Sgt. Handfield could be exposed to fentanyl but not heroin given the mixture of the drugs he handled.
17In summary, given the evidence led before me, I cannot conclude that the only reasonable inference to be drawn is that Sgt. Handfield was specifically exposed to fentanyl. Accordingly, I do not find that it can be concluded, beyond a reasonable doubt, that Sgt. Handfield was exposed to fentanyl on January 12, 2017. It is clear that Sgt. Handfield experienced medical distress and the incident was extremely difficult for both him and his family simply not knowing to what he was exposed. It highlights the danger in our community of the prevalence of powdered drugs and the extreme and unknown risks taken by police officers everyday as they undertake their duties to protect the community.
18I would also note, in this incident, that Mr. Vezina did take steps to warn the officers of the presence of both a loaded firearm and the possibility of fentanyl being in the mix of drugs located in the tool box. While Sgt. Handfield testified that he did not wear a mask or think clearly about removing his gloves while driving as he had not averted to the possibility of powdered drugs, this information was known to the officers at the scene given Mr. Vezina's disclosure. Without detracting from the frightening and distressing experience of Sgt. Handfield's medical issue, once Mr. Vezina had disclosed the nature of the drugs within the toolbox there was nothing to prevent the police from proceeding with extreme caution in handling that exhibit thereafter.
Evidence of Purity and the Dangers of Fentanyl
19An analysis was done of the fentanyl seized in this investigation to determine its purity. That analysis revealed that the purity ranged from .5% to .7% purity in respect of three samples analyzed. Dr. Woodall's opinion was that that level of purity was indicative of a significant concentration of fentanyl given its potency. Specifically, fentanyl is 100 times more potent than morphine and 20 times more potent than heroin. The fact that the concentration in the substance seized was .5% to .7% indicates that it was mixed with other substances thus the user could never be entirely sure of what was being ingested.
20Dr. Woodall further explained that fentanyl is a synthetic opioid analgesic that is used clinically for the management of chronic pain usually in the form of patches. However, fentanyl has become a potent drug of abuse and in recent years has become available in powdered form which can be ingested by inhaling, smoking or intravenous use. Dr. Woodall explained that fentanyl is only prescribed clinically to those who have become tolerant to opiates given the strength of the drug. Once aware of the concentration analysis of the seizure in this case, Dr. Woodall calculated that the 205 grams of the fentanyl/heroin mix contained approximately 1,025 mg of fentanyl or the equivalent of 60 of the strongest patches available for therapeutic use. Given that a starting dose of fentanyl for therapeutic use is .1 mg, the quantity in Mr. Vezina's possession was very significant.
21Dr. Woodall also testified regarding the particular dangers of fentanyl in a powdered format. She indicated that one specific danger with powder is that a user does not know how much of the drug is in the powder as it may not be evenly distributed. While in its patch form there are also dangers of "hot spots" wherein fentanyl might be concentrated more in one area of the patch, generally the patches present fewer dangers as they are manufactured within set guidelines.
Effects on the Community of Fentanyl
22The final witness called on the sentencing hearing was Staff Sergeant Sloden Lackovic of Waterloo Regional Police. S/Sgt Lackovic is currently the supervisor of the drugs and firearms branch of WRP and he provided evidence of the impact of fentanyl on Waterloo Region as follows:
Opioid related overdose calls averaged 20 per month in 2012 and in June and July of 2016 spiked to 50 to 60 per month. On average those calls since 2015 have been 40 per month.
In 2016 there were 38 confirmed opioid related deaths in Waterloo Region. As of September of 2017, there were already 46 suspected opioid related deaths in Waterloo Region illustrating a significant increase. The trend seemed to indicate on average 5 opioid related deaths per month.
The seizure of fentanyl in Waterloo Region is also increasing dramatically. In 2015, WRP made 12 seizures of fentanyl, 6 were patches and 6 were in powdered form of a total weight of 2.09 grams. In 2016, WRP made 90 seizures of fentanyl representing 1,167.73 grams and 34 pills. In 2017 there have been 43 confirmed seizures and 57 seizures pending confirmation for a total of 1,825.05 grams and 2,625 pills suspected to contain fentanyl.
Information provided to Waterloo Regional Police from Health Canada Drug Analysis Services shows that Waterloo Region is second only to Toronto in respect of total number of fentanyl exhibits processed which illustrates the significant prevalence of the drug in our Region.
The prevalence of fentanyl in the community and the dangers associated with the drug have caused WRP to adopt new procedures when handling the drug. For example, all powdered drugs are double bagged, sealed in a plastic container, taken to the division, locked up and an appointment is made to process it under a fume hood. Two pairs of gloves and a mask are required in the field to handle powdered drugs. In addition, naloxone is issued to officers and has been administered 12 times in the community since May 2017.
23S/Sgt. Lackovic also provided some information regarding the valuation of the drugs seized at the street level. His evidence with respect to each drug was as follows:
The fentanyl seized, being 205 grams, is worth $61,500 at the point level, $41,000 at the gram level and $22,692 at the ounce level.
The methamphetamine seized, being 15 grams, is worth $1,500 at the point level, and $900 at the gram level.
The cocaine seized, being 45 grams, is worth $4,500 at the gram level and $2,576 at the ounce level.
The psilocybin seized, being 20 grams, is worth $200.
The cannabis resin seized, being 10 grams, is worth $350.
Position of the Parties
24It is undisputed that the charges to which Mr. Vezina has pled guilty are extremely serious and warrant a significant penitentiary sentencing. The defence position is that a fit sentence is in the range of 8 to 10 years less pre-trial custody and the Crown position is that the appropriate sentence is 15 to 16 years. Mr. Vezina has been in custody since January 13, 2017 or for the period of 301 days, which equal 451 days when credited at 1 ½ to 1. This is essentially one year and 3 months of pre-trial custody.
Mitigating Factors
25I consider the following to be mitigating factors in this matter:
Mr. Vezina entered a guilty plea to the charges before the Court.
The Pre-Sentence Report highlights that Mr. Vezina had some family upheaval in his formative years which has negatively impacted his pursuit of a pro-social lifestyle.
Mr. Vezina suffers from a long standing addiction to illicit substances which had manifested itself in a methamphetamine addiction in the time prior to his arrest. Mr. Vezina also suffers from mental health issues and tends to turn to street drugs as a form of self medication.
Mr. Vezina is amenable to rehabilitation and was making plans to take those steps at the time of his arrest.
Mr. Vezina has been employed in the past although he stepped back into drug use and turned to selling drugs during work slow downs to support himself.
Mr. Vezina was cooperative with the police from the time of his arrest. He volunteered the information that the gun was loaded and willingly disclosed the nature of the substances in the tool box.
Aggravating Factors
26I consider the following to be aggravating factors in this matter:
The nature of the drug fentanyl is clearly a significant aggravating factor in this sentencing. The evidence of Dr. Woodall as to its severe potency coupled with the evidence of S/Sgt Lackovic as to its prevalence in our community and the devastating effects it has had on our citizens is gravely concerning.
The other drugs in Mr. Vezina's possession are also dangerous and insidious, namely methamphetamine and cocaine.
The presence of a loaded firearm in Mr. Vezina's possession on his arrest is also extremely aggravating as it created a very dangerous situation particularly as Mr. Vezina travelled on the roadway in possession of the loaded handgun.
Mr. Vezina was also in possession of other weapons upon execution of a search warrant on his residence along with other drug paraphernalia.
Mr. Vezina was on 2 separate weapons prohibitions at the time that he possessed the weapons at issue in this matter.
Mr. Vezina has a significant prior related record. He has 3 prior convictions for possession for the purpose of trafficking on his record and he served 30 months in the penitentiary in 2013 after being convicted of that charge in relation to methamphetamine.
Analysis
27Both counsel provided a number of authorities from this Court and others which have considered sentencing an offender convicted of possession for the purpose of trafficking of fentanyl.
28The defence relied on 10 cases: R. v. Smith, 2017 BCCA 112, R. v. Medeiros-Sousa, [2014] O.J. No. 4515, R. v. Forget, [2016] O.J. No. 3504, R. v. Castro, [2016] NWTSC 8, R. v. Lu, [2016] O.J. No. 128, R. v. Cardinal, [2017] A.J. No. 482, R. v. Goncalves, 2011 ONSC 2577, R. v. Borecky, 2013 BCCA 163, R. v. Bedi, 2015 ABCA 361 and R. v. Barkow, [2008] O.J. No. 785.
29The defence cases reflect a range of 6 months custody to 8 years in custody and deal with trafficking cases both with respect to fentanyl and heroin. Typically, factors that serve to increase or decrease the applicable sentencing range include the amount of fentanyl seized, the motive for the trafficking whether profit, addiction or both, whether the matter proceeded by way of guilty plea, the existence and nature of any prior record and the presence of weapons.
30In Smith, the British Columbia Court of Appeal dealt with a sentence appeal wherein the accused was sentenced by the trial judge to 6 months jail for being in possession of 2.6 grams of fentanyl along with a quantity of cocaine and crack cocaine. The accused was a first offender, an addict, remorseful and of Aboriginal background.
31The British Columbia Court of Appeal ultimately endorsed a range for fentanyl trafficking starting at 18 months in jail and increasing to 36 months and beyond depending upon the offender's position in the chain of sale or distribution. Ultimately the sentence of 6 months was not disturbed given the general lack of awareness of fentanyl's dangers at the time the offence was committed. However, the following comments of the BCCA are instructive:
…fentanyl is a scourge. It poses intolerable risks of accidental overdosing because it is so much more powerful than morphine. Illegally manufactured fentanyl can be particularly and unpredictably potent, even tiny amounts of fentanyl when mixed into other drugs such as cocaine or heroin may be fatal; often street drugs have fentanyl cut into them and it is practically impossible for drug users to recognize whether the drugs they buy contain fentanyl (at para 48)
In sum, the continuing escalation in the number of fentanyl-detected deaths, the enormity of the total numbers of accidental overdosing, the increasing percentage of fentanyl detected deaths as a proportion of the total and the currently ubiquitous awareness of the risks posed by illicit fentanyl in combination, justify a recognition of a very substantial increase in the sentencing range applicable to street level dealing in fentanyl. (at para 65)
32R. v. Medeiros-Sousa was a relatively early case in terms of fentanyl sentencing decisions. The accused stole 58 fentanyl patches and other narcotics from her employer with a street value over $100,000. The accused had addiction issues, no record, entered a guilty plea and had generally positive antecedents. The Court determined that the Crown's submission of a 4 to 5 year sentence would be crushing for this offender and sentenced her to 30 months in custody.
33In Forget, the accused was in possession of 159 fentanyl patches with a street value over $105,000. The offender had positive antecedents but was motivated by profit. The sentence imposed was 3 years in custody in recognition of the principle of restraint in dealing with a first time offender.
34Castro is a decision of the Northwest Territories Supreme Court. The accused had similar antecedents to Mr. Vezina in terms of his record and his participation in the trafficking undertaking. Mr. Castro was trafficking 538 grams of crack cocaine, 175 grams powdered cocaine, 593 fentanyl tablets (worth approximately $55,000) and was on probation for trafficking in cocaine. The Court endorsed a joint submission of 6 years in custody for a purely commercial trafficker in that case.
35The Ontario Superior Court dealt with a similar factual scenario to the case at bar in R. v. Lu. Mr. Lu was convicting of possession for the purpose of trafficking for 522 fentanyl pills and other drugs. The drugs had a similar value to the ones attributed to Mr. Vezina although the fentanyl was in pill rather than powder form. Mr. Lu committed the offences only one year after his release from prison on similar charges and the offences were motivated by financial gain. The Court imposed a sentence of 5 years custody.
36R. v. Cardinal dealt with an aboriginal offender in possession of 7.8 grams of fentanyl along with other drugs that he attempted to smuggle into a correctional facility. The accused had a lengthy but unrelated record, suffered from addiction issues and entered a guilty plea. The Court noted that fentanyl is a very serious drug like heroin and that sentences for heroin trafficking may be considered an appropriate comparison without losing sight of the fact of individual circumstances of the offender. Mr. Cardinal was sentenced to 3 years in custody.
37The final 4 cases submitted by the defence do not deal with fentanyl but with heroin and other serious drugs and the presence of additional aggravating factors such as weapons. In Borecky, the accused was found in possession of over $100,000 in drugs including heroin, methamphetamine and cocaine and a small arsenal of firearms. The sentence imposed concurrently for weapons and drug offences was 7 years custody.
38In R. v. Bedi, the Alberta Court of Appeal upheld a sentence of 8 years in custody for a mid-level trafficker in possession of 100 grams of crack cocaine, 300 grams of heroin and weapons and ammunition including a loaded 9mm handgun.
39The final defence case was R. v. Barkow which dealt with different substances and no weapons. However, the case recognized the principle that addict trafficking is to be considered significantly mitigating when contrasted with trafficking motivated solely by greed although the gravity of the offence must always be considered.
40The Crown filed a number of authorities as well. In general, the Crown distinguished the defence cases on the basis that they all dealt with fentanyl in either the pill or patch form as opposed to powder form or dealt with different substances entirely. The Crown's position is that powdered fentanyl is inherently more dangerous and should attract a significantly longer sentence than alternative forms of fentanyl.
41In R. v. Shevalier and Clark (March 16, 2017 – OCJ Kitchener), Mr. Shevalier was sentenced to 8 years and Ms. Clark to 4 years following a trial where they were both convicted of possession for the purpose of trafficking of 28.13 grams of fentanyl and other drugs. Mr. Shevalier had a significant related record and Ms. Clark had no record.
42Justice Epstein recognized the prevalence of fentanyl in our community, and the principle most recently set out by the Supreme Court of Canada in R. v. Lacasse, [2015] SCC 64, that "sentencing judges can properly take into account trends in their communities in fashioning an appropriate sentence" (at p. 11).
43Justice Epstein also considered the evidence in that case that both accused were addicted to the substances they trafficked. He commented as follows on the relevance of that factor to the sentencing of those offenders: "the mitigation usually attributed to addiction in sentencing is not so prominent a feature here. While it is clear that these two accused were immersed in the drug sub culture and were addicts themselves, they were not simply supporting their habits but were driven by profit and were engaged in something significantly larger than a street-sale operation". In my view these comments are equally applicable to Mr. Vezina given the evidence about his involvement in the drug trade and the quantities of drugs he possessed upon his arrest and pursuant to the search of his home.
44I adopt the following comments of Justice Epstein regarding the applicability of sentencing principles to possession for the purpose of trafficking in fentanyl at pages 16-17:
The cases establish in the clearest terms, that the proper response by the courts to this overwhelming problem must be rooted in terms of denunciation and general deterrence. It must be made abundantly clear that Canadian Society will not tolerate the illicit trafficking in such a dangerous substance. The proper response must be sentences of sufficient length to act as a deterrent to those who would seek to profit from the misery of others and to reflect the abhorrence of the Canadian community towards such conduct.
45Justice Epstein went on to consider the Ontario Court of Appeal case of R. v. Farizeh, [1994] O.J. No. 2624, wherein a first time offender with a positive pre-sentence report and successful rehabilitation efforts was sentenced to 4 years for trafficking in small amounts of heroin. Justice Epstein then referenced sentencing for fentanyl as follows: "of course fentanyl is recognized as a more powerful and more dangerous drug than heroin and therefore its possession for the purpose of trafficking and trafficking ought to attract even greater penalties". (at page 17)
46Finally, in recognition of local factors, Justice Epstein noted that the extent of the danger of fentanyl was not fully recognized in March of 2016 when the offences before him were committed. He opined that over the year since those offences the full impact of the drug on its users has become publicly recognized and offences committed with full awareness of those dangers should attract even greater sentences (at p. 18-19).
47In R. v. McCormick, [2017] B.C.J. No. 171, the accused was convicted of possession for the purpose of trafficking in relation to very large quantities of drugs including 27,000 fentanyl pills, 4.054 kilograms of cocaine, over 1 kg of methamphetamine and other substances with a combined street value of over $2 million. While on bail for those offences, Mr. McCormick was again arrested for possession for the purpose of trafficking while in possession of 1,000 fentanyl pills and 2 kilograms of cocaine. The accused had a prior sentence in the penitentiary for trafficking and was in possession of two loaded weapons. The accused was sentenced to 14 years in jail. While the nature of the fentanyl he possessed was different, being pills rather than powder, there are additional more aggravating features such as the massive overall quantities of drugs possessed by the accused and the fact that he incurred new charges while out on bail.
48The Crown also put forward the case of R. v. Aujla, [2016] ABPC 272, from the Alberta Provincial Court wherein the accused was sentenced to 7 years after trial. The accused was in possession of 454 pills of fentanyl along with cocaine, 796 grams of heroin and ½ kg of methamphetamine and two handguns. The quantities of drugs overall were more significant and the accused had no addiction issues.
49In R. v. Goudreau, [2016] ONSC 6318, the accused was found guilty after trial of 5 counts of trafficking in fentanyl involving over 900 patches at the strongest concentration. Mr. Goudreau was found to be the ring leader of the somewhat sophisticated trafficking operation. The Court found a notable absence of mitigating factors to consider and sentenced Mr. Goudreau to 10 years. Of note, the Court had the following comment regarding the Crown's position of 13 to 15 years:
In my view, such a sentence would amount to unwarranted punishment of this individual defendant. Raymond Goudreau cannot be made to pay for the sins of others, the rapid rise in the illicit use of fentanyl in recent years or the fact that innocent persons have fallen victim to fentanyl overdose and paid with their lives in unrelated cases. (at paragraph 18)
50Another local case is R. v. Boardman (July 7, 2016 OCJ Kitchener) in which the accused pled guilty to possession for the purpose of trafficking in fentanyl. Mr. Boardman was in possession of 19.78 grams of fentanyl, 84.51 grams of cocaine and 27.99 grams of methamphetamine. He was noted to be a mid-level dealer and had an extensive and related record. Justice Lynch specifically noted that Mr. Boardman was an addict and he was not in possession of any weapons upon his interception by police. Ultimately Justice Lynch sentenced Mr. Boardman to 6 years in custody.
51R. v. Holtz (June 23, 2016 OCJ Kitchener) involved 14.56 grams of powdered fentanyl and 26.09 grams of methamphetamine. The accused entered a guilty plea, was an addict and had an extensive but unrelated record. The sentence imposed was 5 years in custody.
52R. v. Whalen (June 2, 2017 OCJ Kitchener) was another local decision of Lynch J. Mr. Whalen entered a guilty plea to possession for the purpose of trafficking in 9.8 grams of fentanyl and 9.75 grams of methamphetamine. Mr. Whalen was a user himself and had an extensive criminal record. He was sentenced to 4 years in custody on the fentanyl charge and one year concurrent on the methamphetamine charge.
53The Crown provided 2 additional local cases involving the same facts but two separate accused: Thorn and Sidhu. The accused pled guilty to possession for the purpose of trafficking in 89.5 grams of fentanyl, 214.3 grams of methamphetamine and 48.2 grams of heroin. Ms. Thorn had no related record whereas Mr. Sidhu had just finished serving a penitentiary sentence of almost 3 years. Given her lack of prior record and level of participation, Ms. Thorn was sentenced to 6 years on a joint submission. Mr. Sidhu was sentenced to 9 ½ years: 8 years and 2 months for fentanyl trafficking when pre-trial custody was deducted. Mr. Sidhu's matter did involve powdered fentanyl and a significant quantity. One point raised by Mr. Vezina's counsel was that Dr. Woodall was also involved in that case and she was aware of the qualitative analysis done of the drugs seized. Specifically, the concentration of fentanyl was 3.1% which is significantly stronger than the case at bar which was .5% to .7%. I agree with Mr. Vezina's counsel that if a distinction is to be drawn with respect to sentencing ranges for powdered fentanyl as opposed to pill or patch form given the potential for more harm with powder, then the relative strength of the powdered substance should also be relevant to sentencing.
54Finally, the Crown provided the recent decision of the Ontario Court of Appeal in R. v. Loor, [2017] ONCA 696. Mr. Loor was convicted after trial of possession for the purpose of trafficking in 45 fentanyl patches at the highest available strength. He was characterized as a low level trafficker and had some positive antecedents including volunteer work in the community. He had a record for trafficking but there was a 5 year gap since his last conviction. He was sentenced to 6 years in custody.
55The Court of Appeal did opine as follows on a range of sentence in relation to fentanyl trafficking as follows:
Few fentanyl trafficking cases have reached this court. It is thus perhaps too early in our jurisprudence to establish a range. But I think it fair to say that generally, offenders – even first offenders – who traffic significant amounts of fentanyl should expect to receive significant penitentiary sentences. (at paragraph 50)
56In summary, the case law reviewed reflects a wide range in sentence for possession for the purpose of trafficking in fentanyl. No set ranges have been established given that the landscape is changing so rapidly. The dangers of fentanyl have become well known which puts traffickers on notice that their conduct will attract significant custodial penalties. The nature of the drug itself is changing as well such that its prevalence in powdered form is emerging and much of the sentencing precedents have dealt with pill or patch form. There is also the issue of potency since an analysis was done in this case to reflect a concentration of .5% to .7% fentanyl in the substance seized. While the Crown argues that sentencing for powdered fentanyl must attract harsher sentences given the dangers associated with the drug in this form, this submission must also take into account the potency of the drug, if known, as that also affects the dangerousness of the substance.
57As reviewed above, there are significant aggravating factors in this matter including the nature and quantity of drugs seized, the presence of a loaded handgun in Mr. Vezina's possession upon arrest while he was operating an e-bike on the streets of Kitchener, the presence of weapons in Mr. Vezina's home, the fact that Mr. Vezina was bound by 2 weapons prohibitions and his serious and related prior criminal record. The significant danger that fentanyl presents to our community must be reflected in Mr. Vezina's sentence given his possession of such a large quantity. The information provided by Staff Sgt Lackovic detailed the dramatic increase in opioid related overdose calls in the last years and months as well as the increasing prevalence of the drug in this Region as reflected in police seizures and the information from Health Canada as to the processing of exhibits which ranks Waterloo Region only second to Toronto in respect of fentanyl exhibits processed. In following Lacasse, supra, I note that I can properly consider trends in our community, including in this case the increased danger presented by fentanyl, in fashioning an appropriate sentence.
58The case law provided by both the Crown and defence counsel recognizes that the enormity of the fentanyl crisis justifies a significant increase in the sentencing range applicable to street level dealing in fentanyl. To strike at the root of the crisis, sentencing must be guided primarily by the principles of deterrence and denunciation to make abundantly clear that our community will not tolerate the illegal distribution of this insidious drug.
59While the aggravating factors in this matter are numerous and serious, the sentence imposed must also take into account the mitigating factors including Mr. Vezina's guilty plea, his cooperation with the police in advising both of the fact that the handgun was loaded and of the nature of the substances to be seized, his addiction issues and his desire for rehabilitation. The danger that fentanyl poses in our community every day requires a sentence that emphasizes denunciation and deterrence but it cannot lose sight of other sentencing principles including rehabilitation, totality, proportionality and restraint.
60In my view, the appropriate sentence in this matter is one of 12 years to be noted as follows on the information before the Court:
Count #2 – Possession for Purpose of Trafficking Fentanyl: 301 days pre-trial custody enhanced to 451 days pre-trial custody or 1 year 3 months PTC noted; the sentence imposed today on this count is 9 years, 9 months in custody
Count #1 – Possession for Purpose of Trafficking Methamphetamine: 5 years concurrent
Count #3 – Possess Firearm While Prohibited: 1 year consecutive
Count #5 – Possess Loaded Prohibited Firearm: 4 years concurrent
Count #6 – Possession of a Concealed Weapon (prohibited handgun): 2 years concurrent
Count #11 – Possession for Purpose of Trafficking Marijuana: 2 years concurrent
Count #15 – Possess Firearm (sawed off shotgun) Without Being Holder of a Licence: 1 year concurrent
Count #16 – Possess Ammunition While Prohibited: 6 months consecutive but concurrent to 1 year imposed on Count #3
Count #21 – Possess BB Rifle Gun While Prohibited: 9 months consecutive but concurrent to 1 year imposed on Count #3
Total Sentence: 12 years in custody when pre-trial custody is considered.
Additional Orders
A DNA Order will also be issued on a secondary basis in respect of each of the counts.
In addition, a section 109 order for life will issue in respect of each of the counts.
Finally, the Victim Fine Surcharge will be imposed in the amount of $1,800 with statutory time to pay subject to an application made after today's date to extend that time to pay.
Released: November 10, 2017
Signed: Justice M.A. Sopinka
