Background

[1] Mr. Leite's trial commenced on October 11, 2017, and he pled not guilty to two charges of possession of cocaine for the purpose of trafficking, two charges of possession of methamphetamine for the purpose of trafficking, two charges of possession of fentanyl for the purpose of trafficking, one charge of possession of marijuana for the purpose of trafficking, and one charge of possession of Canadian currency exceeding five thousand dollars, knowing that all or part was obtained by the commission in Canada of an offence punishable by indictment. The marijuana charge was withdrawn by the Crown during the course of the trial.

[2] The trial took place over eight court days, and the prosecution called thirteen witnesses, including two police expert witnesses from other jurisdictions in Ontario. Mr. Leite did not testify or call any witnesses.

[3] On November 1, 2017, he was found guilty of the two cocaine charges, the two methamphetamine charges, the two fentanyl charges, and the possession of Canadian currency obtained by crime. Submissions on sentence were heard on January 17 and 23, 2018.

The Police Investigation

[4] The Halton Regional Police drug began an investigation of the defendant when pursuing another suspected trafficker. After extensive surveillance, the police executed a search warrant at the home of the defendant and his wife Ana at 141 Cavell Avenue in Hamilton on November 16, 2016. Several search warrants were also executed at the same time at other locations, and several individuals were arrested and jointly charged with Mr. Leite. The investigation was called Project Harland and was led by officer Andrew Bishop.

[5] Most of the evidence was found in an unused bedroom on the second floor of the home, which was used as a drug processing room. A total amount of 1.238 kilograms [2.7 pounds] cocaine was found. A brick of this was found in a safe and a quantity cut from another brick was found on a desk. A total amount of 371.1 grams [13 ounces] of methamphetamine was located in the safe and on a closet floor. A total amount of 147.9 grams [5.2 ounces] of fentanyl was found on this closet floor and on the desk. A total of $22,425.00 in Canadian currency was found in two areas of the house. Also found were two money counters, digital scales, drug mixing agents, dust masks, and other drug paraphernalia.

[6] Mr. Leite and his pregnant wife were in their home when the search warrant was executed. The police entered through the unlocked front door.

Position of the Crown

[7] The prosecution points out that the three drugs seized from the defendant are hard drugs which are highly addictive, but the worst is the fentanyl, which is highly dangerous just to handle and be near, and has caused many deaths in Canada and elsewhere. Because of that, Mr. Bundy wants the sentencing emphasis to be on this drug, and submits that the cocaine and methamphetamine sentences be served concurrently to the fentanyl sentence.

[8] The specific sentence proposed by the Crown is as follows:

Count 2 – Possession of cocaine for the purpose of trafficking – This count relates to the larger quantity found in the safe in the office – The Crown seeks a 5 year concurrent jail sentence.

Count 3 – Possession of cocaine for the purpose of trafficking – A 12 month concurrent jail sentence is requested for the smaller quantity found on the office desk.

Count 4 – Possession of methamphetamine for the purpose of trafficking – A large quantity was found on the office closet floor – The Crown seeks a 3 year concurrent sentence.

Count 5 – Possession of methamphetamine for the purpose of trafficking – A 12 month concurrent jail sentence is sought for the smaller quantity found in the safe.

Count 6 – Possession of fentanyl for the purpose of trafficking – A 6 year consecutive jail term is asked for – This relates to the larger quantity found on the office closet floor.

Count 7 – Possession of fentanyl for the purpose of trafficking, concerning the smaller amount found on the office desk – A 2 year consecutive jail term is requested.

Count 8 – Possession of Canadian currency in an amount exceeding five thousand dollars, knowing that all or part of the property was obtained by the commission in Canada of an offence punishable by indictment – A total of $22,425 was seized in two locations in the house – A consecutive jail sentence of 18 months to 2 years is asked for – The Crown is also asking for forfeiture of this money.

The Crown is seeking the forfeiture of other items seized, in addition to the $22,425, as well as a DNA order, and a Criminal Code section 109 weapons prohibition for life.

Sentencing Caselaw

[9] Mr. Bundy referred the court to several sentencing cases, some of which are referred to below.

Cocaine

[10] In R. v. Bryan, 2011 ONCA 273, a panel consisting of Moldaver, Simmons, and Blair JJ. A. said the following:

Normally, in cases of this nature, sentences of 5 to 8 years would reflect the proper range for someone, without a record, convicted of possession for the purpose of trafficking in slightly more than a pound of cocaine. This case should not be taken as suggesting otherwise.

[11] The Court of Appeal reaffirmed this principle in R. v. Scharf, [2017] O.J. No. 5346, when it upheld a 5 year jail term for possession for the purpose of trafficking 263 grams of cocaine. The court stated as follows:

The appellant submits that the sentence of five years for trafficking is outside the range and this court should substitute three years. We do not agree. The trial judge considered the principles of sentencing, identified the appropriate mitigating and aggravating factors, and imposed a sentence that was fit. See also R. v. Bryan, 2011 ONCA 273. The appellant has not demonstrated an error in law or in principle that impacted the sentence that would warrant appellate intervention as required by R. v. Lacasse, 2015 SCC 64 and R. v. Wu, 2017 ONCA 620.

Methamphetamine

[12] R. v. Ticzon, [2016] O.J. No. 6176, is a case in which the defendant was convicted of having possession of 64.1 grams of crystal methamphetamine. A 3 year jail sentence was imposed, which was not appealed. Myers J. emphasized the pernicious nature of this drug:

As to the possession charge, the Crown argues that 64.1 grams is a significant amount of a very dangerous Schedule I drug. In R. v. Villanueva, 2007 ONCJ 87 MacDonnell J. noted that crystal meth is a hard drug. He said, "...it carries the potential for enormous grief and misery for individual users and for significant harm to the health and safety of the community."

In R. v. Copeland at paras. 19 and 20, Spies J. emphasized the seriousness of this drug:

Significant adverse effects come with methamphetamine use including minor physical effects and more severe effects including seizures, convulsions, extreme anxiety, repetitive compulsive behaviours, hallucinations, paranoia, violence, psychoses, cognitive impairment and changes to brain chemistry and structure. In extreme cases methamphetamine can cause death. Recurring methamphetamine use has been associated with cognitive impairment and brain injuries. Most chronic abusers eventually develop long-term psychotic behaviour characterized by intense paranoia and visual and auditory hallucinations, which can be coupled with extremely violent behaviour.

According to the Impact Statement, methamphetamine is a highly addictive drug. Studies have shown it to produce rates of addiction similar to those of heroin and cocaine. The treatment of methamphetamine addicts is more difficult than those addicted to other substances of abuse. In addition methamphetamine abusers have unusually high rates of relapse. Withdrawal from methamphetamine results in mood disturbances and violence is easily provoked.

In R. v. Liu, 2009 ONCJ 265, at para. 24, Bourque J. noted that in addition to its serious effects on people, crystal meth "can be created from common substances and does not require a long international chain of producers and importers to get to the streets of our communities. In that sense it can have a more severe impact." In that case, despite the fact that the accused was a youthful first offender, Bourque J. sentenced him to 6 years imprisonment.

In all of the cases relied upon by the Crown, the quantity of drugs in the possession of the accused was somewhat more that was found on Mr. Ticzon. I would not make distinctions on too fine a basis however. While it is one thing to sentence a major commercial dealer and another to sentence a street user who deals a bit to afford his own drugs, drawing gross distinctions based on grams, or tens of grams, or even hundreds of grams, risks creating a license fee with sentence on a per gram basis.

Fentanyl

[13] During the Crown's case, officer Ian Young was one of two police expert witnesses who testified. He is a member of the Waterloo Regional Police Service and gave evidence on the use, distribution, supply, sale, value, pricing, packaging, and modus operandus of those who traffic in controlled substances, in particular, cocaine, methamphetamine, and fentanyl. Officer Young considered Mr. Leite to be a mid to high level drug dealer. He also said that in his region fentanyl has replaced heroin because fentanyl is cheaper to import than heroin and is far more powerful, so that it can produce more individual doses. The street prices are similar.

[14] Fentanyl trafficking appears to be prevalent in the Kitchener-Waterloo region and many of the leading sentencing cases are from the Ontario Court of Justice in Kitchener.

[15] Sentencing cases are not always easy to compare because of individual factors, but the one consistent factor is that lengthy penitentiary sentences are the norm even for small quantities of fentanyl, and even for first offenders. Learned studies and drug experts have shown that fentanyl is a more dangerous drug than heroin, methamphetamine, and cocaine, even its derivative, crack cocaine, which has been a scourge in Ontario communities and elsewhere in Canada.

[16] In R. v. Vezina, 2017 ONCJ 775, Sopinka J., sitting in Kitchener, dealt with a situation in which a police officer suffered from nausea and dizziness after handling drugs including powdered fentanyl. He had worn gloves but not a face mask. In addition to other drugs seized, there was located 204.49 grams of a blend of heroin, fentanyl, and cutting agents.

[17] Dr. Karen Woodall, a toxicologist from the Centre of Forensic Sciences was called as a witness by the Crown. Sopinka J. said the following:

Evidence of Purity and the Dangers of Fentanyl

An analysis was done of the fentanyl seized in this investigation to determine its purity. That analysis revealed that the purity ranged from .5% to .7% purity in respect of three samples analyzed. Dr. Woodall's opinion was that that level of purity was indicative of a significant concentration of fentanyl given its potency. Specifically, fentanyl is 100 times more potent than morphine and 20 times more potent than heroin. The fact that the concentration in the substance seized was .5% to .7% indicates that it was mixed with other substances thus the user could never be entirely sure of what was being ingested.

Dr. Woodhall further explained that fentanyl is a synthetic opioid analgesic that is used clinically for the management of chronic pain usually in the form of patches. However, fentanyl has become a potent drug of abuse and in recent years has become available in powdered form which can be ingested by inhaling, smoking or intravenous use. Dr. Woodhall explained that fentanyl is only prescribed clinically to those who have become tolerant to opiates given the strength of the drug. Once aware of the concentration analysis of the seizure in this case, Dr. Woodhall calculated that the 205 grams of the fentanyl/heroin mix contained approximately 1025 mg of fentanyl or the equivalent of 60 of the strongest patches available for therapeutic use. Given that a starting dose of fentanyl for therapeutic use is .1 mg, the quantity in Mr. Vezina's possession was very significant.

Dr. Woodhall also testified regarding the particular dangers of fentanyl in a powdered format. She indicated that one specific danger with powder is that a user does not know how much of the drug is in the powder as it may not be evenly distributed. While in its patch form there are also dangers of "hot spots" wherein fentanyl might be concentrated more in one area of the patch, generally the patches present fewer dangers as they are manufactured within set guidelines.

Effects on the Community of Fentanyl

The final witness called on the sentencing hearing was Staff Sergeant Sloden Lackovic of Waterloo Regional Police. S/Sgt Lackovic is currently the supervisor of the drugs and firearms branch of WRP and he provided evidence of the impact of fentanyl on Waterloo Region as follows:

1. Opioid related overdose calls averaged 20 per month in 2012 and in June and July of 2016 spiked to 50 to 60 per month. On average those calls since 2015 have been 40 per month.

2. In 2016 there were 38 confirmed opioid related deaths in Waterloo Region. As of September of 2017, there were already 46 suspected opioid related deaths in Waterloo Region illustrating a significant increase. The trend seemed to indicate on average 5 opioid related deaths per month.

3. The seizure of fentanyl in Waterloo Region is also increasing dramatically. In 2015, WRP made 12 seizures of fentanyl, 6 were patches and 6 were in powdered form of a total weight of 2.09 grams. In 2016, WRP made 90 seizures of fentanyl representing 1167.73 grams and 34 pills. In 2017 there have been 43 confirmed seizures and 57 seizures pending confirmation for a total of 1825.05 grams and 2625 pills suspected to contain fentanyl.

4. Information provided to Waterloo Regional Police from Health Canada Drug Analysis Services shows that Waterloo Region is second only to Toronto in respect of total number of fentanyl exhibits processed which illustrates the significant prevalence of the drug in our Region.

5. The prevalence of fentanyl in the community and the dangers associated with the drug have caused WRP to adopt new procedures when handling the drug. For example, all powdered drugs are double bagged, sealed in a plastic container, taken to the division, locked up and an appointment is made to process it under a fume hood. Two pairs of gloves and a mask are required in the field to handle powdered drugs. In addition, naloxone is issued to officers and has been administered 12 times in the community since May 2017.

[18] Numerous, recent sentencing decisions involving fentanyl were referred to by Sopinka J.:

The Crown filed a number of authorities as well. In general, the Crown distinguished the defence cases on the basis that they all dealt with fentanyl in either the pill or patch form as opposed to powder form or dealt with different substances entirely. The Crown's position is that powdered fentanyl is inherently more dangerous and should attract a significantly longer sentence than alternative forms of fentanyl.

In Regina v. Shevalier and Clark (March 16, 2017 -- OCJ Kitchener), Mr. Shevalier was sentenced to 8 years and Ms. Clark to 4 years following a trial where they were both convicted of possession for the purpose of trafficking of 28.13 grams of fentanyl and other drugs. Mr. Shevalier had a significant related record and Ms. Clark had no record.

Justice Epstein recognized the prevalence of fentanyl in our community, and the principle most recently set out by the Supreme Court of Canada in Regina v. Lacasse, [2015] SCC 64, that "sentencing judges can properly take into account trends in their communities in fashioning an appropriate sentence" (at p. 11).

Justice Epstein also considered the evidence in that case that both accused were addicted to the substances they trafficked. He commented as follows on the relevance of that factor to the sentencing of those offenders: "the mitigation usually attributed to addiction in sentencing is not so prominent a feature here. While it is clear that these two accused were immersed in the drug sub culture and were addicts themselves, they were not simply supporting their habits but were driven by profit and were engaged in something significantly larger than a street-sale operation". In my view these comments are equally applicable to Mr. Vezina given the evidence about his involvement in the drug trade and the quantities of drugs he possessed upon his arrest and pursuant to the search of his home.

I adopt the following comments of Justice Epstein regarding the applicability of sentencing principles to possession for the purpose of trafficking in fentanyl at pages 16-17:

The cases establish in the clearest terms, that the proper response by the courts to this overwhelming problem must be rooted in terms of denunciation and general deterrence. It must be made abundantly clear that Canadian Society will not tolerate the illicit trafficking in such a dangerous substance. The proper response must be sentences of sufficient length to act as a deterrent to those who would seek to profit from the misery of others and to reflect the abhorrence of the Canadian community towards such conduct.

Justice Epstein went on to consider the Ontario Court of Appeal case of Regina v. Farizeh, [1994] O.J. No. 2624, wherein a first time offender with a positive pre-sentence report and successful rehabilitation efforts was sentenced to 4 years for trafficking in small amounts of heroin. Justice Epstein then referenced sentencing for fentanyl as follows: "of course fentanyl is recognized as a more powerful and more dangerous drug than heroin and therefore its possession for the purpose of trafficking and trafficking ought to attract even greater penalties". (at page 17)

Finally, in recognition of local factors, Justice Epstein noted that the extent of the danger of fentanyl was not fully recognized in March of 2016 when the offences before him were committed. He opined that over the year since those offences the full impact of the drug on its users has become publicly recognized and offences committed with full awareness of those dangers should attract even greater sentences (at p. 18-19).

In Regina v. McCormick, [2017] B.C.J. No. 171, the accused was convicted of possession for the purpose of trafficking in relation to very large quantities of drugs including 27,000 fentanyl pills, 4.054 kilograms of cocaine, over 1 kg of methamphetamine and other substances with a combined street value of over $2 million. While on bail for those offences, Mr. McCormick was again arrested for possession for the purpose of trafficking while in possession of 1,000 fentanyl pills and 2 kilograms of cocaine. The accused had a prior sentence in the penitentiary for trafficking and was in possession of two loaded weapons. The accused was sentenced to 14 years in jail. While the nature of the fentanyl he possessed was different, being pills rather than powder, there are additional more aggravating features such as the massive overall quantities of drugs possessed by the accused and the fact that he incurred new charges while out on bail.

The Crown also put forward the case of Regina v. Aujla, [2016] ABPC 272, from the Alberta Provincial Court wherein the accused was sentenced to 7 years after trial. The accused was in possession of 454 pills of fentanyl along with cocaine, 796 grams of heroin and 1/2 kg of methamphetamine and two handguns. The quantities of drugs overall were more significant and the accused had no addiction issues.

In Regina v. Goudreau, [2016] ONSC 6318, the accused was found guilty after trial of 5 counts of trafficking in fentanyl involving over 900 patches at the strongest concentration. Mr. Goudreau was found to be the ring leader of the somewhat sophisticated trafficking operation. The Court found a notable absence of mitigating factors to consider and sentenced Mr. Goudreau to 10 years. Of note, the Court had the following comment regarding the Crown's position of 13 to 15 years:

In my view, such a sentence would amount to unwarranted punishment of this individual defendant. Raymond Godreau cannot be made to pay for the sins of others, the rapid rise in the illicit use of fentanyl in recent years or the fact that innocent persons have fallen victim to fentanyl overdose and paid with their lives in unrelated cases. (at paragraph 18)

Another local case is Regina v. Boardman, (July 7, 2016 OCJ Kitchener) in which the accused pled guilty to possession for the purpose of trafficking in fentanyl. Mr. Boardman was in possession of 19.78 grams of fentanyl, 84.51 grams of cocaine and 27.99 grams of methamphetamine. He was noted to be a mid-level dealer and had an extensive and related record. Justice Lynch specifically noted that Mr. Boardman was an addict and he was not in possession of any weapons upon his interception by police. Ultimately Justice Lynch sentenced Mr. Boardman to 6 years in custody.

Regina v. Holtz, (June 23, 2016 OCJ Kitchener) involved 14.56 grams of powdered fentanyl and 26.09 grams of methamphetamine. The accused entered a guilty plea, was an addict and had an extensive but unrelated record. The sentence imposed was 5 years in custody.

Regina v. Whalen, (June 2, 2017 OCJ Kitchener) was another local decision of Lynch J. Mr. Whalen entered a guilty plea to possession for the purpose of trafficking in 9.8 grams of fentanyl and 9.75 grams of methamphetamine. Mr. Whalen was a user himself and had an extensive criminal record. He was sentenced to 4 years in custody on the fentanyl charge and one year concurrent on the methamphetamine charge.

The Crown provided 2 additional local cases involving the same facts but two separate accused: Thorn and Sidhu. The accused pled guilty to possession for the purpose of trafficking in 89.5 grams of fentanyl, 214.3 grams of methamphetamine and 48.2 grams of heroin. Ms. Thorn had no related record whereas Mr. Sidhu had just finished serving a penitentiary sentence of almost 3 years. Given her lack of prior record and level of participation, Ms. Thorn was sentenced to 6 years on a joint submission. Mr. Sidhu was sentenced to 9 1/2 years: 8 years and 2 months for fentanyl trafficking when pre-trial custody was deducted. Mr. Sidhu's matter did involve powdered fentanyl and a significant quantity. One point raised by Mr. Vezina's counsel was that Dr. Woodhall was also involved in that case and she was aware of the qualitative analysis done of the drugs seized. Specifically, the concentration of fentanyl was 3.1% which is significantly stronger than the case at bar which was .5% to .7%. I agree with Mr. Vezina's counsel that if a distinction is to be drawn with respect to sentencing ranges for powdered fentanyl as opposed to pill or patch form given the potential for more harm with powder, then the relative strength of the powdered substance should also be relevant to sentencing.

Finally, the Crown provided the recent decision of the Ontario Court of Appeal in Regina v. Loor, [2017] ONCA 696. Mr. Loor was convicted after trial of possession for the purpose of trafficking in 45 fentanyl patches at the highest available strength. He was characterized as a low level trafficker and had some positive antecedents including volunteer work in the community. He had a record for trafficking but there was a 5 year gap since his last conviction. He was sentenced to 6 years in custody.

The Court of Appeal did opine as follows on a range of sentence in relation to fentanyl trafficking as follows:

Few fentanyl trafficking cases have reached this court. It is thus perhaps too early in our jurisprudence to establish a range. But I think it fair to say that generally, offenders -- even first offenders -- who traffic significant amounts of fentanyl should expect to receive significant penitentiary sentences. (at paragraph 50)

In summary, the case law reviewed reflects a wide range in sentence for possession for the purpose of trafficking in fentanyl. No set ranges have been established given that the landscape is changing so rapidly. The dangers of fentanyl have become well known which puts traffickers on notice that their conduct will attract significant custodial penalties. The nature of the drug itself is changing as well such that its prevalence in powdered form is emerging and much of the sentencing precedents have dealt with pill or patch form. There is also the issue of potency since an analysis was done in this case to reflect a concentration of .5% to .7% fentanyl in the substance seized. While the Crown argues that sentencing for powdered fentanyl must attract harsher sentences given the dangers associated with the drug in this form, this submission must also take into account the potency of the drug, if known, as that also affects the dangerousness of the substance.

As reviewed above, there are significant aggravating factors in this matter including the nature and quantity of drugs seized, the presence of a loaded handgun in Mr. Vezina's possession upon arrest while he was operating an e-bike on the streets of Kitchener, the presence of weapons in Mr. Vezina's home, the fact that Mr. Vezina was bound by 2 weapons prohibitions and his serious and related prior criminal record. The significant danger that fentanyl presents to our community must be reflected in Mr. Vezina's sentence given his possession of such a large quantity. The information provided by Staff Sgt Lackovic detailed the dramatic increase in opioid related overdose calls in the last years and months as well as the increasing prevalence of the drug in this Region as reflected in police seizures and the information from Health Canada as to the processing of exhibits which ranks Waterloo Region only second to Toronto in respect of fentanyl exhibits processed. In following LaCasse, supra, I note that I can properly consider trends in our community, including in this case the increased danger presented by fentanyl, in fashioning an appropriate sentence.

The case law provided by both the Crown and defence counsel recognizes that the enormity of the fentanyl crisis justifies a significant increase in the sentencing range applicable to street level dealing in fentanyl. To strike at the root of the crisis, sentencing must be guided primarily by the principles of deterrence and denunciation to make abundantly clear that our community will not tolerate the illegal distribution of this insidious drug.

While the aggravating factors in this matter are numerous and serious, the sentence imposed must also take into account the mitigating factors including Mr. Vezina's guilty plea, his cooperation with the police in advising both of the fact that the handgun was loaded and of the nature of the substances to be seized, his addiction issues and his desire for rehabilitation. The danger that fentanyl poses in our community every day requires a sentence that emphasizes denunciation and deterrence but it cannot lose sight of other sentencing principles including rehabilitation, totality, proportionality and restraint.

In my view, the appropriate sentence in this matter is one of 12 years to be noted as follows on the information before the Court:

Ct #2 -- P4P Fentanyl -- 301 days pre-trial custody enhanced to 451 days pre-trial custody or 1 year 3 months PTC noted; the sentence imposed today on this count is 9 years, 9 months in custody

Ct #1 -- P4P Methamphetamine -- 5 years concurrent

Ct #3 -- Possess firearm while prohibited -- 1 year consecutive

Ct # 5 -- Possess Loaded Prohibited Firearm -- 4 years concurrent

Ct #6 -- Possession of a concealed weapon to with: prohibited handgun - 2 years concurrent

Ct #11 -- P4P Marijuana -- 2 years concurrent

Ct #15 -- Possess firearm to wit: sawed off shotgun without being holder of a licence -- 1 year concurrent

Ct #16 -- Possess ammunition while prohibited -- 6 months consecutive but concurrent to 1 year imposed on Ct #3

Count #21 -- Possess BB rifle gun while prohibited -- 9 months consecutive but concurrent to 1 year imposed on Ct #3

The total sentence when pre-trial custody is considered is one of 12 years in custody.

A DNA Order will also be issued on a secondary basis in respect of each of the counts.

In addition, a section 109 order for life will issue in respect of each of the counts.

Finally, the Victim Fine Surcharge will be imposed in the amount of $1800 with statutory time to pay subject to an application made after today's date to extend that time to pay.

[19] The sentence imposed for the fentanyl-heroin blend was, in effect, 11 years in jail.

[20] The Crown referred R. v. Phan, an unreported case decided on January 9, 2018, in the Ontario Court of Justice in Toronto. Phan was a courier who was caught with four kilograms of cocaine and one kilogram of fentanyl, far greater amounts than found in the possession of Mr. Leite. The defendant pled guilty and had no prior record. The Crown asked for a 12 year sentence and the defence requested a sentence of 5 to 7 years. Boivin J. imposed a sentence of 8 ½ years. The prosecution did not appeal this sentence.

[21] Mr. Bundy submits that this sentence is abnormally low and not in line with most other fentanyl and cocaine decisions. With respect to Boivin J., I prefer the sentencing principles set out in R. v. Vezina.

Opioids

[22] After hearing the evidence in this case and reading sentencing decisions, the following observations can be made. Opioids are prescribed to reduce pain and improve function, but they also produce a feeling of well-being and euphoria. Many opioid users are no doubt recreational thrill seekers. However, many use them to ease the pain they feel from mental illness, loneliness, despair, abuse, and work related injuries. Some seek to escape from boredom in small communities where there is not much to do, or to escape from lack of or loss of employment, and resulting poverty. They are common in some indigenous communities, in the rust belt and Appalachian areas of the United States, and in blighted inner cities, such as the Downtown East Side of Vancouver.

[23] Physicians may have overprescribed opioids such as Oxycontin, which was banned in Canada in 2012. This has caused some users to seek out street drugs such as heroin and fentanyl. As was mentioned in paragraph 13 above, in some areas fentanyl has replaced heroin because it is cheaper to import and is far more powerful, so that it can be cut to produce more individual units.

[24] Fentanyl is a purely synthetic opioid, and is produced in laboratories for legitimate therapeutic purposes. However, illicit labs, mainly in China, Europe, and Mexico, have turned out several different varieties. There is no reason to think they are not in Canada already, or will not be in the near future.

[25] One variety is called carfentanil, which is far more powerful than regular fentanyl, and which has already been seized in Canada.

[26] The powdered variety of fentanyl, which was the type possessed by Mr. Leite is the most dangerous, internally and externally.

[27] The Canadian Centre on Substance Use and Addiction, on its website [ccdus.ca], states that "In November 2016, the Honourable Dr. Jane Philpott, former federal Minister of Health, and the Honourable Dr. Eric Hoskins, Ontario Minister of Health and Long-Term Care, facilitated the signing of the Joint Statement of Action to Address the Opioid Crisis in Canada. This document outlines action-oriented commitments by 54 national organizations to improve prevention, treatment and harm reduction associated with problematic opioid use." There is also a reference to the high number of deaths, hospitalizations, and hospital emergency department visits resulting from fentanyl, as of 2015. The crisis in Canada has worsened since then.

The Factors Affecting the Appropriate Sentence for Mr. Leite

Peter Leite – Personal Circumstances

[28] Mr. Leite is now 29 years of age and has no prior criminal record. Since his arrest he has obeyed the conditions of his release. A daughter was born to his wife Ana and him on July 10, 2017. There was no evidence as to the ownership of their home, but each drove a BMW motor vehicle. Mr. Leite has not been employed since 2011 and was on public assistance.

[29] Several character letters were filed on his behalf on the sentencing, and his family and friends described his involvement in this criminal activity as being out of character. He has strong family support.

Pre-Sentence Report

[30] A pre-sentence report was prepared. On page 4, the probation officer wrote that Mr. has never used drugs. He maintained his innocence. The Crown described it as a neutral report, which is an accurate assessment in my view.

Peter Leite's Own Letter

[31] Mr. Leite filed his own letter to the court. On pages 3-4 the following remarks were made:

I have had to really think about why someone like me. A homebody whose main passions in life are my family, and my cat who I adore could be involved in this. I have never used any drugs of any kind, I have no personal experience with drugs, I also know very little about them. I am beyond ashamed to be connected with drugs especially Fentanyl given the devastation it has caused so many people and their families. I feel compassion for addicts and although I can't understand what they go through, I do understand mental illness as I suffer as well.

I can say I have never done anything I deeply regretted or was remorseful about until now and my remorse is great. The only blessing is that I know a great lesson was learned and I can honestly say without doubt that I will never find myself here again. I plan on taking this time to rebuild my life, to seek out the knowledge I need to become the person I need to become the person I need to be for my Family and myself.

In my dire financial mental straits I was a good candidate, easily manipulated and vulnerable during the time of my involvement. This is not an excuse but rather a snapshot of my mental and financial state. Not having worked for a while and feeling worthless for so long. Watching those I love and admire around me really growing into amazing, successful adults, starting families, buying their first homes and me feeling like I had zero opportunities, debilitating low self-esteem and no stability.

The day after my arrest I found out my wife was pregnant with our first child. At that very moment I knew that I need to change. This was a blessing and my greatest motivator. Unfortunately, or fortunately I am now in this position. However it is not change how motivated I am to create a wonderful, stable and healthy life for my wife and our beautiful daughter. I feel like I'm truly blessed. My family have been unconditionally loving and supportive. I'm very lucky as I have caused them so much grief and shame. I will make sure they can one day soon feel very proud of me and will in turn be able to rely on me for the support and love they've shown to me.

Peter Leite's Oral Submissions

[32] In speaking to sentence the defendant said that he jeopardized his family by exposure to fentanyl and by his greed and foolishness. He did this to his family, it was his fault, and he has to pay for that.

Although the defendant maintained his innocence in the Pre-sentence report, in his letter to the court and oral submissions he has admitted his guilt and seems to be remorseful.

Good Behaviour When on Bail

[33] Mr. Leite was arrested on November 16, 2016, and was released on December 5, 2016, on a recognizance in the amount of $115,000.00, without deposit, and with his father, mother, and sister as sureties. The pre-trial custody was 20 days which is normally enhanced by 1.5, resulting in 30 days to be credited to him. The terms of bail required him to live at his father's home and not to be out of that home except for medical emergencies, or in the presence of one of his sureties, or for employment with his father. In addition to other conditions, he was not to communicate with his co-accused.

[34] Mr. Bundy has advised the court that there have been no breaches of bail by Mr. Leite since his release over fourteen months ago.

[35] In R. v. Downes, it was held that good behaviour on release with restrictive conditions should be taken into consideration in imposing sentence. In that case a 21 month jail sentence was reduced to 16 months. Mr. Downes had spent 18 months on bail with house arrest. The court allowed 5 months credit for the 18 months.

Aggravating Circumstances

[36] Mr. Leite was a mid to high level dealer of dangerous, highly addictive drugs, a large quantity of which were found in his home. A considerable amount of cash was also located which was from the sale of drugs, and yet he was on public assistance, and he and his wife drove luxury vehicles. He did not use drugs himself, so that his sole motivation was greed. These are indictable offences and a maximum life sentence can be imposed for trafficking in each of the three drugs found in the possession of the defendant.

The Sentence to be Imposed

[37] The following is the sentence of this court:

Count 2 – Possession of cocaine for the purpose of trafficking – This count relates to the larger quantity found in the safe in the office – There will be a 5 year concurrent jail sentence.

Count 3 – Possession of cocaine for the purpose of trafficking – A 12 month concurrent jail sentence will be imposed for the smaller quantity found on the office desk.

Count 4 – Possession of methamphetamine for the purpose of trafficking – A large quantity was found on the office closet floor – There will be a 3 year concurrent sentence.

Count 5 – Possession of methamphetamine for the purpose of trafficking – A 12 month concurrent jail sentence will be imposed for the smaller quantity found in the safe.

Count 6 – Possession of fentanyl for the purpose of trafficking – There will be 6 year consecutive jail term – This relates to the larger quantity found on the office closet floor.

Count 7 – Possession of fentanyl for the purpose of trafficking, concerning the smaller amount found on the office desk – A 2 year consecutive jail term is imposed.

Count 8 – Possession of Canadian currency in an amount exceeding five thousand dollars, knowing that all or part of the property was obtained by the commission in Canada of an offence punishable by indictment – A total of $22,425 was seized in two locations in the house – The Crown requested a consecutive jail sentence of 18 months to 2 years, but I am imposing an 18 month concurrent sentence to balance the totality of the sentence, and to reflect the 30 days pre-trial custody, the good behaviour of Mr. Leite when released on bail, and the remorse he has shown.

The end result is a penitentiary sentence of 8 years.

Forfeiture: The Crown is also asking for forfeiture of this money and there will be a forfeiture of the $22,425.00 cash and of other items seized, which are set out in an order which I will sign.

DNA Order and Weapons Prohibition: As well as a DNA order, and a Criminal Code section 109 weapons prohibition for life.

Victim Surcharge: The Criminal Code imposes a mandatory victim surcharge which in this case amounts to $1,400.00. Mr. Leite will be given time to pay this amount of money if he so requests.

Released: February 28, 2018

Signed: Justice Alan D. Cooper