R. v. Boodhu, 2023 ONCJ 172

CITATION: R. v. Boodhu, 2023 ONCJ 172

DATE: 2023.04.06

St. Catharines

ONTARIO COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

— AND —

JANNY BOODHU

RAYSHAUD DEANE

AMRIT JOHAL

Before Justice Fergus ODonnell

Reasons for sentence delivered on 6 April, 2023

Darren Anger for the Crown

Ari Goldkind for the defendant, Janny Boodhu

Amedeo DiCarlo for the defendant, Rayshaud Deane

Jonathan Pyzer & Jasmine Mann for the defendant, Amrit Johal

Fergus ODonnell J.:

Overview

1. Janny Boodhu, Rayshaud Deane and Amrit Johal have all pleaded guilty to possession of fentanyl for the purpose of trafficking. The facts are relatively straightforward. Mr. Boodhu, Mr. Deane and Mr. Johal set themselves up in a hotel on Lundy’s Lane in Niagara Falls in early September, 2020 and were observed engaging in behaviour consistent with drug trafficking. On 4 September, 2020 the police observed further such transactions and pulled the three men over in their car, arrested them and searched them and their car.
2. The sentencing proceeded on an agreement that each defendant should be sentenced in relation to a specific amount of fentanyl that was attributed to them as a result of an understanding between the Crown and the defence, although it seems clear that they were operating in coordination with one another.
3. Mr. Johal was the driver (there was a young person in the front passenger seat). On arrest he was found in possession of two plastic baggies containing 28.2 grams and 15.3 grams of fentanyl, along with $465 in cash in his pants. In the trunk there was a suitcase containing Mr. Johal’s passport and health card, along with 227.4 grams of fentanyl. In total, therefore, Mr. Johal is to be sentenced in relation to 271 grams of fentanyl.
4. Mr. Boodhu had $695 in a wallet he was carrying. A backpack he had been carrying during surveillance contained 185 grams of fentanyl and 47.7 grams of cocaine.
5. Mr. Deane’s backpack in the trunk of the car contained 47.7 grams of fentanyl.
6. Tragically, fentanyl trafficking is not at all unusual in Niagara Region. To the contrary, one of the region’s consistent accomplishments is, year after year, to rank in the top three or four regions in Ontario for opioid-related deaths, most of which are fentanyl. Last year, those amounted to one-hundred-and-sixty-five deaths in this region alone. One-hundred-and-sixty-five people who were alive and who are now not alive. One-hundred-and-sixty-five families and friend- and colleague groups that have been ruptured forever. It is not that large a region to have so many deaths.
7. What is unusual about the present case is this: the youth of the three defendants. At the time of their arrests, Mr. Boodhu had just turned nineteen, Mr. Deane had just turned eighteen and Mr. Johal was about to turn nineteen. In other words, the oldest and the youngest of the three are separated by just under a year in age. Had these very serious crimes happened about a year earlier, all three defendants would have been dealt with under the Youth Criminal Justice Act rather than as adults.
8. For the Crown, Mr. Anger takes the position that Mr. Deane should receive a sentence of six years in the penitentiary, Mr. Boodhu should get eight years and Mr. Johal should get eight years.
9. Through their lawyers, the three defendants follow different arguments. Mr. Pyzer has filed an evidentiary brief of more than eight hundred pages outlining characteristics of Mr. Johal’s family and personal background that he says diminish Mr. Johal’s moral responsibility and justify a sentence of two years less a day, to be served either conditionally or in real jail. Mr. Goldkind follows a simpler path, saying in effect that Mr. Boodhu knows he has committed a very serious offence and that he has brought discredit to himself and embarrassment to his family, that there is a heavy price to be paid for what he has done and that that price should be attenuated because of Mr. Boodhu’s youth. Mr. Goldkind says a sentence of five years would be justified, less credit for bail conditions. Speaking for Mr. Deane, Mr. DiCarlo seeks to downplay his responsibility because he has been tagged with the smallest amount of fentanyl. I stress “smallest”, which is a relative term for comparison to Mr. Boodhu and Mr. Johal, but Mr. Deane certainly did not possess a small amount of fentanyl; he just had less than his friends. Mr. DiCarlo says a conditional sentence would be fitting for Mr. Deane.

Mr. Boodhu

10. Mr. Boodhu is one of six children raised by two parents who were both employed. He describes a respectful and appreciative relationship with his parents and an upbringing free of abuse or want. He has no alcohol, drug or mental health issues. He is embarrassed for what he has put his family through. Although he was employed full-time after completing high school, he gave that job up to return to school, but instead got caught up in crime. He said that he and his co-defendants hoped “to cheat the system and get rich”, glamorizing the criminal lifestyle.
11. Mr. Goldkind presented me with a robust collection of letters of reference relating to Mr. Boodhu. These letters, twenty-eight in total, came from his parents, siblings, various cousins, a couple of his sisters’ partners, a former employer and some teachers among others. There was no pattern to the letters in the sense that they did not seem to be derived from a template, but rather reflected each writer’s personal insight into Mr. Boodhu’s character. I did not have the sense that there was anything contrived about the letters. None of the letters was dismissive of the seriousness of Mr. Boodhu’s crime. It would be fair to describe the letters as glowing in their description of Mr. Boodhu’s character within and beyond his family, his positivity, his intelligence, his respect for those around him and his engagement with people regardless of age. One of his elder sisters wrote about how he could listen to problems she was wrestling with and, even though he was quite a bit younger, he could calmly come up with a series of possible solutions that had never occurred to her. Another writer, a maths tutor, wrote about how clearly intelligent Mr. Boodhu is. There was a consistent reflection of how much Mr. Boodhu regretted his crime and how much he has learned from his time on house arrest.

Mr. Deane

12. Although I have mentioned that there is not a lot of difference in age, Mr. Deane is the youngest of the three, having turned eighteen about a month-and-a-half before the offence. His pre-sentence report is in many ways similar to Mr. Boodhu’s, a bit smaller family but also very close-knit and supportive and an environment in which Mr. Deane’s and his siblings’ needs were taken care of by parents who stayed together and who worked to support their family. He, too, is described as respectful and helpful around the house. Like Mr. Boodhu, he is described as a young man with a good heart. Mr. Deane’s girlfriend says in the pre-sentence report that Mr. Deane has grown while awaiting the outcome of the charges.
13. Mr. Deane has completed high-school and was enrolled in college for a trade, which was disrupted by his arrest, but which he hopes to return to. He has a history of employment, most recently as a package handler with a courier company. He also helps his father with his father’s businesses.
14. Mr. Deane has no issues with alcohol or drugs or mental health issues, other than attending therapy to deal with the stress of his criminal case.
15. While awaiting sentencing, Mr. Deane has done a substantial amount of volunteer work helping a local church with events and fundraising, as well as making a substantial donation. The church is not of Mr. Deane’s faith. The priest wrote of Mr. Deane inspiring the church members with, “his leadership and work ethic.”
16. As with Mr. Boodhu, Mr. Deane’s family and associates see the behaviour as being entirely out of character for Mr. Deane. It seems that everyone feels that their family member fell in with the wrong crowd. Mr. Deane admitted that he committed the crime for financial gain.

Mr. Johal

17. Mr. Pyzer filed three volumes, comprised of over forty tabs and weighing in over eight-hundred-pages in support of his sentencing submission for Mr. Johal. Seventeen of the tabs were court decisions and sixteen were letters of support. There were also three relatively short reports from Mr. Johal’s social worker, Dr. Hutchinson. The materials also included articles on Microaggressions Toward Racial Minority Immigrants in the United States, Trauma and Racial Minority Immigrants; Tense Misalignments: Re-Imagining Colonial Binaries in Understanding the Relationship Between Sikhi and Alcohol and also, A Haunted Generation Remembers (about the Indian government’s raid on the Sikhs’ Golden Temple in Punjab, the ensuing deaths, the follow-on assassination of Prime Minister Gandhi by two of her Sikh bodyguards and subsequent massacres of Sikhs). The final article was Moral Panics and the Governance of South Asian Gang Involvement: The Construction of a Local ‘Cultural” Problem. Mr. Johal was also cross-examined on his affidavit, as was Dr. Hutchinson in relation to his reports. While the materials filed reflect considerable work and follow a recognized line of case authority, I would say that there was somewhat of a flavour of over-reach in relation to some of the material, whether that be for its remoteness or for the fact that many of the same considerations (and often worse) could be said about a great many of this court’s offenders. That is not to say the material filed had no value, only that there is a need for counsel to approach the compilation and selection of such materials with circumspection.
18. As with Mr. Boodhu and Mr. Deane, I shall start with Mr. Johal’s pre-sentence report. He is the youngest of three children. His parents immigrated to Canada from India. His father came at the age of sixteen and then sponsored Mr. Johal’s mother some years later. Theirs is a “positive and happy marriage”. When Mr. Johal was three or four years old, his parents gave up their jobs in retail and as a driver and opened a store, which was successful for fifteen years until it was forced to close during Covid in 2020. His mother now works, but his father cannot due to health issues that he has had for as long as Mr. Johal remembers. His father’s letter, however, suggests that he continues to work, albeit from the family home. Not all of the materials filed are entirely consistent with each other.
19. As with Mr. Boodhu and Mr. Deane, Mr. Johal describes a close-knit family with his two older sisters (six and eight years older than he), a normal life free of abuse or want, reinforced by a broader engagement with extended family. He said that in grade eleven he started hanging out with older “negative influences”, gave up sports, lost motivation for school and began selling drugs, which he did for the money. That same year his best friend was shot and killed, leaving Mr. Johal dealing with post-traumatic stress disorder, which is more fully set out in Dr. Hutchinson’s report and evidence. Mr. Johal also said he lost other friends because of their lifestyles, which caused him to fear for his own life. He says he has ceased any such connections. His father said he was unaware of the experiences Mr. Johal was having. His sister felt that his friend’s death was the trigger for Mr. Johal’s bad decisions.
20. Like Mr. Boodhu and Mr. Deane, Mr. Johal has no issues with alcohol or drugs. He finished high school a year late and has had a series of jobs, but was unemployed at the time of his arrest. He told the author of the pre-sentence report that he takes responsibility for his crime and recognizes how it has negatively affected others.
21. Mr. Johal’s affidavit and Dr. Hutchinson’s letters purport to provide additional insight into Mr. Johal’s experiences growing up beyond what is set out in the pre-sentence report. The affidavit includes the following:
    1. Mr. Johal’s paternal grandmother’s birth on what became the Pakistani side of Punjab into a family of extensive wealth. Mr. Johal says she was born “just before” Partition, although Partition was twenty-two years after his grandmother was born (and fifty-four years before Mr. Johal was born). He recounts his grandmother having to flee an advantaged and comfortable life in what became Pakistan to move to the Indian side of Punjab and the killings, rapes, etc. that she witnessed.
    2. Mr. Johal’s grandmother then married a retired veteran of the Second World War who had become a farmer on a small holding, but who was not in favour with his parents so got the smallest inheritance. They had six children of which Mr. Johal’s father was the youngest. His father recalled being raised in “abject poverty”, which was discussed when Mr. Johal was growing up. Mr. Johal’s grandfather used opiates to deal with post-traumatic stress from his war experiences; he did not speak of those experiences.
    3. Mr. Johal said his father also suffered from post-traumatic stress from “witnessing and experiencing great amounts of trauma, which he then frequently voiced to myself and my older sisters.” It appears that some of this stress may have related to Mr. Johal’s uncle emigrating to Canada when Mr. Johal’s father was sixteen years old and a cousin’s suicide, as well as an attempt on his father’s and grandfather’s lives by other villagers who were jealous that they were escaping Punjab to a better life in Canada.
    4. On arriving in Canada, Mr. Johal’s father moved in with his brother, who had become an alcoholic. Mr. Johal’s father had limited funds and recalled being subject to racial epithets. At the age of 27 years old, Mr. Johal’s father used his credit card to help an American family move from Texas to California, not knowing that they were in the country illegally, as a result of which he was held in custody for three months in Texas.
    5. Mr. Johal said that his father has been both physically and emotionally unwell throughout Mr. Johal’s life, including a heart attack when his father was 29 years old. His father took up drinking as a coping mechanism.
    6. Mr. Johal also recounted that his mother was raised by a grandmother who suffered from bipolar disorder, which has passed down to one of his sisters, who has turned to drugs to cope with some of her episodes.
    7. Mr. Johal also writes of his mother living through constant fear arising from extrajudicial killings of Sikhs in her village, who were perceived as terrorists by the Indian government.
    8. Mr. Johal’s affidavit sets out that his parents’ decision to take out a loan to open a clothing store in 2004 placed the family including him and his siblings under financial pressure to avoid too many expenditures and to get jobs to help out with family finances. As a toddler, pre-school, he went to the store with his parents and his sisters were cared for by cousins during the day, with his sisters eventually taking over his care in the evenings until their parents came home. When they got home, his mother was exhausted and his father drank.
    9. Mr. Johal also testified about the racism he and his friends experienced. He perceived that racist stereotypes were at the root of calls home to his parents by his teachers, although the objective foundation for that conclusion is not even remotely clear. He spoke of his friends living in precarious situations with violent fathers, including him hearing his friends being beaten. He wrote of being “constantly” threatened and robbed and his friends being “constantly” shot or killed because of where they lived or who they associated with, so he was “constantly” fearful of being shot or killed himself. Mr. Johal provided a number of examples of his experiencing violence in the community growing up, either directly or indirectly, which are not trivial, but do not support the repeated use of the word “constantly”. The word “constantly” has a particularly powerful meaning and I was left with the impression that the affidavit had a tendency to overstate some of Mr. Johal’s expressed challenges and/or experiences, although I accept that some were indeed grim.¹ One of the incidents he witnessed was the murder of a 22-year-old from his street in Mr. Johal’s presence. Mr. Johal was also robbed on a few occasions. Another friend was killed in a mistaken-identity drive-by shooting. Two other friends were shot in Mr. Johal’s presence, one dying, with Mr. Johal being blamed by the dead man’s family for not saving him. When Mr. Johal was challenged by the Crown that his friends’ and acquaintances’ fates were perhaps the product of their own life choices, Mr. Johal responded, fairly enough, that the friend who died in a mistaken-identity shooting would hardly fit that characterization. However, that answer was not at all responsive to the larger number of Mr. Johal’s friends and acquaintances who apparently were subject to serious and often fatal violence. It bears noting that the time frame in question does seem to match the time frame when Mr. Johal and his family recognize he had strayed from the positive path he had been on most of his young life. Also, while people can suffer from random acts of violence and one’s neighbourhood might increase the risk of being directly or indirectly exposed to such violence, the laws of probability suggest that a particularly intense onset of such events in one’s circle may not be entirely random, but may, as the Crown suggested, have at least something to do with one’s choices and one’s acquaintances.²
    10. Mr. Johal’s affidavit also said that around early 2020 the Peel Regional Police started to watch and follow him “constantly”: “they would wait for me in the school parking lot, walk into my classrooms and just sit there watching me. Walk into my gym class, and start playing basketball with me. I would drive somewhere and they would tail me. They would box me in at intersections. They would park right outside of our house in Brampton.” This, again, was not the most impressive part of Mr. Johal’s evidence. There is, once again, the use of the adverb, “constantly”, which I suspect is as inapt here as it was elsewhere. While there is a possibility of police engaging in systemic discrimination, there is at least as strong a possibility that Mr. Johal, engaging for perhaps the last couple of years before his arrest with a “bad crowd” and selling drugs, etc. was seen by the police as a legitimate object of interest.
    11. Mr. Johal said he felt uncomfortable in Brampton. He said some of the older guys persuaded him he would be better off in Niagara and he enjoyed the summer there with his girlfriend, but the same older guys started telling him he could make money selling fentanyl and could afford to buy a house and, “wouldn’t have to go back to Brampton”. His best friends got into it with him and they were arrested together. He said the forced separation from those people who were his support network was very hard.
    12. Mr. Johal recounted how he has turned things around post-arrest, engaging with his family, feeling safer living in Mississauga rather than Brampton and helping his father through some rough medical circumstances. He said that during this time three more of his friends were killed, one from an interaction with the police where the officer demanded his money back from buying a fake mobile phone and two other friends who were shot and killed at their music studio.
    13. Dr. Hutchinson’s reports conclude that Mr. Johal has been dealing with post-traumatic stress since around the age of sixteen years old; his testimony suggested perhaps earlier than that.
22. There were also about a dozen-and-a-half letters filed in support of Mr. Johal, all attesting to his community engagement, his work ethic, his good nature and the fact that he appeared to undergo a noticeable and concerning change around grade eleven. This compilation included letters from volunteers in a youth empowerment programme Mr. Johal participated in from 2013 to 2016 as well as another volunteer programme, all speaking well of him. There are also any supportive and consistently positive letters from family and friends of Mr. Johal. They reflect a young man who, until the couple of years before his arrest, was living a positive, pro-social, engaged life. To some extent the letters support his depiction of his home reality, to some extent they undermine that depiction.

The Weight To Be Given To The Material Relating to Mr. Johal’s (And His Family’s) Background

23. In light of the recent decision of the Court of Appeal for Ontario in R. v. Morris, 2021 ONCA 680, it is clear that evidence of a defendant’s personal circumstances can be relevant to determining a fit sentence. I take this to be true even in a case like this where there is no “Impact of Race and Cultural Assessment” report, as has been done in other cases. In a certain sense this is nothing new: the individual determination of sentence based on the seriousness of the particular offence and the moral responsibility of the particular offender is the cardinal principle of sentencing. What Morris tells us is that social context evidence may mitigate an offender’s degree of responsibility for his offence, that evidence can come by judicial notice or through evidence led allowing a “generous gateway” for the admission of such evidence and that the process is not identical to the Gladue process, although the Gladue methodology will provide some guidance in how to approach such evidence.³
24. It is also important to remember what Morris does not tell us. Most important, Morris does not tell us that “Impact of Race and Culture Assessments” or similar material play any role in the other half of the sentencing equation, i.e. the objective seriousness of the crime. To the contrary, Morris makes it inescapably clear that an offender’s background in no way affects the seriousness of his offence; its only relevance, if any, is to his degree of moral responsibility.
25. It is also important to avoid any false equivalences in looking at such reports. For example, any inclination to equate the courts’ treatment of indigenous offenders as set out in Gladue, 1999 CanLII 679 (SCC) and successor cases with how the courts should deal with the moral responsibility of non-indigenous, “minority” offenders would be misguided. That is not to say that IRCA-type submissions have no place or traction, only that each must be seen on its own facts. This country’s long attempts to eradicate indigenous culture and the enduring contrails of those attempts are unique, in the pure sense of that word, as in “one of a kind”.
26. I would also caution against the danger of IRCA over-reach, which I would characterize as any tendency for a defendant to try to assemble a narrative of past injustices contributing to present misconduct. Again, that is not to deny the relevance of IRCA-type reports or materials and the underlying facts brought to light by them, only to stress that as facts become more remote or less unique, their value to the process will necessarily diminish. Over-reliance on the IRCA process has the potential to undermine public confidence in the courts. It is the rare offender indeed who comes to court without his narrative and experience shows that the “average” offender likely comes to court with a history of poverty, family dysfunction, underlying trauma and the like, albeit perhaps without necessarily having the financial or other resources to sketch it out. In addition, any trauma set out in an IRCA must necessarily be balanced against any advantage a particular offender might have had during his or her upbringing.
27. It seems to me that there are elements of remoteness in much of Mr. Johal’s narrative, by which I do not mean for a moment to diminish the underlying historical facts. Unlike the Crown, I do not question the validity of Mr. Johal’s depiction of the Indian Army raid on the Golden Temple in Amritsar, its death toll, or the orgy of violence later that year after the assassination of Prime Minister Gandhi, including elements of state involvement. While Mr. Johal’s recitation of those events is, as the Crown says, hearsay, the historical record does not leave room for doubt about its overall accuracy. What is lacking, however, is any reliable sense that those events have had any meaningful impact on Mr. Johal. The relatively scant reports by Dr. Hutchinson do not provide any such link.
28. Reaching further back into family and national histories to World War Two and the Partition of colonial India into the independent nations of India and Pakistan, largely on religious delineations, I do not see any particular problem with Mr. Johal’s hearsay narrative. Again, the historical record, even without any of the material filed, supports there having been horrific acts of violence. Here again, though, the missing link is any actual and meaningful impact on Mr. Johal, born fifty-four years after partition and seventeen years after the Golden Temple, or any meaningful and indirect impact through his parents. The fact that these events were experienced by his grandmother, his grandfather or even his mother is not, standing alone, proof of anything. It bears noting that the journeys of many, many immigrants to Canada, including white and “visible minority” immigrants over the years have been marked with everything from hardship to atrocity, along with mental health challenges and parenting styles that might not tick off the best practices of modern times but that does not necessarily mean that the impacts of those experiences pass from generation to generation. The more remote those immigrants’ experiences are from the offender’s experience the less relevant such evidence will be. The record here does not convincingly make out any element of multi-generational passing on or absorption of antecedent generations’ trauma.
29. I accept some of what Mr. Johal says, but did get a sense from reading his affidavit, from hearing his testimony and from reading the letters filed in relation to him (which at times portray a different home and personal reality), that there was some exaggeration in his affidavit and I fear that that exaggeration undermines to some extent the weight that I can place on Dr. Hutchinson’s conclusions.⁴ That does not mean that I reject all of what Mr. Johal says or that I discount Dr. Hutchinson’s evidence entirely, simply that I must dilute it fairly substantially. I do accept that by grade eleven, which is relatively close to these offences, Mr. Johal was heading off on a different path than he had been on to that point, but I am of the view that the portrayal of his existence in the years leading up to that point as being as dire as Mr. Johal says and as Dr. Hutchinson accepts is not reliably made out. It also seemed to me that there was a certain imprecision in some of Dr. Hutchinson’s evidence about what Mr. Johal’s testing scores were. The fact that he had not reviewed Mr. Johal’s affidavit filed with the court also undermined the value of his evidence to some extent.
30. With respect to Mr. Johal’s own testimony, there were parts that were plausible and parts that seemed overdone.⁵ He seemed a bit evasive when asked by the Crown about whether any of the friends or acquaintances who were killed were involved in criminal activity, for example. On one occasion, he answered by referring to the one friend who was killed in a case of mistaken identity as not being a person who was involved in crime, which is fair enough, but it ignores the larger number of victims who were the object of the Crown’s question. When the Crown came back to the issue later, Mr. Johal’s answer was that “more often than not” they were victims of random violence, not something arising out of their own action. “More often than not” is not a particularly responsive answer to a focused question; it leaves unanswered what circumstances made up the “less often than not.”
31. Ultimately, I do accept that Mr. Johal was suffering from PTSD and that that diagnosis is material to his level of moral responsibility, simply not nearly to the level that Mr. Pyzer and Ms. Mann argue. The more expansive version of his various traumas and their causation is not wholly made out on the evidence before me. I stress that I do not mean to diminish his experiences, but it is my task to weigh evidence and draw conclusions and to measure the appropriate amount of mitigation that arises from an individual defendant’s personal circumstances. By way of example, one of the cases to which I have referred is the case of Ms. Weaver, a fentanyl sentencing decision from the Court of Appeal. Ms. Weaver’s mitigating circumstances were not the same as Mr. Johal’s, but they were significant—removal from her parents’ care, placement in the care of her grandparents in less than ideal circumstances, a significant history of drug dependence and so on. When I review the evidence and submissions related to Mr. Johal, I do accept that they call for a degree of mitigation in terms of his personal responsibility. That degree of mitigation, however, does not stretch as far as Mr. Pyzer and Ms. Mann suggest, but rather to place Mr. Johal’s appropriate sentence more in line with Mr. Boodhu, who had a smaller amount of fentanyl. The conditional sentence Mr. Pyzer seeks is simply a bridge too far.
32. I do accept unreservedly that Mr. Johal has genuinely made a U-turn from his behaviour at the time of these offences, which is true of his co-defendants also.

Sentencing Principles and Authorities

33. The Criminal Code says that the fundamental purpose of sentencing for criminal offences is to protect society and to contribute to respect for the law by imposing just sanctions. The sentence should aim to denounce criminal behaviour and the damage done by crime to society, deter the offender and other persons from committing crimes, rehabilitate offenders and provide reparations and create a sense of responsibility on their part. Obviously, the prioritization of these objectives will require some give and take depending on the circumstances since some objectives pull more toward harsh outcomes and others toward less harsh outcomes. As discussed later, one of the permissible objectives of a sentence is the separation of an offender from society.
34. The Criminal Code says that a sentence must reflect the gravity of the crime and the offender’s degree of responsibility. This is the principle of proportionality, which the Supreme Court of Canada says has a constitutional dimension even though it is rooted in a simple provision of the Criminal Code.
35. Unsurprisingly, the Criminal Code speaks of the use of prison. It does so in a number of spots. First, it defines the separation of offenders from society as one of the legitimate objectives of a sentence, but even there the use of jail is modified by the clause, “where necessary”. Later on, the Criminal Code says that a defendant should not be “deprived of liberty” if less restrictive sanctions would suffice and that all sanctions other than jail that are reasonable should be considered in relation to all offenders, so long as that can be done in a way that is consistent with the harm offenders have done to individuals or to the community.
36. These principles are Parliament’s instructions to judges about how sentences should be imposed. It does not mean that jail will not be appropriate for many offenders and many cases, but it does mean that both in imposing jail sentences and defining the length of such sentences, judges should act with restraint. Obviously there will be some offenders and some offences where jail sentences and even long jail sentences will be unavoidable.
37. I have said earlier that proportionality, the measurement of the seriousness of the crime and the offender’s moral responsibility, is the central focus of a fit sentence. I shall deal with the second aspect later, but there is simply no gainsaying the proposition that these three young men’s offences are extremely serious. The non-medicinal use of controlled substances poses a very real danger to society in terms of those drugs’ addictive potential, their toxicity and potential contribution to deaths among users and their indirect impact on other members of society including the families of users and the victims of users who support their habits by committing other offences, both property offences and crimes of violence, such as thefts, break and enters, robberies and the like, in order to support their habits. While drug trafficking may not seem at first blush to be a “violent offence”, it earns that label through the deaths of users, violent offences committed by users and the risk that traffickers may use violence to protect their product and their profits from others. Experience teaches that all three of those risks are real.
38. Different controlled substances create different levels of risk and it can safely be said that the history of efforts to suppress drug trafficking has not been particularly enlightened or particularly successful or particularly open to recognizing that a different focus and different resources are absolutely required if governments genuinely hope to achieve different outcomes. Indeed, there have been times and particular circumstances when “hysteria” would be a more apt descriptor than history.
39. This is not to diminish the seriousness of drug trafficking offences, but simply to serve as a reminder that it would be both facile and delusional ever to imagine that protecting society from the effects of drug trafficking is an objective that will principally be achieved by anything the criminal courts do. The criminal courts do, of course, have a role to play, but the roots of drug dependency are very complex and far beyond the capacity of a sentencing court to unravel or to eradicate. Anyone with even a rudimentary understanding of the criminal courts and of human experience will understand that, while some people resort to some controlled substances as a recreational exercise, vastly more people resort to controlled substances because their personal circumstances are so abjectly dire that even a fleeting escape through drug abuse seems like a rational choice, perhaps the only rational choice that their circumstances permit. The nineteen-year-old bipolar survivor of the foster care system, enduring an abusive domestic relationship and coping with the sudden death of her father does not resort to drug abuse for a lark; she does so because society has failed her and any escape, even a high-risk temporary escape is better than her reality. Society will continue to fail her—and tens of thousands of others—if it continues to perceive the criminal courts as a principal weapon to protect society from drug abuse and if it continues to neglect the other approaches that are available and the other societal investments that are so obviously needed if we have any genuine aspiration to free substance abusers from their dependence. In the words of Frederick Douglass, which resonate from another enormous societal failure, “it is easier to raise strong children than to fix broken men.” It is society’s failure to provide the foundation for nurturing and protecting children that is the clearest and most present danger. Corporate greed in the promotion of prescription opioids, lax regulation, poor prescribing practices and sometimes inattentive patient management also belong in the dock. Drug dealers are ultimately a symptom, not a cause. It is against that backdrop that judges must recognize that our sentences will not fix what ails society. Realistically, we are but bit players in the overall problem; we are the child holding his finger in the dike to try to stave off disaster, but what is really needed is a new dike.
40. That, of course, is not to say that there is no place for the imposition of heavy sentences on people who traffic in controlled substances for a profit. Leaving aside the addict trafficker for today’s purposes, there is a subset of society who out of sheer greed will traffic in whatever commodity will bring them a profit, whether that “commodity” be drugs, weapons or even other human beings for use in the sex trade or otherwise. Clearly the, “where necessary”, condition precedent for the use of jail in s. 718 (c) of the Criminal Code will figure prominently for such offenders.
41. The developing body of caselaw for fentanyl sentencing shows the willingness of the courts to impose meaningful and punitive sentences for fentanyl traffickers, although there is a danger that the understandable concern about the seriousness of fentanyl and other opioids could lead to sentences in some cases that do not adequately balance the seriousness of the offence and the moral responsibility of the offender. There is a danger that fentanyl’s status as a drug posing much greater risks (including death) than heroin, for example, could lead the courts to react by simply defining appropriate fentanyl sentences as sentences dramatically higher than those imposed in the past for heroin. The individualized nature of sentencing requires that judges avoid any such generalized reaction.
42. In terms of the appropriate range of sentence for wholesale fentanyl traffickers, the Crown fairly points to the recent decision of the Supreme Court of Canada in R. v. Parranto, 2021 SCC 46. The mortality levels arising from fentanyl abuse over the past several years certainly justify the characterization of the problem as a national crisis. At the same time, while it is fair for Justice Moldaver, in his concurring opinion, to describe fentanyl trafficking for profit as likely to “undermine the very foundations of our society”, as discussed above, blaming all traffickers for that threat is simplistic. The economic realities of at least the past forty years, including increasing income disparity and the growing number of seriously economically disadvantaged members of society, along with society’s failure through its governments to safeguard its most vulnerable including its most economically and socially deprived are running at least neck-and-neck with drug dealers as the root of addicts’ ills.
43. I note that the Crown relies on the Court of Appeal’s decision in R. v. DiBenedetto, 2016 ONCA 116 for the proposition that an offender’s mitigating circumstances can serve only to bring an offender to the lower end of the established range for a particular offence. If this is intended to be a general proposition on the Crown’s part, which I take it to be as I have heard it often, I demur. One cannot define sentencing as “one of the most delicate stages of the criminal justice process in Canada”, as the Supreme Court said in R. v. Lacasse, 2015 SCC 64 (para. 1), effectively a bespoke process for every offender and offence, and then circumscribe that individualized process with an attempt to diminish the role that individualization can play. Ranges provide nothing more than guidance and if the Court of Appeal’s comments in DiBenedetto purport to detract from what Lacasse says or are interpreted to detract from what Lacasse says, that path is blocked by the principle of stare decisis.
44. To be blunt the federal Crown’s persistent and perpetual reliance on its interpretation of Di Benedetto is no longer a matter that is open for discussion. Assuming it ever was arguable, the language of the Supreme Court in Parranto removes that option. In Parranto, the Supreme Court discusses the “discussion” between itself and appellate courts about when appellate intervention can be justified on a sentence appeal and the Supreme Court’s language is neither subtle nor reconcilable with the federal Crown’s persistent presentation of Di Benedetto as a restriction on sentencing judges’ room for manoeuvre:

32The relationship between quantitative appellate guidance and the standard of review on appeal had led to exchanges between the various levels of court. But Lacasse and Friesen have brought finality to the matter, and they leave no room for doubt, interpretation or equivocation. In Friesen, this Court made it clear that “[r]anges of sentence and starting points cannot be binding in either theory or practice, and appellate courts cannot interpret or apply the standard of review to enforce them, … In Lacasse, at para. 67, this Court stated that “a deviation from such a range or category is not an error in principle and cannot in itself automatically justify appellate intervention unless the sentence that is imposed departs significantly and for no reason from the contemplated sentences” (emphasis added).

33While we agree that the Court of Appeal’s comments in Arcand do closely mirror this Court’s direction in Lacasse, there is an important distinction between Arcand and this Court’s sentencing jurisprudence. The clear direction from this Court is that “[a]ppellate courts cannot treat the departure from or the failure to refer to a range of sentence . . . as an error in principle” (Friesen, at para. 37 (emphasis added)). The Court of Appeal in Arcand, however, suggested the contrary, stating “that sentencing judges will give due consideration to those starting points and the process that starting point sentencing entails” (at para. 273 (emphasis added)). To resolve any possible ambiguity that could have survived Friesen, we say this: the directions relating to the binding nature of starting points or the starting‑point approach as set out in Arcand have been overtaken by Lacasse and Friesen and no longer reflect the required standard of appellate review.

(The underlining above is from the Supreme Court’s judgment)

The Relevance of Age

45. I have referred earlier to the fact that all three defendants were within about a year of having been “young persons” within the meaning of the Youth Criminal Justice Act, the law that provides a very different criminal law philosophy for dealing with crimes committed by people who are under the age of eighteen years at the time of the offence. The declaration of principle in s. 3 of the Youth Criminal Justice Act refers to the reduced maturity of young offenders and their diminished moral blameworthiness.
46. It is to be noted that much of what is in the Youth Criminal Justice Act tracks Criminal Code guidance about the purpose of criminal law. The concept of “diminished moral blameworthiness” is itself one half of the criminal law concept of proportionality, where a sentence must balance the seriousness of the crime and the moral blameworthiness of an offender, even in the adult regime.
47. While the Youth Criminal Justice Act evaporates for offenders who commit crimes after reaching eighteen years of age, not all of its guiding principles evaporate with it. A person who is not fully mature the day before he turns eighteen, does not become mature at midnight. Indeed, it seems well-recognized that full maturity does not come to humans until some time in their twenties, especially so for males. None of this is new.
48. In R. v. Priest, 1996 CanLII 1381, the Ontario Court of Appeal dealt with a nineteen-year-old first offender who had pleaded guilty to a commercial break-in and had been sentenced to a year in jail in light of the sentencing judge’s concern about the prevalence of such offences in the area. A powerful panel of the Court of Appeal for Ontario left no doubt that a nineteen year old is a “youthful first offender” for whom diminished maturity should be taken as a given and that certain rules should apply when sentencing such an offender:

The primary objectives in sentencing a first offender are individual deterrence and rehabilitation. Except for very serious offences and offences involving violence, this court has held that these objectives are not only paramount but best achieved by either a suspended sentence and probation or a very short term of imprisonment followed by a term of probation. In R. v. Stein (1974), 1974 CanLII 1615 (ON CA), 15 C.C.C. (2d) 376 (Ont. C.A.) at p. 377, Martin J.A. made it clear that in the case of a first offender, the court should explore all other dispositions before imposing a custodial sentence…..

[T]he term "youthful offender" refers not simply to chronological age and must include some consideration of the offender's maturity…..

The rule laid down by this court is that ordinarily for youthful offenders, as for first offenders, the objectives of individual deterrence and rehabilitation are paramount. See R. v. Demeter (1976), 1976 CanLII 1413 (ON CA), 32 C.C.C. (2d) 379, 3 C.R. (3d) S-55 (Ont. C.A.). These objectives can be realized in the case of a youthful offender committing a nonviolent offence only if the trial judge gives proper consideration to alternatives to incarceration.

Even if a custodial sentence was appropriate in this case, it is a well-established principle of sentencing laid down by this court that a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence.

These principles were codified in the Criminal Code around the time of the Priest decision. It is important to note that these principles do not dictate a non-custodial outcome for youthful first offenders, indeed they recognize that there will be circumstances where imprisonment will be justified even for a youthful offender. What Priest and the Criminal Code do dictate, and have dictated for close to thirty years, is that as part of the individualization of sentencing, an offender’s youth must be considered and may well lead to a different outcome than for a person who is not a “youthful first offender”.

49. I consider the defendants’ ages to be a significant determinant in the appropriateness of sentence for these offenders. It appears not to figure in the Crown’s assessment of the appropriate range of sentence. That is a material shortcoming.

Pre-Sentence Custody and Bail Conditions

50. Each of Mr. Boodhu, Mr. Deane and Mr. Johal has been on release since a few days after their arrests on 4 September, 2020 or thirty-one months. The calculation is slightly shorter for Mr. Boodhu as he surrendered into custody a few weeks ago in order to start serving his sentence, but that difference is not significant enough to be materially different in calculating any credit for time on restrictive bail conditions.
51. The law is clear that the granting or denying of credit for restrictive bail conditions is discretionary. The one fatal flaw in any such analysis would be the total failure to hear submissions on the point.
52. The bail orders in this case are similar. They involve house arrest with very limited exceptions, such as being with one’s surety or a named person, or perhaps while at work or school, but not while going to or from work or school unless accompanied. One of the orders prohibits driving, for no reason that appears even remotely relevant on the facts of the case. Two of the orders prohibit possession of weapons, although there is nothing in the facts to suggest how that is a relevant condition.
53. When one reads the bail orders one starts to wonder if one only dreamt that the Supreme Court had recently addressed the need for a thoughtful and measured and case-specific approach to bail in R. v. Antic, 2017 SCC 27. It is as if the common-sense direction of Antic, which was itself not revolutionary but in reality simply stressed the need to apply the then forty-five year old Bail Reform Act as it was actually worded, was not a binding judgment of the highest court in the country but rather the mythical Scottish village, Brigadoon, that appears out of the mist only once in a century, only to disappear the next day and to be forgotten.
54. Antic and the Bail Reform Act, however are not to be forgotten, although they appear to have been in each of these bail proceedings. It is hard to imagine how a trio of eighteen or nineteen-year-old first offenders who were born and have lived in Canada all their lives would be a natural object of a house-arrest bail. Their entire existence is here. Where is the flight risk to justify house arrest? There is no history of previous criminality. Where is the foundation for one of the most restrictive formats of bail, with extremely rigorous communication restrictions? If there was an explanation for these conditions, it was never given despite the issue of credit for bail conditions being advanced forcefully.⁶ Whether this was on consent or not does not matter; Antic makes that clear. What is even more mind-boggling, however, is that the bail orders all prohibited the defendants from possessing any cell phone, pager or personal digital assistant or to possess or use any computer or device with access to the internet. Two of the orders allowed internet access under supervision; the other did not.
55. In fairness, there was a time when possession of a mobile phone was prima facie proof that a person was a drug dealer. That time, however, ended some time in the 1980s. To channel the words of the second Prime Minister Trudeau, however, it’s 2020 (or it was when these bail orders were made). Mobile phones are ubiquitous. Other than in the most exceptional of cases, it is hard to imagine how a mobile phone prohibition in the twenty-first century is consistent with bail orders being the least restrictive they can be. Indeed, for many, many, many people nowadays, a mobile phone is the only phone they will have. The internet prohibition is another shocker. How that prohibition was seen as either making sense or complying with Antic is beyond comprehension. There are undoubtedly some octogenarians or nonagenarians who would be quite content without internet access, but even in that age band many would find modern life challenging without the internet. While it would be a very good thing for all of us to spend less time on the internet, compulsorily placing these eighteen- and nineteen-year-old defendants under house arrest and with a partial or total mobile phone and internet prohibition comes perilously close to social exile. The defendants’ homes might have been comfortable, their families might have been very supportive, the food might have been great, but the average teenager, or even the average person in their twenties, thirties and beyond largely lives their lives on their phones and on the internet. And they don’t particularly want their sureties or parents supervising everything.
56. The law on credit for pre-trial bail conditions allows a sentencing court to measure those conditions. In some cases, an assessment will require evidence of the impact of the conditions. In other cases, requiring evidence would simply be a waste of court time. The granting or denial of credit is discretionary, so long as it is done on a principled basis and so long as it recognizes, in the words of McPherson J. that “bail is not jail”. In the present case, the combination of house arrest, mobile phone and internet restrictions cannot have been other than hugely, and unnecessarily restrictive and intrusive on each of the defendants. While it is open to a sentencing judge either to apply a numerical measure to restrictive bail conditions or to factor those conditions more generically into the sentence imposed, in the present case I think it is important to apply a numerical value. Given the length of the time on bail, the nature of the conditions and the defendants’ ages, I would attribute a credit of eighteen months to be applied to the base sentence that would otherwise be appropriate. That eighteen months includes credit for the several days each of the defendants spent in custody awaiting release on bail.

Factors In Determining A Fit Sentence

57. In determining a fit sentence for these offences, the factors I take into account include the following:
    1. The offences are objectively very serious for all three of the defendants. Fentanyl trafficking has an outsized impact on many communities and the Niagara Region tragically ranks very high compared to most other regions in Ontario. Put simply, fentanyl kills and affects users, their families and their communities in many ways. Had all of the fentanyl in their possession made it onto the streets rather than having been intercepted by the police, one cannot help but wonder how many people might have died.
    2. The quantities involved here are substantial. Even the quantity attributed to Mr. Deane is a lot of fentanyl. While the length of an appropriate sentence for drug trafficking is not derived on an arithmetic basis whereby twice as much drugs requires twice as long a sentence, the sentence imposed should include some consideration of the amounts possessed by each offender. Put another way, all else being equal, the fact that Mr. Boodhu had four times as much fentanyl as Mr. Deane does not mean his sentence should be four times as long, although it does mean it should be longer. The fact that Mr. Deane possessed only a quarter as much as Mr. Boodhu, means he is entitled to a lesser sentence since their circumstances are otherwise quite similar, but it does not entitle him to a sentence that is massively shorter or of a different nature. I also note that the Crown treats Mr. Johal and Mr. Boodhu identically for sentencing. In my view their situations are not the same. The amount of fentanyl Mr. Johal had was more than half of the total amount in the car and it is materially higher than the amount Mr. Boodhu had. Put differently, Mr. Johal had more fentanyl than Mr. Boodhu and Mr. Deane combined (Mr. Boodhu also had about 1 ½ ounces of cocaine, but in the grand scheme of things that is a far less serious driver of sentencing).
    3. These offences were committed for profit. While I do not consider the defendants likely to be high level players (as opposed to them clearly being offenders in possession of large amounts of fentanyl, which is not necessarily the same thing), there is no suggestion that they acted under any form of coercion. While the maturity of their choice is a factor discussed herein, it was their choice, not something forced upon them.⁷
    4. Other than Mr. Johal’s PTSD history discussed elsewhere in these reasons, there are no significant underlying factors, such as trauma, mental health, etc. None of the defendants is or was an addict.
    5. General deterrence and denunciation must play a significant role in the sentence imposed, albeit mitigated by the defendants’ youth as discussed elsewhere in these reasons. However, I see no real need for specific deterrence for any of the three defendants. The principle of rehabilitation has to play a very prominent role for offenders as young as these. It also bears noting that a sentence as punitive as that sought by the Crown will not necessarily make society safer. To the contrary, such a sentence could well be crushing for these defendants and would likely significantly reduce the likelihood of their rehabilitation and increase the risk of their finishing their sentences as hardened offenders with limited options before they hit the age of thirty. If punitive sentences were a guarantee of public safety, the great republic to the south of us would be one of the safest countries in the world. It is not. There will at times be offenders for whom punitive, even crushing sentences are the only option available, but that is a sentencing option of last resort, not of first resort. That is a bedrock principle of Canadian sentencing law.
    6. The principles of restraint in the use of prison generally and for young first offenders must rank very high in the determination of a fit sentence in this case. These are principles that suffuse both the Criminal Code and this country’s sentencing jurisprudence and have done for many, many years. That is a factor that played no role whatsoever in decisions such as Parranto, which dealt with a mature, sophisticated, apex offender.
    7. The three defendants have all pleaded guilty. I accept that as a genuine sign of remorse on their parts. On the material before me, I could not conclude otherwise. The Crown, while recognizing the guilty pleas, points out that they were not particularly early. Whatever relevance that submission might have for a different offender on a different day, I am not about to discount the value of a teenager’s guilty plea because it was not instantaneous when faced with a Crown request for a jail sentence almost fifty percent as long as the number of years the defendants had been alive. Likewise, in a case of this nature, for defence counsel to provide meaningful advice on resolution takes time and disclosure of certain parts of the material from the GTA side of the investigation took time. I agree with Mr. Goldkind’s comment that too quick a rush to resolution in these circumstances would have constituted professional negligence.
    8. In the proportionality analysis, as I have said, the crimes are very serious. However, even with a profit motive, the moral responsibility of an offender barely outside the limits of the Youth Criminal Justice Act is dramatically reduced relative to a more mature offender. The defendants’ ages must be a major driver of the appropriate sentences here.
    9. Each of Mr. Boodhu’s, Mr. Deane’s and Mr. Johal’s prospects for rehabilitation are very positive. They have very strong family and community support and potential to advance in their education and careers. The very, very serious crime each of them has committed does not have to define their futures.
    10. Two of the defendants have argued for a conditional sentence. I accept that conditional sentences can be a valid option for many drug trafficking offences so long as the sentence is within the reformatory range. Indeed, I have frequently imposed such sentences, albeit not for offences as serious as these. I also accept that there will be circumstances, albeit exceedingly rare, where a conditional sentence could be justified for fentanyl trafficking. The decision in R. v. Han, 2022 ONCJ 343, a decision of this court in this region, is an example of such a case, although the amount involved and the personal circumstances of the offender were drastically different. On the facts of the present case, even if a reformatory sentence were within the appropriate range, a conditional sentence simply would not be, “consistent with the fundamental purposes and principles of sentencing”, which is a precondition to a valid conditional sentence. A conditional sentence would be unfit in relation to any of these three defendants with their varying quantities of fentanyl and their personal circumstances.

Conclusions on Sentence

58. I think that there are material flaws in the positions advanced by three of the four counsel who made submissions on sentence, such that I must reject the positions they have put forward, however skilfully and earnestly they have done so.
59. The positions adopted by Mr. DiCarlo and Mr. Pyzer suffer from the fatal flaw of disregarding or massively diluting the objective seriousness of their clients’ offences, each involving the possession of significant amounts of fentanyl for the purpose of trafficking for profit. For all three defendants, there is nothing positive that can be said on the “seriousness of the offence” side of the ledger, whatever might be said about their moral accountability relative to other offenders convicted of similar offences. They possessed very significant amounts of an extremely dangerous drug so that they could traffic in it for profit. Their offences put their customers at risk of death and created a very real risk of ongoing trauma from their victims families and derivative crime committed by addicts to support their habits.
60. The position adopted by Mr. Anger for the federal Crown suffers from the inverse flaw. It emphasizes the objective seriousness of the offences, fairly enough, for the impact of these offences on society and on individuals is dire. However, it fails to give any meaningful consideration to the question of the moral blameworthiness of these offenders. To be clear, however close to the mark the federal Crown might have been if Mr. Boodhu, Mr. Deane and Mr. Johal had been quite a bit older at the time of their crimes, to impose sentences on these three offenders in the range sought by the federal Crown would be unconscionable; it would obliterate the doctrine of restraint from the Criminal Code and evaporate decades of jurisprudence on the same doctrine.
61. With only a slight quibble, about which I am sure Mr. Goldkind will not complain, I am of the view that Mr. Goldkind comes closest to the mark. On behalf of Mr. Boodhu, Mr. Goldkind recognizes the seriousness of his client’s offence and its impact on society and, just in case the court were inclined to forget it, he stresses that the doctrine of restraint, especially for young first offenders, must necessarily tip the scales significantly from the Crown’s position. Although his position and my final conclusion are not in perfect equilibrium, there is not much distance between them at all.
62. I have referred earlier to the Court of Appeal’s recent decision in R. v. Disher & Weaver. I do not propose to refer to all of the other authorities to which counsel have referred me. I am tragically familiar with all of them and, as with my colleagues on this court in Niagara, have been called upon to impose many, many sentences on fentanyl traffickers. I refer to the Weaver side of Disher and Weaver, in particular because it is current, it is from this region, it incorporates the fentanyl realities of this region and it is from the Court of Appeal. It is not, of course, on all fours with the present case, but what differences there are tend for the most part to balance out from that case to this case. For example, Ms. Weaver was three to four years older than these offenders, not enormously so, but materially so given the process of maturation in the late teens/early twenties. Ms. Weaver had a trial; these defendants pleaded guilty and a sentencing process that does not give meaningful value to a guilty plea would be unworthy indeed. Ms. Weaver was on probation at the time of her offences, including a specific condition not to associate with her co-defendant, Mr. Disher. Subject to the discussion above about the life experiences, especially in the years just before his offence that are specific to Mr. Johal, Ms. Weaver had a harder life—raised by her grandparents because of parental dysfunction, a not ideal home life even at that and significant substance abuse issues, whereas for the most part Mr. Boodhu, Mr. Deane and Mr. Johal lived a middle-class life, with broad family support, whether in the immediate family or in their extended families. Ms. Weaver was Metis. I would not be at all surprised that all three of these defendants were subjected at various points in their lives to the types of racial indignities described by Mr. Johal. Ms. Weaver had about the same amount of drugs attributed to Mr. Deane, materially less than Mr. Boodhu and Mr. Johal. Common sense and decades of drug experience would suggest that Mr. Boodhu, Mr. Deane and Mr. Johal were not principal or apex traffickers and there is an evidentiary basis for that in Mr. Johal’s affidavit; Ms. Weaver was described by the Court of Appeal as secondary to Mr. Disher in their operation.
63. All things considered, before applying credit for restrictive bail conditions, I would place the appropriate sentence for Mr. Boodhu and Mr. Johal at 4 ½ years and for Mr. Deane at 3 ½ years. Having said above that the appropriate credit for their bail conditions is eighteen months, accordingly, the net sentences I impose are as follows:
    1. For Mr. Boodhu, a sentence of 3 years to be served from today in light of his credit for time on bail and his original, brief pre-bail custody. There shall be deducted from those three years credit for pre-sentence custody at a rate of 1 ½ days for each day since Mr. Boodhu recently surrendered back into custody.
    2. For Mr. Deane, a sentence of 2 years from today in light of his credit for time on bail and his short pre-bail custody. Since this sentence is on the boundary between a reformatory and a penitentiary sentence, I would give Mr. Deane the option to serve his sentence in the reformatory if that is his preference. If Mr. Deane wants some time to consider that choice and discuss it with his family and Mr. DiCarlo, he is welcome to a reasonable adjournment for that purpose.
    3. For Mr. Johal, a sentence of 3 years to be served from today in light of his credit for time on bail and his short pre-bail custody.
    4. There will be an order under s. 109 of the Criminal Code prohibiting each of the defendants from possessing the types of weapons listed for a period of ten years. Although there was no suggestion of weapons being involved here, that is a mandatory order under the Criminal Code.
    5. Each of the defendants shall provide a sample of his DNA for inclusion in the DNA data bank. The offence of possession of fentanyl for the purpose of trafficking is a secondary designated offence, which means there is discretion in ordering or not ordering that a sample be provided. However, the magnitude of the defendants’ offence, notwithstanding their youth and antecedents, is so grave that there really is no question about how the balancing of privacy interests vs. public interests plays out.
    6. Each defendant shall pay the victim surcharge of $200, not later than 31 December, 2026.
    7. All of the cash seized shall be forfeited as proceeds of crime. I shall hear from the Crown as to whether or not there are any other items sought to be forfeited, whether as offence-related property or otherwise.

Footnotes

1. 1Overall, I would characterize the affidavit as over-inclusive in terms of things that were “wrong” about Mr. Johal’s upbringing, as if it were written on the theory of throwing everything in and seeing what would stick. In saying that I do not purport to deny the truth, validity or relevance of various items, but my sense of overall over-reach in the materials filed was inescapable. It may be that Mr. Johal and his family and counsel genuinely believe that everything in the affidavit was causative or contributive to his negative associations and to this offence or relevant to his moral responsibility, but this was a situation in which it seemed to me that less would have been more. Every offender has a story; almost none has had a perfect life; not every imperfection matters; selectivity does.
2. 2I suspect that Dr. Hutchinson might perceive a comment like this to constitute a form of victim-blaming, in the sense that Mr. Johal’s journey down the wrong path was precipitated by his PTSD from all of his various traumas. There would be some resonance to such a concern if the record made out more robustly the chronology of the various traumas and also how the various remote traumas actually impacted Mr. Johal. The onus here is on Mr. Johal to establish the underlying facts and to demonstrate their relevance to sentencing. As I have said elsewhere, I am satisfied that parts of Mr. Johal’s life experience justify mitigation on sentence, but there were substantial areas that seemed to be too, too remote on the record before me.
3. 3See Morris at paragraph 13.
4. 4I do not propose to parse Mr. Johal’s affidavit paragraph by paragraph. One example of a material discrepancy is Mr. Johal’s assertion that his parents were working twelve-hour days, seven days a week, while other material suggests their workday was nine hours, which is a material difference. A nine-hour workday is not dramatically different than the norm. In his cross-examination, Mr. Johal himself says that it wasn’t until he was about seventeen that things started going seriously bad. He was obviously raised differently than his sisters and obviously was exposed to violence both directly and more remotely, but the foundation for Dr. Hutchinson’s diagnosis is not as robust as portrayed. I also recognize Dr. Hutchinson’s reluctance to “blame” a patient for trauma that arises from bad decisions made by the patient arising from earlier trauma, but Dr. Hutchinson’s conclusion that Mr. Johal was already traumatized several years earlier does not appear to be adequately supported by the record, so the precise causation and timing of Mr. Johal’s trauma is not entirely clear. The onus on this issue is, of course, on him.
5. 5Or too remote.
6. 6Depending on the case, a judge might factor into the measurement of credit for bail conditions the question of why the defence did not seek a variation. Depending on the case I might myself ask that question. However, with conditions such as these bail conditions for defendants such as these, the conditions are so out of alignment with the principles of Antic that they scream out for justification by the Crown. No such justification was offered. I cannot imagine what any such justification might be, other than a complete disregard for the bail provisions of the Code.
7. 7There is an evidentiary basis for the role played by unnamed, older actors in the three defendants’ decision to come to Niagara to traffic. That appears in Mr. Johal’s affidavit and it is a part of his affidavit that I have no reason to question. The likelihood of these three being entirely independent actors with this amount of fentanyl is infinitesimal.