R. v. Hoggar, 2025 ONCJ 388

ONTARIO COURT OF JUSTICE

CITATION: R. v. Hoggar, 2025 ONCJ 388

DATE: 2025 07 18

COURT FILE No.: Sudbury 4011-998-23-40101335-00

BETWEEN:

HIS MAJESTY THE KING

— AND —

JOSEPH HOGGAR

Before Justice Leonard Kim

Heard on June 20, 2025

Reasons for Sentencing released on July 18, 2025

D. Bradley……………………………………………………….Counsel for the Federal Crown

M. Ansell……………………………………………………Counsel for the Provincial Crown

C. Bottomley Counsel for the accused Joseph Hoggar

KIM L. J.:

Overview

1After a four-day trial, Mr. Hoggar was convicted on October 17, 2024, of seven counts on the Information:¹

a) Resisting Arrest, s. 129(a) of the Criminal Code;

b) Possession of a firearm knowing its possession was unauthorized, s. 92(1) of the Criminal Code;

c) Being an occupant in a vehicle knowing there was a firearm (9mm Glock 26 Gen 5 handgun), s. 94 of the Criminal Code;

d) Unlawful possession of a loaded prohibited firearm without having authorization or license and a registration certificate (9mm Glock 26 Gen 5 handgun), s. 95(1) of the Criminal Code;

e) Unlawful possession of fentanyl for the purposes of trafficking, s. 5(2) of the Controlled Drugs and Substances Act (“CDSA”);

f) Unlawful possession of cocaine for the purposes of trafficking, s. 5(2) of the CDSA;

g) Possession of property obtained by crime (Canadian currency of a value exceeding $5000) knowing that all or part of the property was obtained by an offence punishable by indictment, s. 354(1)(a) of the Criminal Code.

2The gravity of these offences includes the fact that Mr. Hoggar was trafficking significant amounts of fentanyl and cocaine to a vulnerable, at-risk population in Northern Ontario that has suffered exponential harm. Additionally, the real danger posed by possessing a loaded handgun elevated the risk of death or serious bodily harm in this context. This must be balanced with the many mitigating circumstances of Mr. Hoggar that include his own traumatic upbringing, breaches of his Charter rights under s. 10(a) and (b), his employability and the impact a lengthy custodial term will have on his common-law partner and their young son.

3However, even after I account for the totality of the significantly mitigating factors, I am of the view that a proportionate sentence of 12 years is warranted to accurately reflect the gravity of these serious offences and degree of moral blameworthiness attributable to Mr. Hoggar. Upon application of the totality principle, the 12-year sentence shall be reduced by 1 year for each of the lead counts for a total sentence of 10 years. I will attempt to explain how I came to this conclusion in these Reasons.

The Specific Counts focused in this Sentencing

4It would be prudent to initially determine precisely which counts should be subject to the principle in Kienapple, which protects against multiple convictions for offences where substantially similar factual and legal elements have been met on essentially the same facts.² The offences pursuant to s. 92(1) and s. 94 of the Criminal Code are captured by this principle considering the conviction pursuant to s. 95(1). Furthermore, the count of possession for the purposes of trafficking in cocaine shall also be subject to Kienapple, due to the conviction for possession for the purposes of trafficking in fentanyl, which is the lead count pursuant to the CDSA.

5The remaining counts of resisting arrest and possession of property obtained by crime (CAD. Currency) shall be sentenced concurrently. Therefore, my sentencing analysis shall be focused on the offences under s. 95(1) of the Criminal Code and s. 5(2) of the CDSA for trafficking in fentanyl.

6Trafficking in fentanyl while possessing a loaded, prohibited firearm involves offences that have distinct legal interests that require consecutive sentences.³ The CDSA aims to control substances that can alter mental processes and that pose risks to public health and public safety when used inappropriately or diverted to the illegal market.⁴ The objective of s. 95 of the Criminal Code is to protect the public by criminalizing the possession of potentially dangerous firearms in circumstances that increase the danger posed to the public.⁵

7While captured within one factual transaction, the Court will exercise its discretion to impose consecutive sentences to properly account for the violation of the distinct legal interests for these very different offences committed by Mr. Hoggar.⁶ After determining the appropriate sentences, the principle of totality must be applied to ensure that the overall sentence is not disproportionate or overly harsh to the gravity of the offences and his moral culpability.

Procedural Delays in Obtaining the Pre-Sentence Report

8A sentencing date of February 3, 2025, was promptly set upon conviction and a Pre-Sentence Report (“PSR”) was ordered. In a letter addressed to the Court dated December 17, 2024, Probation Services outlined their unsuccessful efforts in establishing contact with the offender for the purposes of completing the PSR.

9On January 21, 2025, counsel appeared before me to check in on the status of this matter. The Court learned that at some point after Mr. Hoggar was convicted, his surety revoked. He was arrested on unrelated charges and happened to be in custody in Edmonton, Alberta. With the assistance of Mr. Bottomley, the specific custodial location in Edmonton was confirmed. On consent, the initial sentencing date of February 3, 2025, was adjourned with a new date of June 20, 2025, set for a contested hearing.

10After the initial sentencing date was adjourned, the arrest of Mr. Hoggar in Edmonton, Alberta, prevented him from being able to meet with a probation officer to complete the PSR in a timely manner. ⁷All involved stakeholders promptly made arrangements to have a probation officer meet with Mr. Hoggar by video from the Edmonton Remand Centre. Those efforts proved to be fruitful and the PSR was completed on March 13, 2025.

Circumstances of the Offences

11Mr. Hoggar was the driver and sole occupant of the green 2007 Nissan Altima bearing the license plate CYAR 452 at the time of his arrest on April 19, 2023.

12The evidence in support of the above charges was seized by police pursuant to a search incident to arrest for the offences of possession of cocaine and fentanyl for the purposes of trafficking on April 19, 2023. A comprehensive search of Mr. Hoggar personally and the motor vehicle he was operating included the following evidence:

i) Cocaine 668.8 grams with an estimated street value between $41,000 and $68,000;

ii) Fentanyl 141.59 grams with an estimated street value between $28,200 and $42,300;

iii) $50,836.20 in Canadian currency of which $234.10 was located from Mr. Hoggar’s right pocket and $6532.10 from his left pocket. $44,070 was found in various hidden areas of a 2007 green Nissan Altima operated by Mr. Hoggar;

iv) A 9 mm Glock 26 Gen 5 handgun (prohibited firearm) and two loaded magazines hidden inside the rear driver’s side door of the Nissan;

v) Packaging material inside the Nissan;

vi) Three cell phones.

13On the date of the arrest, the investigating officer, Cst. Bonish, conducted surveillance on Mr. Hoggar within the immediate vicinity of a known drug house in Sudbury. Mr. Hoggar was the driver and sole occupant of the Nissan throughout the entirety of these observations on the date of his arrest. He was observed to have two interactions in and around a residence with individuals briefly coming and going and a separate brief encounter with a lone male at a townhouse complex next to a local elementary school parking lot.

14The evidence found on Mr. Hoggar personally and in the vehicle he was operating throughout those brief encounters leading up to his arrest had all the hallmarks of what appeared to be an active drug trafficking business he was operating in Sudbury.

15The total street value of fentanyl and cocaine found was agreed to be between $69,200 to $110,300.

16A total of $50,836.20 in Canadian currency was seized. There is no evidence that anyone other than Mr. Hoggar had operated this vehicle the morning of his arrest.

17The combined value of the drugs and cash found deeply hidden within the Nissan was between $120,036.20 to $161,136.20.

18The circumstances of the arrest where Mr. Hoggar resisted Cst. Porringa are described at paragraphs 336 – 341 of my Reasons. When this officer identified himself, Mr. Hoggar, while situated in the driver’s seat of the Nissan, immediately shut the driver’s side door. The officer attempted to open the door while Mr. Hoggar simultaneously attempted to pull it shut.

19At this early stage of engagement, it was unknown to this officer if any other occupants were inside the vehicle, as the windows were tinted. Cst. Porringa was able to observe Mr. Hoggar shifting around inside the vehicle. He ignored the officer’s orders which prompted the officer to utilize his baton to smash the driver’s side window to successfully open the door while a second officer approached from the passenger side of the vehicle. Mr. Hoggar then exited the vehicle and complied with the arrest.

20The loaded handgun is a prohibited firearm with a fully loaded, extended magazine and a bullet in the chamber. There was also a second magazine hidden inside the vehicle loaded with ammunition.⁸ Mr. Hoggar was not a holder of a license or authorization to possess the seized magazines and the loaded, prohibited firearm.

Circumstances of Mr. Hoggar

21Mr. Hoggar is 34 years old and has never met his biological father. He was raised by his mother and stepfather in Toronto and lived in subsidized housing with his siblings in an under privileged area of Toronto. He was placed in a foster home at eight or nine years of age. As a vulnerable child in care, he was sexually assaulted while in a foster home and has never reported this victimization to the authorities.

22Because his mother was concerned about the negative influences permeating his surroundings, his mother sent him overseas to Ghana at the age of 15. This displaced him away from his siblings and his parents for some five years. While in Africa, he ran away from the home that he was living in due to abuse and neglect and ultimately was homeless in this foreign country. He expressed to the PSR writer that at one point, he was captured by rebels and tortured for two days. He returned to Canada some five years later at the age of 20 but never dealt with the stress and trauma that he experienced throughout his formative years.

23He turned to drugs and found himself to be addicted to crack cocaine as a coping mechanism. To his credit, he has managed to be clean from any drug use for the past six years.

24He is currently involved in a stable and long-term relationship with his common law spouse. They share a 2-year-old boy.

25Mr. Hoggar has graduated from high school and in 2018, owned and operated his own trucking company. However, due to the negative publicity related to the current charges, he lost all his business contracts and his two residences he shared with his partner. The economic impact suffered is profound.

26The PSR outlines Mr. Hoggar’s criminal record, that includes two prior convictions for Possession for the Purposes of Trafficking a Scheduled Substance in St. Catharines, Ontario in January 2015. Those convictions resulted in a mandatory weapons prohibition pursuant to s. 109 but the Crown has not introduced any evidence to prove it was effective at the time of the current offences in Sudbury in April 2023.

Positions of the Parties

27Mr. Bradley for the Federal Crown is seeking a penitentiary sentence of eight years for the trafficking of fentanyl, five years concurrent for trafficking in cocaine, one year concurrent on the possession of $50,836 cash obtained by the commission of indictable offence and 30 days concurrent on the resisting arrest. He highlights the fact that Mr. Hoggar was found to be in possession of a high volume of two so-called “hard drugs”, fentanyl and cocaine, for the purposes of trafficking. In his submission, it is well known that these drugs wreak havoc on the local community and Northern Ontario region. The ripple effect of selling these substances in the community can be seen through the associated consequences on the lives of human beings that suffer with addictions to these substances.

28It is particularly aggravating that Mr. Hoggar was trafficking in fentanyl, a known toxic substance that has claimed the lives of so many people in our country and particularly here in Sudbury. Mr. Hoggar’s decision to profit from the suffering of the most vulnerable members of this community was rooted in greed and disconnected in any way to fuel a personal addiction of any sort. Mr. Bradley highlights the offender’s prior, related criminal record, that includes two prior convictions for Possession for the Purposes of Trafficking in a Schedule Substance and offences related to resisting arrest.

29Mr. Ansell for the Provincial Crown is seeking four years consecutive for possession of a loaded prohibited firearm contrary to s. 95(1) of the Criminal Code.

30On behalf of Mr. Hoggar, Mr. Bottomley submits that a global sentence of seven years in the penitentiary would achieve the balancing necessary to account for the seriousness of these offences but without losing sight of the hope that remains for Mr. Hoggar to achieve rehabilitation and lead pro-social life upon his release. He acknowledges the seriousness of the trafficking and firearm offences, and the adverse impact on the community particularly as it relates to the scourge that fentanyl has on the lives of many local human beings.

31However, he emphasizes the principles of restraint, totality and rehabilitation for an offender with significant gaps in his criminal record, a history of medical challenges, family obligations to his partner and young son and a traumatic childhood that effectively lowers his moral culpability. In sentencing this offender to his first penitentiary term, I am to impose the lowest possible sentence that can still achieve the paramount principle of proportionality.

32Mr. Bottomley also highlights the existence of additional factors that would support the application of further mitigation on sentence. He submits that Mr. Hoggar is entitled to Downes credit due to time spent on tight bail conditions that included house arrest and the requirement to wear an ankle monitor from approximately June 2023 to November 2024. Additional mitigation is also required due to the breaches of Mr. Hoggar’s Charter rights pursuant to sections 10(a) and (b) due to the delay in notifying him of the change in jeopardy and corresponding second opportunity to consult with counsel.

33Finally, he reminds me of the presence of Morris factors⁹ that apply due to Mr. Hoggar’s status as a Black Canadian offender. Relevant social context evidence should be considered through judicial notice of the existence of overt and systemic anti-Black racism together with Mr. Hoggar’s traumatic childhood as documented in the Pre-Sentence Report (“PSR”). The application of these principles has the potential to lower his moral blameworthiness and is mitigating on sentence.

Sentencing Principles

34The fundamental principle of sentencing is proportionality. A sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender in consideration of the aggravating and mitigating circumstances of this case in conjunction with the principles of totality, restraint and parity.¹⁰

35The fundamental purpose of sentencing in s. 718 of the Criminal Code is to protect society and to contribute, along with crime prevention initiatives, respect for the law and maintenance of a just, peaceful, and safe society by imposing just sanctions that include one or more of several objectives, including deterrence, denunciation, separation from society, rehabilitation of the offender and to promote a sense of responsibility in that offender.

36Parity, an expression of proportionality,¹¹ requires a sentence to be similar to sentences imposed on similar offenders for similar offences committed under similar circumstances. Sentencing is, however, an individualized process which necessarily means that sentences imposed for similar offences may not be identical.¹²

37The individualization of the sentencing process requires sentencing judges to prioritize and blend the different objectives of sentencing to properly reflect the gravity of the offences and the responsibility of the offender.¹³

38For the sentence I impose to be appropriate, it must be tailored to Mr. Hoggar’s circumstances, and the circumstances of the offences he committed.

39It is well established that the principles of denunciation and deterrence are at the forefront of the analysis involving cases of drug trafficking and possession of prohibited firearms. Specific deterrence may be particularly pertinent because Mr. Hoggar has a criminal history that includes prior convictions for trafficking and obstruction of justice related offences.

40However, I am still required to apply each of the sentencing principles enacted in s. 718 of the Criminal Code, including the principles of restraint, totality and rehabilitation. I have carefully applied those principles to the facts of this case in arriving at what I see to be a fit sentence.

41The total sentence I impose must not be excessive and may need to be adjusted if it is disproportionate to the gravity of the offences.¹⁴

42Section 10(2) of the CDSA also requires me to consider certain aggravating factors on sentencing. In this case, the following subsections are applicable:

“Factors to take into consideration

(2) If a person is convicted of a designated substance offence, the court imposing sentence on the person shall consider any relevant aggravating factors including that the person

(a) in relation to the commission of the offence,

(i) carried, used or threatened to use a weapon

(iii) trafficked in a substance included in Schedule I, II, III, IV or V, or possessed such a substance for the purpose of trafficking, in or near a school, on or near school grounds or in or near any other public place usually frequented by persons under the age of 18 years, or

(b) was previously convicted of a designated substance offence, as defined in subsection 2(1) of this Act, or a designated offence, as defined in subsection 2(1) of the Cannabis Act;”

The Aggravating and Mitigating Factors of this Case

43Pursuant to s. 718.2 of the Criminal Code, a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. The aggravating and mitigating factors are noted as follows:

Aggravating Factors

a) Possessing a loaded firearm in conjunction with drug trafficking is particularly dangerous. The Glock 26 Gen 5 handgun was loaded and ready to discharge. Additional ammunition accessible in the form of two loaded magazines was inside the vehicle. Given the concealed manner of the loaded handgun, any police officers or members of the public who came into contact with Mr. Hoggar were unknowingly facing the prospect of imminent harm or death with little warning;

b) The quantity of fentanyl (141.59 g), cocaine (668.8 g) and cash ($50,836.20 CDN) seized was significant and illustrated a sophisticated and highly lucrative drug trafficking business. The combined street value of the drugs was $69,200 to $110,300;

c) Mr. Hoggar was motivated by personal greed at the detriment of other people (there is no evidence he engaged in trafficking to support a drug addiction;

d) Sudbury is one of many Northern communities that has suffered amongst the highest rates of opioid toxicity mortality rates in 2023, the same year Mr. Hoggar was caught actively trafficking in fentanyl and cocaine in Sudbury. His illicit activities were motivated by financial gain and increased the risk of death and serious bodily harm to an already vulnerable population in the Northern region of the province;¹⁵

e) He was trafficking in a scheduled substance directly beside an elementary school and in residential areas;

f) Mr. Hoggar is a repeat offender with a criminal record for similar offences. He appears undeterred by legal sanctions imposed upon him for two similar offences of drug trafficking, possessing of property obtained by crime, and obstruction or resisting a peace officer.

Mitigating Factors

a) As a young Black man, Mr. Hoggar experienced significant trauma in his formative years that included being the victim of child sexual abuse while placed in a foster home. He was raised by his mother and stepfather and resided in subsidized housing in an underprivileged area of Toronto. He has never met his biological father. At the age of 15, his mother sent him to Ghana to shield him from the negative influences in his surroundings. He lived there for five years and suffered further trauma after running away and becoming homeless. He was captured by rebels and tortured for two days;

b) He turned to drugs (crack-cocaine) to cope with this stress and trauma. However, he has been clean from this addiction for at least six years. Given this achievement, and the notable gaps in this criminal record, he has demonstrated rehabilitative potential;

c) Mr. Hoggar has proven to be employable in recent years. From 2018, he had owned and operated his own trucking company. Since the charges were laid in April 2023, he has lost all business contracts due to the negative media attention. He is in the process of re-establishing a similar business with his brother’s assistance;

d) He is in a stable, long-term relationship with his common-law spouse and they are raising a two-year old son together. There is collateral damage suffered by his family due to these charges that has directly impacted their economic and emotional stability as a family;

e) In June 2024, Mr. Hoggar suffered a brain aneurysm that required surgery. Evidence of his hospitalization as previously presented by Mr. Bottomley in these proceedings is acknowledged. According to Mr. Hoggar’s common-law spouse, this medical condition affects Mr. Hoggar’s frontal lobe which controls decision-making, impulse control and judgment;

f) The police breached Mr. Hoggar’s Charter rights under s. 10(a) and (b). Notification of the discovery of the loaded, prohibited firearm, ammunition, cash, cocaine and fentanyl and the ensuing charges by the police was unjustifiably delayed. This notice resulted in a delayed second opportunity to consult with his counsel of choice while in custody.

g) He spent 500 days on release subject to tight bail terms that included house arrest and the requirement to wear an ankle monitoring device (Downes credit);

h) He was subject to three days of lock down at the Sudbury District Jail (Duncan credit).

The Sentence Range for Unlawful Possession of a Loaded Handgun

44Given the ease in which a handgun can be concealed and the obvious criminal intent it serves to achieve, its threat to public safety has been the subject of much discussion in the appellate courts for some time. In this context, these firearms exist explicitly for the purposes of killing or wounding other human beings. In other words, they do not serve any legitimate hunting or target shooting purpose.¹⁶ As stated by the Supreme Court of Canada in Nur, “Outside of law enforcement, these guns are primarily found in the hands of criminals who use them to intimidate, wound, maim, and kill.”

45In Morris, the Court of Appeal emphasized the dangers loaded firearms pose to the general public:¹⁷

“Gun crimes involving the possession of loaded, concealed firearms in public places pose a real and immediate danger to the public, especially anyone who interacts with the gun holder. When the person with the gun is confronted by the police, who are engaged in the lawful execution of their duties, the risk increases dramatically. It increases yet again when the gun holder flees, and still again when the gun holder discards the weapon in a public place. A person who carries a concealed, loaded handgun in public undermines the community's sense of safety and security. Carrying a concealed, loaded handgun in a public place in Canada is antithetical to the Canadian concept of a free and ordered society: see Nur (ONCA), at paras. 82, 206; R. v. Felawka, 1993 CanLII 36 (SCC), [1993] 4 S.C.R. 199, [1993] S.C.J. No. 117, at pp. 214-15 S.C.R.”

46As expressed by Doherty J.A., offenders who engage in truly criminal conduct or conduct that poses a real and immediate danger to the public should receive exemplary sentences that emphasize deterrence and denunciation.¹⁸ Given these recognized risks to public safety, the common law floor for “true crime” possession of a loaded firearm is three years imprisonment, even for first-time offenders.¹⁹

47The case law points to sentences longer than three years imprisonment in cases where loaded firearms are possessed while engaging in other criminal activity such as drug trafficking. The range appears to be three to five years in these circumstances.²⁰

48It is an undeniable fact that the 9 mm Glock 26 Gen 5 handgun, a loaded prohibited firearm, and the two loaded magazines, falls squarely within the true crime end of the spectrum for offences of this nature. Possession of loaded firearms increases the likelihood of tragedy in the form of death or serious bodily harm to the general public. As succinctly expressed by Justice Campbell in St. Clair, “To combat this serious societal problem, these offences must be met with exemplary custodial sentences that proportionately reflect the sheer gravity of the crime, and which appropriately stress the need to denounce and deter such crimes.”²¹

49Mr. Hoggar possessed these items as he briefly met with civilians on the day of his arrest in residential areas and beside an elementary school. Given the substantially high value of the total drugs and cash within the vehicle he was operating, the loaded handgun was an essential tool of his illicit drug trade when I consider the extent to which the handgun and ammunition were concealed within the vehicle, his conduct and the collective presence of fentanyl, cocaine, large sums of cash, packaging material and three cell phones.

50More importantly, possessing a concealed, loaded handgun with ammunition of this amount served no other purpose but to ready Mr. Hoggar to intimidate, wound, maim, and kill at his will and without warning. For example, when Mr. Hoggar was confronted by the arresting officers who were engaged in the lawful execution of their duties, the real and immediate danger to them and the public, increased dramatically. The handgun was loaded, accessible and unsafely stored within the vehicle. The dynamic circumstances of the arrest presented a highly volatile situation that elevated the ultimate threat of death to the civilians and police officers that were within the vicinity of Mr. Hoggar on April 19, 2023.

51Clearly, in this context, Mr. Hoggar’s unlawful possession of the loaded, prohibited firearm falls within the “true crime” characterization of these offences and the appropriate range is three to five years imprisonment.

The Range for Trafficking in Cocaine and Fentanyl as a Mid-Level Dealer

52Sentencing ranges in the case law for particular offences are guidelines for me to consider, rather than hard and fast rules. General ranges encourage consistency and parity while permitting judges to exercise discretion. All the circumstances of the offence and the offender must be considered in consideration of the needs of the community in which the offence occurred, balanced with the principles and objectives of sentencing.²²

53The characterization of Mr. Hoggar’s drug dealing activities is a relevant factor to consider in determining a fit sentence. Mr. Bottomley submits that the quantity of substances seized, and the monetary amount of cash present supports a reasonable inference that Mr. Hoggar was functioning as a mid-level drug dealer and is supportive of a four to seven and half year range. This does not appear to be in dispute when I examine the Federal Crown’s Book of Authorities.

54The range for cocaine trafficking of slightly more than a pound of cocaine for an individual without a criminal record is five to eight years penitentiary.²³ Here, Mr. Hoggar was found to be in possession of 668.8 grams of cocaine, equivalent to 1.474 pounds or 23.59 ounces. I agree with the Federal Crown that given Mr. Hoggar’s criminal record that includes two prior convictions for trafficking in a controlled substance eight years prior to the commission of these offences, that a sentence closer to the eight-year end of the range would be most appropriate.

55However, this does not account for the inclusion of the additional serious charges of fentanyl trafficking (141.59 grams) to be sentenced concurrently to trafficking in cocaine and possessing a loaded firearm which shall be sentenced consecutively.

56As it relates to the lead count of fentanyl trafficking, I have carefully reviewed each of the cases provided to me by the lawyers. They have assisted me greatly in appreciating the range of sentences for mid-level trafficking in hard drugs such as fentanyl and cocaine. As in most sentencing decisions, I am mindful of the distinguishing features in each of the cases highlighted by counsel. The cases filed by the Crown provide a clear picture of what the range of custody would be for mid-level, cocaine and fentanyl dealers.

57However, I note that while the quantities of fentanyl were generally similar and the length of custody aligned with what the Crown was seeking, mitigating factors absent in the present case were prevalent in some of those cases. Factors such as lesser quantities of cocaine and with offenders who had no prior record or suffered unique hardship during the COVID-19 pandemic. In other words, the cases filed by the Crown appear to strongly suggest that the range applicable to the facts of this case is higher than what Mr. Bottomley quantitively suggests to be the case for fentanyl trafficking.

58A number of the cases I reference below were included in Mr. Bottomely’s casebook and were directly on point from a legal perspective.²⁴ However, some of those decisions included facts with diluted substances or quantities of fentanyl significantly less than what Mr. Hoggar possessed or offenders with a lower level of culpability. Other cases presented with additional mitigating features that reduced their moral culpability in the form of personal struggles that contributed to their offending behaviour, such as an addiction to substances. Those specific mitigating facts have no application to Mr. Hoggar as the record is clear that he was motivated purely by financial profit while opportunities for bona fide employment in the form of his trucking business were readily available to him.²⁵

59While no two cases are alike, there are some that are more factually similar which will focus my ability to determine a fit sentence that is proportionate to the gravity of these offences in conjunction with Mr. Hoggar’s moral culpability.

60In addition to the cases filed by counsel, I have also considered the following sentencing decisions in determining the range of fentanyl trafficking in Ontario for a mid-level dealer such is in the eight-to-11-year range when I consider the specific quantities of fentanyl (141.59 g) and cocaine (668.8 g) of this case:

1. R. v. Johnson, 2025 ONSC 798 – 11.5 years for possessing 448.6 grams of fentanyl and 89.7 grams of cocaine for the purposes of trafficking. Justice J.S. Fregeau held that it was a significant aggravating factor that fentanyl and cocaine were being trafficked in Northern Ontario given the highly vulnerable communities in the region. Relying on Parranto, the court held that trafficking in fentanyl and cocaine to vulnerable northern communities was a significant aggravating factor in recognition of the extreme danger and lives destroyed that has contributed to the decline of communities across Northern Ontario.²⁶ No weapon of any kind was involved.

2. R. v. Owusu, 2024 ONSC 671 – 9 years, but reduced to 7 on totality for possessing 127.5 grams of fentanyl with a street value between $13,000 and $27,000. At para. 39, this was described by Mr. Justice M. Code as a “relatively large quantity of fentanyl” that presented “a significant risk of death to many vulnerable addicts and drug users who were being exploited for the sole purpose of financial gain.” Code J. characterized this accused as a mid-level drug dealer taken into consideration the quantity, value and manner in which the fentanyl was packaged. He was convicted of firearm related offences in the same incident. The accused was 27 years old at sentencing but 23 at the time of the offences. He had a serious youth record for violence and firearm related offences.

3. R. v. Gordon-Brown, 2024 ONSC 1300 – 9 years for trafficking in one ounce (28.35 g) of fentanyl but reduced on totality to 5 years after a guilty plea. He was also sentenced to 6 years for trafficking 10.5 grams of cocaine, two firearms offences and proceeds of crime, served concurrently. Mr. Gordon-Brown was 26 years old at the time of the offences and had no prior record. In citing his prior decision in Owusu, Mr. Justice M. Code concluded that “ounce and multi-ounce traffickers in fentanyl have received deterrent and denunciatory sentences in the eight to 11 year range.” [emphasis added]

Mr. Hoggar, at 141.59 grams of fentanyl (4.99 ounces), falls directly within this range.

4. R. v. Musa, 2022 ONSC 3734 – I found this case to of great assistance in determining a proportionate sentence due to the similarities in the amount of fentanyl seized combined with the presence of a loaded firearm. At paras. 24 to 28, the court summarized several Ontario cases from recent years that were consistently in the 5-to-8-year range for lower amounts of fentanyl than what Mr. Hoggar possessed. Some of these individuals had related criminal records for trafficking.

With no prior record at the time of these offences, Mr. Musa received 8 years for possessing 130 grams of fentanyl to be served concurrently for additional offences of possessing 59 grams of cocaine, 36 grams of crack cocaine and 39 grams of methamphetamine. The court imposed a further 3.5 years consecutive for possessing a prohibited firearm for a total sentence of 11.5 years, reduced to 9.75 months on totality.

5. R. v. Schramek, 2021 ONSC 436 – 7.5 years for possessing 156.7 grams of fentanyl along with smaller amounts of cocaine and methamphetamine. The accused had no prior criminal record at the time of the offences and struggled with an addiction to opiates. There were significant mitigating circumstances and there was some optimism noted in the PSR regarding his prospects of rehabilitation.

6. R. v. Aden, 2021 ONSC 2370 – 7 years for possessing 113.9 grams of fentanyl for the purposes of trafficking. The accused had a related record for trafficking as a youth and as an adult but had expressed remorse and insight into his actions. He was a post-secondary student with optimistic rehabilitative potential and extensive support from his family.

Unique mitigating factors from being incarcerated during the COVID-19 pandemic also factored into Justice London-Weinstein’s analysis in arriving at this sentence. It was explicitly noted at the end of that decision that this sentence was well below the range. I note that the sentencing judge in this case did not have the benefit of the Supreme Court’s decision in Parranto.

7. R. v. Disher, 2020 ONCA 710 – 8 years reduced by the Court of Appeal from 12 due to the sentencing judge’s error by failing to consider Mr. Disher’s rehabilitative prospects. He pleaded guilty to several drug offences due to possessing 47.5 grams of marijuana and heroin that was mixed with cocaine, fentanyl, analogues of fentanyl and carfentanil. He was also convicted of possessing a prohibited weapon and breaches of court orders and had a record for related drug offences. Notably, he suffered from a prolonged addiction to drugs and demonstrated some rehabilitative potential through programming prior to sentencing. This was another decision released prior to Parranto.

61Of note, with the exception of Johnson, these cases did not involve trafficking of fentanyl or cocaine in Northern Ontario. Therefore, factors related to the increased gravity and moral culpability of trafficking fentanyl in remote, vulnerable Northern communities was not a material aggravating factor. This is a significant consideration that will inform my analysis in determining a fit sentence in this case.

62Given the amount of fentanyl and cocaine seized, in combination with the amount of cash and other items, the case law filed by both counsels does support the assertion that at the time of these offences, Mr. Hoggar was operating as a mid-level dealer in Sudbury.

63When I include the quantity of fentanyl, I find on the facts of this case that the range for a mid-level dealer of fentanyl such as Mr. Hoggar is the eight-to-11-year range, as held by Code J. in Owusu and Gordon-Brown.

The Exponential Harm Caused by Fentanyl Trafficking

64Trafficking of hard drugs are not victimless crimes. Rather, they provide potent fuel to the fan the flames of violence, poverty, family breakdown and death amongst our most vulnerable citizens.

65But the dangers of cocaine and other hard drugs do not come close to the degree of harm fentanyl causes each day in our country. In recent years, fentanyl has emerged as a potent killer of individuals from coast to coast and has exponentially harmful impacts on the lives of so many today.

66In the Supreme Court of Canada decision of Parranto, Justice Moldaver made a point of explicitly stating the dangers posed by large scale fentanyl trafficking:

“In many ways, “[t]rafficking in fentanyl is almost the equivalent of putting multiple bullets in the chambers of a revolver and playing Russian roulette. It is the most efficient killer of drug users on the market today” (R. v. Frazer, 2017 ABPC 116, 58 Alta. L.R. (6th) 185, at para. 11). Put simply, it is a crime that can be expected to not only destroy lives, but to undermine the very foundations of our society.”

67Although Parranto dealt with wholesale traffickers, in Lynch, the Court of Appeal asserted that those who are not at the top of the drug dealing empire do not necessarily benefit from a reduced level of moral blameworthiness:²⁷

“Of course, those at the top of the supply chain deserve harsher sentences. But the fact that the respondent was not at the pinnacle of the drug dealing empire does not reduce the respondent's level of moral blameworthiness or mean that his actions are not serious. The producers of a product cannot get it into the hands of the consumer if there is no one to sell and deliver it.” [emphasis added]

68There is wisdom to this logic when one considers the necessary role that Mr. Hoggar played as a mid-level drug dealer in Sudbury and the significant quantity of cocaine, fentanyl and cash he possessed leading up to his arrest after brief meetings with individuals in a residential area and directly beside an elementary school.

69It is well understood that the moral culpability of a drug trafficker rises with the risk of serious harm or death they expose others to. As expressed by the Court of Appeal in Lynch, their choices have far-reaching impacts that costs our society dearly:²⁸

“The problems that dangerous drugs pose for our society are well known. They involve drug addiction, adverse health consequences and, unfortunately all too often, death. Further, drugs are often sold to already vulnerable people thereby exacerbating their difficult circumstances. Still further, there are the indirect costs to society through increased health care expense, increased demands on the health care system, increases in robberies or other forms of criminal activity, an increases in violence. Simply put, the greater those risks are when a particular drug is being trafficked, the greater the offender’s culpability or moral blameworthiness for choosing to traffic in that drug.” [emphasis added]

The Vulnerability of at-risk populations in Northern Ontario

70Trafficking in fentanyl and cocaine in Northern Ontario has additional considerations that are unique to our geography when I consider the prevalence of Indigenous communities, our remoteness from major urban centers and access to medical and treatment resources. As indicated, Sudbury is one of many Northern communities that has suffered amongst the highest rates of opioid toxicity mortality rates in 2023, the same year Mr. Hoggar was actively trafficking in fentanyl and cocaine locally.

71In Parranto, the Supreme Court of Canada specifically acknowledged the gravity of trafficking in fentanyl, particularly in conjunction with an offender’s willingness to exploit at-risk populations and communities in the name of profit.²⁹ That choice, that demonstrates a reckless disregard for human life, not only increases the gravity of the offence and the offender’s moral culpability but may also prove to be an aggravating factor on sentencing.

72Significantly, the Supreme Court made explicit reference to giving special consideration to the disproportionate harm caused to vulnerable northern communities, including Northern Ontario:³⁰

“ While all people and places merit protection, sentencing judges may, as they consider appropriate, give special consideration to the disproportionate harm caused to particularly vulnerable groups and/or vulnerable and remote locations, where escaping traffickers is more difficult and resources for combating addiction are more sparse. Here, for example, Mr. Felix was trafficking fentanyl destined for resale in the remote communities comprising the territory of Nunavut. As an outsider, he chose to traffic drugs to those vulnerable communities for easy money. It would have been open to the courts below to consider this as a significantly aggravating factor.

Similarly, in Ontario, trafficking fentanyl to vulnerable northern communities has been found to be an aggravating factor (Solano‑Santana, at para. 28).”

73Recently in Branco, Madame Justice S. Stothart highlighted the vulnerability of at-risk populations in Sudbury and neighbouring Manitoulin District that have felt the impact of rising numbers of overdose deaths in their respective Northern communities where the accused was trafficking large amounts of fentanyl.³¹ Specifically, Her Honour treated this as an aggravating factor:

“There are aggravating factors in this case. As I’ve already indicated, the accused was involved in the trafficking or possession for the purposes of trafficking of extremely large amount of fentanyl, he was involved in this actively in Sudbury and Manitoulin which I consider to be both at risk northern populations and communities. Manitoulin is an at-risk Indigenous population in northern Canada, and they are particularly in a crisis when it comes to the deaths that are occurring on Manitoulin Island, and that’s not to diminish the seriousness of the deaths that are occurring in Sudbury.

In Sudbury there’s a monument by the theatre where there are a number of white crosses where they’ve run out of room. They can’t put any more crosses there because so many people have died. And it’s a location that many Sudburians drive by every day and it’s a reminder of the loss of all of those lives and the impact that it would have had on their families.”

74The devastation upon the lives and families of vulnerable human beings in Sudbury and other parts of Northern Ontario are extensive and permanent. As evidenced in the quantity of drugs and cash seized, the undisputable motive of financial profit at the expense and suffering of real human lives substantially elevates the moral blameworthiness of Mr. Hoggar’s conduct.

75This degree of suffering that has devastated Sudbury and many northern communities calls out for a significantly lengthy penitentiary term that is truly proportionate to the gravity of these offences. This is particularly necessary to deter Mr. Hoggar and those that may consider committing similar offences that are motivated by greed and a desire for easy money at the expense of our most vulnerable fellow citizens, that has the potential to cause exponentially more harm here in Northern Ontario. Judicial recognition of this additional layer of vulnerability is well recognized as an aggravating factor in sentencing.³²

76As expressed by Justice M. J. Moldaver at paragraph 86 in Parranto, given the gravity of the offence of trafficking in fentanyl for personal gain and the need to impose severe penalties, lengthier custodial terms are warranted:³³

“Specifically, I wish to focus on the gravity of largescale trafficking in fentanyl for personal gain and the need to impose severe penalties, ranging from mid‑level double digit penitentiary terms up to and including life imprisonment, for those who do so. In R. v. Friesen, 2020 SCC 9, this Court held that appellate courts can and should depart from prior sentencing precedents when those precedents no longer reflect “society’s current understanding and awareness of the gravity of a particular offence and blameworthiness of particular offenders” (para. 35; see also paras. 108 and 110). In my view, society’s understanding of the gravity of largescale fentanyl trafficking has increased such that an upward departure is mandated.”

77Although this observation was in relation to largescale fentanyl traffickers, Justice Moldaver’s observations are no less in this case, with Mr. Hoggar operating in Sudbury as a mid-level drug dealer, given the potential to inflict death and suffering on the vulnerable citizens of Northern Ontario.³⁴ The same motive for profit at the expense of vulnerable human beings exists regardless of the precise scale of fentanyl trafficked.

78There must be a renewed recognition of the high moral blameworthiness that accurately reflects the gravity of these offences when fentanyl traffickers choose the path to easy money at the expense of vulnerable people in Northern Ontario.³⁵

79As Sudbury maintains one of the highest jurisdictions for opioid overdoses in the province, so too must there be an upward trend in the length of penitentiary sentences to be imposed by our courts.³⁶ Anything less would send the wrong message to those that contemplate the business decision to exploit the lives of vulnerable drug addicts for easy money.

80Mr. Hoggar’s choice in making the business decision to exploit the vulnerable, at-risk population in Sudbury in what is evidently a sophisticated, highly profitable enterprise motivated by his desire for easy money is highly aggravating and must be denounced in the strongest of terms.³⁷

81He was found to possess 141.59 grams of fentanyl and 668.8 grams of cocaine for the purposes of trafficking. The potential to cause prolonged human suffering and death was very real given these significant quantities of hard drugs. The total quantity of fentanyl, cocaine and cash found deeply hidden within the Nissan he was operating was between $120,036.20 to $161,136.20.

82The packaging material, multiple cell phones and loaded firearm with a significant amount of ammunition to cause death or bodily harm illustrates a high level of sophistication and premeditation in launching his illicit drug enterprise in a vulnerable, Northern community. His actions, while preying on our most vulnerable, proved to be lucrative. This level of premeditation demonstrates a callous disregard for human life for his own financial gain. It elevates the gravity of these trafficking offences and increases his moral culpability significantly.

83With respect to the second brief meeting on April 19, 2023, I note that this fell on a Wednesday, and that this brief meeting in his vehicle with the young male took place at 11: 55 a.m. in row houses directly beside Felix Ricard Elementary School. The likelihood of young children within the immediate vicinity was almost certain. The fact that Mr. Hoggar was actively trafficking in fentanyl or cocaine or possessed these substances for the purposes of trafficking in residential areas including directly next to an elementary school is statutorily aggravating pursuant to s. 10(2)(a)(iii) of the CDSA.

84Additionally, the very presence of a loaded, prohibited handgun with a bullet in the barrel and two loaded magazines posed an imminent threat to the safety of himself, the responding police officers, and the general public. The potential danger posed to everyone involved including members of the public in the location of the arrest³⁸ was elevated particularly when I consider Mr. Hoggar’s resistance to the arrest. We are quite fortunate that an already volatile situation did not result in the loss of life or serious harm when the officers were initially unaware of the number of occupants inside the vehicle as Mr. Hoggar shifted about ignoring the officer’s orders while under arrest.

85Undeterred by his two prior convictions for trafficking in controlled substances, he has preyed on the most vulnerable members of this Northern community for personal financial gain. There is a requirement to specifically deter Mr. Hoggar and generally deter the public from committing similar offences.

86I find this to be significantly aggravating factor given this level of objective harm, including the potential for future harm, on a vulnerable community in Northern Ontario. It is expected that he receives a sentence that holds him accountable to accurately reflect the wrongfulness of this behaviour.³⁹

Charter Breaches as a Mitigating Factor

87While under arrest for the initial trafficking offence and after Mr. Hoggar had exercised his rights to counsel, Mr. Hoggar’s Charter rights under s. 10(a) and (b) were breached due to the significant delay in notifying him of the change in his jeopardy. Notification of the discovery of the loaded, prohibited firearm, ammunition, cash, cocaine and fentanyl and the ensuing charges by the police was unjustifiably delayed. There were corresponding delays in fulfilling a second opportunity to receive rights to counsel and in the implementation of this right.

88No incriminating evidence was sought or obtained by the police from Mr. Hoggar during this period. In paragraphs 227 – 267 of my Reasons for Judgment, I found these breaches to be generally serious, but at the lower end of the spectrum and the actual impact on his Charter-protected interests to be minimal. Ultimately, the breaches had no impact on the progress of the police investigation and did not produce any relevant evidence or advantage for the Crown in their prosecution. To this end, and in a narrower sense, the violations were not serious.⁴⁰

89Still, there is no question in my mind that the nature of the Charter breaches should be considered mitigating on sentence, but it should not be overstated.⁴¹ While there is no mathematical calculation as to what this mitigation amounts to, I have considered this as an additional mitigating factor that will be accounted for in the total sentence.

Duncan Credit

90The conditions of pretrial custody are relevant in determining a fit sentence for an offender. The statutorily capped 1.5 to 1 "Summers" credit already takes into account the difficult and restrictive circumstances that offenders often encounter during pretrial custody.⁴²

91The Court of Appeal in Duncan held that where an accused has experienced exceptionally punitive conditions during remand which go well beyond the normal restrictions, additional credit may be provided to reflect the accused’s experiences as a mitigating factor.⁴³ Unlike Summers credit, Duncan credit is not a quantification of a deduction from the otherwise appropriate sentence. Rather, it is one of the mitigating factors to be taken into account in determining the appropriate sentence.⁴⁴ It is a deduction from the appropriate sentence as determined by the trial judge.⁴⁵ Although treated as a mitigating factor, Duncan credit cannot justify the imposition of a sentence which is inappropriate, having regard to all of the relevant mitigating or aggravating factors.⁴⁶

92A common factor in determining whether to apply any Duncan credit is the presence of lockdowns. Lockdowns deprive inmates of yard time, meaningful visits and contact with their families and their lawyer. It makes each day spent within the custodial institution that much more stressful and elevates the risk of conflict and violence for staff and prisoners.

93Here, the evidence in support of Duncan credit is minimal. The records filed by Mr. Bottomley indicate that Mr. Hoggar has spent a total of three days in some form of lockdown while at the Sudbury District Jail between his arrest on April 19, 2023, to being granted bail on June 22, 2023.

94Shortly after I convicted him of these offences, he was brought back into custody at the Edmonton Remand Centre on November 2, 2024, where he is currently situated. A letter from Alberta Public Safety confirms that he has and continues to receive 10 hours of time outside of his cell each day and has not been subject to any lock downs while in custody at that institution.

95The Crown does not dispute the accuracy of these records, nor the remedy of additional credit sought by Mr. Hoggar. He shall be entitled to some mitigation for the three days of lock down he endured at the Sudbury District Jail, but the degree of mitigation will be slight.

Downes Credit for House Arrest on Bail

96Should additional credit be applied towards Mr. Hoggar’s sentence for being released on tight bail terms that included house arrest? This is a highly discretionary exercise, and the law is clear that there are no mathematical formulas in determining whether any pre-trial credit should apply.⁴⁷

97The Court of Appeal has repeatedly stated that stringent bail terms such as house arrest can be a mitigating factor in assessing a fit sentence.⁴⁸ The logic being that strict bail terms are analogous to punishment and mirror the experience of serving time in custody. In assessing the weight of the mitigation to be given, the court should consider the amount of time spent on bail conditions; the stringency of those conditions; their impact on the offender's liberty; and the ability of the offender to carry on normal relationships, employment and activities.

98Recently in Lowe,⁴⁹ the Court of Appeal re-affirmed that Downes credit is best conceptualized as a mitigating factor but sentencing judges can exercise their discretion to grant numerical credit provided that it is “not necessarily inappropriate” so long as it does not “skew the calculation of the ultimate sentence” by giving the credit unwarranted significance: R. v. Joseph, 2020 ONCA 733, 153 O.R. (3d) 145, at paras. 107-8, 112-4; R. v. Marshall, 2021 ONCA 344, at para. 53.

99For the purposes of potential Downes credit, the relevant time frame is June 22, 2023, to November 2, 2024, which amounts to 500 days where Mr. Hoggar was bound by tight bail terms that included house arrest. Mr. Bottomley submits, and Mr. Bradley concedes, that an appropriate amount of credit should be one third or approximately 170 days.

100Clearly, the bail terms including house arrest were stringent. Mr. Hoggar was also required to wear an ankle bracelet with GSP monitoring. The only exception to house arrest was if Mr. Hoggar were to be with one of his three his sureties.

101While I fully acknowledge the stringent nature of these bail terms, I do not have any evidence that speaks to the adverse impact on Mr. Hoggar’s liberty including his ability to carry on normal relationships, employment and activities.

102According to Mr. Hoggar, it appears that despite the stringent bail terms, he was still able to drive to Edmonton to try and sell his trucks from his business with one of his sureties accompanying him.⁵⁰

103For the purposes of considering the applicability of Downes credit and the impact that these strict bail terms have had on Mr. Hoggar, I cannot ignore the fact that he was still able to exercise the freedom to travel some distance away from this jurisdiction and the residence he was ordered to reside in, in accordance with these very terms of release.

104Nonetheless, I am prepared to take judicial notice that for anyone to wear an ankle bracelet while bound by house arrest and comply without any breaches for 500 days, some mitigation is warranted. I acknowledge the significant impact these restrictions have had on Mr. Hoggar’s personal liberty. In this regard, I am exercising my discretion to grant him Downes credit in what I perceive to be a significantly mitigating factor in his favour.

The Impact of Anti-Black Racism in conjunction with Mr. Hoggar’s background

105There is no question that criminal conduct that includes the trafficking of illicit substances and possession of a loaded, prohibited firearm requires a denunciatory sentence due to the gravity of these offences. The degree of moral culpability for Mr. Hoggar increases with his related criminal record and his choice to profit off the vulnerability of people addicted to these substances in Northern Ontario.

106However, as noted by the Court of Appeal in Morris⁵¹, I take judicial notice of the existence of anti-Black racism in Canadian society in conjunction with Mr. Hoggar’s identity as a Black-Canadian. Although I do not have any specific evidence of Mr. Hoggar’s experiences of anti-Black racism, the degree of hardship he suffered during his upbringing highlights the need for me to be consciously aware of the over-representation of Black offenders in our prisons and the reasonable likelihood that these social conditions contributed to his decision to commit these offences.

107I remind myself that for there to be mitigation on sentence on account of anti-Black racism, there must be some connection between the overt and systemic racism identified and the circumstances or events that may explain his criminal conduct.⁵²

108The PSR provides a glimpse of his socio-economic reality growing up in subsidized housing in an under-privileged area of Toronto without ever knowing his biological father. He was placed in a foster home at the tender age of eight or nine and was sexually abused. Ironically, his mother’s efforts to remove him from negative influences in his surroundings resulted in further trauma, isolation and suffering when he was sent to live overseas in Ghana, away from his mother and siblings from the age of 15 to 20.

109I acknowledge that characteristics of his upbringing during his formative years are strikingly similar to many Black Canadians involved with the criminal justice system today. In Mr. Hoggar’s case, it is not difficult to understand how this level of prolonged trauma beginning at such a young age would have limited his opportunities to prosper and increased the likelihood that he would choose some form of criminality as a young adult. Ultimately, none of these factors excuses his conduct or reduces the gravity of the offences but it does diminish his level of moral blameworthiness due to his lived reality.⁵³

Balancing the impact on Mr. Hoggar’s family and preserving the hope of rehabilitation

110I am reminded that I must consider the impact that a sentence of incarceration will have on Mr. Hoggar's family. As instructed by C.J.O. Tulloch in R. v. Habib, 2024 ONCA 830 at paras. 44-45, I must give “…serious and sufficient consideration to family separation consequences.” Such consequences may “…justify a sentence adjustment or departure from the range even for grave offences that require deterrence and denunciation.”

111Embedded within this consideration exists totality and the principle of proportionality. The total length of the custodial period imposed must still reflect the variety of sentencing objectives, including denunciation, deterrence (specific and general), rehabilitation, the need to separate offenders from society where necessary, and the general imperative of promoting respect for the law and the maintenance of a just, peaceful and safe society: Criminal Code, s. 718.⁵⁴

112I have a duty to ensure that the sentence I impose does not crush any hope of rehabilitation for Mr. Hoggar upon his eventual release.⁵⁵ I also acknowledge that at almost 35 years of age, he is not a youthful first time offender and this is not his first custodial sentence.⁵⁶ Nonetheless, even though he has served a custodial term for each of the two prior trafficking convictions on his record, I am mindful of that this will still be his first penitentiary sentence.

113He has a history employment with his trucking business and there are some gaps in his record since the trafficking convictions in 2015. Combined with the support from his common-law partner, there remains some hope that Mr. Hoggar can be specifically deterred and make meaningful progress towards rehabilitation. This tempers the degree of specific deterrence warranted in the face of two prior convictions for trafficking in a scheduled substance and a history of obstruction and proceeds of crime offences that are similar to the current convictions.

114Restraint must be exercised as a I balance the competing purposes in determining the shortest possible sentence that will achieve the legal objectives and principles in s. 718 of the Criminal Code and the jurisprudence.

The Sentence:

115As enunciated by the Supreme Court in Lacasse, “The more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier the sentence will be.”⁵⁷ This is a delicate exercise, and I must be mindful that a sentence that is too lenient or too harsh may undermine the public’s confidence in the administration of justice.⁵⁸

116I have carefully considered the entire record before me and the submissions of counsel. I acknowledge the totality of mitigating factors in favor of Mr. Hoggar particularly due to the traumatic experiences he endured throughout his formative years that included abuse suffered in a foster home and as a youth in Ghana. I have also considered the impact that a lengthy sentence will have on Mr. Hoggar’s family and the likelihood that his personal circumstances are in some material way, a product of anti-black racism in Canadian society when I consider his personal circumstances that resulted in his own victimization. This social context mitigates his moral blameworthiness but does not reduce the gravity of these offences.

117Additionally, I am also mindful of the Charter breaches under sections 10(a) and (b), albeit of minimal impact on Mr. Hoggar and the investigation, prosecution and adjudication as a whole.

118I have considered the mitigating aspect of Mr. Hoggar’s prior medical diagnosis of a brain aneurysm suffered in June 2024 that has been asserted without objection from the Crown. However, there is no evidence presented to me that illustrates a need to accommodate his condition in the form of a doctor’s opinion, commentary from a correctional institution or update regarding the current status of his recovery.

119To the extend that I am being asked to find that his ability to serve a jail term would be more difficult than in the normal course, respectfully, the evidence is thin. Throughout his trial in July 2024, a month after this medical episode and surgery, and during each of the court appearances for sentencing this year, I did not observe any discernable impact on Mr. Hoggar’s ability to function day to day. In short, I do not have an evidentiary basis to make such a finding.

120Everyday, fentanyl consumption claims the lives of Canadians. It’s potency and ability to kill is unlike any other type of drug our country has previously experienced. It continues to be a scourge on our communities and exponentially destroy the lives of our citizens and the communities we live in. Many addicts of fentanyl are among the most vulnerable in our neighbourhoods and are prone to poverty, abuse, addiction, and an untimely death. Mr. Hoggar’s decision to exploit the lives of vulnerable people for easy money is significantly aggravating and must be sufficiently denounced to more accurately reflect Northern Ontario’s current understanding and awareness of the gravity of the offences of trafficking in fentanyl and other hard drugs. I remind myself that his motive was in no way related to a personal addiction to substances.⁵⁹ Because this was a conscious choice he made that was based entirely on financial gain, it elevates his moral blameworthiness.

121The range for trafficking in fentanyl of an ounce and multi-ounce quantities is in the eight-to-11-year range in Ontario.⁶⁰ Mr. Hoggar was trafficking in 4.994 ounces (141.59 g) of fentanyl and 23.59 ounces of cocaine (668.8 g). But ranges are not set in stone, and I am free to depart from them in the appropriate case, if there is good reason to do so. Having considered the individual aggravating and mitigating factors, this is not such a case. The sentence I am imposing for trafficking in fentanyl is within the range, but at the lowest end of this range for fentanyl trafficking of an ounce and multi-ounce quantities, because of the mitigating factors in Mr. Hoggar’s circumstances. The sentence shall be 8 years in a federal penitentiary for possessing fentanyl for the purposes of trafficking.

122The appropriate range for possession of a loaded, prohibited firearm without authorization is three to five years imprisonment. Mr. Ansell, for the Provincial Crown, emphasizes that the 9mm Glock 26 Gen 5 handgun possessed was fully loaded and accompanied with two loaded magazines. The ease in which this firearm could inflict death and bodily harm was high. Accordingly, I am required to impose a denunciatory sentence that communicates to Mr. Hoggar and the public that choosing to arm oneself with such a dangerous weapon will be met with many years in a federal penitentiary. The sentence shall be 4 years consecutive.

123Even after I give strong consideration to the fact that Mr. Hoggar will be serving his first penitentiary term, and in light of the principles of restraint and rehabilitation and the totality of the mitigating factors in his favour, this is the lowest sentence that I can justify when I carefully apply the principle of proportionality to the gravity of these offences committed upon a vulnerable community in Northern Ontario, the risk of death or bodily harm and the current range of sentences for trafficking in fentanyl in conjunction with the possession of a loaded firearm.

124Upon application of the totality principle, the 12-year sentence shall be reduced by 1 year for each of the lead counts for a total sentence of 10 years.

125Downes credit for strict bail terms on house arrest including an ankle-bracelet shall be 170 days.⁶¹Duncan credit to account for three days of lockdowns at the Sudbury District Jail has been incorporated into this total sentence as a mitigating factor. The total Summers credit shall be 486 days enhanced at the standard 1.5 days for each of the 324 actual days spent in presentence custody.⁶²

12610 years is equivalent to 3650 days. With a total credit of 656 days, this leaves 2994 days remaining as of today (approx. 8.2 years).

Conclusion:

127The sentence shall be 8 years custody for possession of fentanyl for the purposes of trafficking and 4 years consecutive for unlawful possession of a loaded, prohibited firearm for a total sentence of 12 years custody, reduced to 10 years upon application of the totality principle.

128All other counts shall either be stayed or served concurrently:

Count 6 – S. 5(2) of the CDSA, Possession of fentanyl for the purposes of trafficking – 8 years (reduced to 7 years on totality);

Count 7 – S. 5(2) of the CDSA, Possession of cocaine for the purposes of trafficking – 5 years, concurrent;

Count 5 - s. 95(1) of the Criminal Code, Unlawful possession of a loaded prohibited firearm – 4 years, consecutive (reduced to 3 years on totality);

Count 2 - Possession of a firearm knowing its possession was unauthorized, s. 92(1) of the Criminal Code – stayed;

Count 4 - Being an occupant in a vehicle knowing there was a firearm (9mm Glock 26 Gen 5 handgun), s. 94 of the Criminal Code – stayed;

Count 1 - s. 129(a) of the Criminal Code, Resisting Arrest – 30 days, concurrent;

Count 10 - Possession of property obtained by crime (Canadian currency of a value exceeding $5000) knowing that all or part of the property was obtained by an offence punishable by indictment, s. 354(1)(a) of the Criminal Code – 12 months, concurrent.

Ancillary Orders

129There will be a weapons prohibition pursuant to section 109 of the Criminal Code for life and a forfeiture order pursuant to s. 16(1)(b) of the CDSA.

130I am also ordering that a sample of blood be taken for inclusion on the national DNA databank, pursuant to section 487.051(1) of the Criminal Code.

131Given the length of time Mr. Hoggar will be in custody, the victim fine surcharges would cause him undue hardship and shall be waived.

132I wish to thank the lawyers for their professional advocacy in this hearing.

Footnotes

1. 1The facts in support of the convictions are reported at R. v. Hoggar, 2024, ONCJ 546.
2. 2R. v. Kienapple (1975), 1974 CanLII 14 (SCC), 15 C.C.C. (2d) 524 (S.C.C.).
3. 3R. v. Musa, 2022 ONSC 3734 at para. 41; R. v. Graham, 2018 ONSC 6817 at para. 43; R. v. Crevier, 2013 ONSC 2630, aff’d 2015 ONCA 619, at paras. 128-129; R. v. Ansah, 2021 ONSC 6339, at para. 58.
4. 4See “Legislative Framework for Controlled Substances”, Canada Gazette, Part 1, Volume 158, Number 22: Controlled Substances Regulations.
5. 5R. v. Nur, 2013 ONCA 677 at para. 55.
6. 6R. v. Bertrand Marchand, 2023 SCC 26 at paras. 94, 95, 97, 98.
7. 7I agree with Mr. Bottomley that Mr. Hoggar is entitled to the presumption of innocence. Despite the surety revocation and the fact that he currently finds himself in custody out of province on unrelated matters, I make no adverse inference from this.
8. 8During the trial, the Federal Crown invited me to enter a verdict of not guilty on count 3, Possession of Prohibited Ammunition, to wit, two loaded magazines containing ammunition without a license contrary to s. 92(2) of the Criminal Code. This was due to a technical issue with the wording of this count. While I am conscious of this legal outcome, it is factually admitted that the police seized two loaded magazines one of which included an extended magazine that is a prohibited device.
9. 9R. v. Morris, 2023 ONCA 816 at para. 36.
10. 10See s. 718.1 and 718.2 of the Criminal Code; R. v. Omoragbon, 2020 ONCA 336 at para. 28.
11. 11R. v. Friesen, 2020 SCC 9 at para. 31, 32.
12. 12R. v. Cox, 2011 ONCA 58; R. c. M. (L.), 2008 SCC 31, [2008] 2 S.C.R. 163.
13. 13R. v. Morris, 2021 ONCA 680 at para. 13.
14. 14R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para. 42.
15. 15In R. v. Branco, Unreported Reasons on Sentencing, SCJ Sudbury, January 10, 2025, Madame Justice S. Stothart made explicit reference to the at-risk populations of Sudbury and Manitoulin Districts as being particularly vulnerable northern communities when it comes to trafficking in fentanyl in the context of a guilty plea for an offender with no criminal record. Specifically, she cited the high number of overdose deaths in these Northern communities and treated this as an aggravating factor in accepting a joint submission of 12 years penitentiary on similar charges, albeit with a significantly higher quantity of fentanyl (in excess of 500 grams).
16. 16The inherent danger and risk of death posed by the mere presence of a restricted or prohibited firearm has been emphasized by the Supreme Court in R. v. Nur, 2015 SCC 15 at para. 136.
17. 17R. v. Morris, 2021 ONCA 680 para. 68
18. 18R. v. Nur, 2013 ONCA 677 at paras. 51, 206.
19. 19R. v. Nur, 2015 SCC 15, affirming R. v. Nur, 2013 ONCA 677.
20. 20R. v. Marong, 2020 ONCA 598.
21. 21R. v. St. Clair, 2018 ONSC 7028 at para. 47, cited in R. v. Musa, 2022 ONSC 3734, 2022 ONSC3734 at para. 30.
22. 22R. v. Nasogaluak, 2010 SCC 6 at para. 44.
23. 23R. v. Bryan, 2011 ONCA 273 at para. 1.
24. 24See for example, R. v. Williams, 2023 ONSC 6273 at paras. 36, 39, where the cases referenced by Mr. Bottomley in his oral submissions include some of the cases that I explicitly reference in my Reasons.
25. 25See Mr. Hoggar’s PSR at page 4, where he confirms that he has been clean from a past drug addiction to crack-cocaine for six years, currently reports no issues with alcohol and has owned his own trucking business since 2018. Although his common-law spouse indicates they lost their trucking business and their two residences due to negative media attention from these charges, this level of financial and business prosperity suggests that Mr. Hoggar was not suffering from a desperate set of circumstances related to an addiction to substances while trafficking in fentanyl and cocaine. On this point, Mr. Hoggar’s level of moral blameworthiness is substantially distinguishable from jurisprudence involving offenders addicted to drugs.
26. 26R. v. Johnson, 2025 ONSC 798 at paras. 50-53.
27. 27R. v. Lynch, 2022 ONCA 109 at para. 15.
28. 28Lynch, at para. 17.
29. 29Parranto, at para. 70.
30. 30Parranto, at para. 71.
31. 31This was a guilty plea in which Madame Justice S. Stothart accepted a joint submission for 12 years penitentiary on charges of trafficking in fentanyl, cocaine and firearm charges, albeit with a significantly higher quantity of fentanyl (total in excess of 500 grams). Mr. Branco had no criminal record and the Court expressed that significant credit was awarded due to the guilty plea: R. v. Branco, Reasons on Sentencing, SCJ Sudbury, January 10, 2025, pg. 32, 39, 40, 41: Unreported, CR1324-23, CR1466-24, CR1324-23, CR-1324-23.
32. 32See R. v. Christiansen, 2016 ONSC 3820 at para. 29; R. v. Johnson, 2025 ONSC 798 at paras. 24, 25, 50-53; R. v. Parranto, 2021 SCC 46 at paras. 70, 71; R. v. Lynch, 2022 ONCA 109 at para. 17; R. v. Puentes-Reed, 2023 ONSC 2555 at para. 16.
33. 33Parranto, at para. 86.
34. 34Parranto, at paras. 70, 71.
35. 35Parranto, at para. 86.
36. 36The opioid toxicity mortality rate in Sudbury is among the highest in Ontario. In R. v. Johnson, 2025 ONSC 798 at para. 25, Sudbury is noted as the third highest in Ontario by reference to 2023 statistics from the Northwestern Health Unit.
37. 37Parranto, at para. 71
38. 38In the back laneway of the residence to 299 Elm Street, Sudbury.
39. 39Parranto, at para. 71.
40. 40R. v. Collins, 2023 ONSC 5768 at para. 70.
41. 41Collins, at para. 69.
42. 42R. v. Summers, 2014 SCC 26 at paras. 28-29.
43. 43R. v. Duncan, 2016 ONCA 754 at para. 50.
44. 44R. v. Marshall, 2021 ONCA 344 at para. 52.
45. 45Marshall, at para. 51.
46. 46Marshall, at para. 52.
47. 47R. v. Dodman, 2021 ONCA 543 at para. 10.
48. 48R. v. Joseph, 2020 ONCA 733 at para. 108; R. v. Downes, (2006), 2006 CanLII 3957 (ON CA), 205 C.C.C. (3d) 488 (Ont. C.A.), at paras. 33-37.
49. 49R. v. Lowe, 2025 ONCA 475 at para. 17.
50. 50This appears to be a bona fide business purpose. I make no adverse inference of the fact that he now finds himself in custody in Edmonton.
51. 51R. v. Morris, 2021 ONCA 680 at para. 1; R. v. Morris, 2023 ONCA 816.
52. 52R. v. Morris, 2021 ONCA 680 at para. 97.
53. 53R. v. Charley, 2025 ONSC 2490 at paras. 30-31; R. v. L.C., 2022 ONCA 863 at para. 37.
54. 54R. v. Johnson, 2012 ONCA 339 at para. 18.
55. 55Johnson, at para. 16.
56. 56R. v. Borde, 2003 CanLII 4187 (ON CA), [2003] O.J. No. 354 (Ont. C.A.).
57. 57R. v. Lacasse, 2015 SCC 64 at para. 12.
58. 58Lacasse, at para. 12.
59. 59Courts have considered this distinction on motive in weighing the moral blameworthiness of an offender for engaging in trafficking offences. See in this regard: R. v. Draper (2010), 253 C.C.C. (3d) 351, [2010] 8 W.W.R. 609, 478 W.A.C. 267, 251 Man. R. (2d) 267, 87 W.C.B. (2d) 448, [2010] M.J. No. 94, 2010 MBCA 35, 2010 CarswellMan 98 (Man. C.A.), at para. 24; R. v. McCulloch (2011), 94 W.C.B. (2d) 339, [2011] A.J. No. 448, 2011 ABCA 124, 2011 CarswellAlta 666(C.A.).
60. 60R. v. Gordon-Brown, 2024 ONSC 1300.
61. 61As submitted by Mr. Bottomley, one third of 500 days is to be allotted as Downes credit, with no objection from the Crown. This amounts to 170 days.
62. 62Presentence credit of 324 days enhanced with the standard 1.5 equals 486 days Summers credit up to July 18/25.