minicounsel

Ontario Court of Justice

Date: December 1, 2017

Court File No.: Ottawa 17-R1862, 17-R1931

Between:

Her Majesty the Queen

— AND —

Paul Fisher

Before: Justice Julie I. Bourgeois

Judgment released on: December 1, 2017

Counsel:

Mr. G. Boyd — counsel for the Federal Crown
Ms. S. Siopsis — counsel for the Provincial Crown
Mr. T. Brown — counsel for the defence

Introduction

1Mr. Paul Fisher pled guilty to a total of nine counts, six in relation to possession for the purpose of trafficking in a variety of Schedule I substances, to wit: cocaine, crack cocaine, MDA, MDMA, fentanyl and heroin, contrary to s. 5(2) of the CDSA; and three counts in relation to the Criminal Code, one count of possession of $1,070 as proceeds of crime of trafficking drugs and two counts in relation to the possession of firearms without a licence, contrary to s. 92(3) of the Criminal Code.

2All counts are straight indictable offences. The CDSA matters are liable to imprisonment for life and the firearms counts include a maximum punishment of 10 years.

Circumstances of the Offences

3On November 29, 2016, the Ottawa Police Service received a call for a disturbance. When the officer arrived at the address, the accused advised he wanted three females removed from his apartment. One of the females assaulted the officer and back-up was called to assist and to verify on the wellbeing of the resident of the apartment, the accused. The officer was invited inside the apartment by the accused and the officer observed fresh blood all over the floor of the apartment with more blood in front of a closet door. Upon verification, a rifle was observed on the floor, inside that closet. As the officer secured that rifle, he observed a shell ejected from the chamber and no trigger lock attached to the rifle. Other items were also observed in plain view in the bedroom, these items include:

a bullet proof vest;
a baton;
a large knife; and
pepper spray.

4In a gym bag, on the floor, more items were located: a clear baggy with ammunition, shells in this case, and an object shaped and believed to be a long gun. The accused was placed under arrest at this point. He was treated for the cut he had on his foot, brought to the police station and he provided a statement acknowledging not possessing a licence to possess any firearm. He stated having those weapons for the right reason and that was to protect himself. He is the only resident living at that apartment.

5The police executed a search warrant at the apartment where the following items were located and seized:

2 batons;
brass knuckles;
pepper spray;
bullet proof vest;
a loaded Tikka rifle - a high-power rifle which had been previously reported stolen; and
a loaded 12 gauge shotgun, without the butt attached to the rifle and the serial number having been tempered.

Neither of these two firearms had secure trigger locks attached to them and were loaded.

6The police also located and seized the following drugs inside the apartment:

189.95gr of crack cocaine, worth $18,995;
268gr of powdered cocaine, worth $268,000;
- Approx 457.95gr (1.01lbs) worth $268,995;
453.65gr of magic mushroom, worth $4,536;
14.4gr of heroin, worth $5,640;
71 tabs identified as Percocets but later analyzed and determined to be laced with fentanyl, worth $355;
54 tabs of Xanax, worth $545;
25.95gr of MDA, worth $2,595;
8.25gr of MDMA, worth $825;
scales, packaging material, two mobile phones and $1,070.

7The approximate total street value of the drugs was estimated at just over $300,000. To assist in the description and the location where each item was seized, a photobook was filed as an exhibit in this matter.

The Circumstances of the Offender

8The circumstances of the offender were provided through the preparation of a Pre-Sentence Report ("PSR") and supplementary exhibit books containing letters written by the accused, his parents and his addiction counsellor at Rideauwood Addiction & Family Services.

9Paul Fisher was 18 years old at the time of the offences. He is now 19 years old. His father is a general medical practitioner while his mother is a lawyer employed by the federal government. He has one older sister who studied opera in New York. The family hired the services of a nanny from the time the children were born until Paul was 9 years old. She remained close to the family ever since.

10As a result of constant arguments and conflict with his family, Paul moved out at the age of 17 and eventually moved into his own apartment in September of 2016, two months prior to his arrest. His parents rented this apartment for him with the understanding that he would put renewed efforts in school.

11Paul did poorly in high school mainly because he was attending only sporadically and as a result was either expelled or voluntarily left to prevent his expulsion. But he did well enough academically when he was attending school. At the age of 14, Dr. Nandi, a clinical psychologist, assessed him and felt he may have had a learning disability. His father believes his learning challenges might have had something to do with the start of his drug consumption as the period of time coincides. Since his release on bail he attended Adult High School and is only nine credits away from completing his High School credits. He plans on attending college once he obtains his diploma.

12While on bail, he was also able to secure part-time employment at a restaurant for three to four months before being laid-off along with other co-workers for the summer season.

13Through the PSR we also learn that Paul started consuming alcohol at the age of 13 or 14, but stopped the excessive or regular consumption following his arrest. All agree that he does not have an addiction to alcohol.

14He started to use non-medically prescribed drugs at around the same age. He initially used marijuana and pills, including painkillers. He experimented with cocaine, but never crack cocaine or drugs by injection. His drug of choice was MDMA. He used it daily from age 14 to 16. He has not used any drugs since his arrest on November 29, 2016.

15As a result of bizarre ideations, his parents brought him to CHEO emergency department numerous times. He was eventually assigned a psychiatrist, Dr. Cheng. Paul's father wrote in a letter filed at tab 2, Exhibit 2, that Dr. Cheng explained that "the disrupted abnormal thinking was due to the effect of recurrent drug abuse on Paul's brain and in his case was unlikely to be a long term functional psychosis." Mr. Fisher and his wife also enrolled in Rideauwood's Family Member Program to educate themselves about the effects of drug abuse on the adolescent brain. Needless to say, this was a very difficult period for their family.

16In fact, both his parents described their son as a happy, pleasant and active child until this rather abrupt change in about grade 10 when he started experimenting with drugs.

17Paul has requested and receives counselling since February of 2017 through the Rideauwood Addiction & Family Services' School-Based programs at the Adult High School. He is described by the counsellor as being committed to his change plan and to his goal of receiving his high school diploma (see tab 2, Exhibit 3).

18Paul indicated to the PSR author that the 20 days he spent on remand at the OCDC jail, his only carceral experience, was an eye opener. The author states, at p. 6: "His point of view has changed completely, stating emphatically that he does not want to reoffend ever again." His mother states, at p. 7 of the PSR that, "[her] son was horrified by the people he met in jail."

19In relation to the offences, the accused stated being happy initially with the easy money he was making, but soon found himself caught in the web of this underworld and fearing for his safety, especially after receiving a beating at one point.

20He recognized that he always had the unconditional support of his parents but did not appreciate it then. He now does. No one in his close surroundings: his parents, his nanny, his childhood friend, all of whom he had kept in complete ignorance of his illicit activities, could understand and recognize Paul through these offences. All agree these offences are completely out of character for him. It appears they all had lost him but have now found the Paul they all knew and loved, before the drug consumption and these offences.

The Position of the Parties

21The Federal Crown takes the position that the range of sentencing for these offences ought to be eight to nine years in the penitentiary given the nature and the quantity of the drugs. But given the mitigating factors in this case, the Crown is of the view that the appropriate range here is five to six years.

22The Provincial Crown takes the position that three years concurrent to the drug charges is appropriate in relation to the possession of the firearms, when considering the totality of the sentence, amongst other sentencing principles.

23On the other hand, defence counsel is of the view that in this very specific case, a global disposition of three years suffices to meet the sentencing principles in this highly individualized sentencing process.

Sentencing Principles

24Undoubtedly, the paramount sentencing principles in this case are deterrence and denunciation. This does not mean no consideration is given to the other sentencing principles noted under s. 718 of the Criminal Code, such as to separate the offender from society, where necessary; to assist in rehabilitation; to provide reparations for harm done; and to promote a sense of responsibility and acknowledgement of the harm done.

25 Section 781.1 of the Criminal Code provides the fundamental principle when sentencing an offender: "A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender." All agree, these offences are very serious – as an indicator of the seriousness, the drug trafficking offences carry a lifelong jail liability. The offender here is solely responsible for his actions and offences but it is argued that his moral blameworthiness is to be assessed in the context of an adolescent, yet young adult, mindset.

26 Section 718.2 (b) of the Criminal Code dictates that "a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances".

27Finally, s. 10 of the Controlled Drugs and Substances Act specifies the purpose of sentencing in drug related cases, it reads:

Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community.

28In determining a just sentence, reflecting the sentencing principles, the circumstances of the offence and the offender, the jurisprudence is helpful and both the Crowns and defence counsel have provided helpful cases to guide this Court's determination.

29Indeed, all agree the PSR reflect very positive antecedent, a strong and supportive family and as stated by counsel during submissions, "a good young man did a very bad thing for easy money". It is this young man, barely an adult before our criminal justice system, yet still referred to as a teenager in other circumstances, that this Court now has the duty to sentence according to the sentencing principles and precedents for similar offences and similar circumstances, in considering the aggravating and mitigating circumstances, including his personal background.

Aggravating Factors

30The aggravating factors to be considered are:

The nature and the variety of the substances: all drugs are damaging but obviously the crack cocaine, the heroin and ultimately the tabs laced with fentanyl and sold under a different name is absolutely devastating;
The important quantity of various substances;
The combination of the drugs with the readily accessible loaded firearms: a 12 gauge and a Tikka (a high-power rifle);
The arsenal of various weapons in addition to the loaded firearms, including a bullet proof vest;
The commercial enterprise aspect of the offence: this was clearly for profit and not to support an addiction for example.

These are certainly the main aggravating factors to be considered.

Mitigating Factors

31The mitigating factors to be considered are:

The accused's guilty plea, a clear expression of remorse but also clearly reflected through the PSR and his letter addressed to the Court and filed as tab 1, Exhibit 2 – I am not sure many courts hear quotes from a Nelson Mandela poem in the movie Invictus: "I am the master of my faith, I am the captain of my soul." I believe him when he says: "I think I know what it means now.";
His insight into his criminal behaviour and its repercussion on society as demonstrated through the essay he wrote titled, "My Experience in the Drug World", filed as tab 1, Exhibit 3;
The absence of any criminal record or history;
His age: 18 years at the time of the offences and now 19 years old. This seems to be a good example of a teenager, displaying poor judgment, making a "series of stupid decisions" as stated by his counsel during submissions, only considering immediate gain but not the consequences for him, the consumers and ultimately the community at a larger scale: the family of the consumers and the impact on our justice system, health system and social services in a more general sense. It is in this context of adolescent, yet young adult that the moral culpability needs to be considered;
Very strong family support: he has the benefit of involved and caring parents. I dismiss the opinion of the psychotherapist Kyla Carson, MSW and RSW, reported at p. 6 of the PSR, that, "the accused's involvement in drug dealing was in reaction to his parents, whom she found to have been exaggeratedly involved in their respective careers". This is not the type of drug dealing done at 18 years of age in reaction to your parents but in any event, this is not at all what the accused says. He clearly stated that he initially became involved in this illicit activity to make quick and easy money. The accused is not blaming his parents or anyone else for that matter. He did this for the money.
He remained motivated to work and was able to secure part-time employment even with serious pending charges and he is committed to pursue his studies despite understanding he is facing a penitentiary term.

32Indeed, all agree that this 19 year old man is going to the penitentiary despite these mitigating factors in the range of three to six years.

Jurisprudence

33The Federal Crown argues that each of the substances, either the cocaine, the heroin or the fentanyl laced tablets could easily attract a sentence of five to six years individually given the hard drug categorization and the substantial amount of each. In support of its position the Crown relies on cases such as R. v. Bryan, 2011 ONCA 273 and R. v. Bajada, 2003 CanLII 15687 (ON CA), in relation to the cocaine; R. v. Farizeh, 1994 CanLII (ON CA), R. v. Do, 2001 CanLII (ON SCJ) and R. v. Sidhu, 2009 ONCA in relation to the heroin and a number of recent decisions from colleagues at the Ontario Court of Justice in relation to fentanyl: R. v. Miller, 2014 CanLII; R. v. Mitchell, 2014 CanLII; R. v. Parsons, 2016 CanLII; R. v. Thorn, 2017 CanLII; R. v. Shevalier and Clark, 2017 CanLII and R. v. Fyfe, 2017 SKQB 5 and a recent decision released from the Court of Appeal on September 8, 2017 in R. v. Loor, 2017 ONCA 696, in relation to fentanyl also.

34The Provincial Crown relies on R. v. Nur, 2013 ONCA 677, and R. v. Smickle, 2013 ONCA 678, in support of its position in relation to the possession of the firearms.

35On the other hand, defence counsel finds support in other cases to demonstrate the application by various Courts of sentencing guidelines offered by sentencing ranges and examples where Courts have imposed sentences outside those ranges in particular cases, involving particular circumstances. For example, in relation to the firearms, reference is made to R. v. Filian-Jimenez, 2014 ONCA 601, and R. v. James, 2017 ONSC 473; in relation to cocaine related charges, R. v. McGill, 2016 ONCJ 138, R. v. Hussein, 2016 ONSC 1421 and R. v. Barkhouse, 2017 ONCA 29; in relation to the heroin, R. v. Goncalves, 2011 ONSC 2577 and its appellate decision at 2012 ONCA 139, and finally in relation to the fentanyl, R. v. Medeiros-Sousa, 2014 ONCJ 626, R. v. Forget, 2016 ONSC, and R. v. Klammer, 2016 ONSC 4038 and its appellate decision at 2017 ONCA 416.

36Indeed, our Court of Appeal in Bryan, supra, indicated a range of five to eight years penitentiary for a first time offender possessing for the purpose of trafficking slightly more than a pound of cocaine. In Bajada, supra, the Court of Appeal said on a guilty plea, a first time offender in possession of a substantial amount of cocaine for the purpose of trafficking can expect five to five and a half years jail. This is very similar to our case. But this is not a situation where aboriginal heritage or serious mental health or an extended period of time of four and half years spent on bail conditions are considered, as in McGill or Hussein, supra. This is also not a situation as in Barkhouse where the Court of Appeal, although describing some similarities with Mr. Fisher, was faced with only 28 grams of cocaine, not a total of 457.95 grams of combined crack cocaine and powdered cocaine in addition to all the other substances.

37But of course other cases are more difficult to reconcile with such proposed ranges, considering the quantity and the nature of the substances such as R. v. Goncalves. Even if under the expected range, Medeiros-Sousa and Forget, supra, are still more reflective of the line of cases from our Court of Appeal whereas the only considerations were the nature of the substances and the quantity. But here, not only are we faced with a total street value of just over $300,000 but also have an arsenal of weapons and loaded firearms to consider.

38In relation to the trafficking of heroin, in 1994, the Court of Appeal in Farizeh, supra, sentenced a first time offender after pleading guilty to three transactions totaling 3.22 grams to four years jail and in 2001 in Do sentenced a 20 year old first time offender to three and half years for trafficking 13 grams.

39More recently, in 2009 in Sidhu, supra, at para. 12, the Court of Appeal stated that heroin was considered the most pernicious of hard drugs, the most addictive and the most dangerous. The Court also stated that willful blindness as to the nature of the substance is not a mitigating circumstance as this would send the wrong message to ill-minded individuals, whether they be "would-be-couriers" or pill-pushers. There is no evidence as to any steps taken by Mr. Fisher to determine the nature of the substance he was prepared to sell and there is no evidence that he was duped by his supplier either.

40Paragraphs 9 and 10 are particularly relevant in this matter:

In short, like many, if not most cases involving first offender couriers, the respondent was vulnerable. His youth and lack of sophistication, his apparent need for money and his clean record made him a prime target for the two men who enlisted his services.

Be that as it may, as this court explained in R. v. Cunningham (1996), 1996 CanLII 1311 (ON CA), 104 C.C.C. (3d) 542 at 547, concerns for "the plight of many couriers" must "give way to the need to protect society from the untold grief and misery occasioned by the illicit use of hard drugs." And lest there be any doubt about it, heroin represents the worst of the hard drugs.

41This case was before we knew how damaging fentanyl became in our communities across the country. As explained by Dr. Woodall, from the Center of Forensic Sciences, during her testimony before Westman, J in Harmanpal Sidhu on May 1, 2017, fentanyl is up to 20 times stronger than heroin.

42It is difficult to accept the argument that if Mr. Fisher would have known that the tablets were not truly Percocets but were laced with fentanyl then that is where he would have drawn the line in the context of the complete illicit pharmacy he had to offer. How shocking can it be to a drug dealer that his illicit product is not what it purports to be? The real problem however is that this illicit product can be not only shocking but rather fatal to the naïve consumer, targeted by this cheap and easily accessible product. In other words, this product identified as Percocet, a relatively low-end pharmaceutical drug, instead contains a drug up to 20 times stronger than what was once considered "the most pernicious of hard drugs, the most addictive and the most dangerous".

43In November, 2016, fentanyl was not so new as to be shocking to find its presence in illicit tablets. The local media certainly reported on it prior to classifying the situation as a crisis but also a brief overview of the case law dates back to 2014 here in Ontario. Dr. Woodall has seen its evolution since 2012. Our Court of Appeal recently dealt with a matter in relation to fentanyl in R. v. Loor, supra, and at para. 33 stated:

Unless used for therapeutic purposes, under proper medical supervision, fentanyl is a highly dangerous drug. Its widespread abuse, though recent, has quickly become entrenched in our country. Every day in our communities, fentanyl abuse claims the lives of Canadians.

44The Court, at para. 49, reiterated the "highly individualized exercise" and that the relevant considerations affecting a sentence will vary from individual to individual, quoting from R. v. Lacasse, 2015 SCC 64, para. 58. The Court considered its own judgments in R. v. Baks, 2015 ONCA 560 and R. v. Sinclair, 2016 ONCA 683 where six years and eight years were determined appropriate sentences in light of their respective roles in the scheme and the aggravating and mitigating factors. In the end, Mr. Loor received a six year sentence. At para. 50, the Court concluded with these words:

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.

45Obviously, trafficking six fentanyl patches is not the significant amount the Court had in mind and indeed reduced the sentence of 33 months to 20 months jail in R. v. Klammer, supra.

46In relation to the firearms counts, the context in which those firearms were located: loaded with more ammunition readily accessible, amongst other weapons and including a bullet proof vest, but also amidst just over $300,000 worth of street value drugs, all point to the conclusion that these offences fall closer to the true crime end of the spectrum rather than the regulatory scheme established under the Firearms Act. This is not a situation as in Filian-Jimenez, supra. There is no reason to depart from the Court of Appeal's decisions in Nur and Smickle, supra, in applying the proposed range.

Conclusion

47In considering the sentencing principles, primarily, the deterrence and the denunciation required in such a case, given the aggravating factors such as the nature, the quantity and the variety of the substances, the monetary appeal to the illegal enterprise, the loaded firearms and the arsenal of weapons but also the principle of restraint particularly in this case given the mitigating circumstances, such as the accused's age, his lack of criminal record, his guilty plea, the strong support from his family and his positive prospect of rehabilitation, and the related case law, the appropriate sentence for Mr. Paul Fisher is one of four years and nine months (57 months), less 21 days of pre-trial custody, credited at 1.5 days. This leaves 56 months to be served concurrently on the CDSA counts and the possession of proceeds of crime count. In addition, in relation to the two firearm-related counts, 30 months jail is to be served concurrently.

48A DNA order will be issued on the enumerated secondary designated offences in relation to the trafficking charges and the firearms charges as it is in the best interest of the administration of justice to do so when considering the nature of the offences, the circumstances surrounding its commission and the limited impact such an order would have on the privacy and security of Mr. Fisher.

49There will be a firearm prohibition, pursuant to s. 109 of the Criminal Code for a period of 10 years.

50Finally, there will be a forfeiture order in relation to all items seized by the police in this matter.

Released: December 1, 2017

Signed: Justice Julie I. Bourgeois

Introduction

Circumstances of the Offences