CITATION: R. v. Calzada-Preciado, 2025 ONCJ 717
Information No. 4810 999 24 48101623-00
4810 998 24 48114862-00
ONTARIO COURT OF JUSTICE
HIS MAJESTY THE KING
v.
RODRIGO CALZADA-PRECIADO
REASONS FOR SENTENCE
BEFORE THE HONOURABLE JUSTICE B. BROWN
on October 24, 2025 at TORONTO, Ontario
APPEARANCES:
V. Sayed Counsel for the Crown
B. Chaudry Counsel for Rodrigo Calzada-Preciado
Friday October 24, 2025
BROWN, J: (Orally)
Mr. Rodrigo Calzada-Preciado entered a guilty plea on June 26, 2025, which was the date set for trial, to a charge of possession for the purpose of trafficking in fentanyl on May 2nd, 2024. He was in custody at the time and a pre-sentence report was ordered. The case was put over for sentence to be imposed and for counsel to put before the Court various materials and cases for the consideration by this Court. The case is now before the Court for the imposition of sentence.
The Crown has submitted that a sentence in the range of three years in the penitentiary, or revised to a slightly lower amount, less any pre-sentence-custody enhanced credit is the appropriate penalty. The defense is requesting consideration of a conditional sentence less than two years in length.
I. The Facts
A. Circumstances of the offense
The facts were admitted pursuant to an agreed statement of facts which was filed in evidence. There was an agreement that all of these facts be entered and considered by the Court. Those facts are as follows: On May 2nd, 2024, at approximately 4:08 p.m., officers from 51 Division’s Community Response Unit, Officers Winslow, Cedrone and Steger were conducting general patrol in the area of Jarvis Street and Cawthra Square in Toronto. While patrolling on bicycles, officers observed a male operating an electric scooter who had stopped beside a white Nissan Rogue, Ontario license plate B-V-R-X 782, parked on the north side of Cawthra Square. The male was rummaging through the open driver side door of the vehicle. Officers conducted a CPIC inquiry on the license plate which returned registered to Rodrigo Calzada-Preciado, date of birth 1976-06-27, wanted on a Canada-wide bench warrant by the London Police Force. The male closed the door of the vehicle and started traveling westbound on the electric scooter. Officers intercepted the male, who verbally identified himself as Rodrigo Calzada-Preciado. He was immediately arrested on the strength of the outstanding warrant. On arrest, the applicant was searched. Officer Steger located a plastic container containing fentanyl in the applicant’s pocket. A fanny-pack worn by the applicant contained a prescription pill bottle with methamphetamine. A black digital scale, and approximately $850 dollars in Canadian currency were also located and seized. The officers also located a glass pipe. The applicant was transported to 51 Division by Officer Simmons and proceeded without incident. Officer Winslow weighed and sealed the drug exhibits which included 14.66 grams of fentanyl in total, consisting:
5.37 grams of blue/red fentanyl
2.86 grams of green fentanyl
6.43 grams of purple fentanyl
17.7 grams of crystal methamphetamine
$850 in Canadian currency
a glass pipe.
He was given his rights to counsel and released on a Form 10 undertaking.
B. Circumstances of the offender
Mr. Calzada-Preciado was — as of the date the Court prepared this — 49 years of age. He is a Canadian citizen and he has no prior criminal record. He has one adult child who resides in San Diego. He is currently not in a relationship. The relationship with the mother of his child ended some time ago and she also lives in San Diego, California. He was in a relationship with a man which ended after seventeen years in 2022. It appears that he had an excellent family life with supportive parents.
The pre-sentence report states, excerpting relevant portions, as follows: He was born in Mexico City and he came to Canada through Toronto when he was 25 years of age. He advised that he decided to leave Mexico due to intimidation and being persecuted by police. He was granted Canadian citizenship as he arrived as a refugee. His family consists of his mother, father, three brothers and three sisters. He is the youngest of seven children. He recalled a positive childhood and upbringing and reflected on how both of his parents were present and emotionally supportive of him and his siblings.
At 18 years old, the subject disclosed to his parents that he is a homosexual and he recalled how he was accepted by them without judgment and how they were supportive of him. The subject reflected on fond memories of traveling with his family and meeting his ex-partner's family. The subject's father passed away in 2010 and the subject discussed how he had a close relationship with his father prior to him passing away. The subject maintains a supportive relationship with his mother, who resides in Mexico. He speaks with her daily and visits with her regularly. He maintains positive and supportive relationships with all of his siblings.
He has one child who is now 22 years old. He was in a relationship with the mother for four years, and despite separating, he maintains a good relationship with her. He communicates regularly with his son and the mother of his child in San Diego, California. He has never been married, but he has been in a relationship with a man, his ex-partner, for seventeen years. That relationship has ended. This significantly impacted him emotionally, and he advised that he was struggling with grieving issues and related emotional-health challenges.
In terms of education, he attended a university in Mexico, starting in a program in information technology. He switched out of that program because it was not for him. He stopped attending school when he left Mexico and moved to Canada. In 2012, he started his own maintenance company and continued to operate this business until 2024. He had a contract with a business, but once the contract ended, his business struggled and he took on smaller jobs.
In terms of substance use and addictions, I'm going to quote the whole first paragraph:
The subject advised that he has no history of problematic alcohol use or treatment for a problem with alcohol. In 2022, the subject began using crystal methamphetamine and fentanyl. His substance use quickly escalated and he became psychologically and physically addicted to these substances. The subject advised that he never thought he would ever use illicit substances. However, he noted an incident where his apartment caught fire and he lost all of his belongings and lost his pets, and this event impacted him emotionally and was the catalyst for his substance use. The subject began self-medicating unpleasant emotions associated with this event, along with the separation from his partner. The subject reports that he is now abstinent from all substances and is currently in a methadone program at True North Medical Toronto Addiction Treatment Centre. By the way, this report was prepared in the summer of 2025.
He has indicated to the author of the report a diagnosis of depression and post-traumatic stress disorder from a psychiatrist at a prominent addiction and mental health agency in Toronto. The report doesn't have any other material with respect to that. The report also indicates that the subject has expressed remorse for his actions, stating, “I need to change. I need to get back on track.” He discussed how the loss of his relationship with his ex-partner and the apartment fire and loss of his pets impacted him negatively, and he felt hopeless thereafter. He advised that he began using illicit drugs problematically in efforts to self-medicate. As a result, he advised that he purchased large quantities of drugs for personal use.
Those are the excerpts from the pre-sentence report that the Court is going to refer to. As noted, there is a reference to a potential dependency or addiction to Schedule I drugs. The Court sought further information from the defense in that regard. In that regard, the Court has obtained from the defense counsel 36 pages of medical records from CAMH with respect to Mr. Calzada-Preciado's relationship with that organization and that program. I’m going to provide a summary that I've prepared for the Court in terms of those records.
Mr. Calzada had previously advised through counsel that he suffers from a dependency or addiction to fentanyl and potentially methamphetamine, from the past. The Court had asked counsel for further information in that regard and the Court now turns to the records from CAMH. The following appears to be relevant to the issues before the Court from those records.
On January 20th, 2023, Mr. Calzada-Preciado attended at CAMH for a self-referral. He met with staff at the Concurrent Disorders Clinic at CAMH and had a lengthy referral intake which culminated in the preparation of a lengthy form. At that time, he indicated that he had been taking fentanyl since September of 2022 and that he was taking it daily. He indicated he never took cocaine and at that time was taking methamphetamine daily or almost daily. He indicated he was not taking street opioids, but was taking prescription opioids. CAMH then followed up with a contact: his family physician, Dr. Gerson Moo, requesting a referral for the addiction consultation. That referral was subsequently sent back by Dr. Moo to CAMH.
On January 26th, 2023, a broad-spectrum drug screening conducted by CAMH at the time of a meeting with Mr. Calzada-Preciado detected fentanyl but no methamphetamines, and immunoassay drug screen detected negative opiates in the screen. On the same day, January 26th, 2023, in a consultation with Dr. LeFoll, in person with Mr. Calzada-Preciado, various notes were made. The doctor noted the goal of Mr. Calzada-Preciado to stop using substances. There was noted use of fentanyl at night daily, having started in September of 2022 with an indication that he did not use other types of opioids. In terms of his usage, it noted the largest amount ever used was a point a day, and that the average amount of money spent on use per day was $20 dollars to $40 dollars.
It was noted that this was the first time he was seeking help and that it was very important in the view of the patient to make a change. When asked how ready he was to make the change, on a scale of one to ten, Mr. Calzada-Preciado indicated a “five”. Dr. LeFoll diagnosed Mr. Calzada-Preciado as suffering from a “moderate substance use disorder” in severity. The doctor's impression was “moderate” fentanyl use disorder. The doctor indicated that he would benefit from Suboxone with a goal to abstain from opioids and start on Suboxone with a follow-up the following week. Mr. Calzada-Preciado completed a lengthy consent to taking methadone and Suboxone.
On January 27th, 2023, the prescription for Suboxone was started. On January 29th, 2023, there was a note on his record that he failed to attend the pharmacy for his Suboxone dose on that day. That was two days later. On a date in February of 2023 for an appointment with Dr. LeFoll, it was noted that Mr. Calzada-Preciado did not attend the appointment – again, that was a short time after he was prescribed the Suboxone that he hadn't taken, it appears, since January 28th or earlier.
On April 13th of 2023, Mr. Calzada-Preciado attended an appointment with Dr. LeFoll. He indicated he did not continue the Suboxone as he did not find it was effective and that he went back to using fentanyl daily, smoking, not injecting, noting that he cannot stop himself on his own. He indicated he would like to return for an appointment to explore more options. He was still taking cannabis daily. He indicated he did not use cocaine or methamphetamine. He still had a diagnosis of “opioid use disorder, moderate”.
On April 27th of 2023, Mr. Calzada-Preciado did not attend for a consultation with the addictions physician, Dr. LeFoll. Following that missed appointment in April of 2023, there was no indication of Mr. Calzada-Preciado attending at CAMH for any treatment or testing. The Court does note that the most recent entry in those records was on November 11th of 2024 when Mr. Calzada-Preciado’s physician, Dr. Moo, sent a referral relating to his patient, who was the accused, being in jail with an anticipated release date of December of 2024. It was noted at that time that he has been lost to follow-up and that he had been started on Suboxone. It also referenced legal involvement in September of 2024.
The offence date in this case is May 2nd of 2024. Accordingly, there is no evidence before this Court as to Mr. Calzada-Preciado taking any treatment from early 2023 until the date of the offence, and no indication from CAMH as to his usage or treatment in May of 2024, except that he most recently was not using methamphetamine. His previous usage was noted in January as set out above, and that was January when he was there in 2023.
His level of dependency was classified as “moderate”, and there appeared to have been no change to that diagnosis. It is clear from his actions that Mr. Calzada-Preciado did not maintain any commitment to any particular degree to get treatment prior to the offence date.
There also does not appear to have been any attempt by virtue of meeting with CAMH to deal with any dependency on the part of Mr. Calzada-Preciado after his offence. Although his doctor made a referral, there was no indication that he ever appeared at CAMH for treatment, testing or anything else of that nature.
Initially, on June 10th of 2024, Mr. Calzada-Preciado was released on an undertaking on these charges with no conditions that would have restricted any pursuit of drug treatment. After being charged with additional charges, he was detained in custody on October 7th of 2024. As set out herein, Mr. Calzada-Preciado was released on bail July 18th of 2025 with a house arrest surety bail naming Patricia Maria Calzada as the surety. He was permitted an exception to the house arrest when in the direct and continuous presence of his surety. It is not clear why he did not seek this important treatment in the presence of his surety to return to CAMH. Nonetheless, it does potentially provide some insight in terms of willingness to take treatment.
The defense has made submissions that it was difficult or not possible for him to get continued treatment while on bail. This is somewhat contrary to another defense submission in court; The Court has been advised that he's currently taking methadone and he's gone to appointments with his surety with a doctor to get the drug, although the defense has not provided any letters or any evidence or details in support of what his client has told him. It is not supported in terms of having been at CAMH where he previously sought — on a very short-term basis — some treatment. Again, the Court is lacking in details in terms of what, if anything, he's been doing while he was out of custody.
There are a number of letters which are in the nature of character references which have been filed by the defense; One is in Spanish and it has not been translated, so the Court is unable to determine the contents of that letter. The Court has very carefully read the contents of the letters.
Those letters included letter from Margarita Cortes-Guzman. She indicates she's a medical secretary working at North York General Hospital, and she is the sister-in-law because she has married his brother (and I'm quoting the wording from the letter, even though some of it I know is not correct in terms of proper grammar.) She indicates that the accused has always been a very kind person to people around him. She indicates as the professional owner of his own business, he is very hardworking, kind and adaptable. She indicates for his family and those of them who have worked for him, he has always been an unconditional supporter. She indicates that he has made mistakes through the twists of fate and that's why he ended up in the detention center. She also indicates more than ever, he is firmly focused on the lawful and right path he wants to return to.
The Court also considers a letter that's authored by Ana Karina Calzada. She indicates that the accused is her uncle. He has shown qualities of strength, kindness and a willingness to take accountability for his actions. She indicates he has a big heart and he is always there for his loved ones. The Court also has the letter from Maria Bunano, who indicates she's known the accused for over three years and met him through work. She describes him as an excellent boss who has shown understanding and patience, and was always willing to help others.
The Court also has a letter from Jesus Calzada. This is the son of Mr. Calzada-Preciado. He indicates, “My dad is the reason I am the man that I am today. It hurts to see everything he built with sweat and tears all come crumbling down with one wrong mistake.” He indicates that his father always put everyone first, that he always had a smile on his face every day. He indicates that he is now 22 years old and that he was hurt when his father wasn't there for his daughter’s gender reveal and his daughter's baby shower, and that he misses his dad.
Finally, the Court has a letter from Reina Alfaro, who is the sister-in-law of Mr. Calzada-Preciado. She indicates that she's known him for over four years and describes him as a great person, extremely hard working and responsible. She indicates he used to be the owner of the “Great Clean” company. She indicates he is a good person that can be trusted.
The defense has also filed a series of certificates which relate to various programs of a rehabilitative nature which the accused has taken while in custody. The Court will just refer to these reports at this time. They are all certificates of completion. The first one is with respect to the African Canadian Excellence Session 6, “Making Good Choices” and “Asking For Help”; The Adult Learning and Employment Programs for adult learning and financial literacy; The program for loneliness; The program for the media's perception of black men; The program “Positive Black Images and Role Models”; The program “Winds of War”; The program “Dealing With Conflict Situations”; The Program “Follow Me”; The program “The Company We Keep”; the program “Black Employment Support Program”; The program “Healthy Relationship Series”; The program “Use of Leisure Time”; The Program “Life Skills - Men's Educational Sessions”; those are the programs for which the Court has been provided with certificates of completion, which the Court considers with respect to the circumstances of the offender.
Mr. Calzada-Preciado has expressed remorse to the author of the pre-sentence report. However, it is important to note the nature of that remorse. It was in the nature of remorse for the effect this offense has had on his life, rather than any remorse for having had drugs to sell to other people, for having highly addictive Schedule I drugs, being fentanyl and crystal methamphetamine, which are the drugs which have caused great disruption and damage to even his life, much less potentially might cause similar damage to other people. Mr. Calzada-Preciado, this Court would find, is intimately aware of how addictive these drugs can be and what they can do to other people, and yet he chose to get them to sell to other people. There is no expressed remorse for that other than the entry of the guilty plea on the day he was about to start his trial.
II. Legal Parameters
The maximum penalty for this offense is set out by Section 5, subsection 2 of the Controlled Drugs and Substances Act for the offense of possession for the purpose of trafficking in the Schedule I drug, which is fentanyl, is life imprisonment.
III. Positions of Crown and defence on sentence:
The Crown submits that the appropriate range of sentence for this offense is three-to-five years jail, and submits that for this offender and this offense, the appropriate sentence is three years incarceration, less pre-sentence custody for time spent in custody with enhanced credit for Summers. In the end, the Crown revised this and agreed that it would take into account the actual days of pre-sentence custody credit, being 303 actual days; applying the Summers credit of a multiplier of 1.5 days credit for each day, this would give rise to enhanced pre-sentence custody credit of 455 days. After the Crown took that initial position, additional evidence came before the Court relating to lockdown days, partial, full and tiered, and triple-bunking days as noted below.
In addition, the defense has made the submission that Mr. Calzada-Preciado suffers from a dependency to Schedule I drugs which he possessed, and had a portion of them for personal use. Applying the principles in R. v. Marshall, 2021 ONCA 344, related to the additional credit for the conditions in the jail, and what the Crown characterized as the fairly weak connection by way of his drug dependency related to the offense, the Crown revised its position to one of 32 months jail, less 455 days of enhanced pre-sentence custody credit. This would result in a sentence of incarceration of 960 days less 455 days, which is 505 days in jail. This would result in a sentence of approximately 16 months and 25 days in jail. The Crown also requested various ancillary orders. The Crown strongly opposed a conditional sentence, should the Court have been inclined to consider a sentence of two years less a day.
The defence initially submitted that the appropriate sentence was a conditional sentence of two years less a day. In oral submissions made in court following the written submissions and the filing of lockdown records, the defense revised that to be a position of a length similar to that requested by the Crown, which is 16 months and 25 days in jail, albeit the defense request is that be the length for a conditional sentence.
IV. Mitigating and Aggravating Factors:
A. Mitigating
Mr. Calzada-Preciado is a first offender, but not a young offender. He has expressed remorse to the author of the pre-sentence report, but as noted above, his remorse is for the effect this offense has had on his life, rather than the effect of this offense potentially on other people who might have taken or become addicted to the highly addictive drugs that he possessed for the purpose of trafficking. While Mr. Calzada-Preciado entered a guilty plea to this charge, he did so at the very last opportunity. The case was set for trial and three days of court time were set aside for this trial. The very late entry of the guilty plea on the first day of trial meant that other cases could not utilize some of this, if not all of this time for their cases. While a guilty plea is an indication of remorse and mitigation of penalty, the value of this mitigation is lessened by the circumstances of the timing of the guilty plea.
The defense has submitted that the defendant suffers from an addiction or dependency to both fentanyl and methamphetamine, and that this was related to the commission of the offence. The Court has reviewed earlier in the reasons the review of the materials from CAMH. The Court would question whether he actually had an addiction to methamphetamine around the time of the offense, given the CAMH records which the Court has reviewed. It would seem he might have had a past addiction to methamphetamine but had not been taking it for quite some time before the offence before the Court. That is a notable circumstance this Court would find with respect to the submission that he is suffering from a drug dependency.
It is also mitigating that the pre-sentence report indicates that he suffers from depression and P-T-S-D, although there's no further information in that regard. The report indicates that the accused has strong rehabilitative prospects, evidenced by the numerous programs he has attended while incarcerated, his commitment to change, and clear support of many friends and family members. The Court is a little bit unclear on his long-term commitment with respect to drug dependency, although notes the Court has been recently advised that he's not currently consuming any drugs.
B. Aggravating
Mr. Calzada-Preciado was in possession of a significant amount of fentanyl, being 14.66 grams, and as well he had three different varieties of that Schedule I drug being blue/red, green and purple. This was in a container that he had been storing them, available for sale. He was also in possession of a significant amount of crystal methamphetamine being 17.7 grams. The varieties of these drugs, together with a digital scale, together with a significant amount of cash being $850 dollars of Canadian funds, are indicative of a more involved trafficking scheme than a very low-level drug trafficker.
Although the Court accepts the defense position that he was moderately dependent on taking some fentanyl, the Court finds that the quantity of these two highly addictive Schedule I drugs went far beyond what he would have possessed for his own use. The Court would note the entry of the guilty plea and the admission of facts is also consistent with that scenario.
Mr. Calzada-Preciado was also on release for charges of possession of fentanyl, and impaired by a drug in the operation of a motor vehicle at the time of the offense. This is clearly an aggravating factor. He failed to appear in court for those charges and there was an outstanding warrant for arrest when he was stopped by the police in relation to the investigation in the charge before this Court.
V. SENTENCING PRINCIPLES
A. Analysis
The Court bears in mind the guiding comments of the Supreme Court of Canada in R. v. Lacasse 2015 SCC 64, [2015] S.C.J. No. 64. In that judgment, the Court stated that sentencing ranges are primarily guidelines, not hard and fast rules.
Even if an appellate court has established a range, it may be that a fact pattern may arise which is sufficiently dissimilar to past decisions, that the range must be expanded. Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered averages, let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges who must still exercise their discretion in each case. Accordingly, a sentencing range is not a straitjacket to the exercise of discretion of a sentencing judge. Each crime is committed in unique circumstances by an offender with a unique profile. Everything depends on the gravity of the offense, the offender's degree of responsibility, and the specific circumstances of each case. “Sentencing ranges must in all cases remain only one tool among others that are intended to aid trial judges and their work.” The Court specifically considers paragraph 73 of Lacasse.
In 2010, the Supreme Court of Canada noted in R. v. Nasogaluak 2010 SCC 6, [2010] 1 S.C.R 206, at paragraph 43 that “no one sentencing objective trumps the others, and it falls to the sentencing judge to determine which objective or objectives merit the greatest weight given the particulars of the case.” Sentencing is highly individualized. See R. v. Suter, 2018 SCC 34. As the Court stated in paragraph 4:
The delicate balancing of the various sentencing principles and objectives is called for, in line with the overriding principle that a “sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. (Section 718.1 of the Criminal Code.) Accordingly, there will be cases where the particular circumstances of the offense and/or the offender call for a sentence that falls outside of the normal sentencing range. This is one such case.
In 2021, the Supreme Court of Canada in R. v. Parranto 2021 SCC 46, [2021] S.C.J. No. 46, in the majority judgment at paragraph 10 noted that proportionality is the organizing principle for the Court in imposing a fair, fit and principled sentence. Proportionality is the fundamental principle. “Sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender” and the unique circumstances of each case. Parity and individualization are important yet secondary principles. The demands of proportionality must be calibrated by reference to the sentences imposed in other cases. Individualization is central to the assessment of proportionality in that it demands consideration of the individual circumstances of each offender, as set out in paragraph 12 of that case.
As often stated by appellate courts considering sentence appeals, every case has its unique features relating to the offender or the offence. The Court has reviewed all of the cases referred to by the defense and the Crown in this case. The absence of mention by this Court does not mean that this Court has not considered a particular case. It simply reflects the Court's view that it's not worthy of going into detail in the reasons.
The principle of proportionality is also codified in the Criminal Code, which states that the sentence imposed by the Court must be proportionate to the gravity of the offense and the degree of responsibility of the offender. (See Section 718.1 of the Criminal Code.) Further, the Court bears in mind that, the fundamental principle of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives:
A) Denunciation;
B) Deterrence, both generally and specifically for the offender;
C) Separation of the offenders from society where necessary;
D) Rehabilitation;
E) to provide reparation for harm done to victims or to the community; and
F) to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims or to the community.
(Section 718 of the Criminal Code)
The Court bears in mind any applicable sentencing principles as set out in Section 718.2 and as well, the principles of parity, totality and judicial restraint in considering a sentence of deprivation of liberty or imprisonment as set out in Section 718.2,(b)-(e). The emphasis of the Court in considering those various objectives depends on the nature of the offence and the circumstances of an offender. The Court considers the circumstances of the offender and the offense.
Starting first with the circumstances of the offender, the Court specifically considers the first principle of judicial restraint, as Mr. Calzada-Preciado has no prior criminal record. This principle is codified in section 718.2.
The Court also considers the combination of R. v. Proulx 2000 SCC 5, [2000] 1 S.C.R. 61, together with the prior Court of Appeal decision in R. v. Priest 1996 CanLII 1381 (ON CA), [1996] O.J. No. 3369. The Court of Appeal judgment in Priest predated the availability of conditional sentences. While the Priest judgment related to property offences, the principle which has emerged from its consideration of the case is that the Court should explore all other dispositions before imposing a custodial sentence. This principle followed the Court’s earlier case of R. v. Stein (1974) 1974 CanLII 1615 (ON CA), 15 C.C.C. (2nd) 376 (O.C.A.) at page 377, a judgment authored by Justice Martin. The Court also held that for a first term of imprisonment, the length should be as short as possible. Proulx has made it clear that a sentence of incarceration should only be imposed if a conditional sentence is not appropriate.
The Court also considers the judgment of the Court of Appeal for Ontario in R. v. Batisse, 2009 ONCA 114, [2009], 93 O.R. (3d) 643, and most particularly at paragraphs 32 to 34. The principle of restraint for a first offender requires a sentencing judge to consider all sanctions apart from incarceration and where incarceration is imposed, to impose a term as short as possible and tailored to the individual circumstances of the accused, following R. v. Priest. Secondly, it requires the sentencing judge to consider rehabilitation.
Thirdly, where the case is serious and involves violence, general deterrence and denunciation are also significant factors to be considered. The Court will bear in mind judicial restraint in considering the sentence for Mr. Calzada-Preciado, as a first — although not youthful — offender. The Court also considers whether Mr. Calzada-Preciado is addicted or dependent on Schedule I opiates such as fentanyl. The Court had asked the defense for information, and in that regard, the Court has above in the reasons outlined the information that has emerged from his attendance and relationship at CAMH. The Court would note that more recently, there is no indication that he was taking methamphetamines.
The Court would indicate that there is an indication that he had a moderate diagnosis of a dependency to fentanyl, but it also outlined the nature of his consumption of fentanyl, which appears to have emerged from Mr. Calzada-Preciado himself. As a result, the Court notes that there might be some dependency on fentanyl, but there does not appear to be a dependency on methamphetamine, at least as it relates to the material outlined before this Court for the consideration of sentence. The Court would also note, as indicated above, that the quantity of substances of fentanyl that were possessed for the purposes of trafficking went far beyond what he would have consumed for personal use.
VI. Nature of Offence
Courts have renewed emphasis on deterrent sentences for drug trafficking related offenses. Courts are eminently aware of the dangers posed to society by drug crime and the importance of deterrent sentences for drug traffickers. In R. v. Smith, (1987), 1987 CanLII 64 (SCC), 34 C.C.C. (3d) 97 (S.C.C.) Justice Lamer noted:
Those who import and market hard drugs for lucre are responsible for the gradual but inexorable degeneration of many of their fellow human beings as a result of their becoming drug addicts. Such persons with few exceptions should, upon conviction, in my respectful view, be sentenced to and actually serve long periods of penal servitude.
The Supreme Court of Canada further considered drug offences in Pushpanathan v. Canada 1998 CanLII 778 (SCC), [1998] 1 S.C.R. 982 (S.C.C.). Justice Cory wrote of the social and economic costs of illicit drug use in Canada, and stated at pages 1039 to 1040:
The cost to society of drug abuse and trafficking in illicit drugs are at least significant, if not staggering. They include direct costs such as healthcare and law enforcement, and indirect costs of lost productivity.
In Canada, the total cost to society of substance abuse has been estimated to be $18.45 billion dollars annually (the Canadian Center on Substance Abuse, “The Costs of Substance Abuse in Canada: Highlights”). Of this amount, the cost flowing from illicit drugs is $1.4 billion dollars. (McKenzie, supra.) In 1992, there were 732 deaths, 7095 hospitalizations and 58,571 hospital days in Canada attributable to illicit drugs. (McKenzie.) Mortality from illicit drugs is less than for alcohol and tobacco, but tends to involve younger victims.
These significant and often tragic consequences serve to emphasize that the harm caused by trafficking in illicit drugs is very properly a matter of grave concern in Canada, as it is throughout the world.
As noted by the Supreme Court of Canada in R. v. Pearson, (1992), 1992 CanLII 52 (SCC), 77 C.C.C. (3d) 124:
Drugs are responsible for 70% to 80% of prison terms. Crimes resulting from the application of narcotics legislation (possession and trafficking); crimes committed under the influence of alcohol or other drugs (rape, violence and homicide); crimes committed to obtain drugs (theft and prostitution).
In the context of its consideration of the bail provisions relating to trafficking in narcotics, the Supreme Court noted,
Most offenses are not committed systematically. By contrast, trafficking in narcotics occurs systematically, usually within a highly sophisticated commercial setting. It is often a business and a way of life. It is highly lucrative, creating huge incentives for an offender to continue criminal behavior...
87The dangers posed by trafficking in hard drugs such as heroin and cocaine have long been recognized in Canada. Over the past few decades, however, society's awareness of the true gravity of trafficking in such drugs has grown to the point that we are reminded on a daily basis of the death, destruction and havoc it causes in communities across Canada.
88Trafficking in such substances causes both direct and indirect harms to society. Directly, the distribution and abuse of hard drugs leads to addiction, debilitating adverse health effects, and all too frequently, death by overdose as Justice Lamer (as he then was) astutely observed, “Where addiction and death occur, as they so often do, those who oversee the distribution of these drugs are personally responsible for the gradual but inexorable degeneration of many of their fellow human beings.” R. v. Smith (1987), 1987 CanLII 64 (SCC), 64 (S.C.C.), [1987] 1 S.C.R. 1045.
89Trafficking also leads indirectly to a host of other ills, including an increase in all manner of crime committed by those seeking to finance their addiction, as well as by organized crime syndicates. (Pushpanathan v. Canada for Justice Cory), (R. v. Kang-Brown, 2008 SCC 18, at paragraph 184 for Justice Deschamps dissenting, but not on this point.) Given that much of this criminal activity is violent, trafficking has come to be understood as an offense of violence, even beyond the ruinous consequences it has for those who abuse drugs and in the process, destroy themselves and others.
More specifically, the Court considered fentanyl as a drug and the devastating effect it has on people in Canada. This Court agrees with the Crown’s submission that fentanyl is an exceptionally dangerous substance, as reflected by the comments of the Supreme Court of Canada in Parranto as follows, quoting from paragraphs 94 to 96:
94Synthetically produced and readily available on the illicit market, fentanyl is an extremely dangerous and powerful painkiller and sedative. As with other opioids such as heroin and morphine, it is a highly addictive substance which, when taken outside of controlled medical environments, puts its users at risk of serious harm including brain damage, organ damage, coma and death. Fentanyl's potential for harm is, however, significantly greater than other opioids. It is, for example, estimated to be 80 to 100 times more potent than morphine and 25 to 50 times more potent than pharmaceutical-grade heroin. Given its strength, a lethal dose will often be less than two milligrams, an amount as small as a single grain of salt. (R. v. Smith 2016 BCSC 2148 at paragraph 24.) The risk of overdose and death from fentanyl is thus extremely high, particularly for naive users or where it is taken in combination with other substances such as alcohol or other opioids. The risk of overdose is also one that can be difficult to guard against, as traffickers often surreptitiously mix small amounts of fentanyl with other substances to create a cheaper product with the same effects, thereby drastically increasing the profitability. (H. Hrymak, “A Bad Deal: British Columbia’s Emphasis on Deterrence and Increasing Prison Sentences for Street-Level Fentanyl Traffickers”.) This deceptive practice leaves users vulnerable and unaware, especially as fentanyl is physically indistinguishable from other hard drugs such as heroin, oxycodone and cocaine. (Clayton Ruby on Sentencing at paragraph 24), (R. v. Joumaa, paragraph 12.)
95Analogs or derivatives of fentanyl further exacerbate the risks as these substances can be far more potent than even fentanyl itself, with some estimated to be as much as 100 times more potent than fentanyl. One such analog, carfentanil, is so toxic that it has no safe or beneficial human use, even within the medical community in highly controlled environments. (A. Sabbadini and A. Boni, Sentencing Drug Offenders).
96Beyond 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 R. v. Smith, 2017 BCCA 112, at paragraph 50, R. v. Vezina, 2017 ONCJ 775 at paragraph 58, R. v. Aujla, 2016 ABPC 272 at paragraph 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% 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% of these deaths. (Special Advisory Committee on the Epidemic of Opioid Overdoses, Opioid and Stimulant-related Harms in Canada). The epidemic also shows no signs of abating, with over 6000 accidental deaths occurring in 2020 alone, 82% of which involve fentanyl (Government of Canada, Federal actions on opioids to date). These figures throw into stark relief the dark and inescapable reality that every day in our communities, fentanyl abuse claims the lives of Canadians. (R. v. Loor, 2017 ONCA 696, at paragraph 33).
In Ontario, our Court of Appeal has noted in R. v. Lynch, 2022 ONCA 109 at para. 15 that:
Fentanyl is known to be a much more dangerous drug than almost any other, and that this reality directs that a sentence imposed for trafficking in fentanyl should be as long or longer than a corresponding sentence imposed for trafficking in cocaine.
The Court in Lynch considered the range of sentence for mid-level traffickers in cocaine to be 5-to-8 years. Fentanyl is more dangerous than cocaine and the Court noted that a higher penalty should be imposed.
Referring to R. v. Olvedi, 2021 ONCA 518, (leave to appeal refused), the Court noted that trafficking in fentanyl should be as long or longer than a corresponding sentence for trafficking in cocaine. The Court in Lynch noted, parroting the words of the Supreme Court of Canada over many decades, at paragraph 17 as follows:
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 healthcare expenses, increased demands on the healthcare system, increases in robberies or other forms of criminal activity, and 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.
In commenting upon a scenario where a trafficker is not at the upper end or pinnacle of the drug- dealing empire, the Court made the common sense and obvious statement that, “the producers of a product cannot get it into the hands of the consumer if there's no one to sell and deliver it.”
In terms of the role of a trafficker as compared to a high-level supplier of drugs, therefore, the Court would note the person who is at the level of distributing and selling drugs to the ultimate consumer is still a necessary component in the drug chain.
As it relates to the range of sentence, this Court acknowledges that the quantity of the drugs involved in the Lynch case were far less than those in the subject case, but the Court considered the case for the principles relating to sentencing for offences related to fentanyl, as opposed to cocaine. A common Schedule I drug over the years has been cocaine. There is no cocaine involved in this case, but the principles of it being a highly addictive Schedule I drug are also relevant. Appellate courts have often spoken about the principles as related to trafficking and trafficking-related offenses. As it relates to cocaine, the Court considers R. v. Bajada, 2003 CanLII 15687 (ON CA), [2003], O.J. No. 721 (C.A.), and the comments in the textbook Sentencing by Clayton Ruby, which states under the heading of “cocaine” at page 865 to 866,
Cocaine used to be regarded by the courts as a drug which is somewhat more serious than marijuana but less serious than heroin. However, due to the existence of crack cocaine and intravenous cocaine users, this attitude seems to be changing. More recent sentences for cocaine seem on par with those imposed for heroin possession or trafficking.
(Sentencing, Clayton C. Ruby)
The Court would note, as indicated earlier in the reasons, that it takes the view that fentanyl is far more serious than cocaine, at least at the level of the Court of Appeal for Ontario. In R. v. Hamilton and Mason 2004 CanLII 5549 (ON CA), [2004], 186 C.C.C. (3d) 129 (O.C.A.) at paragraphs 104 to 113, the Court noted that the immense direct and indirect social and economic harm done throughout the Canadian community by cocaine is well-known, and it quoted from the Supreme Court of Canada case of Pushpanathan v. Canada.
It is important to note the qualities of the other Schedule I drugs to truly appreciate the nature of the substances and severity of offenses relating to trafficking and possession for the purpose of trafficking in those substances. In this case, the Court has heard evidence that the accused was also in possession of methamphetamine. This fact is to be considered with respect to sentence before this Court. As courts have indicated over the years, methamphetamine is highly addictive.
In R. v. Holt, (1983) 1983 CanLII 3521 (ON CA), 4 C.C.C. (3d) 32 (O.C.A.) affirmed by the Supreme Court of Canada, 4 C.C.C. (3d) 32n, the Court referred to R. v. Ward, 1980 CanLII 2882 (ON CA), [1980] 56 CCC (2d) 15 at para 18. In that judgment, Justice Martin speaking for the Court recognized methamphetamine as one of the more dangerous drugs stating,
The principle has been clearly expressed by this Court on many occasions and by other appellate courts in Canada that save in exceptional circumstances, a custodial sentence is required to be imposed following a conviction for trafficking in the more dangerous drugs, of which methamphetamine is one. We are of the view that there were, at the time of sentencing, no exceptional circumstances which justified a departure from that principle in the present case. Having regard to the nature of the drug, the quantity involved, and the obvious commercial nature of the transaction, the fact that the offender had during the interval between the commission of the offense and his trial rid himself of his drug dependency was a mitigating circumstance, but not an exceptional circumstance. Nor was the fact that he was at the time of sentence gainfully employed an exceptional circumstance, although it was a factor which was entitled due weight.
Over the years, methamphetamine has been moved from the less serious Schedule III to the more serious Schedule I of the C-D-S-A. As a result, the offense is now subject to the more serious punishment of life imprisonment as with fentanyl. In other words, Parliament has reflected its view that methamphetamine is even more serious than it was when recognized by the Court of Appeal for Ontario in Holt and Ward, when the maximum punishment was only 10 years imprisonment.
As noted by Justice MacDonnell in R. v. Villanueva, (2007), 2007 ONCJ 87, 46 C.R. (6th) 129 (O.C.J.), considering methamphetamine:
Prior to 1997, trafficking in methamphetamine was a hybrid offense under the Food and Drugs Act punishable in proceedings by way of indictment by a maximum penalty of 10 years imprisonment. When the Controlled Drugs and Substances Act came into force in 1997, methamphetamine was listed as a Schedule III substance, and therefore the punishment for trafficking remained the same as it was under the Food and Drugs Act. On August 10th, 2005, however, methamphetamines was moved to Schedule I. Both heroin and cocaine are Schedule I substances. Trafficking in a Schedule I substance is an indictable offence, punishable by imprisonment for life.
The Crown takes the position in this case initially that the appropriate range in sentence for trafficking in this amount of fentanyl is 3-to- 5 years incarceration. More specifically, in this case, the Crown submits that the lower end of the range may be appropriate as it is anticipated to be a case with mitigation, such as a first offense, a guilty plea (although not an early guilty plea), and potentially rehabilitation.
The Crown’s position, in light of the mitigating factors above, and in anticipation of the pre-sentence report, that a 3-year sentence would be appropriate. The Crown also relied on a series of cases in that regard, and the Court will indicate later on as it has above, that the Crown has modified that position somewhat. Reference was made to the following cases: In R. v. Griffith, 2023 ONCA 822, the Court confirmed a 5-year sentence for possession for the purpose of trafficking of 58 grams of fentanyl, 68 grams of cocaine and 3.25 grams of crack, and proceeds of $3000 dollars. In R. v. Margerison, 2022 ONCA 211, the Court of Appeal upheld an 8-year sentence for possession for the purpose of trafficking of 44 grams of fentanyl, finding it was not unfit, given the aggravating circumstances in that case. In R. v. Lynch, 2022 ONCA 109, the Court raised a sentence from 4 to 6 years for a mid-level trafficker who possessed, for the purpose of trafficking, 41 grams of fentanyl, 965 grams of cocaine and 149 grams of M-D-M-A. The Court found that 6 to 8 years was the appropriate range, and that the sentence judge had improperly discounted denunciation and deterrence. In R. v. Thombs, 2022 ONCA 850; 2022 ONCJ 165, after having been at the Ontario Court of Justice, the Court of Appeal dismissed a sentence and conviction appeal. The sentencing judge imposed a 9-year sentence, upheld by the Court of Appeal, for possession for the purpose of trafficking of 54.35 grams of fentanyl, plus 3.2 grams of hydromorphone, 4.9 grams of oxycodone and 20.63 grams of methamphetamine.
In R. v. Disher, 2020 ONCA 710, the Court sentenced an offender to 8 years for possession for the purpose of trafficking of 42 grams of mixed fentanyl and heroin. The Court affirmed that trafficking and fentanyl warranted significant sentences given their deadly nature — that was a Court of Appeal judgment.
In R. v. Loor, 2017 ONCA 696, the Court of Appeal stated at paragraph 50 that generally offenders, even first offenders who trafficked significant amounts of fentanyl should expect to receive significant penitentiary sentences. In that case, a 6-year sentence was upheld on a low-level participant in a drug-trafficking ring.
The Crown has also relied on a series of trial decisions regarding sentence. In R. v. Tonkin, 2023 ONSC 2139, the offender pled guilty to one count of possession of cocaine for the purpose of trafficking and one count of possession of fentanyl for the purpose of trafficking. The police had stopped the offender and another person in a car as they were delivering drugs. The police seized 55.62 grams of cocaine, 27.15 grams of fentanyl, 20.41 grams of marijuana and a cutting agent. The offender was 21 years of age at the time. Justice Nakatsuru, the sentencing judge, found that the offender had a limited role in the drug transportation scheme, had incurred a Charter violation in his dealings with police, had pled guilty, and had excellent prospects of rehabilitation. He nonetheless imposed a sentence of 29 months jail on the fentanyl count and 4 years in total.
In R. v. Bieber, 2022 ONCJ 53, a first-time offender was pulled over on a traffic stop. The offender appeared drowsy. The officer conducted a search of the vehicle and found drugs. It turned out that the offender had, among other drugs, 14.1 grams of fentanyl, 57.2 grams of methamphetamine, 47.4 grams of cocaine, as well as marijuana and pills of various kinds. The offender pled guilty to various counts, including possession of fentanyl for the purpose of trafficking. The offender had no criminal record. He had a difficult upbringing, including fathering a child at the age of 18 years. He had made several unsuccessful attempts at rehabilitation for his drug addiction, but after arrest, had made greater rehabilitative strides. The offender pled guilty. The sentencing judge imposed a sentence of 42 months less 3 months for Downes credit.
In R. v. Abdella, 2024 ONSC, unreported, a 27-year-old racialized first-time offender had 57 grams of fentanyl plus cutting agents, and a 6-year sentence was imposed. In R. v. Hillier, 2021, ONCJ 634, the offender pled guilty to possession for the purpose of trafficking in methamphetamine and possession for the purpose of trafficking in fentanyl. The police observed the offender in a car in contravention of a bail condition. They arrested the offender and searched him incident to arrest. He had in his possession 28.1 grams of fentanyl, 18.7 grams of methamphetamine, 9.2 grams of cocaine and just over $1000 dollars in cash. The sentencing judge found the offender to be a mid-level drug trafficker. The offender did use opioids and his drug-dealing supported his habit in part. Part was for profit as well, the Court would note, just like the case at bar. He did show remorse in the offences by pleading guilty. He also, however, had a criminal record, including a previous drug possession conviction. The trial judge sentenced the offender to a global sentence of 4 1/2 years jail.
The defense has also filed many cases for the Court's consideration in a 266-page casebook put before the Court. Most of the cases cited by defense counsel were trial decisions where sentence was imposed.
In R. v. Gallant, 2025 ONCJ 238, the Court considered the situation of an addict trafficker and the lesser degree of moral blameworthiness for the offending behavior at paragraph 43 of that case. The Court would note that this case involved far lesser quantities of fentanyl and that the accused was truly an addict trafficker with potentially no profit from the crimes. That is not the case at bar.
In R. v. Gibb, 2022 BCSC 1853, the Court considered a similar scenario of far less quantities of a Schedule I drug, which was fentanyl and carfentanil, and a family history of drug dependency. In R. v. Gordon, 2023 ONCJ 157, the Court considered a case where police seized from the accused 7.02 grams of cocaine, 12.07 grams of fentanyl and 30 hydromorphone pills. As of the time of sentence, he had been taking drug treatment.
In R. v. Grant, 2021 ONCJ 507, the Court considered sentence following a trial for possession for the purpose of trafficking in the following substances: Fentanyl, 9.5 grams; Crack cocaine, 26 grams; cocaine, 13.2 grams; and methamphetamines, 4 grams; together with possession of oxycodone, 1 1/2 pills. He was a very youthful 18-year-old first offender and committed offences out of character. He also had endured depression, anxiety and bullying. He also had a prosocial post-offence conduct. He was a very different offender and this was a very different offense, and accordingly, this case is not particularly helpful to this Court's consideration.
In R. v. Han, 2022 ONCJ 343, the defendant was intercepted delivering 15.6 grams of fentanyl on behalf of another person to a customer. She was given a small amount of fentanyl in exchange for her role and appears that she was not generally involved in this business. She was addicted to fentanyl and under the control of a local drug dealer. The Court found that there were unique circumstances in that case, unlike the case that bar and imposed a conditional sentence.
In R. v. Hastings, 2024 ONSC 6328 the Court at paragraph 55, noted that following R. v. Woods, 2024 ONCA 664 — which this Court would note was a very short endorsement — the Court found that a conditional sentence could be imposed in exceptional circumstances, generally with a guilty plea and strong evidence of expression of remorse, and significant steps having been taken towards rehabilitation. In that case, a conditional sentence was imposed where there had been 14.15 grams of fentanyl and it was possession for the purpose of trafficking.
In R. v. Hugh, 2024 ONSC 6135, the accused had entered a guilty plea to possession for the purpose of trafficking in fentanyl in relation to 15.7 grams. The accused was 63 years of age and had no immigration status in Canada, having stayed after a visitor's permit. He had suffered a stroke and had permanent weakness and was at high risk of falling, needing hourly supervision. That case is entirely different from the case at bar.
In R. v. Landell, 2023 ONSC 6526, the accused had 2 grams of cocaine on his person at the time of arrest, and upon a search of his residence, a further 257 grams of powder cocaine was located, together with 29.5 grams of crack cocaine and $4000 dollars in cash. The Court found that the circumstances were not exceptional. He was sentenced to a term of 2 years incarceration.
In R. v. McIntosh, 2012 ONCJ 216, the Court considered sentence for the theft of multiple BlackBerry cell phones. The Court found that the criminal conduct was completely out of character and stated that “sometimes good people do bad things.” The Court’s not entirely sure why defense counsel put that case before the Court.
In R. v. Mori, 2020 ONCJ 620, the Court considered sentence for possession for the purpose of trafficking in a mixture of 38.66 grams of fentanyl and heroin, 7 grams of crystal methamphetamine, and a small amount of cocaine. The Court found that this was an exceptional case. The accused had led a lifetime of addiction and completed extensive rehabilitation treatment for drug addiction. There were other details set out in the reasons for sentence in that case that distinguish it from the case at bar.
In R. v. Nacinovich, 2020 ONSC 7604, the Court considered a sentence for possession for the purpose of trafficking in fentanyl, 9.6 grams. He had pretrial custody including lockdown time. Both of the defendant’s parents were deaf and he was bullied at school. He was removed from his parents when he was only 14 years of age. The Court set out the extenuating circumstances in that case, including a restrictive house arrest and extensive rehabilitation which the accused had undergone. It was during the COVID pandemic. In the end, the Court imposed a sentence of two years less a day less pre-sentence custody.
The defense also relied upon R. v. Proulx, 2000 SCC 5, setting out the nature of a conditional sentence when it would be appropriate to impose on an offender, noting paragraph 22.
VIII. Consideration of a conditional sentence
The defense in this case is requesting a conditional sentence. The Court considers that option. The defense relies upon a number of cases in that regard, which are noted in the reasons. In R. v. Russell, 2023 ONCJ 133, the police executed a search warrant at the home of the accused and discovered 7.75 grams of fentanyl and 33 grams of cocaine. The Court found that he was not an addict - he trafficked for profit. Nonetheless, the trial judge imposed a conditional sentence. The Court would note the same judge imposed a similar sentence in the case noted above.
In R. v. Schneider, 2019 BCCA 310, (the Court would note that this was a case from British Columbia), the case as cited seemed to suggest that provincial courts of appeal and other courts in that province impose more lenient sentences. The accused in that case sold $20 dollars worth of heroin to an undercover officer. The Court found a suspended sentence to be appropriate. The Court does not find that British Columbia case to be of assistance in Ontario.
The defense also relied upon R. v. Voong, 2015 BCCA 285, but it is unclear to this Court what portion or principles the defense relies upon from that lengthy case.
In R. v. Shearer, 2022 ONCJ 288, the Court considered sentence in a case where the accused sold 0.43 grams of fentanyl and later seized 2.84 grams of fentanyl from his bedroom. He was sentenced to a 20-month conditional sentence. Obviously, the quantity of drugs in that case was far less than the case at bar.
In R. v. Williams, 2023 ONCJ 259, the Court considered sentenced for a charge of possession for the purpose of trafficking in fentanyl, 14.27 grams, which included a cutting agent. The Court also considered a reading in of the facts relating to 3.1. grams of cocaine and 180 grams of cannabis. The Court in that case imposed a conditional sentence. That case is not particularly helpful.
In R. v. Woods, 2023 ONCJ 622, the Court considered a list of special circumstances set out on pages 10 to 11 of the reasons, including a long-standing opioid addiction for over 20 years following an injury, a particularly difficult life, a very early guilty plea, positive employment history, great strides taken in rehabilitation, and significant remorse and insight. The Court effectively considered there to be exceptional circumstances in that case which are not present in the case at bar.
As noted, the defense has submitted that a conditional sentence would be appropriate for this offender and this offense. In order to consider that, the Court must consider section 742.1 of the Criminal Code. The relevant portions of that section are as follows:
If a person is convicted of an offense ... and the Court imposes a sentence of imprisonment of less than two years... the Court may, for the purpose of supervising the offender's behavior in the community, order that the offender serve the sentence in the community, subject to... the conditions imposed under section 742.3 if:
a) the Court is satisfied that the service of the sentence in the community would not endanger the safety of the community, and would be consistent with the fundamental purpose and principles of sentencing set out in section 718 to 718.2.
b) the offense is not an offense punishable by a minimum term of imprisonment.
The Court must first determine whether a conditional sentence of imprisonment would be legally available. Firstly, the offence is not punishable by a minimum term of imprisonment. If not disqualified by the provision, the Court will go on to consider for this offender with no prior criminal record and who, to the knowledge of the Court, has not been charged with breaching his terms of bail, that the safety of the community would not be endangered by Mr. Calzada-Preciado serving his sentence in the community. Without getting into that issue, however, there is a much more significant issue. The key issue in this case is whether a conditional sentence would satisfy the fundamental purpose, principles and objectives of sentencing as set out in Section 718 to 718.2 of the Criminal Code for this offense and this offender. The case law is clear that the paramount principles, primary sentencing objectives in a case of this nature are denunciation and deterrence.
Courts have been clear that in some cases a conditional sentence may satisfy the principles of denunciation and deterrence, (see R. v. Proulx 2000 SCC 5, [2000] 1 S.C.R. 61 at paragraphs 102 and 107, R. v. Wismayer, (1997) 1997 CanLII 3294 (ON CA), 33 O.R. (3d) 225 (C.A.)) As noted by Justice Doherty in R. v. Killam, 1999 CanLII 2489 (ON CA), [1999] O.J. No. 4289 (C.A.) a conditional sentence “does not, generally speaking, have the same denunciatory effect as a period of imprisonment.
Incarceration remains the most formidable denunciatory weapon in the sentencing arsenal.” In Proulx at paragraph 96, the Supreme Court specifically considered the principal and objective of judicial restraint pursuant to section 718.2(d) — that is to say that “an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances”. However, the Court stated that this principle is, of course, not solely determinative but involves a more comprehensive consideration. As stated in that paragraph, “a determination of when less restrictive sanctions are ‘appropriate’ and alternatives to incarceration ‘reasonable’ in the circumstances requires a consideration of the other principles of sentencing as set out in Section 718 to 718.2.”
So this is but one of the principles and objectives to consider. The Court must have regard to both the seriousness of the offense and the offender's degree of responsibility.
THE COURT: I'm going to take a recess at this point because we've been going for quite some time and I have to give the staff a break. It's not much longer though, so we're going to take fifteen minutes so the parties can be excused.
R E C E S S
UPON RESUMING:
REASONS FOR SENTENCE (Continued)
BROWN, J: (Orally)
The Chief Justice in Proulx went on to state at paragraph 106, “there may be certain circumstances in which the need for denunciation is so pressing that incarceration will be the only suitable way in which to express society's condemnation of the offender's conduct.” This is stated by the Court of Appeal for Ontario in R. v. McGregor, [2008] O.J. 4939 (C.A.): “The nature of the offence or the circumstances of the offender may require that a term of incarceration to adequately express society's condemnation of the conduct at issue or to achieve the required deterrent effect.”
The Court considers all of the case law noted above, together with all the cases that have been put before the Court in terms of when a Court might properly impose a conditional sentence. The Court finds that this is not a case of exceptional circumstances. While the defense takes the position that Mr. Calzada-Preciado is addicted to drugs — and the Court would note that he has completed a number of programs while in the detention center — that his involvement in the last number of years with respect to drug treatment is somewhat tenuous. While the Court has been advised he has been doing a methadone program, the Court hasn't been advised of any extensive or particular treatment programs that he has taken. In that regard, he has done less than he could have done in terms of rehabilitation. While he has had a bail term with respect to house arrest, it appears that no steps were taken to have him go to appointments with his surety in order to pursue this important step.
There is some evidence that he has a dependency to fentanyl. It has been described as “moderate”. It is clear, however, that he possessed drugs well beyond his personal needs and this is also evidenced by his admission on the guilty plea. If he is addicted to drugs to some extent, and this explains some of the drugs he possessed, this is a problem that he has not yet addressed in his life in a suitable way.
Considering the overall principles of denunciation and deterrence and most particularly, the circumstances of this offense, and the quantity and type of the Schedule I drug, being fentanyl, and the crystal methamphetamine which was read in and to be considered on sentence, the Court finds that a conditional sentence would not satisfy the fundamental purpose, principles and objectives of sentencing. The Court of Appeal for Ontario has been clear that a jail sentence, and often one in the penitentiary, is required for trafficking in Schedule I substances such as fentanyl and particularly where there are no exceptional circumstances. If the Court were to impose a penitentiary sentence, obviously a conditional sentence would not have been available. In any event, the Court is not going to impose a conditional sentence.
With respect to pre-sentence custody credit, the Court would note that the accused was initially released on an undertaking. He subsequently went into custody and he has served to this point in time a period of actual days of pre-sentence custody of 303 days; the Court notes that the Summers credit is appropriate to be taken into account given the circumstances of 1 1/2 days credit for each of those days. This would result in 455 days of enhanced pre-sentence custody credit, which the Court will provide.
The defense in this case has also sought credit for lockdown and credit for harsh conditions while in the jail. The Court can consider the impact of lockdown and harsh conditions as it has previously in the past as well, with respect to the COVID-19 pandemic. As it relates to the time spent in pre- sentence custody, the Court can acknowledge that conditions have been extremely challenging and has considered that as a significant factor. In applying this credit, however, the Court can deduct a specific number of days or do what is referred to as a Marshall credit. The Court in this case relies on R. v. Marshall, 2021 ONCA 344, a decision of Justice Doherty for the Court of Appeal for Ontario. The Court will not deduct a specific number of days to reflect those conditions. Instead, the Court considers the nature of those harsh conditions and lockdowns with all of the other mitigating factors in coming up with an appropriate sentence in this case (see also R. v. Avansi, 2023 ONCA 547 at paragraph 9).
In all the circumstances, the Court is going to apply the Summers pre-sentence custody credit as indicated, of 1 1/2 to 1, for the actual days of pre-sentence custody credit, and as indicated above, there are 303 days actually of pre-sentence custody. The enhanced pre-sentence custody credit is 455 days. Applying the principles in Marshall, the Court takes into account the additional evidence related to lockdown days (partial, full and tiered) and triple-bunking days as noted above.
In addition, the Court takes into account the defence submission that Mr. Calzada-Preciado suffers from a dependency, to some extent, to the Schedule I fentanyl drugs which he possessed and had a portion of them for personal use. Applying the principle in Marshall related to the additional credit for the conditions in jail, and the somewhat tenuous connection by way of his drug dependency related to fentanyl but not methamphetamines is set out in the material before the Court. The Court finds that an appropriate sentence is one of 32 months of jail. This is 2 years and 8 months less enhanced pre-sentence custody credit. This would be converted to a number of days, being 974 days as a sentence. The Court will then subtract from that sentence after the Marshall credit, the enhanced pre-sentence custody credit of 455 days. This would result in a sentence of incarceration of 974, minus 455 days, which is a total of 519 days in jail. This is approximately 1 year and 5 months.
The Court is also going to be making ancillary orders in this matter. The first one is a D-N-A secondary designated defense order and a D-N-A sample is to be taken in the circumstances. The second is a Section 109 Weapons Prohibition Order, which will be made for a period of 10 years. There will also be a forfeiture order signed by the Court for the amount of $850 dollars Canadian currency, the digital scale and the cell phone. The Court is also going to make a recommendation that Mr. Calzada-Preciado be given counseling for any drug dependency that he might have at the current point of time.
Those are the reasons of the Court. Are there any questions?
E N D O F E X C E R P T