R. v. Leigh
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Andre Leigh
Before: Justice M. Greene
Reasons for Sentence released on November 5, 2018
Counsel:
- N. Gilks, for the Crown
- H. Dudding, for the Defendant
Greene J.:
Background
1Mr. Leigh is being sentenced today for three offences including conspiracy to traffic in Fentanyl, trafficking in Fentanyl and failing to comply with probation. Sentencing continues to be one of the most difficult tasks for a trial judge. All too often sentencing judges are faced with offenders who, because of their troubled and trauma filled backgrounds, have committed offences that are harmful to both the public and themselves. Determining the right sentence that properly takes into account the moral responsibility of offenders who have suffered significant trauma while also denouncing the harmful criminal conduct and deterring others from committing such offences is not easy to accomplish and requires a very delicate balance of competing interests. Mr. Leigh's case is no exception to this and it has been very challenging for this court to determine the right sentence for Mr. Leigh.
2Mr. Leigh entered a plea of guilty to the above noted three offences on February 6, 2018. At that time the facts were read in but the sentencing was adjourned so that a Gladue report could be prepared. There were significant delays in the preparation of the Gladue report because the Children's Aid Society initially refused to provide the Gladue writer with Mr. Leigh's files. Mr. Leigh's involvement with the CAS began when he was two years old and as such this information was absolutely necessary for the Gladue report. Once this material was received, Ms. Matchiwita was able to complete the report and plans were made to conduct a sentencing circle. The sentencing circle was employed in the case at bar as a means of incorporating indigenous justice principles and processes into the sentencing hearing. The circle included myself, Mr. Leigh, his counsel, Crown counsel, Ms. Peters, an elder that works with Aboriginal Legal Services, Ms. Matchiwita, the Gladue writer, Mr. Yellowhead, a Gladue after care worker and Ms. Woodall, an expert on Fentanyl employed by CFS. During the circle, everyone was provided an opportunity to openly discuss Mr. Leigh's background, his offending behaviour, the harm caused from his offending behaviour and steps required to move forward.
3After the circle was completed, both Crown counsel and defence counsel made full submissions.
4I would like to express my gratitude to all the participants in the circle. Everyone's presence and comments were helpful in providing me with the information I required to make a just determination in this case and to fully appreciate the gravity of the offences committed by Mr. Leigh and Mr. Leigh's personal circumstances.
The Facts of the Offences
5From January 2017 until June 2017, Mr. Marques Lawson and Mr. Khalid Ramadan were involved in a conspiracy to sell Fentanyl. Mr. Leigh was a member of this conspiracy. This conspiracy involved six different shipments of Fentanyl to Toronto and numerous different individual transactions. The total number of patches of Fentanyl sold during the conspiracy was 375 patches. While Mr. Leigh was not personally involved in every single transaction, he was a member of the overall conspiracy and therefore equally responsible for all the Fentanyl sold by members of this conspiracy.
6The specific acts linked to Mr. Leigh were provided to the court by way of an agreed statement of fact. This document did not set out Mr. Leigh's exact role within the conspiracy. Instead, it was divided into eight events where Fentanyl was sold by members of this conspiracy.
7The first date referenced in the agreed statement of fact was January 30, 2017. On this date, Mr. Marques Lawson sent a text to Mr. Khalid Ramadan about the sale of Fentanyl. After further communications, plans were made for the sale of some Fentanyl patches. Mr. Leigh was in the vehicle with Mr. Marques Lawson as he went to complete the sale. The vehicle was stopped by police. Mr. Leigh had 2 fentanyl patches hidden in his anal cavity. The fentanyl patches had been cut into smaller pieces. The police also found money on Mr. Marques Lawson and in the vehicle.
8On April 22, 2017, Mr. Marques Lawson arranged for the sale of 112 patches of Fentanyl. The runner, Mr. Halajha, was arrested on route to the sale and all 112 patches were seized.
9On May 3, 2017, plans were made to sell 40 patches of Fentanyl. Mr. Marques Lawson thought that he was being followed. In order to protect himself, he wanted Mr. Leigh to carry out the transaction for him. The buyer, however, did not agree to let Mr. Leigh complete the sale.
10On May 15, 2017, Mr. Leigh brought 70 patches of fentanyl from Sudbury to Toronto. He was using Mr. Marques Lawson's cellular telephone during this event and met up with Mr. Marques Lawson upon his return to Toronto with the patches.
11On May 18, 2017, Mr. Marques Lawson had Mr. Leigh sell a total of 43 patches of Fentanyl for him to two different buyers. Mr. Marques Lawson was charging $5600.00 for 20 patches.
12On May 18, 2017, Mr. Marques Lawson planned to sell five Fentanyl patches. Mr. Leigh was storing these patches for Mr. Marques Lawson.
13On May 26, 2017, Mr. Marques Lawson and Mr. Ramadan had arranged to purchase 100 patches of Fentanyl. Mr. Marques Lawson contacted Mr. Leigh about this purchase. A few days later, on May 31, 2017, Mr. Marques Lawson was captured on his telephone discussing his operation. He talked about his operating costs, his profit margins and that he used Mr. Leigh as his street level dealer. He also spoke about having problems with Mr. Leigh smoking multiple patches.
14On June 15, 2017, Mr. Marques Lawson obtained a shipment of 50 Fentanyl patches. Mr. Leigh was involved in discussions about this shipment.
15In addition to the agreed statement of fact, counsel also provided the court with some additional intercepted communications to help identify Mr. Leigh's overall role in the conspiracy. On May 31, 2017, Mr. Marques Lawson beat up Mr. Leigh because he was angry at Mr. Leigh for using some of the Fentanyl that was to be sold. Mr. Marques Lawson was also captured in one intercepted call indicating that he knew how to manipulate Mr. Leigh to do what he wanted him to do. Mr. Marques Lawson is also captured on the intercepts in one call saying nice things to Mr. Leigh and then when speaking to others talking negatively about Mr. Leigh. Moreover, in one of the arrest reports prepared by the police it was noted that Mr. Leigh was under Mr. Marques Lawson's control. During the circle, Mr. Leigh spoke of the beating he suffered at Mr. Marques Lawson's hands and explained that he now realizes that even though at the time he thought Mr. Marques Lawson was his friend, he now knows that Mr. Marques Lawson was just using him.
16Mr. Leigh was aware of the potential jeopardy he was in by selling Fentanyl as he is overheard talking to Mr. Marques Lawson about the fact that he would likely obtain a double digit sentence if arrested.
17In my view, all this material clearly establishes that Mr. Marques Lawson was the leader of the conspiracy and that Mr. Leigh played a lesser role. The vast majority of the information provided puts Mr. Leigh in the role of a "runner" or a "mule" for the organization – or as Mr. Marques Lawson said Mr. Leigh was his street level dealer. The intercepted calls establish that Mr. Marques Lawson set the prices, organized the deals and set up all the purchases and sales. Mr. Leigh was sent to complete the deals set up by Mr. Marques Lawson. During the circle, Mr. Leigh explained that he was paid on average $250.00 for every time he transported Fentanyl for Mr. Marques Lawson. This is only a fraction of the profit Mr. Marques Lawson made. Mr. Leigh also admitted that he is a severe drug addict and is addicted to cough syrup and Fentanyl. He sold the Fentanyl to support his addiction.
18At the time of the offences, Mr. Leigh was on probation with terms that he was not to possess drugs and was to keep the peace and be of good behaviour.
19Ms. Woodall, provided very helpful information about the sale of Fentanyl and the harm it causes. Fentanyl is a prescription medication for pain so potent that it is only ever prescribed for people whom have already developed a tolerance to other pain medication. It is sold in patches that are affixed to the skin. Each patch has its own dosage ranging from 25 mcg per patch to 100 mcg per patch. The patches involved in the case at bar were the 100 mcg patches. According to Ms. Woodall, the patch adheres to the skin and releases Fentanyl into the body at a controlled rate. Each patch lasts three days. While each patch lasts three days, often there is still fentanyl remaining in the patch after it is removed.
20Given the extreme strength of Fentanyl, it can be lethal if mis-used. The number of deaths from Fentanyl in Toronto is startling. It has effectively become an epidemic.
21Mr. Leigh was well aware of the harm caused by Fentanyl. He spoke at the circle about a friend who died from using Fentanyl. He has seen the affects first hand from his own Fentanyl use and from watching those around him use this drug. Mr. Leigh spoke about how it feels to be addicted to Fentanyl. He described it as painful and burning. Mr. Leigh told the circle that "it kills you inside". Ms. Woodall also explained just how addictive Fentanyl is. It is the most addictive drug presently on the market.
22Ms. Woodall explained that the most common way of selling Fentanyl is to obtain patches and cut them up into smaller strips. Users can adhere the smaller strips to their body, they can chew the strips, they can compress it into tablet form, or extract the Fentanyl and inject it.
23The prices for Fentanyl vary depending on where it is sold. In the case at bar, the Fentanyl was bought and sold in Toronto and Sudbury. In Toronto, a typical patch will be sold for $100-$200. In Sudbury the price is doubled. A gram of Fentanyl in Toronto sells for $240-$260. The same amount sells between $400 and $600 in Sudbury.
Circumstances of the Offender
24The Court discovered a lot about Mr. Leigh through the Gladue report prepared by Ms. Matchiwita, and through all the discussions that took place during the sentencing circle.
25Mr. Leigh is 28 years old and grew up in Sudbury. He is Metis on his maternal side. His maternal grandmother is registered with the Metis Nations of Ontario. While Mr. Leigh's maternal grandmother is Metis, Mr. Leigh's mother effectively rejected her indigenous heritage. The identity of Mr. Leigh's father is unclear, but it is known that he is of either African or Caribbean descent. Mr. Leigh has a sister who is two years older than him.
26Mr. Leigh has no relationship with his father and his mother was an addict and a sex trade worker. Mr. Leigh and his sister were first put in care when Mr. Leigh was two years old. CAS became involved because they discovered there was no heat in the home. In preparation of the Gladue report, Ms. Matchiwita reviewed 10,000 pages of material from CAS. The file portrays a child who has suffered abuse and neglect for the vast majority of his life.
27According to the CAS records, Mr. Leigh's mother never told them that she was Metis. As a result, Mr. Leigh was never placed with an Aboriginal family. Mr. Leigh's mother stated that she never registered with the Metis Nations of Ontario and did not identify as Metis because her own father, who was not indigenous, was a racist. She stated that her father "believes you should stick with white".
28According to Mr. Leigh's great-aunt, she and her family were raised with "the culture". They grew up fishing and hunting and her dad worked in the bush. She recalls that she and her siblings were teased about being Aboriginal and they were shunned by the general community. Mr. Leigh's great-aunt also told Ms. Matchiwita that her upbringing was filled with alcoholism and violence as her father would drink a lot and become violent. Mr. Leigh's grandmother did not finish high school and died at the age of 44 from cancer.
29While Mr. Leigh's mother rejected her Indigenous heritage, Mr. Leigh at times stayed with his grandmother who took him to pow-wows.
30According to the CAS records, Mr. Leigh's mother was sexually abused by her uncle and grand-father. Both were convicted after confessing to the abuse. Despite this fact, some family members believe that Mr. Leigh's mother made up the allegations and that her uncle and grandfather only confessed because they were told they would not go to jail if they did so. Throughout the CAS records, Mr. Leigh's mother is referred to as a pathological liar. Her reports to CAS and her children were often conflicting. Mr. Leigh's sister also spoke to CAS about their mother's constant lies. She told CAS in one interview that she came to this realization when she was 13 years old. Despite concerns about Mr. Leigh's mother's truthfulness, it was confirmed that Mr. Leigh's mother was hospitalized when she as 14 years old for anxiety and depression. She was also noted as functioning in the "borderline range" in intelligence.
31Mr. Leigh suffered abuse in a variety of different houses, including his mother's home. For a number of years while in the care of CAS, Mr. Leigh's mother had access to him and his sister. During this time, she would continue to use drugs and engage in sexual acts in front of Mr. Leigh and his sister. Moreover, some of her boyfriends were violent both physically and sexually. During access visits at CAS, Mr. Leigh's mother would bring beer in Mr. Leigh's bottle.
32When Mr. Leigh was very young, he was consistently described in the CAS notes as being a withdrawn and emotional child. Mr. Leigh told the circle that he recalls crying a lot as a child. He stated that he is no longer able to cry.
33Mr. Leigh's sister at one point told CAS that she and Mr. Leigh had been sexually abused. No further details were provided about this.
34There is information that at some point Mr. Leigh was a victim of sexual violence at school. There is a related note suggesting that this incident was "incorrectly" reported by Mr. Leigh's foster mother.
35Mr. Leigh also suffered some abuse in one or more of his foster homes, while the details are limited, it appears that in his first foster home Mr. Leigh was kicked in the genital area, spanked multiple times and had a skate thrown at his toe (he still has a scar from this incident). In this same home, the foster parents had their own biological children as well. Mr. Leigh recalls being treated very differently from the biological children. Mr. Leigh's sister also described this foster home as being abusive.
36In 1996 Mr. Leigh and his sister moved to a different foster home. They both spoke highly of this family. Sadly, in 1998 there was a fire at this home. It appears that Mr. Leigh was falsely accused of setting this fire. As a result, he and his sister were separated and Mr. Leigh was returned to the family that had previously abused him. It was later determined that Mr. Leigh did not start this fire. The CAS records have conflicting information about how this fire was started.
37Mr. Leigh told the circle that he spent his childhood wishing for a family. There is note in the CAS file that in 2001 both Mr. Leigh and his sister asked their CAS worker to find a family to adopt them.
38By 2001, Mr. Leigh was depressed and suicidal. It was noted that in 2001, he wrote with a black marker "I want to kill myself'. In 2003, Mr. Leigh tried to suffocate himself.
39In addition to the emotional trauma of his childhood and the upheaval of being moved to different foster homes, Mr. Leigh also had to contend with a physical ailment as he was born with cerebral palsy. It is also noted that he had minor intellectual delay and in grade four was diagnosed with ADHD.
40As previously noted, Mr. Leigh is Metis but he is also has African or Caribbean roots. He appears as a lighter skinned black male. There are notes in the CAS file about Mr. Leigh experiencing racism and at one point trying to scratch off his skin because it was black. He was the only black child in his school and was called many racist names.
41According to CAS files, by 2006, Mr. Leigh had moved between seven care givers and had been moved 12 times.
42Despite all this upheaval and trauma, by 2007 Mr. Leigh appeared settled in a foster home and was starting to improve when he suddenly disappeared. When he was located, it was discovered that just prior to running away, Mr. Leigh had run into his mother who asked him for cocaine.
43Mr. Leigh first started using drugs and drinking when he was 15 years old. By the time of his arrest, Mr. Leigh was severely addicted to drugs. He was using cough syrup, Fentanyl and Xanax. Mr. Leigh funded his habit through his drug dealing. According to Mr. Leigh, he thought the drugs would take the pain from all his past trauma away. Mr. Leigh told the circle that he often wished he would overdose so that his life would be over.
44In 2008, Mr. Leigh met a man whom he thought was his father. It was a very negative experience because his father effectively rejected him. He told Mr. Leigh that he did not want Mr. Leigh to be his son because of all Mr. Leigh's tattoos.
45Mr. Leigh has had one significant period of sobriety. This was a number of years ago. He entered into a rehabilitation program and was able to remain drug free for three months. Mr. Leigh's friend, Leah, confirmed this period of sobriety. According to Mr. Leigh's friend, during this time, Mr. Leigh worked and moved forward productively. When asked about the cause of his relapse, Mr. Leigh explained that he has a daughter and during this time, he was trying to gain access to her. When he was denied custody, he was unable to cope with the loss and returned to drugs.
46Mr. Leigh does have a criminal record. It includes an entry in 2010 when he stole a baby carriage for his neighbor and a series of convictions in 2011 for violence against his domestic partner and mother of his child. He also has convictions for robbery and possession of a schedule one substance. There is a gap in his record from 2013 to 2016 where he was trying to take care of his daughter and stay out of trouble.
47Since his arrest, Mr. Leigh has made tremendous progress. Mr. Leigh has stopped using drugs and has started to engage in programming. This did not happen right away, and the vast majority of his improvement appears to have been taken place in the last six months of his incarceration after being placed in a unit for indigenous persons and attending at a healing lodge in June 2018. Mr. Leigh's friend, Leah, told Ms. Matchiwita that she noticed significant changes in Mr. Leigh after he went to the healing lodge and started engaging in programming.
48Catherine O'Connor the NILO (native inmate liaison officer) from the Toronto East Detention Centre told the Gladue writer the following about Mr. Leigh:
He was an awesome client. He took the one-on-one time seriously. He would talk about the experience and what got him there. He talked about his past, he doesn't dwell on returning to surviving. His daughter was one of his key concerns. He worked well with group males. When he got transferred or removed on 4C, it was like something was missing.
49Mr. Leigh, during the circle, spoke about the moments in his life that he feels affected him the most. Of significance is his mother's addiction and rejection of him, his separation from his sister by CAS and the abuse suffered in the foster homes. Mr. Leigh has never felt loved by a family member and longs for a home life.
50Mr. Leigh received a number of misconducts while in pre-trial detention, albeit the last one pre-dates his attendance at the healing lodge. In October 2017 Mr. Leigh had a physical altercation with another inmate, one month later he hid from an officer during lunch count. In February 2018 Mr. Leigh broke a window on his door by kicking it and in May 2018, he called a nurse a "witch".
51Mr. Leigh is focused now on moving forward with his rehabilitation. He is ready to face the trauma from his past and work at staying away from drugs. Mr. Leigh, who did not graduate from high school is now working towards earning his GED. He knows that he needs anger management and continued help with staying away from drugs. Mr. Leigh told the circle that he becomes so angry sometimes he wants to punch holes in walls. He is learning now to control this anger.
52Mr. Leigh has a huge interest in fashion design. His passion for this area of employment was obvious in the way Mr. Leigh's facial features changed and his eyes lit up when he spoke of hope for a career in this field. His other hope is to regain access to his daughter. Having grown up without a father and an addicted and abusive mother, Mr. Leigh understands the importance of developing this relationship.
Positions of the Parties
53The Crown, in his sentencing submissions, properly focused on the harmful effect of Fentanyl. His position, prior to learning about Mr. Leigh's past, was that a sentence of six to seven years' incarceration was appropriate. After reading the Gladue report, counsel reduced his position to somewhere between four and five years' incarceration.
54Counsel for Mr. Leigh argued that a sentence of two years is the appropriate sentence given the significant mitigating factors present in this case. She also argued that this reduced sentence properly reflects Mr. Leigh's limited role in the overall conspiracy. Counsel for Mr. Leigh focused her submission on the Gladue principles and on Mr. Leigh's role within the conspiracy.
The Relevant Legal Principles and Their Application to the Case at Bar
55The overarching principle of sentencing is that the sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Proportionality is best determined by considering all the aggravating and mitigating factors while keeping in mind the objectives of sentencing which include:
a) General and specific deterrence
b) Denunciation
c) Rehabilitation
d) Reparation to society and/or the victim
e) Separation from society where necessary
f) The need to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and the community.
56How much weight I place on any one objective will depend on the facts of each case paying particular attention to the aggravating and mitigating factors. In the case at bar, the offences involve the sale of Fentanyl – a lethal and addictive drug. The courts have consistently held that the objectives of deterrence and denunciation are the paramount objectives when sentencing for trafficking in fentanyl (R. v. Sheehan, 2018 ONCJ 150, and R. v. Lu, 2016 ONCA 479). High penalties are necessary for sentencing those that traffic in Fentanyl because of its highly addictive nature and its lethality. Bluntly put, Fentanyl kills and the sentences for selling such a lethal drug must take this into account.
57In the case at bar, the Crown argued that the following aggravating factors have been made out:
The drug involved is fentanyl – a dangerous and highly addictive drug;
The operation was protracted in that it lasted for months and involved six different shipments;
The operation was sophisticated;
Mr. Leigh knew the consequences of his actions. In an intercepted call, Mr. Leigh stated that he could receive a double digit jail sentence for his actions;
Mr. Leigh was on probation at the time of the offences;
Mr. Leigh has a criminal record; and
Mr. Leigh knew how dangerous Fentanyl is because he saw a friend die from using it.
58I agree with the Crown on the vast majority of the aggravating factors listed above. There are a few factors, however, that in my view that are not aggravating. Firstly, I was not provided with sufficient information about the overall conspiracy to be able to conclude that it was sophisticated. I have been advised that it involved a number of players and a number of different shipments, but this does not equate with sophistication. Moreover, even if the conspiracy was sophisticated, in my view this does not weigh heavily against Mr. Leigh given his limited role in this conspiracy. Crown counsel argued that Mr. Leigh was a major player in this conspiracy given his close ties to Mr. Marques Lawson and his extensive involvement in holding the drugs and transporting the drugs. In my view, the facts and material provided to the court do not support this position. Mr. Leigh advised the court during the circle that he was only a runner or mule for the organization. This is consistent with the material provided in the agreed statement of fact, the additional intercepted calls provided and the comments of one of the officers in the arrest report (where he wrote that Mr. Leigh was under Mr. Marques Lawson's control). In the agreed statement of fact, Mr. Marques Lawson is organizing the transactions and calling on Mr. Leigh to carry out the deals that he made. On one occasion it appears that Mr. Leigh was holding the Fentanyl stash for Mr. Marques Lawson. Mr. Marques Lawson, himself, described Mr. Leigh as "his street dealer". There is nothing in the material filed that puts Mr. Leigh in the position of calling the shots, setting the prices or organizing any of the transactions. When I consider all this evidence, while I cannot define Mr. Leigh's exact role in the conspiracy, he was clearly on the lower rungs of this organization with no control over the deals. Mr. Leigh followed directions, was paid very little for his participation in the conspiracy and engaged in the riskier acts (i.e. transporting 70 patches of Fentanyl from Sudbury to Toronto and carrying out the drug deals for Mr. Marques Lawson). I am also satisfied that Mr. Leigh's addiction to Fentanyl and his vulnerabilities that arise from his childhood played a significant role in his decision to continue working with Mr. Marques Lawson.
59Taking these factors into account, the aggravating factors that exist in the case at bar include the nature and quantity of the drug, Mr. Leigh's criminal record, the fact that he was on probation at the time, the length of time that Mr. Leigh was involved in the sale of Fentanyl, and the fact that Mr. Leigh was well aware of the harmful nature of the drug and the fact that his offending conduct would result in a long sentence. In relation to this latter point, however, I am mindful that Mr. Leigh is an addict trafficker and that the motivation for his involvement was not greed, but to belong to the group and to pay for his own addiction to this very harmful drug.
60In the case at bar there are also numerous mitigating factors. Mr. Leigh has entered a plea of guilty. He was in fact the first in the overall conspiracy to enter a plea. Mr. Leigh is remorseful and is taking responsibility for his actions. Mr. Leigh is an addict trafficker and he made very little from his role in this conspiracy despite the significant profits made by those in charge of the conspiracy. Mr. Leigh has had a very traumatic and difficult childhood. His mother was an addict. Mr. Leigh was a witness to violence and sexual acts at a very young age including violence against himself, his mother and his sister. Mr. Leigh was placed in a number of different foster homes where he also suffered physical abuse. He never had a permanent placement despite his clear desire to be part of a family. The system separated Mr. Leigh from his sister causing him to feel even more isolated. Mr. Leigh also struggled because of his cerebral palsy and his ADHD. He was also a victim of racism. All this trauma led Mr. Leigh to attempt suicide on more than one occasion and also led to his now deep rooted addiction to harmful drugs like Fentanyl and other harmful solvents.
The Range of Sentence Normally Imposed for Similar Offences
61While sentencing is always an individualized process, a review of the general range of sentence normally imposed for similar offences is a necessary starting point. As was noted in R. v. McDonnell, [1997] S.C.J. No. 42, starting point sentences as set out by the appellate courts act as guides to the lower courts on the appropriate disposition. More recently, Wagner J. held in R. v. Lacasse, 2015 SCC 64 , [2015] 3 S.C.R. 1089 at paragraph 57:
Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered "averages", let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case.
62It follows from these cases that the starting point for a sentencing judge is to first determine the general range of sentences normally imposed for similar offences. In the vast majority of cases, when all the aggravating and mitigating factors are considered, the appropriate sentence will fall somewhere in that range. This ensures that the principle of parity is met and that sentences do not appear arbitrary.
63There are times, however, where specific features of the offending conduct or specific factors relevant to the offender lead to the conclusion that a sentence within the general range of sentences normally imposed would not be proportionate the gravity of the offence and the circumstances of the offender. In such exceptional cases, it is open for a judge to impose a sentence outside the range. As was stated recently by the Supreme Court of Canada in R. v. Suter, 2018 SCC 34 , [2018] S.C.J. No. 34, at paragraph 90:
In unique cases, mitigating factors, collateral consequences, or other attenuating circumstances relating to the offence or offender may warrant the imposition of a sentence that falls below this broad range. By the same token, the aggravating features in a particular case may warrant the imposition of a sentence that exceeds this broad range. As long as the objectives and principles of sentencing codified in ss. 718 to 718.2 of the Criminal Code are met and respected, the sentence will be fit.
64Where the sentencing judge concludes that the mitigating factors involved in any given case requires the imposition of a sentence outside the usual range, the sentencing judge must clearly articulate the basis for such a deviation. It should be noted, however, that the appellate courts have already indicated that some factors, standing alone, will never amount to the kind of exceptional circumstance that permits a judge to impose a sentence outside of the normal range. For example, the mere fact that one is an addict trafficker who now is addressing his addiction is not sufficient, on its own, to justify a reduced penalty outside the normal range of sentence. Courts have also held that a traumatic childhood, in and of itself, may also not be enough to justify a sentence outside the range. Sadly, the vast majority of offenders seen by this court have suffered traumatic childhoods that result in drug addiction and ongoing criminality. Most often, the ranges of sentences normally imposed take these factors into account.
65The normal range for sentencing a person for trafficking in Fentanyl is very high and very broad. It ranges from as low as four years to as high as fifteen years in jail. The reason the range is so broad is because the range is affected by the number of incidents of trafficking involved, the quantity of Fentanyl sold and the personal circumstances of the offender. Given this range of sentences, at first blush, the defence request for a two year sentence seems completely outside of the range and not a viable sentence. A more detailed review of the cases, however, provide a real basis upon which to distinguish Mr. Leigh from other persons trafficking in Fentanyl.
66The highest sentences for trafficking in Fentanyl appear to be imposed for offenders who sell large quantities of Fentanyl while also committing a breach of trust. As noted previously, Fentanyl is a prescription drug reserved for patients that have already built up a tolerance to other pain medications. As a prescription drug, it is mostly available to pharmacists, doctors and nurses. There are a slew of cases where the offender selling Fentanyl works in one of these positions of trust. For example, in R. v. Shaheen, 2018 ONCJ 150, a pharmacist was convicted of trafficking in over 5000 patches of Fentanyl over a two year period. Just prior to his arrest, he staged a false robbery to cover up his inventory discrepancy. In sentencing Mr. Shaheen to a 14 year sentence, the court noted the large amount of Fentanyl involved and the fact that the offence involved a breach of trust of his position as a pharmacist.
67In R. v. Patel, [2017] O.J. No. 5375, a pharmacist pled guilty to selling 3000 Fentanyl patches over two years. Noting the large amount of drugs involved and the breach of trust, the court imposed an eleven year sentence. In R. v. Baks, 2015 ONCA 560, the Court of Appeal imposed a six year sentence for Ms. Baks and her role in the sale of 900 patches of Fentanyl. In that case, Ms. Baks worked for a doctor. She breached her position of trust by forging prescriptions for Fentanyl that were filled and sold by others in the overall conspiracy. In determining that a six year sentence was appropriate the court noted that Ms. Baks played a key role in a somewhat sophisticated scheme and betrayed the trust of her employer. She was, however, a youthful first offender with good rehabilitative prospects, was under pressure from the higher members of the overall scheme and cooperated with the police by testifying against other members of the conspiracy. Mr. Loor, who was also part of this conspiracy but was not in a breach of trust position and only sold 44 patches of Fentanyl, albeit on four different occasions, also received a six year sentence for his role. Mr. Loor had a related criminal record and was convicted after a trial. In sentencing Mr. Loor to the same sentence as Ms. Baks, despite his lesser role in the overall trafficking scheme, the court noted that the mitigating factors present for Ms. Baks did not exist for Mr. Loor. In my view, these two cases demonstrate the role of proportionality on sentencing and the reality that at times, personal features of the offender can result in a lower penalty for more aggravating offences. Contrasting these two cases with Mr. Leigh, I note that Mr. Leigh was involved in the sale of significantly less Fentanyl patches than Ms. Baks and was not in a breach of trust position. Like Ms. Baks, however, Mr. Leigh was being controlled somewhat by a "higher up" in the overall scheme. Unlike Ms. Baks, Mr. Leigh is not a youthful first offender and he did not testify against his co-conspirators. He does, however, have other relevant mitigating factors including his traumatic upbringing and his ongoing addiction.
68Other cases that assist in providing the scope of the range include, R. v. Kallmer, 2017 ONCA 416, where a sentence of 20 months was imposed on a first offender for trafficking in six patches of Fentanyl; R. v. Miller, [2014] O.J. No. 2556 (OCJ), where a sentence of three years was imposed for the sale of 39 Fentanyl patches; R. v. Brooker, [2014] O.J. No. 2609 (OCJ), where a sentence of four years was imposed for trafficking in 23 Fentanyl patches; R. v. Rowley, [2014] O.J. No. 2610 (OCJ), where a sentence of 4.5 years was imposed for the sale of 35 Fentanyl patches; and R. v. Miller, [2014] O.J. No 4786 where a sentence of 33 months was imposed for the sale of 14 Fentanyl patches. Mr. Leigh's offences are more serious in that he was involved in the sale of almost 400 patches of Fentanyl over an extended period of time. These cases all suggest that a sentence in the six year range or higher would have normally been appropriate.
69In my view, of all the cases I reviewed, the case of R. v. Medeiros-Sousa [2014] O.J. No. 4515 (OCJ), is the most similar to the facts in the case at bar. In that case, the offender was an addict herself who had suffered sexual abuse as a child. She worked as a pharmacist's assistance which is how she had access to the drugs she sold. Ms. Medeiros-Sousa sold 58 patches of Fentanyl as well as 3164 pills of Oxycodone and 1727 pills of hydromorphone. On a plea of guilty, she received a 30 month sentence. The similarities between Ms. Medeiros-Sousa and Mr. Leigh include the large amount of drugs involved, that both had abuse in their childhood and both were addicted to the drugs they were selling. Moreover, Mr. Leigh, due to his exposure to other addicts knew of the harm caused by Fentanyl. In Medeiros-Sousa, the court held that Ms. Medeiros-Sousa was well aware of the harmful nature of the drugs she sold because of her education in the area. Despite these similarities, there are some relevant dissimilarities. Firstly, Ms. Medeiros-Sousa was not part of a larger conspiracy. She stole the drugs herself and then gave them to her co-accused. She also trafficked in significantly less Fentanyl. Ms. Medeiros-Sousa also made no profit from her criminal acts and while Mr. Leigh did not make a lot of money, he was still remunerated for his acts. On the other hand, Ms. Medeiros-Sousa was in a position of trust while Mr. Leigh was not and she trafficked in significant amounts of two other kinds of harmful drugs as well.
Section 718.2(e) of the Criminal Code and Its Application to the Case at Bar
70Section 718.2(e) of the Criminal Code requires judges to take into consideration an offender's Aboriginal heritage when determining the appropriate sentence. In R. v. Gladue, [1999] S.C.J. No. 19, the Supreme Court of Canada explained in detail the purpose and scope of section 718.2(e). The Court noted that this section was remedial in nature, meant to address the over representation of aboriginal persons in the criminal justice system and in our jails. In addressing the scope of this provision, the Court stated at paragraph 65:
It is clear that sentencing innovation by itself cannot remove the causes of aboriginal offending and the greater problem of aboriginal alienation from the criminal justice system. The unbalanced ratio of imprisonment for aboriginal offenders flows from a number of sources, including poverty, substance abuse, lack of education, and the lack of employment opportunities for aboriginal people. It arises also from bias against aboriginal people and from an unfortunate institutional approach that is more inclined to refuse bail and to impose more and longer prison terms for aboriginal offenders. There are many aspects of this sad situation which cannot be addressed in these reasons. What can and must be addressed, though, is the limited role that sentencing judges will play in remedying injustice against aboriginal peoples in Canada. Sentencing judges are among those decision-makers who have the power to influence the treatment of aboriginal offenders in the justice system. They determine most directly whether an aboriginal offender will go to jail, or whether other sentencing options may be employed which will play perhaps a stronger role in restoring a sense of balance to the offender, victim, and community, and in preventing future crime.
71The Supreme Court Canada held in R. v. Gladue, held that while judges are to take into account an offender's Aboriginal heritage, this is not a race based discount, nor will the effect of taking this into consideration necessarily alter the ultimate sentence. Instead, it requires the court to engage in a different process when assessing the appropriate sentence, one that takes into account the unique experience of Aboriginal persons in our society.
72In R. v. Ipeelee, 2012 SCC 13 , [2012] S.C.J. No. 13, the Supreme Court of Canada explained and expanded on their decision in R. v. Gladue. The Supreme Court of Canada held that section 718.2(e) calls upon judges to use a different method of analysis in determining a fit sentence for Aboriginal offenders (at paragraph 59). This provision directs judges to pay particular attention to the circumstances of the Aboriginal offender because these circumstances are unique and different from non-Aboriginal offenders. The Supreme Court of Canada went on to find that sentencing judges may take judicial notice of the broad systemic and background factors affecting Aboriginal people generally in assessing the appropriate sentence. In commenting on how judges can effectively use section 718.2(e) of the Criminal Code, the court stated at paragraph 66:
First, sentencing judges can endeavor to reduce crime rates in Aboriginal communities by imposing sentences that effectively deter criminality and rehabilitate offenders. These are codified objectives of sentencing. To the extent that current sentencing practices do not further these objectives, those practices must change so as to meet the needs of the Aboriginal offenders and their communities.
73The court went on to state that sentencing judges must look to the unique systemic factors that bring Aboriginal offenders to court as well as the type of sanctions that may be appropriate given the Aboriginal offender's heritage. To that end, the court noted at paragraph 73"the background and systemic features may bear on culpability of the offender, to the extent that they shed light on his or her level of moral blameworthiness." The Court went on to state in the same paragraph"many aboriginal offenders find themselves in situations of social and economic deprivation with a lack of opportunities and limited options for positive development. While this rarely – if ever – attains a level where one could properly say that their actions were not voluntary and therefore not deserving of criminal sanction, the reality is that their constrained circumstances may diminish their moral culpability."
74Section 718.2(e) also allows the court to recognize and respond to the fact that the current concepts of sentencing are often inappropriate when sentencing Aboriginal offenders, because they fail to take into account the needs, experiences and perspectives of aboriginal persons (R. v. Ipeelee, supra at para 74).
75The application of the principles enunciated in Gladue in sentencing offenders that have committed more dangerous and serious offences can be more complicated and has been considered at great length by the appellate courts. In R. v. F.H.L, 2018 ONCA 83, the Court of Appeal held that applying Gladue involves a two pronged approach where the first prong involves considering the unique systemic or background factors that played a role in bringing the offender before the court and the second prong relates to a consideration of the sanctions and sentencing procedures which may be appropriate given the offender's Aboriginal heritage.
76In the case at bar, obtaining a Gladue report and conducting a sentencing circle with the participation of an elder, a Gladue writer and a Gladue after care worker all served to address the second prong identified above. The information gathered in the report and the circle also highlighted the links between Mr. Leigh's background as an indigenous male, his addiction and his criminality. Moreover, the Gladue report and the circle provided insight into what Mr. Leigh's rehabilitative needs were and provided an opportunity for Mr. Leigh to explore his past and gain insight into his treatment needs.
77The first prong and its impact on the second prong, in my view, is harder to address. As was noted in R. v. F.H.L., supra, it is difficult to ascertain in what circumstances a person's Aboriginal background will influence the ultimate sentence. The Appellate Court in R. v. F.H.L., supra, did provide some practical guidance to sentencing judges struggling with the application of Gladue. The court stated at paragraph 40 that for the offender's Aboriginal background to influence the sentence, the "background factors affecting Aboriginal people in Canadian Society must have impacted the offender's life in a way that (1) bears on moral blameworthiness, or (2) indicates what types of sentencing objectives should be prioritized in the offender's case". In other words, the systemic or background features must be tied in some way to the offending behaviour. Or as noted by Lebel J. in Ipeelee at paragraph 73 "the systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or her level of moral blameworthiness".
78Applying Gladue correctly involves taking judicial notice of the background factors affecting Aboriginal people that have translated "into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide and of course higher levels of incarceration" (R. v. F.H.L., supra, at para 44). The court must then consider whether those factors bear on the offender's moral culpability or indicate which objectives of sentencing should be given greater weight. This is determined by assessing what impact, if any, the offender's aboriginal status has had on the offender's own life experience (R. v. F.H.L., supra, at para 45).
79In the case at bar, through the Gladue report and the sentencing circle, this court was provided with a significant amount of information linking Mr. Leigh's experience as an Aboriginal male and his present actions. Mr. Leigh's grandmother was Metis. She and her siblings grew up with racism and experienced alcoholism and violence in their home. The substance abuse issues continued through the family line all the way to Mr. Leigh. Mr. Leigh told Mr. Matchiwita that his grandparents and mother were all addicts and Mr. Leigh's mother's addiction is well documented. It is Mr. Leigh's addiction to fentanyl and cough syrup that led to the commission of the present offences. Mr. Leigh sold Fentanyl in order to purchase more Fentanyl for his own use.
80The racism suffered by Mr. Leigh's ancestors impacted their relationship with their culture leading to Mr. Leigh's mother denouncing her indigenous heritage. This led to Mr. Leigh being disconnected from his community. Moreover, as he was also disconnected from his father, he had no connection to the African or Caribbean community, leading to further disconnection.
81Mr. Leigh was also put in foster care at a very young age, because of his mother's inability to care for him and his sister. While in care, Mr. Leigh suffered from various forms of abuse which further contributed to his abuse of drugs and his present conflict with the law.
82The over apprehension of Aboriginal children with subsequent placement in non-Aboriginal homes is well documented. Ms. Matchiwita wrote in the Gladue report that "the statistics are quite alarming". She noted that in 2005, of the 76,000 children and youth in foster or group homes in Canada 42% were Aboriginal. She further wrote that "Aboriginal children and youth are more likely to live in three to 13 different foster homes before the age of 19". Ms. Matchiwita explained in the Gladue report the impact of aboriginal children being raised in non-aboriginal foster homes. She wrote:
Some of the literature indicates that tension related to identity crisis in Aboriginal adoptees arises as the adoptee gets older. Evidence shows Aboriginal children adopted by non-Aboriginal parents suffer from poor self-esteem and are three times more likely to have suicidal tendencies or commit acts of self-harm. Studies have also found lower education levels, poor job skills, substance abuse and increased levels of psychiatric care to be among the effects of being reared in foster care.
83Many of these factors are present for Mr. Leigh. There is a history of substance abuse and exposure to racism and violence in his grandparents' life that continued down generations leading to Mr. Leigh being raised first by a mother who worked in the sex trade and was addicted to narcotics and then by a variety of different foster parents, none of whom were of Aboriginal descent. Mr. Leigh clearly suffered from identity crisis at times (albeit this is more linked to his African heritage than his Indigenous heritage), he attempted suicide more than once, engaged in self-harm activities, has a low level of education having not completed high school, was involved with psychiatric care and has a substance abuse problem.
84In my view, all these background factors can be linked to Mr. Leigh's Indigenous background and the inter-generational effect of dislocation and racism. All these factors, in my view, serve to reduce Mr. Leigh's moral culpability. Moreover, the gains Mr. Leigh has clearly made while working with native healing lodge and with his NILO indicate that rehabilitation with a focus on culturally appropriate treatment should be one of the prime objectives of sentencing Mr. Leigh. To that end, this type of sentence will help with both Mr. Leigh's rehabilitation and the protection of the public.
85Crown counsel argued that the Gladue factors should be afforded less weight in the case at bar because the offences committed by Mr. Leigh are so serious. Respectfully, I disagree. As was noted in R. v. Travis Macintyre-Syrette, 2018 ONCA 259, the application of Gladue is not a matter of weight and the duty to apply Gladue factors does not vary with the offender. The focus of Gladue is on the impact of the circumstances of the particular offender on his or her moral culpability. While it may be that in more serious offences, applying Gladue will not result in a lower penalty, it does not follow that the Gladue factors have little weight.
The Appropriate Sentence
86In determining the appropriate sentence, the primary objectives must be deterrence and denunciation given the harmful nature of the drug sold. The number of deaths that are caused each month from overdoses in Fentanyl are alarming and call out for a strong and meaningful response from the courts. The best way to denounce the sale of Fentanyl and to deter others from selling this lethal drug is to impose significant penalties on those that choose to sell this drug.
87This court, however, must also take into account Mr. Leigh's background and the relationship between his background and his present criminal acts. Moreover, since his incarceration for these offences, Mr. Leigh has gained dramatic insight into his criminality and moved forward in his rehabilitation. He has been drug free for many months. He has engaged in programming and those who know him have noticed a real change in his behaviour. Mr. Leigh has now connected with an Aboriginal court worker and an elder. He now has people in the community to assist him in moving forward with his rehabilitation. Ms. Matchiwita has recommended that upon his release from custody that Mr. Leigh enter into an in-patient Indigenous residential treatment centre. Mr. Leigh has expressed an interest in attending Native Horizons and has looked into the admission requirement for this program. He can enter into the program in a short time after his release from custody. Ms. Matchiwita also recommended that Mr. Leigh attend Boundary Setting from STAR learning. This is a two day program that starts in December. Mr. Leigh will also be able to obtain counselling services through Anishnawbe health. Moreover, Mr. Yellowhead, who participated in the circle and is a case worker at Aboriginal Legal Services, is willing to work with Mr. Leigh once he is released into the community. Mr. Leigh seemed excited and interested in all this support.
88In assessing the appropriate sentence, in my view the following factors are of primary importance:
a) While Mr. Leigh was a member of the conspiracy that sold almost 400 patches of Fentanyl and Mr. Leigh personally transferred approximately 110 patches of Fentanyl, he was a low member of the conspiracy and was to some extent being controlled by Mr. Marques Lawson and suffered physical harm at the hands of Mr. Marques Lawson. Having said that, it is clear from the conversations and from Mr. Leigh's comments during the sentencing circle that Mr. Leigh knew what he was doing, knew that he was selling a lethal drug and knew that the potential consequence if caught was many years in prison.
b) Mr. Leigh's Aboriginal ancestry can be directly linked to his criminality and serves to reduce his overall moral culpability
c) Mr. Leigh is engaged in his own rehabilitation and his prospects look very good
d) Mr. Leigh is an addict trafficker. He was not selling drugs out of greed but instead to pay for his own addiction.
89When I consider all these factors, even keeping in mind the primary objectives of deterrence and denunciation, I am satisfied that exceptional circumstances exist to impose a sentence outside the range of sentences normally imposed. In the normal course, a sentence in the range of six years may have been appropriate. In my view, when I consider the exceptional circumstances including Mr. Leigh's lesser role in the conspiracy, the power dynamic between Mr. Marques Lawson and Mr. Leigh, the nominal profit he made off the sale of the Fentanyl, and the Gladue factors noted above, I am satisfied that a low penitentiary sentence is required. In my view a sentence of 30 months less pre-trial custody calculated at rate of 1.5:1 is the appropriate sentence and gives proper effect to the objectives of sentencing.
90There is one last factor I must address. This is the parity principle. Crown counsel argued that given the sentences imposed on other members of the conspiracy, only a sentence in the range of four to five years can meet the principle of parity. Mr. Marques Lawson, the leader of this conspiracy received a sentence of eight years. He entered a plea of guilty during his preliminary inquiry. Mr. Mills, who also pled guilty and was also a key member of this conspiracy received a sentence of seven years. Mr. Gauthier, who was less involved in the overall conspiracy and, like Mr. Leigh, suffered from addictions, received a sentence of five years. Mr. Halajha, who was only involved with the sale of 115 patches of Fentanyl, entered a plea of guilty, has no criminal record, is youthful and still in school. I have been advised that at his sentencing it will be a joint submission for a sentence of four years' incarceration. The Crown argued that Mr. Leigh's greater involvement in the overall conspiracy and the fact that he is not a youthful first offender demand that Mr. Leigh receive a sentence greater than Mr. Halajha. Respectfully, I disagree. I do not know much about Mr. Halajha and Mr. Gauthier. While they may have been less involved in the overall conspiracy than Mr. Leigh, this does not mean that they should automatically receive a lesser penalty. The court not only considers the nature of the offence but also the circumstances of the offender. As noted above, Mr. Leigh's moral blameworthiness is reduced given his background and the connection between his background and his present criminality. As such, Mr. Leigh's personal circumstances can easily be distinguished from the other members of this conspiracy thereby justifying a different sentence.
91Mr. Leigh, you are sentenced to 30 months incarceration less pre-sentence custody calculated at a 1.5:1 basis concurrent on the trafficking and conspiracy charges. You are sentenced to a five month sentence to be served concurrently on the charge of failing to comply with probation. You have spent 16 months and 21 days in pre-sentence custody. Calculated at 1.5:1, your pre-sentence custody is 25 months. This leaves five months remaining in your sentence. It is recommended that you spend this time in a correctional facility that will further your rehabilitation and your connection to your Aboriginal heritage. In order to facilitate your rehabilitation and re-entry to the community, after you are released from custody you will be placed on probation for two years. You are to report to a probation officer within two working days of your release from custody and thereafter as directed. You are to enter into an in-patient treatment program when a bed becomes of available and complete that program. You are to engage in any other culturally appropriate counselling to help you address your past trauma and your addictions as directed by your probation officer in consultation with you and your Gladue after care worker. You must sign all forms so that your probation officer can monitor compliance with this term. You are also not to possess any weapons as defined by the Criminal Code. There will also be a DNA order and a 109 order for life. Counsel for Mr. Leigh asked me to further reduce Mr. Leigh's sentence to account for the numerous lockdowns while he was in custody. I received conflicting information about the number of lockdowns and the impact they had on Mr. Leigh. In light of this, I am not satisfied that there is an evidentiary basis to further reduce his sentence.
Released November 5, 2018
Justice Mara Greene