Court File and Parties

Date: April 13, 2023 Ontario Court of Justice – Old City Hall - Toronto

Between: His Majesty the King And: Kevin Gordon

Counsel: S. Virani, for the Crown D. Heath, for the Defendant

Heard: July 28, 2022; February 3, 2023

Reasons for Sentence

Russell Silverstein, J.:

A. Introduction

[1] On July 28, 2022, Mr. Gordon pleaded guilty before me to possession of fentanyl for the purposes of trafficking.

[2] The case was then adjourned for sentencing pending the preparation of a presentence report.

[3] Submissions on sentence were made on February 3, 2023.

B. The Circumstances of the Offence

[4] On May 14, 2021, uniform officers were conducting surveillance in the area of the Fred Victor Centre, a homelessness charity, in the City of Toronto, in relation to ongoing illegal drug dealing in and around the area. While conducting surveillance, officers observed Mr. Gordon sitting on the steps in front of the building.

[5] Officers began watching Mr. Gordon, and within the span of 30 minutes, they observed him conduct three separate hand-to-hand transactions. After the third hand-to-hand transaction, officers approached Mr. Gordon and arrested him for trafficking a schedule I substance.

[6] Police conducted a search incident to arrest and located 53 packages of fentanyl in individual dime bags inside the left sleeve of Mr. Gordon’s sweater. Inside his right sleeve, police located 73 packages of crack cocaine. Officers searched Mr. Gordon’s backpack and located a blue pill bottle, containing 30 hydromorphone pills. Police also located $365 dollars and a cellphone on Mr. Gordon’s person.

[7] Officers transported Mr. Gordon to 51 Division, where they conducted a Level 3 search. During this search, officers located a further 70 individual packages of fentanyl. In total, police seized 7.02 grams of cocaine, 12.07 grams of fentanyl, and 30 hydromorphone pills.

C. The Circumstances of the Offender

[8] Mr. Gordon is now 35 years old. He has a prior criminal record. In 2007 he was convicted of possession of stolen property and failure to comply with a recognizance. In 2009 he was convicted of possession of a Schedule I substance and fail to attend court.

[9] Mr. Heath’s submissions and the presentence report inform me that Mr. Gordon had an extremely troubled youth. He was born in St. Thomas, Jamaica and came to Canada in 1995 when he was 9 years old. He came to Canada with his mother for the purpose of reuniting with his father who was already living in Canada. He has three brothers and one sister. He is the youngest. He has no contact with any of his siblings. He speaks with his mother occasionally and much less frequently with his father. His mother has worked as a nurse and his father as a bricklayer.

[10] While living in Jamaica he was raised by his aunt. He told the officer who prepared the presentence report that he grew up in a bad area and has bad memories of seeing dead bodies in the streets in his neighbourhood. I am told that in 2006 he witnessed his cousin die violently in front of him.

[11] When he and his mother arrived in Canada, they moved in with his father who was living in a rooming house, and within one year they moved to the Jane/Finch neighbourhood of Toronto.

[12] According to Mr. Gordon, he was sexually assaulted by a family friend when he was 11 years old. He never told his parents nor reported it to police. That event was traumatic for him and led him to become “a wild teenager who had difficulty living with his parents.”

[13] Mr. Gordon left home when he was seventeen. He says that he grew up feeling “withdrawn and alone.”

[14] Mr. Gordon became a father at age 18. His son is now age 15; he has not had any contact with him for 2 years. He also has a daughter who is now 13 years old. He has not had any recent contact with his daughter or his former girlfriend.

[15] By the time he committed the offences herein Mr. Gordon had tumbled down into a life of homelessness and opioid addiction, consuming as much as 4 grams of fentanyl per day. I accept that his trafficking in fentanyl was driven by his addiction.

[16] While it did not happen immediately after his arrest and release, eventually Mr. Gordon changed his life. He secured housing and employment a few months after his arrest. He has been drug-free since October 2022. He has diligently committed to treatment under the care of Dr. Emily Kendell at CAMH. He lives with his partner and a dog and has had a history of full employment, until only recently when he was laid off from his seasonal work as a roofer. He has upgraded his skills and expects to be hired back in the spring.

[17] Mr. Gordon has been on a waiting list since November 2022 for a residential program at St. Michael’s Treatment House.

D. The Position of the Parties

[18] Ms. Virani, for the Crown, seeks a sentence of three years. She also seeks various routine ancillary orders.

[19] Mr. Heath, for Mr. Gordon, has urged me to impose a strict form of conditional sentence of two years less a day with a term of probation to follow. He further submits that if a term of incarceration is imposed, it should be for two years.

E. The Principles of Sentencing and Their Application

[20] According to s. 718 of the Criminal Code, the "fundamental purpose" of sentencing is to contribute 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 following objectives, namely: (a) to denounce unlawful conduct; (b) to deter the offender and others 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 the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and the community.

[21] Further, according to s. 718.1 of the Code, the "fundamental principle" of sentencing is that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender."

[22] Section 718.2 of the Code also dictates that, in imposing sentence, the court must also take into account a number of principles including the following:

• A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;
• A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
• Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
• An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and,
• All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

[23] Section 10 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 provides the following with respect to the purpose of sentencing in drug matters:

Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community.

(a) Aggravating Factors

[24] The most aggravating factor in this case is the nature of the drug Mr. Gordon was trafficking. Fentanyl is a notoriously dangerous drug, accounting for an alarming, and growing number of overdose deaths in Toronto and Canada. 12.07 grams is not an insignificant amount.

[25] The concurring minority decision of Moldaver, J. in R. v. Parranto, 2021 SCC 46, summarized the seriousness of the opioid epidemic in Canada at para. 96:

"More broadly, federal statistics on opioid-related deaths show that, between January 2016 and March 2021, approximately 23,000 Canadians lost their lives due to accidental apparent opioid-related deaths, with fentanyl involved in 71 percent of these deaths (Special Advisory Committee on the Epidemic of Opioid Overdoses, Opioid and Stimulant-related Harms in Canada (September 2021) (online). The epidemic also shows no signs of abating, with over 6,000 accidental deaths occurring in 2020 alone, 82 percent of which involved fentanyl (Government of Canada, Federal actions on opioids to date (June 2021) (online)). These figures throw into stark relief the dark and inescapable reality that "[e]very day in our communities, fentanyl abuse claims the lives of Canadians" (R. v. Loor, 2017 ONCA 696, at para. 33)."

[26] The other drugs in Mr. Gordon’s possession are an aggravating circumstance, as is his criminal record, although given the age of the convictions, they only figure in my assessment in that they deprive Mr. Gordon of first offender status.

(b) Mitigating Factors

[27] There are several mitigating circumstances in this case.

[28] Mr. Gordon’s guilty plea is a strong expression of remorse. It also gives rise to a significant saving of judicial resources.

[29] Mr. Gordon’s actual and intended sale of illegal drugs was fueled by his drug addiction, not greed. In R. v. C.N.H., [2002] O.J. No. 4918, Rosenberg J.A. stated at para. 31:

... [T]he importance of s. 10 [of the Controlled Drugs and Substances Act] is to encourage courts to recognize the particular problem that in many cases persons convicted of drug offences are themselves victims of the drug culture and dependent upon drugs as addicts or users. I think s. 10 recognizes a view that had become increasingly prevalent that, especially for the addict trafficker, the public interest -- including the protection of the public -- is best served by the treatment and rehabilitation of the offender."

[30] This guidance was recently summarized by Rondinelli J. in R. v. Kozachenko (Unreported, Reasons for Sentence Sept 10, 2019) in the context of sentencing an accused for trafficking in fentanyl and possessing proceeds of crime. Rondinelli J. stated at p. 2:

Mr. Kozachenko pled guilty to one count of trafficking in Fentanyl and one count of possessing proceeds of crime. The aggravating factor is that we are dealing with Fentanyl, a powerful addictive drug. Indeed, Mr. Kozachenko has seen the devastating impact the drug may have in the overdose deaths of some of his close friends. Ordinarily the trafficking of Fentanyl would easily attract a significant custodial sentence. However, in this case we are dealing with an addict trafficker. In recent years, our Court of Appeal has recognized that there is a difference in moral blameworthiness between one who feeds an addiction by trafficking and one who engages in drug trafficking for greed. As long as there is direct connection between the addiction and the drug trafficking, more emphasis should be placed on the principle of rehabilitation. (See R. v. Barkhouse, [2017] ONCA 29 at para. 5, and R. v. Cloutier, [2016] ONCA 197 at para 61."

[31] Indeed, as noted by the Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64, at para. 4:

One of the main objectives of Canadian criminal law is the rehabilitation of offenders. Rehabilitation is one of the fundamental moral values that distinguish Canadian society from the societies of many other nations in the world, and it helps the courts impose sentences that are just and appropriate."

(c) Other cases

[32] In R. v. Grant 2021 ONCJ 507, after trial, an 18-year-old accused with no prior record was sentenced to a conditional sentence of two years less a day and three years’ probation for possession of fentanyl for the purpose of trafficking (9.5 grams), possession of crack cocaine for the purpose of trafficking (13.2 grams), possession of powder cocaine for the purpose of trafficking (13.2 grams), possession of methamphetamines for the purpose of trafficking (4 grams), and possession of oxycodone (1.5 pills). In this case, Mr. Grant was not an addict trafficker, however he had had a challenging upbringing, including bouts of depression and anxiety, and had shown significant maturation and rehabilitative efforts while on bail pending trial and sentencing, demonstrating that he was committed to pursuing a better path in the future: R. v. Grant, supra, at para.30.

[33] In R. v. Shearer, 2022 ONCJ 288, Porter J. sentenced the offender to a 20-month conditional sentence with 100 hours of community service for one count of trafficking, one count of possession for the purpose of trafficking and carrying a concealed weapon. The offender was a young addict first offender who had trafficked $100 worth of fentanyl to an undercover officer. His bedroom was searched and a further 2.84 grams of fentanyl was seized.

F. Conclusion

[34] There is no denying the seriousness of the offence committed by Mr. Gordon. In cases involving the possession of various opioids including fentanyl for the purpose of trafficking the objectives of denunciation and deterrence are paramount; however, this cannot overwhelm the analysis. An offender’s prospects for rehabilitation, totality, and restraint must play significant roles in the fashioning of a sentence for Mr. Gordon.

[35] The parties agree that a term of imprisonment is called for in Mr. Gordon’s case. The principal issue is whether it should be a sentence of incarceration or a term of imprisonment to be served in the community (a conditional sentence order).

[36] Section 742.1 sets out the conditions allowing for the imposition of a conditional sentence. There are five (5) prerequisites for the imposition of a conditional sentence:

• The offender must be convicted of an offence that is not specifically excluded.
• The offender must be convicted of an offence that is not punishable by a minimum term of imprisonment.
• The court must impose a sentence of imprisonment that is less than two years.
• The safety of the community would not be endangered by the offender serving the sentence in the community.
• The conditional sentence must be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 of the Code.

[37] Possession for the purpose of trafficking is no longer specifically excluded from the imposition of a conditional sentence, nor does it attract a minimum sentence.

[38] As concerns the length of the sentence, I believe that, considering the circumstances of the offence and the circumstances of the offender, and considering other decided cases, a sentence of imprisonment of less than two years is appropriate.

[39] Because of his drug treatment progress, which lowers the risk of further offending by Mr. Gordon, I am satisfied that service of the sentence in the community would not endanger the safety of the community.

[40] I am also satisfied that a conditional sentence would be consistent with the fundamental purpose and principles of sentencing. Although deterrence and denunciation are paramount objectives in this case, they can be achieved for these offences through a conditional sentence in these exceptional circumstances. As noted by the Court in R. v. Fabbro, 2021 ONCA 494 at paragraph 27:

Even if denunciation and deterrence were the overriding objectives in this case, a sentence of imprisonment was not the only route to achieve them. A conditional sentence recognizes the seriousness of the offences while at the same time acknowledging and promoting the significant strides in rehabilitation that the appellant has made with the help of his family and the medical community. Imposing a custodial sentence was likely to have a serious negative effect on the appellant's progress and would not serve the genuine societal interest.

[41] As in the case of Fabbro, imposing a custodial sentence would have a negative impact on the progress Mr. Gordon has made since his arrest toward rehabilitation and in putting his life back on track. Not just Mr. Gordon, but society too would be better served by giving him a better chance to continue to follow through with his progress.

[42] Applying the principles articulated in the Criminal Code and in R. v. Proulx, I believe that a conditional sentence is appropriate in this case.

[43] In the result, Mr. Gordon will serve a conditional sentence of two years less a day, under strict house arrest for the first 15 months of the sentence and a curfew for the remaining 9 months, with exceptions to be addressed in further submissions. Mr. Gordon shall complete 100 hours of community service at a rate of no less than 5 hours per month.

[44] Upon the completion of the conditional sentence Mr. Gordon shall be on probation for 18 months on terms to be addressed.

[45] There will be a DNA order, a s.109 order and a forfeiture order, all on terms to be addressed orally.

Released on April 13, 2023 Justice Russell Silverstein