Ontario Court of Justice

Date: 2019-06-05 Court File No.: Newmarket 18-09152

Between:

HER MAJESTY THE QUEEN

— AND —

HUGO DAVID PALACIO

Reasons on Sentence

Heard and Delivered: 5 June, 2019

Counsel:

• Mr. Adib Nadi — counsel and agent for the Federal Crown
• Mr. Morgan Lipchitz — counsel for the defendant

KENKEL J.:

Introduction

[1] Mr. Palacio pleaded guilty to two counts of Possession of Controlled Substances for the Purpose of Trafficking (PFTP) contrary to s 5(2) of the Controlled Drugs and Substances Act SC 1996, c 19 (CDSA) and a further count of Obstructing Justice contrary to s 129(a) of the Criminal Code RSC 1985, c C-46.

[2] The Crown and defence jointly submit that a 7 year sentence would be sufficient punishment. While the joint submission falls at the lowest end of the range for the circumstances of the offences and the offender, these reasons explain why I find it a fit sentence in this particular case.

Circumstances of the Offences

[3] Mr. Palacio was driving at 152km/hr on Highway 407 in a posted 100km/hr zone. When he was stopped by police he provided a false name. He was not a licensed driver. He was arrested and a search of the vehicle resulted in the seizure of a large quantity of drugs and over $10,000 in cash.

[4] The following drugs were seized:

• 499.42 grams of crystal methamphetamine
• 64.81 grams of cocaine
• 44.71 grams of a fentanyl/heroin mixture
• 6.83 grams of heroin
• 1.3 grams of methylenedioxymethamphetamine (MDMA)
• 16 capsules of amphetamine (5mgs/per)
• 19 tablets of clonazepam
• 1.5 pills of Xanax
• 20 pills of Alprazolam
• 5 tablets of hydromorphine (1mg/per)
• 3 capsules of hydromorphine (4.5mg/per)
• 2 capsules of Demerol (50mg/per)
• 14.19 Litres of gama-hydrozybutyrate (GHB)
• 16.92 grams of Psilocybin (magic mushrooms)

[5] The police also seized 3 sets of digital scales, 2 cellular phones, multiple Ziplock type baggies, 3 notebooks containing price and debt lists and a plastic bag containing baking soda.

Aggravating Factors

[6] Several circumstances aggravate sentence:

• The driving that led to the arrest – Mr. Palacio was unlicensed. He drove at a speed more than 50km over the posted limit of 100km/hr.
• Mr. Palacio initially provided a false name to the investigating officer.
• The extensive recent criminal record marked as Exhibit #1 on sentence including 7 convictions for drug offences with a prior high global sentence of 2 years 6 months which would have resulted in a penitentiary sentence but for substantial time served.
• The fact that Mr. Palacio had just served a drug trafficking sentence when he was arrested for these offences.
• The variety, amounts and nature of the drugs Mr. Palacio possessed.
• The combination of all drugs possessed showing that after he served his sentence Mr. Palacio resumed involvement in drug trafficking at a mid to upper level.
• The danger posed by the substances seized and the impact of those substances on the community including lives lost to fentanyl/heroin mixtures and the further offences that can result from the trafficking of GHB, the "date rape" drug.

Mitigating Factors

[7] Three circumstances mitigate sentence:

• The guilty plea
• Time served since November 4th, 2018 – 214 days or 7 months, 2 days.
• Once he was arrested Mr. Palacio was cooperative and took responsibility for the drugs found where there were other persons in the vehicle.

Sentence

[8] Mr. Palacio was travelling with an illicit pharmacy of 14 different types of drugs. The drugs were among the most dangerous controlled substances including opiates and a fentanyl/heroin mixture. Many of the drugs were present in significant amounts including the 14.19 litres of GHB. The scales and debt lists used by those who traffic in drugs at a commercial level were all present. Mr. Palacio returned to drug trafficking at a high level not long after his release from serving his previous drug sentence. The circumstances of the offences plainly show that Mr. Palacio was not deterred by the previous sentence equivalent to 2.5 years.

[9] Mr. Palacio has pleaded guilty and has served 214 days in pre-trial custody which is typically credited at the rate of 1.5 to 1 as directed in R v Summers 2014 SCC 26. Summers credit amounts to 321 days for the time served (214 x 1.5 = 321). For a number of reasons Mr. Palacio spent an extended time in pre-trial custody where he encountered frequent lockdowns and did not have the benefit of remedial programs. Exhibit #2 shows Mr. Palacio was subject to 28 lockdowns lasting 6 hours or more during that period. He was assaulted twice while in custody and he spent time in protective custody. While some of those circumstances are part of the consideration in Summers, in this case I agree with the defence that it's necessary to grant some limited credit beyond 1.5/1 such that the 214 days are considered as time served of 365 days or one year. In my view credit beyond that point would result in an unfit sentence. Deducting credit of one year from the jointly submitted global sentence leaves 6 years remaining to be served.

[10] The joint submission acknowledges circumstances particular to the investigation and prosecution of this case while also acknowledging Mr. Palacio's personal circumstances and the fact that this will be a significant increase from his last sentence and the first sentence he will serve in the penitentiary. For those reasons I find the proposed sentence is fit but I note that if it were not for the joint submission a higher sentence would likely have resulted even on a guilty plea.

Conclusion

[11] Mr. Palacio is sentenced to 6 years on each trafficking count concurrent to each other with time served of 214 days credited as 365 days or 1 year. There will be a 3 month concurrent sentence on the s 129 obstruct count for a global total of 6 years remaining to be served.

[12] It is necessary to impose a s 109 order for life. There will also be a DNA order. The offence related proceeds and property of this accused referred to by the Crown will be forfeit to the Crown except for the funds released for legal fees on consent and the Microsoft Surface Laptop and Samsung cellphone. The laptop and cellphone will be returned to Mr. Palacio's former employer who own those items.

Delivered: 5 June, 2019

Justice Joseph F. Kenkel