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ONTARIO COURT OF JUSTICE DATE: February 7, 2023 COURT FILE No.: Simcoe 22-98

BETWEEN: HIS MAJESTY THE KING

— AND —

Before: Justice A.D. Hilliard

Heard on: January 12, 2023 Reasons for Judgment released on: February 7, 2023

Counsel: G. Romano, for the Crown J. Pereira, for the Federal Prosecution J. Stephenson, for the defendant

Hilliard J.:

Overview

1After a trial I found Derrick Adams guilty of manslaughter, criminal negligence causing death, and trafficking fentanyl. At the outset of sentencing submissions, a stay was entered on the charge of criminal negligence causing death pursuant to the Kienapple principle.

2The position of the federal crown on the trafficking charge is a jail sentence of 6 years to be served concurrently to any sentence imposed on the manslaughter. The provincial crown submits Mr. Adams should receive a sentence of 8 years on the manslaughter. Mr. Adams argues that I should impose a global sentence in the range of 5 to 6 years for both charges. The Crown seeks a number of ancillary orders which were not objected to by Mr. Adams, including a weapons prohibition and an order for the taking of DNA. There is no argument that any time Mr. Adams has served in pre-trial custody should be deducted from the overall sentence. The only issue with respect to the pre-trial custody is the credit to be given for the time served and/or any enhanced credit or deductions for harsh conditions in the detention facility.

Mr. Adams’ background and circumstances

3Mr. Adams is 42 years old. His highest level of education was grade 8. He has no spouse and no dependents. Mr. Adams’ parents are both deceased, and he is estranged from his only brother who resides in Winnipeg. There was no presentence report prepared for this proceeding and no prior presentence report was provided as part of sentencing submissions.

4His mother left his father when Mr. Adams was 12 years old due to his father’s alcoholism. Mr. Adams chose to stay with his father rather than go live with his mother. His father, who was a truck driver at the time, often left Mr. Adams for long periods of time without supervision. Mr. Adams did not attend high school after he completed grade 8, as he found school difficult and had no parental support to assist him with his school work. He started using crystal methamphetamine at 17 years old. Mr. Adams’ mother moved to Winnipeg when he was 19 years old, and she subsequently died from cancer in 2015. Mr. Adams’ father, who was an addict himself, died in 2019 of smoke inhalation from a fire that started in his residence due to the stove being left on. Although they had an unhealthy co-dependent enabling relationship, Mr. Adams took the death of his father hard as his father was his only family support. Mr. Adams’ brother is reportedly addicted to methamphetamine and suffers from drug-induced psychosis.

5Mr. Adams suffers from depression and attention deficit disorder (ADD). He is currently prescribed Wellbutrin and Buspirone, along with methadone for his opiate addiction.

6He has an extensive criminal record. It is over six pages in length and includes multiple convictions for offences of violence as well as breaches of court orders.

7There is no work history to report, other than a brief period when Mr. Adams was on parole and doing drywall jobs through a temp agency. At the time of the offence, Mr. Adams was in receipt of ODSP benefits. Mr. Adams indicated that he was approved for ODSP because he has been deemed “institutionalized”.

8Although Mr. Adams submits that he was subjected to harsh conditions while in pre-trial detention, the beginning of which was during the Omicron wave of the COVID-19 pandemic, there was no specific evidence led as to the amount of time Mr. Adams spent in isolation or lockdown while in the Hamilton Wentworth Detention Centre (HWDC). It was submitted that there was a lack of any programing for Mr. Adams to access while in pre-trial detention, but Mr. Adams did indicate that he had started reading passages from the Bible while in custody. He has remained in pre-trial detention at HWDC from the date of his arrest.

9Portions of a letter written by Mr. Adams were read into the record by his lawyer, Ms. Stephenson, as part of the sentencing submissions. In that letter Mr. Adams does express remorse for what happened to Rachel, but it was notable that Mr. Adams also deflected some of the blame for Rachel’s death and appeared to minimize his role in her untimely demise. Specifically, Mr. Adams said he only got Rachel a half point that day and indicated that he did not know where she got the other fentanyl he claims she had on her that day, which comment I inferred to suggest that Rachel must have consumed more than he provided her resulting in her overdose. He also indicated that he did not believe that he should be solely responsible for Rachel’s death as others in her family also failed her.

Caselaw – trafficking

10Although the range of sentences for trafficking fentanyl is continuing to evolve, recent appellate decisions have made it clear that sentences need to go up and not down. There can be no argument as to the health risks posed by fentanyl and indeed this case demonstrates the devastating consequences fentanyl poses to users.

11The Supreme Court of Canada in R. v. Parranto, 2021 SCC 46 wrote:

Beyond its mere potential to cause harm, however, fentanyl has had -- and continues to have -- a real and deadly impact on the lives of Canadians. Indeed, trafficking in fentanyl is so deadly that various courts have described it as a national crisis, reflective of an increased understanding of the gravity of the harm it causes (see, e.g., R. v. Smith, 2017 BCCA 112, at para. 50; R. v. Vezina, 2017 ONCJ 775, at para. 58; R. v. Aujla, 2016 ABPC 272, at para. 1). This heightened understanding is supported by the available statistical evidence. The expert evidence on the record before us establishes, for instance, that fentanyl-related deaths in Alberta increased by 4,858 percent between 2011 and 2017, rising from 12 deaths in 2011 to 583 deaths in 2017. More broadly, federal statistics on opioid-related deaths show that, between January 2016 and March 2021, approximately 23,000 Canadians lost their lives due to accidental apparent opioid-related deaths, with fentanyl involved in 71 percent of these deaths (Special Advisory Committee on the Epidemic of Opioid Overdoses, Opioid and Stimulant-related Harms in Canada (September 2021) (online). The epidemic also shows no signs of abating, with over 6,000 accidental deaths occurring in 2020 alone, 82 percent of which involved fentanyl (Government of Canada, Federal actions on opioids to date (June 2021) (online)). These figures throw into stark relief the dark and inescapable reality that "[e]very day in our communities, fentanyl abuse claims the lives of Canadians" (R. v. Loor, 2017 ONCA 696, at para. 33).

12Justice Agro in R. v. Thombs, 2022 ONCJ 1716 noted: “[o]f all opioid related sentencing, fentanyl has overtaken heroin as the category of drug that attracts the highest of sentences.” In her judgment, Justice Agro does a very thorough and helpful review of the recent fentanyl sentencing caselaw and ultimately determines that a global sentence of 9 years was a fit and appropriate sentence on five (5) counts of possession for the purpose of trafficking multiple substances, including 54.35 grams of fentanyl.

13 R. v. Jolly, 2022 ONCJ 10, a case decided by my brother Justice Gosh, also contains a similar review, at the end of which, Justice Gosh indicates that he is “comfortable observing that a review of comparable cases supports a sentence in the range of 8 – 12 years here.” However, I should note that Jolly was a case where Justice Gosh had to grapple with the range of sentence for trafficking fentanyl by the ounce.

14I do not intend to reproduce the able and thorough caselaw reviews included by Justices Agro and Gosh in their respective decisions. I have, however, read their decisions and I agree with and rely upon their recitation of the recent caselaw on the range of sentences imposed for trafficking fentanyl.

15Given all the recent caselaw just prior to and after the release of Parranto, I am satisfied that the federal Crown’s position of 6 years for trafficking fentanyl is within the appropriate range of sentence on the facts of this case.

Caselaw – manslaughter / criminal negligence causing death by trafficking

16There is considerably less caselaw on the appropriate range of sentences for manslaughter and/or criminal negligence causing death by trafficking fentanyl.

17The Crown included in their brief of authorities a transcript of the unreported decision of my brother Justice Griffin in the case of R. v. Fox, dated December 23, 2020. In that case, Mr. Fox was found guilty after a trial of trafficking carfentanil and manslaughter. The victim, Travis Rousseau, was a friend of Mr. Fox, who purchased drugs from him on March 10, 2019. Less than 24 hours later, Mr. Rousseau was found dead on the floor of his bedroom. The cause of death was carfentanil toxicity. Mr. Rousseau was 34 years old at the time of his death. Although there are many factual similarities between Fox and this case, distinguishing is that Justice Griffin found as a fact that Mr. Rousseau was a 34-year-old seasoned drug user, having struggled with substance misuse disorder for most of his adult life. Justice Griffin ultimately imposed a 5-year sentence less credit for pre-trial custody.

18In the case of R. v. Haisu, 2021 ONCJ 7348, Justice Sopinka sentenced Mr. Haisu to a global sentence of six and a half (6 ½) years for manslaughter and criminal negligence causing bodily harm for trafficking fentanyl to two men he met at a gas station. Mitigating was Mr. Haisu’s guilty plea, long standing employment, family supports, including a spouse and two children, and particularly harsh conditions of his pre-trial detention, evidence of which was tendered at the sentencing hearing. Aggravating was that Mr. Haisu had held out the substance trafficked to the two victims as cocaine rather than fentanyl. Mr. Haisu also had a prior criminal record with numerous offences of violence for which he had received significant jail sentences.

19 R. v. Ebel-Savage, 2019 ONSC 5116 was a judgment on sentencing after Ms. Ebel-Savage pleaded guilty to trafficking fentanyl and criminal negligence causing death. George, J. (as he then was) imposed a three-year sentence on the criminal negligence causing death and a one-year concurrent sentence for the trafficking. What is distinguishing about this case is that Ms. Ebel-Savage entered her plea on the basis of wilful blindness as to the nature of the substance trafficked. She maintained throughout that she was unaware that the substance was fentanyl rather than cocaine. It is also notable that George, J. specifically commented on the lack of jurisprudential guidance in the area at the time he was making his decision in 2019.

20Justice Harpur found that five years for criminal negligence causing death was a fit sentence in the case of R. v. Walker, 2019 ONCJ 1263. However, as Mr. Walker had provided substantial assistance in the police investigation and prosecution of a co-accused, he was given a significant discount on what was otherwise found to be the appropriate sentence. The significantly lower sentence that was ultimately imposed by Justice Harpur is distinguishable by virtue of the fact that but for his assistance in the prosecution of his co-accused Mr. Walker would not have received a sentence that was admittedly below the range. I would also note that Mr. Walker did not have a criminal record at the time of committing the offence.

21In September 2018, Justice Good imposed the highest reported sentence to that time in R. v. Allison, 2018 ONCJ 7268. Mr. Allison pleaded guilty to two counts of possession for the purpose of trafficking both cocaine and fentanyl, as well as criminal negligence causing death. The global sentence imposed was ten (10) years – six (6) for the criminal negligence causing death and four (4) years consecutive for possession for the purpose. It is notable that Justice Good found as a fact that it was not the case that Mr. Allison had intentionally misled the victim about the nature of the substance he was providing. Mr. Allison was carrying both fentanyl and cocaine in his pockets the night he sold the drugs that ultimately killed Mr. Micro and he mistakenly provided fentanyl rather than cocaine.

22Heeney, J. imposed a sentence of two and a half (2 ½) years in R. v. Knapp, 2018 ONSC 2477, a case which involved a guilty plea to trafficking and criminal negligence causing death. However, Heeney, J. specifically noted that the offence had been committed two years earlier, in January 2016, and had the offence been committed in 2018 “I would not have been satisfied that two and a half years in penitentiary sufficiently addresses the predominant objectives of denunciation and deterrence that these offences involving such a dangerous drug as fentanyl call for.”

23In another case of mistakenly selling one substance rather than another, Justice Bliss imposed a sentence of 18 months and three years probation in the case of R. v. Rodgers, 2020 ONCJ 4748. This case is clearly distinguishable on the facts. Mr. Rodgers entered a plea of guilty to manslaughter for unknowingly providing his friend a synthetic opioid which then caused her death. Mr. Rodgers had purchased what he thought was cocaine from an individual who he had purchased cocaine from in the past and brought that substance to his friend’s home to share and consume together.

24The Nova Scotia judgment of R. v. Simpson is a case where a sentence of 30 months was imposed for a charge of manslaughter by trafficking purple fentanyl. This case is also distinguishable on the facts. There was a favourable pre-sentence report indicating that Mr. Simpson had been clean from substances since the incident, maintained full-time employment, had attempted to save the life of the victim at the time by calling emergency services, and had made significant lifestyle changes after the date of the offence.

25The range of sentences imposed in all of these cases confirms the comments of the Ontario Court of Appeal in R. v. Loor, 2017 ONCA 696 wherein the court indicates that the range of sentencing for fentanyl trafficking is evolving. I am satisfied those comments can be extrapolated to include the range of sentencing for manslaughter and/or criminal negligence causing death by fentanyl trafficking.

Analysis

26The goal of any criminal sentence is to protect society, contribute to respect for the law, and help maintain a just, peaceful, and safe society. In an attempt to achieve this goal, I must impose sanctions that address the traditional sentencing principles including denunciation, general and specific deterrence, rehabilitation, reparations, and promoting a sense of responsibility in offenders and an acknowledgment of the harm they have caused the community.

27The sentencing cases dealing with trafficking or possession for the purpose of trafficking fentanyl all comment on the dangers of fentanyl use and the ongoing opioid crisis in Canada. Without exception, judges from all levels of court agree that the primary sentencing principles when dealing with fentanyl trafficking are denunciation and deterrence. This case is no different. Denunciation and deterrence, both general and specific are the overriding sentencing principles to be considered.

28On the facts before me, the consequences of trafficking are not potential but actual – a young person lost her life after using fentanyl. This case illustrates the exact consequences contemplated by judges in sentencing decisions and in the appellate caselaw. As I indicated in my trial judgement, the potential devastating consequences of consuming fentanyl were well known to Mr. Adams when he trafficked that substance to Rachel Cook.

29The impact on Rachel’s friends and family has been significant. They all knew that Rachel was struggling with substance misuse and tried, each in their own way, to help her recover. The victim impact statements filed clearly demonstrate the significant mental and emotional impact Rachel’s death had on those closest to her.

30Rachel was 17 years old at the time of her death. Mr. Adams was 41. He was the adult and she was still a child. Although I accept that the day of her death was not the first time that Rachel used fentanyl, at the age of 17, I also do not accept that she should be characterized as a “seasoned user” of fentanyl as Mr. Adams argued. This perception of Mr. Adams is another indication of his lack of insight into his own actions and a failure to spend the time he has been in custody reflecting on his role in Rachel’s death. I find it diminishes his expression of remorse.

31Mr. Adams subjectively views trafficking fentanyl as different than engaging in a physically violent altercation. He argued that the act of giving Rachel fentanyl was not a violent act. Manslaughter is by definition a violent offence as the end result is the death of another human being. Mr. Adams perception of the lack of violence involved in trafficking a deadly substance such as fentanyl demonstrates the increased need for specific deterrence in this case.

32I have considered Mr. Adams’ background, difficult upbringing, and lack of education, as well as his own struggles with substance misuse. However, I find that in the particular facts of this case, Mr. Adams’ personal circumstances do not diminish his moral blameworthiness.

33Mr. Adams has over 90 criminal convictions. 19 convictions for assaultive behaviour ranging from common assault to aggravated assault, including assault with a weapon. 25 convictions for breaching court orders – probation, recognizance, undertaking, and being unlawfully at large. 13 convictions for theft or attempted theft. He has a conviction for robbery from 2009 for which he received a sentence of 8 months. In 2012, Mr. Adams had 13 convictions for various crimes including assault with a weapon, dangerous operation causing bodily harm, impaired driving causing bodily harm and flight from police for which he received a global sentence of 18 months. Mr. Adams was convicted of possession for the purpose of trafficking cocaine in 2019 and received a sentence equivalent to 7 months jail. Most recently, in 2021, Mr. Adams was convicted of aggravated assault and received the equivalent of 1246 days or almost 3 ½ years jail.

34There is little in the way of mitigating circumstances in this case.

35Mr. Adams did indicate remorse for the role he played in the death of Rachel Cook, albeit after he was convicted at the end of a trial. However, Mr. Adams’ statement to the court did not include a full acceptance of responsibility and contained statements, as I indicated above, that deflected the blame for Rachel’s substance misuse on other people in her life. The mitigation of Mr. Adams’ remorse is therefore somewhat limited.

36I do not accept Mr. Adams’ submission that his text messages to Rachel Cook the day of her death should be considered a mitigating factor. The concern shown by the text messages is not a mitigating factor but rather the absence of an aggravating factor. The communication between Mr. Adams and Rachel Cook on the evening of her death demonstrate that Mr. Adams did not have a complete lack of concern for Rachel Cook after having provided a deadly substance for her to consume. However, Mr. Adams’ concern must be considered in light of his decision to provide a 17-year-old with fentanyl, a substance he knew was potentially deadly.

37Mr. Adams argued that conducting a focussed trial should be considered as a mitigating factor. While it is true that Mr. Adams made several concessions throughout the trial which streamlined the proceedings, and the trial took days rather than weeks to complete, none of the concessions made by Mr. Adams spared Rachel’s guardian, sister, or mother from having to testify. All three of those women had to attend and testify about the events leading up to the death of Rachel, an experience which was undoubtedly emotionally and mentally difficult. Therefore, the conduct of a focussed trial as a mitigating factor is significantly attenuated on these facts.

38There is no evidence that Mr. Adams is anything other than a low-level trafficker. I have considered that there was not even any evidence at trial that Mr. Adams received any monetary compensation from Rachel for the fentanyl he gave her – a fact I noted in my trial decision. That there is no evidence of financial motivation in this crime is a circumstance I have considered in determining Mr. Adams’ moral blameworthiness. However, I find the lack of financial motivation for committing this crime to be the absence of an aggravating factor rather than a mitigating circumstance.

39I have considered the prospects for Mr. Adams’ rehabilitation. He indicated in his statement to the Court that he will never again use or touch fentanyl upon his release from custody. If Mr. Adams is able to follow through on that commitment, his prospects for reintegration and rehabilitation upon his release will increase. However, denunciation and deterrence are still the overriding sentencing principles in this case. If not for Mr. Adams’ expression of remorse and indication that he intends never to repeat his actions that led to Rachel’s death, I would have found the Crown’s position of 8 years to be too low in all the circumstances.

Pre-trial custody / Duncan credit

40Mr. Adams is entitled to credit for his pre-trial custody, as well as any appropriate deduction from the overall sentence for harsh conditions of his pre-trial detention.

41As of but not including the date of the release of this judgment, Mr. Adams has 524 actual days spent in pre-trial custody. He is legally entitled to a gross up on that time of 1.5. However, Mr. Adams urges me to consider the difficult conditions to which he was subject while held in detention during the COVID-19 pandemic to further reduce his sentence for what has become commonly referred to as Duncan credit.

42I accept and am aware that conditions in HWDC where Mr. Adams was held, as with other detention centres throughout the province, were particularly difficult on detainees after the onset of the pandemic in March 2020, throughout 2021 and into early 2022. Even in the latter part of 2021, I continually heard from detainees and their counsel about the difficult conditions in the detention centres, particularly throughout the Omicron wave. I accept that conditions in detention centres did not begin to significantly improve until around April 2022.

43I find that Mr. Adams sentence should be reduced for the restrictive conditions in HWDC due to the COVID-19 pandemic from September 2021 to April 2022 inclusive. In addition to credit for his pre-sentence custody, the sentence shall be reduced by a further four (4) months.

Conclusion

44Having considered the principles of sentencing, and balanced all the aggravating and mitigating circumstances, I find that the appropriate sentence for manslaughter is 8 years and for trafficking fentanyl, a concurrent sentence of 6 years. For the reasons set out above, the Information will note a jail sentence of 7 years and 8 months on the manslaughter less his pre-sentence custody of 524 grossed up on a 1.5 to 1 basis to be the equivalent of 786 days, leaving a jail sentence left to be served of 5 years and 6 months. A concurrent sentence of 6 years less pre-sentence custody of 2 years and 2.5 months will be noted on the trafficking charge. There will be a mandatory DNA order, primary designated on the manslaughter, and a s. 109 order for life. An order will also be made under section 743.21 prohibiting Mr. Adams from having contact with Holly Cook, Alicia Cook, Tanya Gettinby, and Robin Crawford while he is in custody. Victim fine surcharges will be waived.

Released: February 7, 2023 Signed: Justice A.D. Hilliard

R. v. Adams, 2023 ONCJ 63

Case Summary

Overview

Mr. Adams’ background and circumstances