R. v. Gil, 2021 ONCJ 224

Ontario Court of Justice

Date: 2021 04 15 Court File No.: Ottawa 20-15254

Between:

Her Majesty the Queen

– And –

Marcus Gil

Before: Justice Julie I. Bourgeois

Reasons for Sentence

Counsel: Mr. P. Tremblay, counsel for the Crown Mr. R. Addelman, counsel for the Defendant

Bourgeois J.:

1Mr. Marcus Gil pleaded guilty to one count of possession of a schedule I substance, to wit: fentanyl for the purpose of trafficking, contrary to s. 5(2) of the Control Drugs and Substances Act (CDSA) and to one count of possession of proceeds of crime over $5,000, contrary to s. 355(a) of the Criminal Code (CC). Both are indictable matters.

Circumstances of the Offences

2Between May 25 and June 11, 2020, members of the Ottawa Police Service were conducting physical surveillance of Mr. Gil and observed 19 suspected drug transactions in the community, consisting of hand-to-hand transactions. His girlfriend was also suspected of trafficking, as she was observed on a couple of occasions in similar type transactions. Police obtained a search warrant for three addresses in Ottawa connected to Mr. Gil. On June 18, 2020, the search warrant was executed, and it revealed Mr. Gil to be in possession of 276.2 grams of fentanyl, valued between $24,000 to $104,000; a digital scale; and, $10,090 of Canadian currency on a coffee table. That address is situated down the street from a children's daycare.

3They were both charged with these offences. However, the charges against Mr. Gil's girlfriend are expected to be withdrawn, following the completion of Mr. Gil's matter.

4Mr. Gil was bound by a probation order at that time, in relation to a recent conviction on March 19, 2020, for possession of a firearm in a car, contrary to s. 92(4) of the CC.

5A number of items were filed as exhibits in this case, and they include the expert's curriculum vitae and report of Det. Stephane Bujold; Mr. Gil's criminal record; the Pre-Sentence Report ("PSR"); the support letter from Mr. Gil's grandparents; numerous certificates of completion issued to Mr. Gil from the correctional institution; and, the lockdown records from the institution.

6The substance was analyzed and determined to be adulterated fentanyl – in this case, with caffeine, a common adulterant, as per Det. Bujold's expert report. However, a quantity analysis was not conducted. The substance was not analyzed for its purity either, however Det. Bujold opined a common purity level is one of"less than 2% purity, weight for weight." It was described as "Purple Fentanyl" and Det. Bujold explains that it, “simply indicates that food coloring was also added”. Colorant is used as a type of "branding" to indicate a better-quality product; however, this may not be the case. Coloured fentanyl is very prevalent and sometimes preferred over its original white powder form.

7Det. Bujold's report explains that"[i]n Ottawa, fentanyl is now commonly found in drugs held out to be opioids whether in powder, solid, putty-like or pill form." He also explained that"[a]dulterated fentanyl is generally used by the point (0.1 gram) or half-point (0.05 gram)." Det. Bujold further explains that as such"the value of the adulterated fentanyl seized could range from $55,240 to $110,480." However, he opined that it would be unlikely that such a large amount as seized in this case would be sold at the street level and at the point level but rather at the ounce level, therefore reducing that value to"roughly between $24,660 and $39,457, depending on the relationship with the prospective buyer, quality of the product, and at which actual increment(s) it is being sold."

Position of the Parties

8Crown counsel takes the position of nine years jail, subject to the reductions for the time already served. The Crown argues that such a sentence is necessary to reflect the fact that Canada is in the midst of an opioid crisis, that no drug is more insidious than fentanyl, and that it is destroying communities and killing people. The Crown is also pointing to the volume here, 276 grams, as almost unchartered territory when considering the caselaw for guidance as to an appropriate range of sentencing.

9Defence counsel acknowledges the aggravating factors identified by the Crown but takes the position that a penitentiary sentence of six years here would suffice to reflect the mitigating factors in this case, along with the personal circumstances of Mr. Gil. Defence argues that even though there is no magic to the numbers, one cannot simply increase the sentence by years based on the amount of the substance seized.

10The parties agree the following ancillary orders ought to be issued: a s. 109, a firearm prohibition for life; a DNA order; and a forfeiture order of the items seized. The parties also agree that a total of 604 days credit ought to be reflected for the 302 days of pre-sentence custody in this case, according to the Duncan credit discussed by our Court of Appeal.

Circumstances of the Offender

11Mr. Gil is currently 22 years old. He was 21 at the time of these offences. He was raised by his maternal grandparents, as his mother was only 15 years old when he was born. His mother developed a drug addiction and has been in and out of custody throughout the years. He had a sporadic but good relationship with both of his parents. He recalls meeting his father when he was 4 years old and seeing him once a week on Sundays. His relationship with his father has been more stable as he got older. His father reported that his son has more insight now into his criminal behaviour. He indicted to the author of the PSR that he wants to be more involved in the subject's life upon his release from custody.

12Mr. Gil shares a close relationship and a strong bond with his maternal grandparents. They were and are still there to support him, and Mr. Gil wants to be there to support them as they advance in age. They describe him as a natural athlete, and they enrolled him in various sports when in school.

13He is short a couple of credits and the 40 hours of community service to obtain his high school diploma. He was expelled from two schools before dropping out from the alternative education adult high school setting. His expulsions were due to fights on and off school property. He reports having been bullied at school, and he was diagnosed with ADHD. He started associating with negative peers but was never involved in a gang.

14He moved out of his grandparents' home and collected Ontario Works benefits for a few months when he was 19 years old. Even though he helped his grandfather in his duties as superintendent around the apartment building, he has been supporting himself financially through his drug dealings since dropping out of school.

15Mr. Gil reports smoking marijuana daily at night to help him sleep, but he does not report any addiction to any illicit drugs or alcohol. He indicated to the author of the PSR that he has never tried the fentanyl that he was selling – it was strictly for financial gain.

Sentencing Principles

16The fundamental purpose of sentencing and its objectives are found under s. 718 of the CC and under s. 10(1) of the CDSA. Those sections read, respectively:

718. The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

10 (1). 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.

17The paramount sentencing objective in this case, is to denounce the unlawful conduct and the harm done to victims and to the community that the trafficking of fentanyl causes and to deter Mr. Gil, but in this case, more so other persons from trafficking such illicit and dangerous substances. The purpose of the sentence in this case, as re-enforced in the CDSA, is to maintain a safe society and to acknowledge the harm done to victims and to the community. I want to be clear, however, that this does not mean the other sentencing purposes are not considered, but they do not have the same weight as the paramount objectives of denunciation and deterrence.

18Other sentencing principles are also at the heart of the analysis. The fundamental principle is found under s. 718.1 of the CC:

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

19This also relates to the moral blameworthiness of an offender.

20Other sentencing principles are found in sub-sections 718.2(b) and (d) of the CC and are applicable in this case:

718.2 . . . (b) A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; This is also known as the principle of parity; and, ... (d) An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; This is also known as the principle of restraint.

21Also, s. 10(2) of the CDSA deals with aggravating factors to be considered on sentence. In this case, sub-paragraph 10(2)(a)(iii) states as an aggravating factor in relation to the commission of the offence of possession for the purpose of trafficking a substance included in Schedule I - in this case, fentanyl - near a school, school grounds, or any other public place usually frequented by persons under the age of 18 years old. In this case, the residence in which Mr. Gil's drugs were found was a few doors down from a children's daycare center.

Aggravating and Mitigating Factors

22The parties agree broadly on the aggravating and mitigating factors. Here are the mitigating factors to consider in this case.

23The guilty plea. Mr. Gil entered an early plea, sparing a trial date to even be set. He is taking responsibility for his actions. He has expressed remorse, not only through his plea but also to the author of the PSR and to this court. Mr. Gil appeared to genuinely regret his actions and demonstrated insight into the harm he has caused to the community. On this last point however, I am not sure one can truly grasp the harm this drug is causing to our community without educating oneself about it or actually seeing the damage or its repercussions firsthand. Det. Bujold's report is useful to understand how this powerful synthetic opioid can quickly become fatal to its user given its toxicity and its impact on the respiratory system. Relying on illicit laboratory, non-pharmaceutical grade substances to prepare a homemade mixture of this nature is truly jeopardizing the lives of each user every time this highly addictive and often deadly drug is used. Regardless of how much understanding Mr. Gil actually has about the dangerousness of this illegally produced and sold fentanyl, his expression of remorse is nevertheless genuine.

24Mr. Gil benefits from the support of his grandparents and of his father. They have and will be there for him when he finishes serving his sentence. This is very encouraging and not everyone who comes before this court has that strong support. In addition to the comments offered to the author of the PSR, his grandparents also prepared a letter in support of their beloved grandson. This passage resonates with me and I wish to repeat it here:

"I think we have set a good example for Marcus, as he has seen us work hard all his life and we may not have worn brand names but we had a roof over our heads, food on the table, clothes on our backs and love in our hearts, not to mention Peace of Mind, which I know he would give anything to have."

25This supportive group is an important element of the principle of rehabilitation.

26His young age. Mr. Gil is presently 22 years old. He was 21 at the time of these offences. Even though he has been building up a youth and adult criminal record, it is unrelated to drug trafficking. He was never sentenced to more than 144 days as an adult. During his time in custody, awaiting the resolution of these charges, he completed independent learning courses available at the Detention Centre to gather the tools he needs to pursue a crime-free adult life. He completed Substance Use; Anger Management; Thoughts to Action; Stress Management; Use of Leisure Time; Understanding Feelings; and Looking for Work. There is no evidence that he was affiliated to a gang. This might not be a mitigating factor per say but at least an absent aggravating factor.

27His grandparents' letter also speaks to the recent tragedies involving two of his friends involved in the drug world. Yet he made a foolish and dangerous decision to embark upon a criminal endeavour, which ravages our communities, claiming lives, young lives, just like him. However, despite his young age, he has demonstrated insight and maturity since being incarcerated on these charges.

28These mitigating factors also need to reflect the principle of restraint in the sentence to be imposed.

29The aggravating factors to be considered in this case are as follows.

30The nature of this drug. I cannot reinforce this enough, fentanyl kills people. As explained in Det. Bujold's report at page 2"As a guideline, the lethal dose of fentanyl for an opioid naive person is 2 mg." The macabre reality is that the drug he sold almost certainly claimed a life, but we will never be able to trace it back to him. Not only is this drug more powerful and more dangerous than heroin, it is also more lethal by its potency and toxicity, requiring a rigorous pharmaceutical laboratory setting to produce and a qualified medical practitioner to administer.

31Illicitly produced, distributed, and adulterated powdered fentanyl can easily produce what was referred to as a "hot load" and explained as an uncommonly high dose of drugs that may unexpectedly cause a fatal overdose. Det. Bujold's report also addresses the case of diminished potency created by poor mixing of the adulterated substance, prompting the user to take another dose to achieve the desired "high". This can also lead to overdosing, due to the aggregate or accumulation of the fentanyl consumed. In either case, death would ensue, unless for example, naloxone is quickly administered to counteract the respiratory depression caused by the overdose. This does not consider the other health, social and economic devastating consequences this dangerous substance is having on people and on our community.

32The amount he possessed for the purpose of trafficking; 276.2 grams or 9.74 ounces. As described in Det. Bujold's report, this amount represents 2,762 to 5,524 individual doses when we consider how it is generally used by the point or the half-point. This is just as many persons' lives that he put at risk. Only one of the caselaw provided had more than this amount and included a charge of importation of 499.5 grams (see, R. v. Olvedi, below). The other closest cases involved 115.09 grams and 204.49 grams of fentanyl (see, R. v. Baldwin and R. v. Vezina, as referred to in R. v. Disher, below).

33His criminal endeavour was for a monetary gain. He trafficked in fentanyl, this deadly substance, purely for a commercial purpose. In other words, while some people risked their lives or others died, he made money from the sale of that substance.

34This criminal behaviour came merely three months after his release from jail, after his conviction, on March 19, 2020, for an unauthorized possession of a firearm in a motor vehicle and while bound by a probation order. At a time where the global pandemic is already claiming so many lives, after being released from jail, still during the pandemic, he decides to traffic in a deadly substance, further risking the lives of already vulnerable members of our community.

35Lastly, as I mentioned earlier, Mr. Gil's residence, in which the fentanyl was found, was located doorsteps from a children's daycare. The powdered toxic substance is dangerous and at times lethal to its users, but it is also aggravating to be trafficking it near where children are expected to be, as per s. 10(2)(a)(iii) of the CDSA. This is not a common aggravating factor. It was not pointed out to me in the caselaw, and I did not note it either from my review of the caselaw provided. However, the factual basis in this case does not make it the central issue either.

The Caselaw

36Counsel for Mr. Gil brings to the court's attention the following cases: R. v. Disher, 2020 ONCA 71; R. v. Lu, 2016 ONSC 292 and R. v. Sonnie Fulton, a local decision by my brother Brown, J., delivered on September 16, 2020. I will not discuss this decision as the parties already agree that Mr. Gil ought to be credited for 2:1 day of pre-sentence custody based on the circumstances of his detention. Documentary evidence from the detention facilities was included as part of the exhibits. I adopt the calculation provided by the parties and conclude that the 302 days of pre-sentence custody ought to be credited at 2:1 day ratio and therefore are to be marked as 604 days as of today.

37In R. v. Disher, supra, the Court of Appeal for Ontario reiterated that deterrence and denunciation are the primary sentencing objectives, but it is an error in law to fail to consider the rehabilitative potential of the offender and to fail to apply the principle of restraint (see, paras 27, 55 and 59). As stated at para. 60: "While I agree that general deterrence and denunciation are important factors to be considered in a case such at this, it is an error to fail to consider individual deterrence and rehabilitation, especially when sentencing a first offender (...)"

38The Court of Appeal cautions on the difficulties in comparing cases and states at para. 30: "The caselaw on sentences for trafficking in fentanyl is still developing" but added that"[b]earing 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." It then reviewed cases. I will briefly list some here:

• R. v. Loar, 2017 ONCA 696, para. 32: "At para. 50 of Loar, this court said that offenders who traffic significant amounts of fentanyl should expect to receive significant penitentiary sentences." A six-year sentence was upheld for 45 fentanyl patches obtained through a forged prescription, for a low-level member of a trafficking ring with a related criminal record. The two higher-ups in the same trafficking ring received sentences of six and eight years.
• R. v. Lloyd, 2019 BCCA 128, where a six-year sentence was upheld for 51.29 grams of heroin mixed with fentanyl for an offender with a related criminal record.
• R. v. Sidhu, 2019 ONCA 880, where eight years and two months was upheld for 89 grams of fentanyl for a trafficker with a related record and shortly after being released from custody.
• R. v. Baldwin, 2018 ONCJ 2447, where a sentence of eight years penitentiary was imposed for a quantity of 115.09 grams of fentanyl.
• R. v. Shevalier, 2017 ONCJ 7247, also imposing an eight-year sentence for 28.13 grams of fentanyl.
• R. v. Vezina, 2017 ONCJ 775, a sentence of 12 years for 204.49 grams of a blend of heroin and fentanyl was imposed in that case.

39Ultimately, Mr. Disher's sentence was reduced from 12 years to eight years imprisonment for the seized packets containing 42.6 grams of mixed powder substances, which included heroin, fentanyl and derivatives of fentanyl and a total weight of 1.1 grams combined substances with fentanyl from baggies. Ms. Weaver's sentence was reduced from seven years to four years, for a baggie containing methamphetamine and another baggie containing residue of heroin and cocaine – the heroin being adulterated with fentanyl.

40In R. v. Lu, supra, Parfett, J. ultimately imposed a total of a five-year sentence for numerous offences, including what appears to be possession for the purpose of trafficking 522 pills containing fentanyl.

41Crown counsel provided the following additional cases:

• R. v. Boardman, 2016 ONCJ 4379, a sentence of six years in addition to 169-day credit for the pre-sentence custody was imposed for 19.78 grams of fentanyl for an addicted offender on a guilty plea.
• R. v. Cinelli, 2018 ONSC 4983, a sentence of seven years was imposed for 20 grams of fentanyl and 63 grams of heroin for an addict offender with a related criminal record.
• R. v. Adam Margerison, reasons for sentence delivered on June 23, 2020 by my brother Gee, J. at Brantford, imposed a sentence of eight years jail for 44 grams of fentanyl on a repeat and addicted offender.
• R. v. Mastromatteo, 2018 ONCJ 421, my brother Bliss, J. on the charge of conspiracy to import fentanyl for a total amount seemingly less than the ounce level but for financial gain, imposed a sentence of seven years and six months.
• R. v. Moore, 2017 ONCJ 801, my brother Rose, J. imposed, after trial, a sentence of six years for 14.98 grams of powdered fentanyl on a repeat offender.
• R. v. Piri, 2020 ONSC 920, on a guilty plea, for a repeat and addict offender, a global sentence of 6 years was imposed for a total amount 30.34 grams of fentanyl for the purpose of trafficking (3 years jail concurrently was imposed for the simple possession of 6.97 grams of fentanyl).
• R. v. Prestula, 2018 ONSC 4214, on a guilty plea to possession for the purpose of trafficking 13.7 grams of fentanyl, the court imposed a sentence of five years and three months jail.
• R. v. Smyth, 2019 ONCJ 81, on a guilty plea, my brother Orsini, J. imposed a sentence of seven years for 41 grams of a mixture of heroin, fentanyl and carfentanil, to an addicted offender with no drug related criminal record.
• R. v. Thom, 2017 ONCJ 5021, on a guilty plea, for two ounces (56.7 grams), a sentence of six years jail was imposed to a first-time offender, not addicted to any substance but participating in the trafficking for a financial gain.
• R. v. Solano-Santana, 2018 ONSC 3345, the offender was convicted of possessing, for the purpose of trafficking, 4,995 pills appearing to be percocets but containing fentanyl, was sentenced to eight years jail. He was motivated by the financial gain.
• R. v. Persad, 2020 ONSC 188, on a guilty plea, a joint position of five and a half years jail was accepted on the charge of possession of 32 grams of fentanyl for the purpose of trafficking for a repeat offender.
• R. v. Olvedi, 2018 ONSC 6330, after conviction for possession for the purpose of trafficking and importing 499.5 grams of pure fentanyl citrate in its powdered form, this first-time offender, participating in this criminal activity for financial gain, received a sentence of 12 years imprisonment.

42Every case listed here had various aggravating and mitigating factors; each offender appearing before the court had a different personal background - some had similar, while others had more difficult personal circumstances. Many had a related criminal record, while some were first-time offenders. Most of the offenders were older than Mr. Gil. The circumstances of the offence were also different from one case to the other and to this one - some included multiple offences or involved firearms; others included heroin or other schedule I substances; a few involved patches or pills while the majority dealt with fentanyl in its powdered form but adulterated with another substance, except for the last case I referred to, Olvedi.

43From my review of these cases, the sentences ranged from five and a half to eight years imprisonment for 56.7 grams of fentanyl and from eight to 12 years for 115.09 grams and over of fentanyl. Even though the case that comes closest to Mr. Gil's in terms of the amount of fentanyl (204.49 grams) is R. v. Vezina, supra, in which my sister Sopinka, J. imposed 12 years imprisonment on that count, the circumstances of the offences globally are more serious, while the circumstances of the offender were more difficult than Mr. Gil's.

The Sentence

44Mr. Gil is a healthy, capable, very young adult with a good support system around him, who has gained significant insight and maturity since his incarceration on these charges. These are all key and promising elements to ensure a brighter future for himself. This is the young man this court needs to sentence for a very serious offence he committed, trafficking in a very large quantity of the most dangerous drug on our streets. This is the young man who decided to try a shortcut to attain financial growth to the detriment of weaker and more vulnerable members of our community. This type of criminal behaviour gravely impacts the social, the health and the economic fabrics of our community. The loss of lives, the risk to the health of our first responders, the loss of brainpower, labor or workforce, the destruction of families and friendships are all direct consequences of this criminality. The price is very high to pay by our community while individuals, like Mr. Gil, try to make money from it. The caselaw from all levels of courts across the country underlines it and has repeated it over the years: the prevalence of fentanyl in our community and its destructive effects must attract harsher penalties.

45My sister Sopinka, J eloquently said in Vezina, supra:

58(...) To strike at the root of the crisis, sentencing must be guided primarily by the principles of deterrence and denunciation to make abundantly clear that our community will not tolerate the illegal distribution of this insidious drug.

59[...] The danger that fentanyl poses in our community every day requires a sentence that emphasizes denunciation and deterrence, but it cannot lose sight of other sentencing principles including rehabilitation, totality, proportionality and restraint.

46It is with this in mind that I conclude the appropriate sentence in this case is one of eight and a half years imprisonment, less the pre-sentence custody of 302 days, credited at 2:1 day, to reflect 604 days or one year and eight months, leaving six years and ten months to serve. This is to be reflected on the possession of the fentanyl for the purpose of trafficking count. Four years imprisonment to be served concurrently will be indicated on the possession of proceeds exceeding $5,000, obtained by the commission of a crime.

47A DNA Order will issue on both counts, secondary designated offences. Considering your criminal record, the nature and circumstances of the offences and the limited impact on your privacy and security, it is in the best interest of justice to make the order and as such, I order that you provide samples of bodily substances reasonably required for the purpose of forensic DNA analysis to be used in accordance with the DNA Identification Act.

48Also, pursuant to s. 109 of the CC, you are prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition and any other firearm or any crossbow, restricted weapon, ammunition, and explosive substance, for life.

49Lastly, I order that all items seized, including the Canadian currency of $10,090, be forfeited to the Crown.