Ontario Court of Justice

Date: 2020-10-30

Central East Region

Between:

HER MAJESTY THE QUEEN

— AND —

ROBERT RODGERS

Before: Justice J. Bliss

Plea entered: November 15, 2019

Sentence hearing held: February 19, 2020

Reasons for sentence released: October 30, 2020

Counsel

B. Bhangu and K. Smyth — counsel for the Crown

D. Sederoff — counsel for the accused Robert Rodgers

BLISS J.:

The Offence and Guilty Plea

[1] On August 18, 2017, Robert Rodgers went to Darci Beers' residence with what he believed to be cocaine. He shared the drug with Ms. Beers and a downstairs neighbor, Richard Pauze. Ms. Beers' use of the drug that Mr. Rodgers provided to her had tragic consequences. The drug was not cocaine but a substance known as U-47700. Ms. Beers died as a direct result of ingesting the substance that Mr. Rodgers trafficked. On November 15, 2019, Mr. Rodgers pled guilty to manslaughter. In doing so, he accepted that he caused Darci Beers' death when he trafficked in the drug that she ingested and died from.

The Nature of U-47700

[2] There is no dispute that Mr. Rodgers believed that what he had purchased and brought to Ms. Beers' home that night was cocaine. U-47700 is a synthetic opioid. Like cocaine, U-47700 is white, and has the exact same texture, and appearance as cocaine. It is not intended for human consumption. It has no approved use for humans. It is marketed online as a research chemical. It was first seen in mid-2017. From June, 2017 to November, 2018, the Centre of Forensic Sciences has detected it in approximately 80 cases.

The Parties and Their Relationships

[3] Darci Beers lived in the upper unit of a residence on Bristow Court in Barrie with her 3 year old son. Richard Pauze lived in the basement apartment of that residence. He and Ms. Beers had known each other for several years. Robert Rodgers had been friends with Darci Beers for about twelve years.

Events of August 18, 2017

[4] On August 18, 2017, Robert Rodgers was looking to buy cocaine. At 9:04 p.m., he texted an individual named "Josh", who he had bought cocaine from in the past. There were a number of text exchanges between the two which lead to a meeting just after 10:44 p.m.. Between 10:15 p.m. and 10:49 p.m., Mr. Rodgers also called Darci Beers five times. None of those calls lasted longer than two minutes. The defendant met up with "Josh" and purchased $200 worth of what he believed to be cocaine.

[5] After meeting with Josh, Mr. Rodgers got dropped off at Darci Beers' residence. Ms. Beers and Mr. Pauze were outside. Mr. Pauze had never met Robert Rodgers. The defendant and Ms. Beers went into Ms. Beers apartment. When Mr. Pauze entered a few minutes later, he saw Mr. Rodgers and Ms. Beers at the kitchen table. There was a line of white powder on the kitchen table and Mr. Rodgers asked Mr. Pauze if he wanted to "try a line". Mr. Pauze picked up a $20 bill that was already rolled on the table, snorted the line of what he believed to be cocaine, and instantly felt an extreme burning sensation. Mr. Pauze had done cocaine about thirty times previously and knew instantly that what he had ingested was not what cocaine felt like. To him, it felt like he was "inhaling fire".

[6] Mr. Pauze remembered saying, "that burns" and "that doesn't feel right". He recalled walking into the living room and sitting on a couch. His next memory was waking up with a bowl of vomit beside him, and running to the bathroom to vomit. He saw Robert Rodgers laying down on another couch in the living room. He appeared to be snoring. He did not see Ms. Beers at the time.

Discovery of the Victim

[7] Mr. Pauze walked to Ms. Beers' bedroom. He lay down on the bed and fell asleep, only waking periodically to vomit. Just before 1:00 p.m. the next day, Richard Pauze woke up. He walked to the kitchen and found Ms. Beers lying on the floor. There was blood down her face and white powder on the kitchen counter near her body. The white powder was determined to be U-47700.

[8] Mr. Pauze lay Ms. Beers on her back and tried to perform CPR. He saw the defendant lying on his side on the landing between the doorway and entranceway facing the kitchen. Mr. Pauze yelled at Mr. Rodgers to call 911. Mr. Rodgers had trouble standing and pulled himself along the floor to the front door. He pulled out his cell phone and said he was calling his wife for a ride. Mr. Rodgers did not call 911 but instead called someone for a ride.

[9] Mr. Pauze ran to a neighbour's house to call 911. At 1:02 p.m., 911 was contacted. Neighbours ran to Ms. Beers' residence and tried to assist Ms. Beers while they were on the phone with the police dispatcher. When police and paramedics attended the scene, it was apparent that Ms. Beers was already deceased. She was pronounced dead at 2:55 p.m.. 1.1 grams of U-47700 in plastic wrapping was seized from the kitchen.

The Accused's Condition

[10] Robert Rodgers was found by police and ambulance sitting in the front doorway of Darci Beers' house. He told paramedics he was feeling weak but denied suffering from any pain to his head, neck, abdomen, back and chest. He complained of weakness to his left side and was unable to put weight on his left foot. There was swelling and redness to the right side of his neck. Shortly after 3:55 p.m., Mr. Rodgers mother attended the scene and advised the police she was there to pick her son up.

Arrest and Charges

[11] On August 19, 2017 Robert Rodgers was arrested for possession and trafficking in a controlled substance. He provided a voluntary statement to police. Since August 29, 2017, he has been on bail with what has been characterized as "very strict" conditions. On November 15, 2017, Robert Rodgers was arrested for manslaughter and criminal negligence causing death. I was provided with a transcript of his interview with police along with a video of that interview and asked to review it. I am grateful for that invitation.

The Tragedy and Its Impact

[12] There does not seem to be any reason why Mr. Pauze and Mr. Rodgers survived while Ms. Beers did not. There is a cruelty behind twists of fate that leave loved ones to pick up the pieces of lives shattered by a single fateful act. No sentence that I impose will make up for the loss that Darci's family and friends feel, nor should the sentence I impose be considered equating with what Darci's life was worth.

The Accused's Remorse

[13] The police interview with Robert Rodgers was measured and compassionate but did not shy away from the fact that Robert Rodgers bore the responsibility for Darci Beers death; leaving her son without his mother, and her parents and stepparents without a daughter. Watching Mr. Rodgers be confronted by the stark reality of having caused the death of his friend, is watching a young man devastated by what he did. His remorse was genuine. He repeatedly broke down in tears when reminded that he had left a little boy without his mother, that he thought he had bought cocaine, when asked about how long he had known Darci, whether he intended for any of this to happen, when talking about wanting to help in any way he could, or when expressing how she was a good friend of his and he did not want anyone to get hurt. This was not an act. It does not change the anger Darci's family feel toward Robert Rodgers and his claim that he was Darci's friend. They saw her as hurt and vulnerable and trying to cope with her sister's recent passing and they question his motives in going to her home that night. They have every reason to be angry and every reason to question what he did. Nothing I say, nor any sentence I impose, will assuage the responsibility and guilt that Robert Rodgers will, and should, carry for supplying Darci Beers with the drug that killed her. Nor should any sentence do so. The sentence that I impose is a small part of the sentence that he should carry with him for the rest of his life.

The Accused's Statement to Police

[14] Mr. Rodgers provided an inculpatory statement in which he stated that he thought he had purchased cocaine. It was the same price as cocaine. He did not sample any of the drug before he arrived at Ms. Beers' residence. He said that they had done cocaine together in the past. Neither Ms. Beers nor Mr. Pauze gave him any money for the drugs. He gave police the name of his supplier, "Josh", and explained that he had purchased cocaine from Josh before. Josh owed him "half a B" from a previous drug transaction in which he had had not received the drugs he purchased. He provided Josh's telephone number and a description and told police where they met, but suspected that Josh was a fake name. Police attempts to locate or identify "Josh" were unsuccessful.

Cause of Death

[15] It was determined that Darci Beers died of U-47700 toxicity. According to the toxicology report, Ms. Beers had ethanol and U-47700 in her blood but no cocaine.

The Accused's Medical Condition

[16] Mr. Rodgers suffered a stroke and a head injury from ingesting the drug. He suffered a hematoma on the right side of his neck, bruising to his right elbow, and an abrasion to his right ear. Hospital records from August 20, 2017, note him telling hospital staff that he snorted one line of cocaine, which is less than he usually ingests, and approximately 3-4 beers. He said that he did not recall anything else that happened to him. While in the Emergency Department, he was diagnosed with left side hemiparesis that gradually improved, and a hematoma over the right side of his neck. A urine toxicology screen was negative for all substances. There was concern for carotid artery dissection but that was ruled out. Any neurological deficits appeared to be gradually improving.

[17] A report from August 23, 2017 noted that after snorting a street drug, Robert Rodgers passed out and developed rhabdomyolysis and small brainstem stroke and there were fairly extensive changes in the white matter of the brain. Dr. Maher's suspicion was that the defendant suffered either a hypotensive or hyperextensive crisis after ingesting the street drug which caused the stroke and diffuse white matter change. The physician noted that Mr. Rodgers was improving and his neurological examination was essentially normal other than some mild numbness to his left hand. A further MRI was suggested in a few days.

[18] Following discharge, Mr. Rodgers returned to the Royal Victoria Hospital on September 7, 2017 complaining of ongoing muscle pain he rated as "8/10". He was described as looking well with a full range of motion and looked uncomfortable, but was otherwise not too distressed. The pain was felt to be most likely related to resolving rhabdomyolsis, and recommended blood work as the complaints were easily treatable. The patient refused blood work despite being advised of the repercussions, including injury, disability or death, even though the likelihood of any anabolic abnormality was low.

Character and Rehabilitation

[19] Character reference letters filed on the defendant's behalf speak glowingly of him. They note his responsibility, devotion to his family, and strong support network. They talk of what a generous, caring and compassionate person he is. His older sister observed how this devastating event has affected him physically and emotionally, and he carries a tremendous amount of shame, grief and anxiety, and will suffer with it for the rest of his life.

Counselling Report

[20] Since September 18, 2017, Mr. Rodgers has been engaged in counselling with Cindy McAfee of Balanced Life Therapy. Her report includes Mr. Rodgers' account of the event to her. According to Ms. McAfee, Mr. Rodgers claimed that he had contacted Ms. Beers, who he described as a friend he had known since high school, to ask if she knew of anyone who he could purchase cocaine from. She did not, so he called another person who he purchased the cocaine from. The timing of events in Mr. Rodgers account to Ms. McAfee does not accord with the agreed statement of facts. Mr. Rodgers first text to "Josh", the cocaine supplier, was at 9:04 p.m., while his first call to Ms. Beers was at 10:15 p.m.. Mr. Rodgers told Ms. McAfee that Ms. Beers invited him over that evening and to bring cocaine for the two to use. He went to the house where Ms. Beers housemate joined them in using minimal amounts of the drug. After ingesting the substance, he told her that he fell unconscious for many hours. When he awoke, he was in paralysis and an ambulance was called.

[21] Ms. McAfee characterized Mr. Rodgers as a "victim". She reported how their sessions involved him mourning the loss of a dear friend and that he has experienced anxiety and depression associated with his own hospitalization and near death experience. She reported that he continues to struggle with processing the death of his friend and endures night terrors, panic attacks, general anxiety and bouts of depression. She relayed Mr. Rodgers' report that he has been sober since August 2017, is an active member of Alcoholics Anonymous, and has demonstrated unwavering commitment to his rehabilitation. She concluded with her opinion that given his progress, incarceration would be counterproductive to his recovery and damaging to his overall emotional health and well-being.

Sentencing Submissions

[22] The Crown submits that the range of sentence for this offence is between 12 and 18 months imprisonment, but urges that a sentence of 18 months imprisonment be imposed. The defence position is, in essence, that a sentence of 9-10 months imprisonment would be appropriate, and that with Downes credit of between 6 and 7 months pre-sentence "custody" for the restrictive bail terms Mr. Rodgers has been under, the suggested range of sentence for the time remaining is between a suspended sentence to one of 90 days imprisonment. Each provided caselaw in support of their respective positions.

Sentencing Jurisprudence

Cases Provided by the Crown

[23] The cases provided by the prosecution supported a range of sentence between 18 months and 5 years imprisonment. In R. v. Creighton, [1993] S.C.J. No. 91, a group, including the appellant and the deceased, consumed a large quantity of alcohol and cocaine. All were experienced cocaine users. The appellant injected the drug intravenously into himself and the deceased, with her consent. She immediately began convulsing and appeared to stop breathing. The appellant and another person tried unsuccessfully to resuscitate the victim. The appellant would not allow 911 to be called. The appellant placed the deceased, who was still alive, on her bed and cleaned the apartment of any fingerprints before leaving. The victim had gone into cardiac arrest as a result of the injection and later asphyxiated. It was only when the other person returned to the residence six or seven hours later, that emergency services were called, but by then it was too late. The appellant's conviction for manslaughter and sentence of four years imprisonment was upheld on appeal.

[24] In R. v. Haas 2016 MBCA 42, [2016] M.J. No. 118 (C.A.), the accused was convicted, after trial, of unlawful act manslaughter arising from the morphine overdose of a young woman who was staying with the accused in his apartment. He had a supply of street morphine and when the deceased and her friend came to his apartment, he provided both with pills. Over the course of about 32 hours, they both consumed the pills the accused had provided. The appellant noticed one was having difficulties breathing and attempted to assist her. At some point he fell asleep, but awoke to see she was in dire straits and was vomiting. He called 911 and performed CPR on her while he waited for the ambulance. She died in the hospital shortly after arrival. The appellate court did not interfere with the three year sentence imposed.

[25] R. v. White 2019 ONCJ 191 (C.J.) involved an individual who pled guilty before West J. to trafficking in a substance held out to be heroin, but was, in fact, fentanyl. The victim and accused were friends, and both drug addicts. The victim contacted the accused to purchase heroin from him. The accused purchased what he believed to be heroin, an aggravating fact in itself, from another individual to provide to his friend. The deal was done in the victim's vehicle. With the accused still in the vehicle, the victim injected himself with the drug. When the accused expressed concerns for the victim's well-being, the victim assured the accused he was okay and drove off with the accused in the passenger seat. His manner of driving raised further concerns and the accused had the victim let him out of the car. The accused later sent a text to the victim which went unanswered. The victim died from ingesting the substance the accused had provided to him.

[26] The accused had been under a strict recognizance, was remorseful and found to be highly motivated to live drug-free regardless of the sentence imposed. He had provided information to the police to identify the person he purchased the drug from, but no other person has been charged. His co-operation was a mitigating circumstance in reaching an appropriate sentence (para 70).

[27] The sentencing judge found no evidence that the accused provided illicit substances to anyone else, and described his role as "much less than a drug dealer". He was contacted because the victim was his friend and was desperate. It was accepted that the colour and texture of heroin and fentanyl made it difficult to distinguish between the two; a fact that was important in assessing the accused's moral blameworthiness. (para 72)

[28] West J. wrote:

Given the fact Mr. White believed he was purchasing heroin for Mr. Troy, which until the introduction of fentanyl was considered to be the most serious Schedule 1 illicit substance, it is my view the sentencing principles of deterrence and denunciation will usually be considered paramount in determining an appropriate sentence. Given the nature of the Schedule 1 substance, heroin, that Mr. White believed he was purchasing for Mr. Troy, the offence portion of the proportionality determination is of such gravity that, considered in isolation, it clearly favours a lengthy custodial sentence. However, given the fact Mr. White is a youthful first offender, he is not a drug dealer, he was a friend of Mr. Troy, who contacted him for assistance in obtaining heroin because he was experiencing symptoms of withdrawal and Mr. White was himself a heroin addict who has been successful in a methadone program; rehabilitation, restraint and reintegration into the community are nonetheless important sentencing principles, which cannot be disregarded and deterrence and denunciation should not be over-emphasized. (para 108)

[29] West J. found that the considering the totality of the unique circumstances of that case, an "individualized, proportionate sentence for Mr. White would be a custodial sentence of 18 months to be followed by 3 years' probation with conditions. (para 120)

[30] R. v. Walker 2019 ONCJ 132 was referred to by West J. in White (supra). Like White, Mr. Walker had struggled with drug addiction, but significantly, unlike White, was a low level drug dealer who supplied furanyl fentanyl and heroin with full knowledge of how dangerous the drugs he was supplying were, including the possibility of death. The sentencing judge's review of the caselaw suggested a starting point for determining a fit custodial for the offence of criminal negligence causing death to be five years imprisonment (para 16). That sentence was found to be appropriate in Mr. Walker's case, but for a credit of 1 ½ years for the substantial assistance Mr. Walker provided in the investigation and prosecution of another individual.

[31] In R. v. Knapp [2018] O.J. No. 2477 (S.C.J.), the accused had a legal prescription for fentanyl to treat a chronic neurological condition but became severely addicted to opiates. He sold a fentanyl patch which caused the death of a young woman who herself was addicted to drugs and had just been cut off her methadone program (para 1). The accused pled guilty to trafficking and criminal negligence causing death. The accused had difficult childhood but was gainfully employed and had family support. He had a dated criminal record but had never been incarcerated.

[32] A joint submission of two and a half years imprisonment was put before the Court. The judge noted:

The casebook that has been filed by the Crown contains a number of cases where sentences of two to three years of incarceration were imposed on facts that are reasonably comparable to those that are before the Court today. So, I do conclude that the joint submission is within the reasonable range of similar cases in similar circumstances and that to accept it would not be contrary to the public interest, nor would it bring the administration of justice into disrepute. (para 10)

This conclusion is subject to one very important qualifier. This offence was committed on January 25, 2016, which is two years and three months ago. It is really only in the last few years that the dangers associated with fentanyl have become public knowledge, as one death after another have been publicized. If this offence were to have been committed now, in 2018, I would not have been satisfied that two and a half years in penitentiary sufficiently addresses the predominant objectives of denunciation and deterrence that these offences involving such a dangerous drug as fentanyl call for. This drug is so dangerous that those who choose to traffic in it must know that they will be dealt with very severely by the Courts. So, this case should not be taken as an indicator that two and a half years will be the appropriate sentence for a similar offence on a go forward basis from this day forward. But regarding this particular case, considering the circumstances of the case and the time when it was committed, I accept the joint submission, and I will sentence the accused accordingly. (para 11)

[33] The prosecution also provided two further cases: R. v. Mastromatteo [2018] O.J. No. 3394 (C.J.) in which I wrote, at para 66: "The thread that emerges from these cases is that the fentanyl crisis justifies and requires a significant sentence to make it abundantly clear to those who are engaged in the illegal distribution of this drug that they will face significant sentences. What these cases illustrate is the seriousness with which offences involving fentanyl are, and need to be, treated". And R. v. Farizeh [1994] O.J. No. 2624 (C.A.), in which the Court of Appeal commented in respect of an individual with no criminal record who was a heroin addict that "[w]e stress the fact that the sale of heroin even in small amounts by first offenders who are addicts will call for a penitentiary sentence unless exceptional circumstances exist…" (para 5)

[34] While the treatment of those who knowingly, or even unknowingly traffic in fentanyl with deadly consequences, tends to result in a penitentiary sentence of between three and five years, the prosecution likens the circumstances of the offence and the offender in the case before me to the circumstances before West J. in White (supra) that resulted in an 18 month sentence of imprisonment.

The Lacasse Principle

[35] It is not lost that both prosecution and defence referred to the Supreme Court of Canada's decision R. v. Lacasse 2015 SCC 64, [2015] 3 S.C.R. 1089. In it, the Court wrote:

58 There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. Once again, everything depends on the gravity of the offence, the offender's degree of responsibility and the specific circumstances of each case. LeBel J. commented as follows on this subject:

A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit. Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community in which the offence occurred.

( Nasogaluak , at para. 44)

Cases Provided by the Defence

[36] The authorities provided by the defence, while not necessarily analogous with respect to the underlying facts, illustrated the wide range of sentences imposed for the offence of manslaughter. In R. v. Ryczak [2009] O.J. No. 1480 (C.A.), the respondent had left his house in the early morning hours. When he returned at about 3:30 a.m., he discovered the victim engaged in what appeared to be an attempted robbery. The respondent acknowledged he may have met the victim previously. The respondent testified that immediately upon him entering his house he was hit over the head with the lamp then a glass. He was able to push the victim away and tried to calm her but she came at him with a piece of the broken glass in her hand. He then put his hands around her throat and directed her to a couch but from the manner in which he held her, she stopped breathing. On determining that the victim was now deceased, he loaded her body into his car and drove her to a rural area where he dumped her in the snow. The cause of death was thought to be manual strangulation but the deceased also had potentially lethal levels of cocaine in her body which could, but may not, have proved fatal, but it may have made the victim's death by manual strangulation with the degree of force applied by the respondent more likely as the degree of force utilized by the respondent would not necessary have caused death

[37] The appellate court described the case as one with the tragic loss of the life of a woman who was unlawfully in the respondent's home, who "must have been there to steal something", and who repeatedly attacked the respondent without provocation". The offender was 55 years old, had no prior record, was steadily employed, and a respected and contributing member of the community, but with something of a double life that had him frequenting sex trade workers and used non-prescription drugs on occasion. The Crown appeal of the 30 month sentence imposed was dismissed.

[38] In R. v. Clemons [2003] MBCA 51 at para 7, the appellate court explained how the sentencing options for manslaughter is "like no other. They range from a suspended sentence to life imprisonment. A review of past sentencing decisions, whether in this jurisdiction or others, demonstrate that the breadth of those options have been exercised and it is extremely difficult to attempt to compare facts, circumstances and background of offenders in order to establish a restrictive or narrow range of fit and proper sentences. In colloquial language, the sentences are all over the map."

[39] This point was earlier emphasized in R. v. Johnny, [1994] B.C.J. No. 1373 (C.A.) at para 14-15 :

The leading principle which emerges from the decisions cited by counsel and which is referred to by the learned sentencing judge is that general deterrence and denunciation require a custodial sentence in the absence of exceptional circumstances. In Owens , [1986] B.C.J. No. 401 , this court, through Seaton J.A. at p. 8, quoted from the trial judge's reasons to say that he agreed that in most cases, for an offence as serious as manslaughter, a jail term is not only appropriate but also required if the deterrent principle of sentencing is to be adhered to: exceptional circumstances were required before a court could suspend the passing of a sentence of imprisonment.

A further principle indicated by these decisions is that exceptional circumstances are more likely to be found to be present to justify non-custodial sentences or the imposition of a reduced sentence where the conduct is marked by carelessness or near accident as opposed to violence.

Fentanyl Sentencing Range

[40] In R. v. Smith 2017 BCCA 112, the British Columbia Court of Appeal was called upon to determine the range of sentencing applicable to fentanyl offences. The Crown urged the Court to create a separate, and substantially increased, sentencing range given the role of fentanyl in increasing numbers of drug overdose deaths. In her dissenting opinion, Newbury J.A. stated at para 45:

I agree with the many judges who have stated that denunciation and deterrence must generally be given primacy in sentencing in cases involving Fentanyl. To this end, I would suggest a normal range beginning at 18 months' imprisonment ... I do not believe it is necessary for us to specify the top of the range, although I would suggest it might well exceed 36 months, especially where the offender has a substantial record involving the sale of Fentanyl or otherwise demonstrates an indifference to the human lives he or she is putting at risk. This is a matter that can be worked out in future cases. Obviously, the 'range' may also increase beyond 36 months, or a different range will apply, where the offender is higher up the chain of sale or distribution.

[41] The majority in Smith differed with respect to the particular sentence imposed upon the offender in that case, but agreed with the general principles expressed by Newbury J.A. and the proposed range, stating at para. 65:

In sum, the continuing escalation in the number of fentanyl-detected deaths, the enormity of the total numbers of accidental overdosing, the increasing percentage of fentanyl detected deaths as a proportion of the total, and the currently ubiquitous awareness of the risks posed by illicit fentanyl, in combination, justify a recognition of a very substantial increase in the sentencing range applicable to street-level dealing in fentanyl.

[42] The majority observed that in the case before them, "the sentencing judge placed little or no weight on the suggestion that Mr. Smith thought he was selling heroin and did not know that the powder he was selling was fentanyl. His state of knowledge played no material role in the sentence imposed". The court declined to comment on the relevance of his alleged personal knowledge of what he was selling, preferring to leave the issue, "insofar as there is any lack of clarity in the law, to a case in which it is material to the outcome." (para 66)

[43] While the 18 to 36 month range suggested by Smith was for street-level trafficking in fentanyl, the Court acknowledged, however, that "ranges are not hard and fast categories and do not preclude lesser or greater sentences if the circumstances or applicable principles in a particular case warrant". (para. 35)

Credit for Stringent Bail Conditions

[44] The defendant has been under bail conditions of varying strictness since his release from custody and seeks credit for this time. In R. v. Downes, [2006] O.J. No. 555 (C.A.) at para 33-34 , the Court wrote that "time spent under stringent bail conditions, especially under house arrest, must be taken into account as a relevant mitigating circumstance. However, like any potential mitigating circumstance, there will be variations in its potential impact on the sentence and the circumstances may dictate that little or no credit should be given for pre-sentence house arrest. In some cases, the terms of the house arrest may impinge very little on the offender's liberty. Some accused may be allowed to work as usual, take care of their family obligations as usual and in general, see little serious impact on their pre-bail way of life. For others, house arrest may be very difficult."

[45] On August 19, 2017, the defendant was arrested for possession and trafficking in a controlled substance. He provided a voluntary statement to police. He remained in custody until August 29, 2017 when he was released on bail with terms that he remain in his residence, or on the property, at all times except for medical emergencies, travelling directly to and from and while at school or work, or while in the presence of either of his sureties, which included his common-law wife and mother. I was advised that he lost his employment as a result of these matters. On November 15, 2017, Mr. Rodgers was charged with manslaughter and criminal negligence causing death. The next day he was released on bail with terms that he remain in his residence, or the property at all times, with exceptions for medical emergencies, for attending court or meeting with his lawyer, while in the presence of either of his sureties, which remained his common law wife and mother, to attend medical appointments, rehabilitation clinics, aqua therapy, bicycle therapy, AA meetings and, notably, with written permission of a surety.

[46] Mr. Rodgers is entitled to credit for the 13 days of pre-sentence custody from August 19, 2017 to August 29, 2017 and November 15, 2017 to November 16, 2017 at an enhance rate of 1.5:1 for the equivalent of 20.5 or 21 days. The defendant submits that he is entitled to six to seven months credit for the rest of the time he has been subject to the terms of his judicial interim release. While on bail, Mr. Rodgers has been able to live at home with his wife. He is said to have lost his employment as a result of this matter, which he was entitled to continue under the terms of his initial bail when he was charged with trafficking. While the subsequent bail on the manslaughter charge did not specifically provide an exception for him to work, it did provide him with an exception from being under house arrest if he was with either of his sureties, or with the written permission of one of his sureties, and the exceptions for his rehabilitation, including aqua and bicycle therapy, was wide ranging. Because of those allowances I would not characterize his time on bail as strict or overly restrictive.

[47] Despite the seriousness of the offence, for which the bail terms were entirely appropriate, Mr. Rodgers is entitled to some credit. For the two and a half months that he was subject to the bail terms while charged with trafficking and possession, and which required him to remain at home unless going to and from employment which he lost, or while with one of his sureties, he will receive 15 days credit. The bail order he was required to abide by since being charged with manslaughter and criminal negligence causing death provided for numerous exceptions to his house arrest that enabled him to have the same liberty he did pre-offence with the proviso that his wife or mother permitted him to do so. It is my view that he is only entitled to nominal credit for the time under that bail commensurate with the nominal impact on his liberty which I consider to be the equivalent of 30 days. The total Downes credit of 45 days will be added to the equivalent of 21 days of pre-trial custody for a total presentence credit of 66 days which will be deducted from the sentence imposed.

Sentencing Principles

[48] The determination of an appropriate sentence must consider the principles of sentencing set out in s. 718 of the Criminal Code:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[49] Attention must also be paid to s.718.2(a) (iii.1) which deems any significant impact on the victim as aggravating while (b) provides a reminder that "a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances, and (d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; in essence, what is the least restrictive sanction capable of addressing all the principles of sentencing.

Consideration of Mitigating and Aggravating Factors

[50] I have considered the Pre-Sentence Report, counselling reports, character reference letters and Mr. Rodgers own words, as well as hearing and reading the victim impact statements which set out the impact Darci's loss has had on their lives.

[51] Robert Rodgers is now 31 years of age. He was 28 years old at the time of the offence. He has no criminal record. He has been in a relationship with his fiancée for nine years and they reside together. At the time of the offence, he was working in the automotive parts industry but "encouraged to resign". As of January 2019, he has been operating his own residential contracting business.

[52] Mr. Rodgers' began using drugs in his late teens and would use cocaine every few weeks. He reported to the Pre-Sentence Report author that he went into detox for a week when he was eighteen and abstained from drugs for six to twelve months. When he was nineteen he relapsed and would use cocaine monthly. His fiancée identified him as having an issue with alcohol and he attended a support group in 2013 because of that. When he met her, he stopped using drugs for over a year but relapsed and was using cocaine once a month to once every three months up to the time of the offence. There is no evidence Mr. Rodgers was an addict nor that he was engaged in commercial drug dealing but he would share drugs he obtained. He has not used drugs or alcohol since this offence.

[53] Following a preliminary inquiry and committal for trial at the Superior Court of Justice, the matter was returned to this Court where Mr. Rodgers entered his guilty plea to the charge of manslaughter. While not an early guilty plea, he is entitled to credit for entering the guilty plea and his public expression of responsibility for Darci Beers' death.

The Accused's Moral Blameworthiness

[54] There is no question that Mr. Rodgers believed he was purchasing cocaine from "Josh" and that the substance he was ultimately provided was identical in colour, texture and appearance to cocaine. He was the one who contacted his supplier to purchase cocaine, then contacted Ms. Beers repeatedly before going to her home sometime around 11 o'clock that night. Even if his moral blameworthiness is tempered somewhat by the fact he believed he was sharing cocaine and not the deadly U-47700, it could not have been lost on him that cocaine is still a dangerous drug that alone could have been fatal, and, even in 2017, was being adulterated with other drugs with fatal consequences.

The Accused's Failure to Act

[55] Richard Pauze described an almost instantaneous awareness that "something was off" with what he ingested, falling unconscious, and intermittently waking to vomit. When he woke just before 1:00 p.m. the next day and found Ms. Beers on the floor of the kitchen, he sought to assist her. He tried to perform CPR, and he yelled at Mr. Rodgers to call 911. While Mr. Rodgers had trouble standing and needed to pull himself along the floor to the front door, he did nothing to assist Ms. Beers who he left on the floor. Instead of calling 911, Mr. Rodgers instead told Mr. Pauze that he was calling his wife for a ride. It would seem that the person he, in fact, called was his mother. Mr. Pauze was the one who ran to a neighbour's house to call 911. It was the neighbours who ran to Ms. Beers' residence and tried to assist her while on the phone with dispatchers until police and paramedics arrived at the scene. All the while Mr. Rodgers did nothing. Mr. Rodgers was certainly emotional and remorseful during his interview with police on November 15, 2017, but when he needed to act, when he needed to demonstrate concern and empathy for someone other than himself, for something he was responsible for, he failed.

Victim Impact

[56] Family members provided statements of the impact of Darci's death that has left. They struggled to put into words how much Darci meant to them. Her son Joey, who was 3 years old, had his mother taken away from him. Just over a year earlier Darci's sister passed away. Darci was described by all as an effervescent, caring, young woman who seemed to touch all those she came across. None of this is fair. No sentence I impose will seem just. How can it be when compared with the sentence imposed on those who loved Darci? How can it be when you hear her father try to put into words what the loss of his daughter has meant to him: "These days I look forward to getting old enough and pass on so I don't have to suffer the pain of losing my daughter every minute of every day. Loneliness, depression after losing a child. There is no more purpose to life".

Sentencing Decision

[57] Mr. Rodgers' circumstances and the circumstances of the offence are, I find, most similar to those West J. was confronted with in White (supra). Both believed they had supplied a drug that was other than what was actually supplied; both had fatal consequences. Mr. White did express concern from the moment he watched his friend ingest the drug, something that Mr. Rodgers did not. Mr. White was an addict himself and had taken positive steps towards rehabilitation. Mr. Rodgers did not suffer from addiction, but has since abstained from the use of drugs and alcohol which has been part of his life in the past. His reason for contacting Ms. Beers in the first place is something that he will have to answer for, but his questionable intentions that night, are not something that is part of the sentencing process.

[58] Taking into account all the circumstances, I am of the view that a sentence of imprisonment of 18 months, or 545 days, followed by probation for three years is warranted. That sentence will be reduced by the equivalent of 66 days credit for pre-sentence custody which leaves 479 days imprisonment to serve. Aside from the statutory terms of the probation order, in light of Mr. Rodgers now abstention from the use of drugs, he will be required to abstain from the possession or consumption of any unlawful drugs or substances under the C.D.S.A. except with a valid prescription in his name, attend for such assessment, counselling or rehabilitative programs for substance abuse as directed by the probation officer, and he will also be prohibited from contacting or communicating, directly or indirectly with any member of Darci Beers' immediate family, Maria Seminara, and Richard Pauze or being within 100m of anywhere he knows any of them to live, work, go to school, frequent or any place he knows them to be except for any required court attendances. He will also be required to provide a sample of his DNA and be subject to a s.109 weapons prohibition for 10 years.

Released: October 30, 2020

Justice J. Bliss