ONTARIO COURT OF JUSTICE DATE: 2021 01 20 COURT FILE No.: 18-15007131-00 Old City Hall – Toronto Region

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

NEGESHAN YOGENDRAN

Before Justice H. Pringle

Heard on September 24, 2020; December 3, 2020; January 14, 2021 Reasons for Judgment released on January 20, 2021

Counsel: Victoria Rivers..................................................................................... counsel for the Crown John Christie................................................................................. counsel for the defendant

PRINGLE J.:

Overview

1Mr. Yogendran is here today to be sentenced for possessing a loaded restricted firearm and for possessing dangerous controlled substances for the purpose of trafficking. His sentence must reflect the seriousness of his offending behaviour and the degree of his moral culpability in committing it.

2His offences are most serious. The Criminal Code directs me to impose a sentence that, first and foremost, reflects the objectives of denunciation and deterrence. Mr. Yogendran’s sentence must set an example for others. It must hopefully, stop like-minded persons from offending in a similar way. It must send the message that the “toxic combination” [1] of drug and gun offences will be met by a penitentiary sentence.

3Sentencing Mr. Yogendran would be a simple exercise, were those the only objectives to be attained. But his rehabilitative potential is strong. He is surrounded by loving community support. He is youthful. There is still time to change the path he placed himself on. The sentence cannot crush this first offender’s prospects for rehabilitation. It must leave him, and his support network, with hope for a prosocial future.

4Resolving these tensions is a difficult task, made more difficult by the fact the controlled substance possessed was fentanyl. Our country is in an opioid crisis. Addiction rates are soaring. People from all walks of life are overdosing and dying. Drug trafficking, especially when it comes to fentanyl, is far from a victimless crime.

Background of Offence and Offender

5In the 1990s, Mr. Yogendran’s parents fled civil war in Sri Lanka. Settling in Toronto, they started a family. Mr. Yogendran and his two siblings were raised stably and well. Their parents worked hard and, despite financial struggles, ensured their children lacked for nothing. Their three children were close, with Mr. Yogendran serving as a role model to his two sisters.

6In school, Mr. Yogendran played sports, had friends, and got good grades. His intellect was such that he was placed in a gifted program. As a teenager, he periodically worked part time in the hospitality industry. His parents described him as well-liked by teachers and peers. The defendant, his sister added, was the type of person people turned to for help.

7But Mr. Yogendran’s teenaged years were also marked by violence and trauma. He witnessed his friend get hit by a train and die. A close friend was the victim of a homicide. He himself was stabbed during the course of a robbery, resulting in significant bodily harm, the need for surgery and months of hospitalization.

8At age 20, Mr. Yogendran committed the first set of offences before this court. According to the PSR, he got himself in debt. The nature of the debt is unknown to me. Mr. Yogendran reports no addiction issues and his parents were obviously available to care for basic needs. But instead of reaching out to his parents for help, Mr. Yogendran started selling drugs.

9On September 19, 2018, at 4:30 am, he was driving his car at Sherbourne and Gerrard. Police investigated after a woman ran in front of his car, as though she was trying to get the driver’s attention. Mr. Yogendran was in possession of 5.05 grams of fentanyl and heroin, as well as 30.82 grams of MDA (an MDMA analog). He was quickly released on bail, following his pledge not to possess controlled substances and to reside at a certain address.

10In June 2019, Mr. Yogendran was arrested again. He was in breach of his bail in two ways. He was not living at the address he was supposed to be at, and he was in illicit possession of CDSA-prohibited substances. More specifically, he was in constructive possession of 16.38 grams of fentanyl cut with caffeine and another agent, 19.91 grams of cocaine, an unspecified quantity of MDMA, approximately $14 000, and a loaded semi-automatic handgun. He has remained in custody since.

11These charges put an end to Mr. Yogendran’s plan to apply for college. Once his sentence is complete, he plans to return to school and learn the electrician trade. He has also been offered a full-time restaurant job, by someone aware of Mr. Yogendran’s serious criminal behaviour. His family remains willing and eager to help with his rehabilitation as soon as he is released.

Principles Guiding Range of Sentence

12The Crown sought three years for the firearm offence, and a global and consecutive sentence of nine years for the drug offences. Quite clearly, the driving force underlying this position was the presence of fentanyl. Ms. Rivers suggested the principle of totality should then reduce the twelve years to ten years.

13Mr. Christie submitted a globally fit sentence was five years. He presented two alternatives for reaching that quantum. After deducting the equivalent of three years presentence custody, I could either impose a conditional sentence order for two years less one day, or sentence Mr. Yogendran to an additional two years in the penitentiary.

14Sentencing range for Mr. Yogendran’s gun and drug offences must be measured using the following factors:

(i) Sentences for possessing illegal firearms must, first and foremost, give effect to the objectives of deterrence, of denunciation, and of public protection: R. v. Marshall, 2015 ONCA 692, [2015] O.J. No. 5348 (C.A.) at para. 49;

(ii) The possession and use of illegal firearms pose an ongoing community crisis in Toronto. Too many youth in our community have been victimized by gun violence. Causing injury or death to innocent bystanders has become, sadly, commonplace. In our city, illegal firearms are inextricably linked to the commission of other serious criminal activity;

(iii) Mr. Yogendran’s gun was loaded with ammunition when found by police. In other words, it was readied for use against another human being and in order to protect Mr. Yogendran’s drug trade: see R. v. Wong, 2012 ONCA 767 at paras. 11 and 13, and;

(iv) Mr. Yogendran’s choice to involve himself in the fentanyl trade caused community addiction, fed community addiction, and carried the real risk of causing another person’s death. Engaging in the fentanyl trade bespeaks a certain callousness towards human life.

15Of course, sentence ranges are but guidelines. A sentencing judge must still ensure sentence properly reflects a case’s individual circumstances. That said, stepping outside a sentencing guideline is not permitted to the extent that it renders sentence unfit.

Range for the Firearm Offence

16At para. 82 of R. v. Nur, 2015 SCC 15, McLachlin J. stated:

Section 95(1) casts its net over a wide range of potential conduct. Most cases within the range may well merit a sentence of three years or more, but conduct at the far end of the range may not. At one end of the range, as Doherty J.A. observed"stands the outlaw who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade... . [T]his person is engaged in truly criminal conduct and poses a real and immediate danger to the public": para. 51. At this end of the range - indeed for the vast majority of offences - a three-year sentence may be appropriate. A little further along the spectrum stands the person whose conduct is less serious and poses less danger; for these offenders three years’ imprisonment may be disproportionate, but not grossly so.

17On the spectrum of culpability, Mr. Yogendran’s firearm possession falls on the “true crime” end of the Nur spectrum. When a first offender’s gun possession connects to other criminal activity such as drug trafficking, this can attract a range of between three and five years. This general range can be found in cases such as R. v. Elvira, 2018 ONSC 7008 at para. 27 and R. v. Graham, 2018 ONSC 6817 at para. 38.

18Here, Mr. Yogendran’s firearm possession was plainly connected to trafficking different types of addictive, deadly drugs. As a starting point, I find his firearm sentence should fall in that general three to five year range.

Range for Fentanyl Offences

19The range for possession of fentanyl for the purpose of trafficking is less developed. In R. v. Loor, 2017 ONCA 696 at para. 50, the Court of Appeal declined to set a range but observed:

…..that generally, offenders – even first offenders – who traffic significant amounts of fentanyl should expect to receive significant penitentiary sentences.

20Sentencing touchstones have been set by Loor and subsequent appellate decisions. For example, the six-years imposed upon Loor was upheld on appeal. He was convicted of using forged prescriptions, on three separate occasions, to obtain 45 high-strength fentanyl patches worth $20 000. Loor was 39, was at the lower end of the trafficking scheme, and had a serious, related criminal record.

21His two co-accuseds had their sentences reduced on appeal: see R. v. Sinclair, 2016 ONCA 683 and R. v. Baks, 2015 ONCA 560. Both were more deeply and highly entrenched in the trafficking scheme. The Court of Appeal reduced their sentences from nine years to six years and from nine years to eight years, in order to give proper effect to “powerful mitigating factors”: Baks, supra, at para. 4. More specifically, Baks received 5 years globally for 20 counts of trafficking fentanyl, one year concurrent for trafficking oxycodone, and one-year consecutive for the breach of trust forgery count: R. v. Baks, 2015 ONCA 605 [addendum].

22These three decisions were relied upon in R. v. Disher and Weaver, 2020 ONCA 710. There, two persons jointly possessed 42.6 grams of mixed powder substances in packets, including heroin, fentanyl, a packet of carfentanil, and fentanyl derivatives. Police also located 47.5 grams of marijuana and two spring-loaded knives. When the two were arrested, Disher was in physical possession of 1.1 grams of fentanyl and other substances, while Weaver had a baggie with a quantity of meth and another baggie with heroin and cocaine residue.

23Disher pled guilty, but not until the first day of trial. He had a serious, related, consistent criminal record, including “numerous trafficking convictions”: para. 6. He had been placed on bail for drug charges only two weeks before offending. After plea, he received a sentence of twelve years. Given the need for general deterrence and denunciation, the sentencing judge said, the presence of fentanyl and especially carfentanil took sentence above the heroin trafficking range.

24In reducing the twelve-year sentence to eight years, Gillese J.A. held that:

Caution in considering the caselaw is warranted not just because of its inchoate state but also because of the difficulties in comparing quantities of fentanyl given the differences between patches, pills and powder. Bearing in mind these notes of caution, the caselaw indicates that a sentence of eight years is consistent with that received by offenders similarly situated to Mr. Disher, a mid-level recidivist trafficker of heroin adulterated with fentanyl.

[emphasis added]

25Similarly, Ms. Weaver’s seven-year sentence was reduced to four years on appeal. She was 22 years old at the time of offence, had no criminal convictions, was on bail and probation from a conditional discharge. That probation had prohibited her from contact with Disher. She did not have the mitigation of a guilty plea on the joint possession allegation. She was indigenous and her rehabilitative potential was strong.

26Two aspects of the Disher decision stood out, when considered in light of Mr. Yogendran’s case. In reference to Ms. Weaver’s sentence, the Court held at para. 60 that while:

…general deterrence and denunciation are important factors to be considered in a case such as this, it is an error to fail to consider individual deterrence and rehabilitation, especially when sentencing a first offender: Batisse, at para. 34; R. v. Thurairajah, 2008 ONCA 91, at para. 41; and R. v. Mohenu, 2019 ONCA 291, [2019] O.J. No. 2003, at paras. 12-13.

[emphasis added]

27At para. 27, in reference to the twelve years originally imposed upon Mr. Disher, Gillese J.A. said:

As this court said in R. v. Johnson, 2012 ONCA 339, 291 OAC 350, at para. 18, albeit in the context of consecutive sentences and the totality principle, ‘where the ultimate effect of the combined sentences is to deprive the offender of any hope of release or rehabilitation, the functional value of these sentencing principles meets the point of diminishing returns’.

[emphasis added]

These comments are apposite to the case at bar.

28Given the outcome of Weaver’s sentence appeal, I concluded the range for a first offender who has a significant amount of fentanyl must include, but does not start at, four years. Given the absence of some key mitigating factors, such as a guilty plea, and the presence of some aggravating factors such as quantum of fentanyl, the presence of other drugs, and breaches of multiple court orders, Ms. Weaver’s four-year sentence did not, in my opinion, represent the range’s lowest end.

Aggravating and Mitigating Factors

29The factors which aggravate, or elevate, the seriousness of Mr. Yogendran’s offending are:

• The purpose for possessing a loaded firearm, which was to protect and effect his drug trafficking enterprise;
• The deadly nature of the drug he possessed, twice, for the purpose of trafficking;
• The quantum of fentanyl that he possessed, particularly on the second occasion;
• The combination of other dangerous controlled substances found in Mr. Yogendran’s possession and in his residence at the time;
• That the motive for offending was pure, unadulterated greed and a desire for profit, debt or no debt at the outset of his offending;
• The breach of failing to reside at a certain address as required by his bail terms;
• The quick return to the drug trade upon being released on bail, and despite his condition not to possess any CDSA-prohibited substances;
• The $14 000 in cash located by police.

30The possession of a loaded firearm (as opposed to the purpose for possessing it), has received neutral treatment in this analysis. Instead of aggravating sentence, Mr. Yogendran will serve consecutive time for firearm possession: R. v. Graham, supra.

31The factors which mitigate the seriousness of Mr. Yogendran’s offending are:

• The early guilty plea [2] which is indicative of remorse;
• His status as a first offender who is receiving his first jail sentence;
• His youth at the time he committed these offences;
• The remarkable community support that Mr. Yogendran is lucky to still have;
• His excellent rehabilitative potential, as evidenced in the positive Pre-Sentence Report.

Sentence Imposed

32In considering the fundamental purpose of sentencing, the sentencing objectives of denunciation and deterrence that must be satisfied, and the aggravating and mitigating factors, I concluded the correct sentence for all of Mr. Yogendran’s crimes was seven years.

33I then looked back at the totality of that quantum. I did so through the lens of a youthful first offender with prosocial precedents, community support, and excellent future rehabilitative prospects. In that light, seven years would more serve to crush rehabilitative hope than to foster it. I am therefore reducing the seven years by another year. Mr. Yogendran’s global sentence will be six years, less presentence custody.

34Sentences for each count will be allocated as follows:

• Possession of loaded firearm – 3 years;
• Possession of 19.91 grams cocaine for the purpose of trafficking – 3 months concurrent;
• Possession of 16.48 grams of fentanyl for the purpose of trafficking – 3 years consecutive to the firearm count;
• Fail to comply with recognizance – 30 days concurrent;
• Possession of 5 grams fentanyl for the purpose of trafficking – 1 year concurrent;
• Possession of 30 grams of MDA for the purpose of trafficking – 1 year concurrent.

I have made the one-year fentanyl sentence concurrent solely to serve the totality principle: R. v. S.C., 2019 ONCA 199.

Presentence Custody Calculations

35Mr. Yogendran’s global sentence will be reduced by presentence custody served. He has been in custody since July 6, 2019. Jail records show a regular pattern of lockdowns from July 7, 2019 to November 8, 2020. Almost every single one of the 246 lockdowns were caused by staff shortages. He has testified to the undue hardship this caused him to experience. I accept what he said without reservation.

36The content of Mr. Yogendran’s lockdown records were, quite frankly, predictable. It would have been surprising to find he had not been inexplicitly locked down for almost half of his presentence custody time. The law permitting enhanced custody in this circumstance is well-known. So, too, are the judicial condemnations that still find no traction in terms of effecting change.

37Ms. Rivers agreed that Mr. Yogendran should receive Summers credit for 1.5 days to 1 for each day in presentence custody. She fairly left the issue of additional credit, for the quantum of lockdowns including during the pandemic, open to the court up to an additional 1.5 days.

38I have broken down the presentence custody as follows:

From arrest to date of sentencing submissions, 515 days; With Summers credit that is the equivalent of 772.5 so 773 days; 246 of those 515 days were spent in lockdown up to November 10 [3], 2020, which will receive additional credit at 1.5 and be equal to 369 days; Leaving total presentence custody equivalent at 1142 days as of date I reserved; From then to today he has served another 48 days; With Summers credit that is the equivalent of 72 days; Looking at the pattern of past lockdowns, I can comfortably infer that approximately half of those additional 48 days were spent in lockdown, which will receive credit at 1.5 and be equal to 63 days; Leaving total presentence custody equivalent from date of submissions to today at 135 days; And adding the 1142 days to that leads to a total presentence custody equivalent of 1277 days, or 3 years and 182 days.

39Mr. Yogendran has, therefore, 2 years and 183 days left to serve.

40He is not statutorily eligible for a conditional sentence order. If he were, I would not have imposed one in any event. On the facts of this case, I cannot reconcile denunciation and deterrence with a conditional sentence order. Further, the lack of any clear explanation as to why and how Mr. Yogendran ended up a gun-toting drug dealer left me unsure about whether a conditional sentence would endanger the community.

41There will be a s. 110 order for a period of 10 years.

Released: January 20, 2021 Signed: Justice H. Pringle

[1] R. v. Wong, 2012 ONCA 767 at para. 11 [2] This case was placed on the resolution track during JPTs starting in January 2020. The plea was delayed to permit additional charges to be waived in, and due to the COVID-19 pandemic. [3] The TSDC records ended at November 10, 2020.