DATE: August 15, 2023

Information No. 20 – 5283

ONTARIO COURT OF JUSTICE (at Hamilton, Ontario)

B E T W E E N:

HIS MAJESTY THE KING

• and -

JESSE EGAN

Mr. J. Little for the PPSC Ms. J. Goldlist for Jesse Egan

Reasons for Sentence

NADEL, J.:

Introduction and Procedural History

[1] Jesse Egan turns 30 on September 26, 2023. [1] These are my reasons for the sentence that I now impose upon him on one count of possession of fentanyl for the purposes of trafficking. He committed the offence on June 18, 2020, when he was 27.

[2] Mr. Egan was initially charged with two counts of possession of fentanyl for the purposes of trafficking, two counts of possession of heroin for the purposes of trafficking and one count of possession of more than $5,000.00 obtained by crime. All of the counts were alleged to have occurred on June 18, 2020.

[3] I dismissed Mr. Egan’s application to cross-examine the affiant of the search warrants that led to the initiation of this prosecution.

[4] His application to quash the search warrants was partially successful. I quashed the warrant to search his father’s home, where he had been staying. However, I dismissed his application to quash the warrant to search his car.

[5] Three days had been set aside to conduct the trial of the initial charges. As a result of the search warrant rulings the parties filed an agreed statement of fact, pursuant to s. 655 of the Criminal Code , on the first day of the trial. That statement of fact was the totality of the evidence formally adduced on the trial. [2] Mr. Egan maintained his pleas of not guilty, in order to preserve all of his rights of appeal, but he elected to call no evidence.

[6] Based upon the admissions that he made I found him guilty of one count of possession of fentanyl for the purposes of trafficking.

[7] The agreed statement of fact contained the following admissions:

• Mr. Egan entered his car at 11:04 a.m. on June 18, 2020;
• the police then executed a search warrant on the vehicle;
• Mr. Egan locked the doors to the car and refused to get out of it;
• the police broke the passenger window but as they did so Mr. Egan fled out of the driver’s side;
• the police went to his father’s home and tried to arrest him there but once again he fled; however, at 12:09 p.m., after a brief pursuit he was arrested.

[8] When the police searched Mr. Egan’s vehicle they found:

• 47.93 grams of fentanyl in the centre console of the car;
• 62.71 grams of fentanyl in a fanny pack on the rear seat;
• An iPhone on the driver’s seat; and,
• $140.00 in Canadian currency.

[9] As part of the s. 655 admissions Mr. Egan formally admitted that he was in exclusive possession of all of the items seized from his car and that he possessed the fentanyl found in his car for the purposes of trafficking in that drug.

[10] The 110.64 grams of fentanyl that he possessed to traffic is the equivalent of 3.90 ounces or just under a quarter of a pound of fentanyl – .2439 of a pound to be more precise.

Sentencing Exhibits

[11] A pre-sentence report was filed as Exhibit 1 on this sentencing. The Crown acknowledges that the report is positive. That report contains a statement of Mr. Egan’s prior adult criminal record that the parties relied upon in lieu of filing a separate exhibit containing the same information. That adult criminal record is as follows:

Previous Record:

Level and Location of Court Date Offence(s) Disposition(s)

Ontario Court of Justice, Hamilton Jan-19-2017

1. Forcible Confinement, s.279(2) CCC

2. Break & Enter with Intent, s. 348(1)(a) CCC

3. Assault with Weapon, s.267(a) CCC

4. Assault with Weapon, s.267(a) CCC

5. Robbery s.344 CCC

6. Robbery s.344 CCC

7. 2 years 1 day (120 days PSC) 2-4. 2 years 1 day, conc 5-6. 2 years 1 day, conc & mandatory s.109 CCC

Ontario Court of Justice, Hamilton Jan-19-2017

1. Poss of Sched Substance, s.4(1) CDSA

2. Fail to Comply Recognizance, s.145(3) CCC

3. (42 days PSC)

4. (30 days PSC)

[12] Exhibit 2 on this sentencing is a bound volume containing four cases that the defence relies upon together with letters of support for Mr. Egan from multiple sources, along with a confirmation that he was prescribed teva-oxycocet on September 25, 2019.

[13] Exhibit 3 on this sentencing is a Hamilton Police Service general occurrence report detailing that Mr. Egan was the victim of a home invasion on September 19, 2019 in which he was shot and injured on the left side of his face and neck. It was this injury that caused him to be prescribed an addictive painkiller, which ultimately resulted in Mr. Egan becoming addicted to opioids. [3]

The Position of the Crown

[14] Given the amount of fentanyl that Mr. Egan possessed to traffic in, he should be classified as a mid-level fentanyl trafficker. As such he ought to be imprisoned for at least six and up to eight years, less appropriate credit for pre-sentence custody, together with appropriate ancillary orders. In support of that position Mr. Little provided and referenced many of the eleven cases footnoted below. [4]

The Position of the Defence

[15] Given (i) how Mr. Egan became addicted to drugs; (ii) the rehabilitative steps Mr. Egan has taken since his arrest, (iii) the significance of rehabilitation as a sentencing goal in drug cases; and (iv) his current circumstances and prospects, Mr. Egan should be sentenced to two years of house arrest by way of a conditional sentence together with three further years of control by way of a probation order.

[16] The defence does not seek any reduction in the imposition of this maximum conditional sentence by reason of either Downes [5] or Duncan [6] considerations because Ms. Goldlist submits that in the circumstances, the maximum conditional sentence is necessary and would result in a fit sentence.

[17] In support of her position, Ms. Goldlist urged the court to consider and apply the following four cases: (1) R. v. Sauvé, 2023 ONCA 310; (2) R. v. Gordon, 2023 ONCJ 157; (3) R. v. Shearer, 2022 ONCJ 288; (4) R. v. Han, 2022 ONCJ 343.

A Summary of the Submissions of the Crown

[18] The Crown made the following submissions.

[19] There are many significant mitigating factors in Mr. Egan’s favour.

• He has overcome his addiction.
• He has been on bail for a substantial period of time without incident.
• While on release he obtained employment.
• He then began his own business that has employed up to four people.
• He is currently a productive member of the community.
• He has a very young family, (a supportive spouse, a toddler, and a newborn).
• His extended family is very supportive of him.
• While he did not formally plead guilty, he obviated the need for a trial and the pre-trial applications were pursued in a focussed fashion.
• The pre-sentence report was positive.

[20] Despite all of the foregoing mitigating circumstances and despite sentencing being an individualized exercise, a substantial period of incarceration is required to achieve a fit sentence.

[21] The overriding principles that control the sentence to be imposed are deterrence and denunciation. Those two considerations are paramount on the facts of this crime given the significant amount of fentanyl that Mr. Egan possessed for the purposes of trafficking.

[22] That amount of fentanyl possessed to be trafficked precludes any consideration of a conditional sentence, despite the mitigating factors present. Any sentence other than a substantial penitentiary one would be unfit.

[23] While the Crown accepts that none of the cases set out in footnote 4 are exact analogues of the facts here, it is clear from a consideration of them, especially Disher and Lynch that Mr. Egan falls within the category of being a mid-level fentanyl trafficker.

[24] The Crown concedes that Mr. Egan is not a distributor or commercial level trafficker of fentanyl. Nevertheless, the Crown submits that Mr. Egan’s position in the hierarchy of fentanyl traffickers far exceeds that of the individual who is selling at the “point” (i.e., 1/10 of a gram), level on the street. More significantly still from a sentencing perspective, Mr. Egan did not possess fentanyl simply to maintain his own substance abuse disorder. [7]

[25] Mr. Little stressed that fentanyl is a very pernicious, addictive, and dangerous substance. It was and is so damaging to society that in 2017, even before the Ontario Court of Appeal had established ranges for fentanyl trafficking the court felt constrained to comment as follows:

50 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. [8]

[26] The Crown submitted that Mr. Egan falls within the upper echelon of the “mid-level” classification of trafficker, given the almost one quarter of a pound of fentanyl that he possessed to traffic in. He is closer to the commercial trafficker of drugs than he is to the street-level dealer.

[27] In support of its position the Crown relied upon the Campbell decision. There, as here, the defence sought a conditional sentence while the Crown urged eight years as being appropriate. Campbell appealed the six-year sentence imposed upon him. In dismissing his sentence appeal the Court of Appeal made an observation of general relevance:

[101] More generally, the trial judge imposed a sentence that was fit in the circumstances. As he said at para. 56 of his reasons for sentence: "In summary, the aggravating factors are that the substance being trafficked is 14.33 grams of heroin, laced with fentanyl, for profit only, by a mid-level trafficker with a lengthy but dated criminal record." Balanced against the admittedly few mitigating factors in this case, the sentence imposed was fit.

[28] The Crown noted that Mr. Egan had already received a penitentiary length sentence and yet persisted in serious criminality. Notwithstanding his mitigating circumstances, a significant penitentiary sentence is required to address both deterrence and denunciation. As Justice Moldaver explained in Parranto, fentanyl is a scourge in contemporary Canada. It tears the fabric of civil society and must be deterred and denounced.

[29] When I challenged Mr. Little to rationalize the comments of Justice Sharpe that were quoted with approval by the court in Sauvé [9] against the sentence that he was urging, he submitted that Mr. Egan’s situation can be distinguished from Ms. Sauvé’s by virtue of Mr. Egan’s position in the hierarchy of drug traffickers. Noting that the Court of Appeal’s comment at paragraph [50] of Loor was recently confirmed at paragraph [25] of Lynch, Mr. Little contended that our Court of Appeal has consistently instructed that an offender possessing or trafficking in significant amounts of fentanyl can expect to be sentenced to a significant period in the penitentiary, notwithstanding that offender’s personal circumstances.

[30] Nonetheless, Mr. Little was prepared to concede that given his efforts Mr. Egan might be entitled to the benefit of the lower end of the appropriate range.

[31] A sentence of that length is required to achieve fitness because Mr. Egan was engaged in retail drug trafficking of fentanyl and in doing so he was preying on the most vulnerable members of the community for profit.

[32] There is a national opioid crisis in Canada. The comments of Justice Sopinka in 2017, at paragraph [44] of Vezina where Her Honour adopts the comments of Justice Epstein are apposite:

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.

[33] The more recent comments by Justice Moldaver in Parranto, about the havoc and suffering that fentanyl addiction is creating in Canada, means that compliance with s. 718.1 requires a sentence of no less than six years. That remains the case despite Mr. Egan’s prospects for rehabilitation. The pernicious nature of fentanyl and the commercial nature of his possession heighten his moral responsibility given the risk of harm to which he was prepared to expose members of the community.

[34] To recap, the Crown’s position:

• Mr. Egan has a serious and relatively current criminal record;
• he had previously been sentenced to a penitentiary length period of incarceration;
• he committed this offence not long after having just served that sentence;
• he possessed a significant amount of an illegal drug to traffic in;
• even more significantly that drug was fentanyl.

Despite still being relatively youthful and despite the efforts that he has made to rehabilitate himself a sentence of no less than six years is required.

[35] Mr. Little submitted that “[w]hat we are dealing with is the most insidious substance known to our society. It wreaks havoc amongst the population. It has led to the death of thousands of Canadians over the last number of years. And when you are trafficking at the level at which Mr. Egan is trafficking the only way to address it both specifically and generally is a significant penitentiary sentence.”

A Summary of the Submissions of the Defence

[36] Ms. Goldlist began her submissions by noting that mere weeks prior to this sentencing hearing, at paragraph [13] of R. v. Sauvé, 2023 ONCA 310, [2023] O.J. No. 2064 , the Court of Appeal for Ontario endorsed and stressed the comments of Justice Sharpe that are quoted at footnote 9; viz. :

13 The appellant's circumstances supporting our decision to stay the appellant's sentence are remarkable and commendable. To the extent that the appellant's rehabilitative example and our decision encourage other offenders to undertake very significant rehabilitative steps, this unquestionably serves the public interest. Sharpe J.A.'s observations in R. v. Ghadban, 2015 ONCA 760, at para. 23 , in relation to a sentence reduction, are apposite here:

To the extent sentences imposed by courts "send a message", the message sent by reducing the sentence would be that where an offender takes unusual steps to turn his life around, those steps will be recognized by the court. In my view, the gain achieved by way of encouraging social peace and harmony from that message would greatly exceed any gain achieved by way of general deterrence and denunciation if he were required to serve the full term of his sentence at this stage.

[37] Ms. Goldlist submitted, (incorrectly in my view), that Ms. Sauvé’s rehabilitative efforts were far less significant than the work that Mr. Egan has done. [10] Regardless, counsel stressed that in seeking to arrive at a fit sentence the court must take the importance of rehabilitation into account. Ms. Goldlist pointed to the “explicit guidance” provided by the Court of Appeal on the significance of drug addiction as an individualizing factor in sentencing for drug trafficking. [11] In Shearer D. Porter J. quoted Justice Rosenberg in R. v. C.N.H., 2002 ONCA 7751, [2002] O.J. No. 4918 at paragraph [31] :

"... the 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."

[38] Relying upon Sauvé for the rehabilitative efforts that offender made, Ms. Goldlist stressed that she was asking the court to impose the maximum conditional sentence and structure it as a house arrest sentence for the full two years. When the maximum period of probation is added that amounts to five full years of control and supervision over Mr. Egan, in her submission.

[39] Ms. Goldlist acknowledged that ordinarily this quantity of drugs would merit a significant penitentiary term . She acknowledged and conceded the insidious nature of and dangerousness of fentanyl. However, she contended that when what she was urging is compared to the 44 days and seven months on house arrest that Ms. Sauvé served before the balance of her sentence was stayed, a two year conditional sentence followed by three years on probation amounts to a much more severe sentence. Further, she submitted that it is a fit one on these facts and Mr. Egan’s circumstances.

[40] In responding to Mr. Little’s submissions, Ms. Goldlist suggested that the only crucial factor that the Crown could point to, in support of its position was the amount of drug in question.

[41] Once again, I disagreed with counsel and noted that in addition to the quantity of the drug at issue, the Crown also stressed, the nature of that drug – fentanyl. In addition, there were the factors of Mr. Egan’s prior criminal record, its nature, and its age.

[42] Notwithstanding these other aggravating factors, counsel submitted that the mitigating factors that the Crown acknowledges, (listed above at paragraph [19]), are a sufficient basis to grant him a conditional sentence of maximum length and severity. Further, that doing so would achieve fitness having regard to the purposes of sentencing and all of the principles of sentencing that must be weighed.

[43] Moreover, Ms. Goldlist took issue with the Crown’s submission that the cases that it relied upon were comparable to Mr. Egan’s situation. For example, in Lynch the facts are arguably more serious than the facts at bar and yet six years was found to be a sufficient punishment in a case where there were no significant efforts at rehabilitation.

[44] Likewise, counsel noted that in Cinelli there was clear evidence that that offender’s trafficking was not related to his addiction. [12] But Mr. Egan, like so many others, became addicted to opioids after having had them prescribed to him. As the sentencing exhibits show:

• he was shot on September 19, 2019;
• he was first prescribed addictive medication to control his pain on September 25, 2019; and,
• he committed the offence on June 18, 2020, approximately nine months after first being prescribed oxycodone.

[45] Ms. Goldlist submitted that her client’s wound healed and so his prescription was terminated but his addiction persisted. Still, counsel conceded that Mr. Egan is not the type of offender described in the cases as “chipping off a corner” to take what he needs to maintain his addiction. Nonetheless, he was not living a lucrative lifestyle funded by drug trafficking. He drove a 2011 Ford Escape and he lived between his parents’ homes.

[46] In addition, while not perhaps in mitigation, counsel noted that there is no evidence about what level Mr. Egan was trafficking in, other than the admittedly significant amount that he had in his possession for that purpose.

[47] Ms. Goldlist stressed that he got involved in drugs as a result of being addicted, after being assaulted. Further, he was not living a life of luxury on the back of other people’s misery. These are matters that must be weighed.

[48] In short, Ms. Goldlist, submitted that many well respected judges have previously found that a conditional sentence can meet the needs of deterrence, both specific and general, as well as the need for denunciation in fentanyl cases if the particular circumstances of the offender qualify for that kind of sentence and Mr. Egan’s circumstances surely do.

[49] Ms. Goldlist highlights that this is not a case where Mr. Egan merely has great potential. He has much more than great potential . He was entrenched in the drug subculture and three years after his arrest, having never breached a term of his bail he stands before the court as a business owner, with proof from his accountant. He conducts an ongoing and growing business installing concrete residential footings for new housing. He pays taxes, provides employment for up to four other people, on occasion, and he contributes to society.

[50] Ms. Goldlist rhetorically asked, are we going to take a tax-paying member of society, a father of two, and remove him from everything he is now contributing to society, to his family, to himself? Is the court to strip away a father from a family as a sole provider?

[51] As noted earlier, counsel stresses that she is not asking for a stay of punishment. Rather counsel is asking for an individualized sanction that gives Mr. Egan proper and appropriate credit for the work he has done to date. Counsel urges that I should rely upon and apply Sauvé; that this is one of those exceptional cases that warrants a conditional sentence because of the steps that Mr. Egan has taken to turn his life around.

[52] That is what distinguishes him from the cases relied upon by the Crown. In none of those cases has an offender turned their life around and despite doing so has been sentenced to a significant penitentiary term. In none of those cases does the court essentially destroy the work that such an offender has done up to that point. Moreover, Mr. Egan’s moral responsibility is mitigated by his addiction.

[53] While counsel urged the application of the three cases, other than Sauvé, cited above at paragraph [17] , I am of the view that none of them are analogues or applicable due to the vast differences in the quantity of fentanyl at issue in them as compared to here. Quantitative differences, beyond a certain point, pass into qualitative changes . That applies here. That is what distinguishes Mr. Egan’s situation from those precedents.

[54] Ms. Goldlist contends that, notwithstanding the quantity of the fentanyl Mr. Egan possessed, the changes her client has committed to in the years since he was charged permit this court to accept and implement the defence position, despite Mr. Egan not being a first offender and only being relatively youthful.

[55] Counsel urges that I rely upon and apply the following comment from R. v. Lacasse, 2015 SCC 64 at paragraph 4 :

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.

[56] To conclude, the defence contends that an appropriate balance can be struck by the imposition of a strict and maximum conditional sentence under which the offender will do nothing but work and provide for his family. Crafting a sentence of that kind will send the message that when someone turns their life around credit is earned and given; that society is benefited by not taking those steps away and sending someone to the penitentiary. This is especially the case since Mr. Egan’s actions and progress since being arrested are unique and far from commonplace.

[57] Mr. Egan’s s. 726 Statement [13]

Hello Your Honour, as you know I’m Jesse. I’d like to touch on a few things. Firstly, what maybe led me to the decisions that led me here. So, in 2019 I was the victim of a home invasion. I was shot in my face. Currently when that happened, I had a job at National Steel Car. After that happened, I was injured. I was prescribed medication. I did get addicted to the medication after that. Aside from that, just the medication, I had a lot of other issues. I was nervous to go outside, unable to work, aside from just, you know, physically not being able to work, just mentally, just you know being able to go out into the world and do things. It affected me greatly. For the drugs as well, it didn’t necessarily help me at all; maybe a little bit at the beginning for pain, but it quickly grew to an addiction that I could not manage myself. I’m not going to say that the facts at hand I was caught with and now charged with wasn’t something directly, it was obviously more than the amount that someone would have just you know, dealing with an addiction.

I can also say, though, that it grew to that point, with the starting of me having an addiction. I was unable to work, it was Covid, I wasn’t able to get work, employment after that. Also, I was dealing with a lot of issues mentally, just being able to go out into society myself. So, I would say that’s a big thing I would like to touch on.

I was never, you know, wanting to be addicted to drugs or be or come into those situations. I can definitely say that being addicted to it definitely led me that way.

I don’t want to say that what happened isn’t wrong. I understand the things that come with it. The jail sentencing, the things that could affect people, selling drugs, everything in that whole aspect. I deeply regret it not only for myself but especially now being a father. I could say that the most important thing for me right now – just being there for my family.

And I don’t want to make excuses. All I’ve done since I’ve come out is try to better myself and prove that I can be the man that my family and myself, you know, expected.

Another thing I want to touch on is that you know you said you haven’t seen much evidence of my business and that’s mainly because I’m subcontracted my work. So, I don’t need to really advertise or have an internet or website of nothing of that matter. I pretty much just get the call and they have the work. So ya, I’d like to touch on that I’ve done everything I can. I know that you guys are gonna, you know, I assume you’re just and you’re going to come to a great decision, you know that, you know that you find is applicable.

I just hope that, you know, in aspect you can see the work I’ve put in, you can see that I’ve done everything I can to better myself and you’re right with the fact that bringing a family into it, knowing the situation I’m in was properly not the best decision.

I can also add that it wasn’t really planned, it kind of, it like just sometimes happens.

I can also assure that the path I’m on right I have no reason whatsoever to ever be involved in those types of matters.

I also didn’t plan on being addicted to drugs or liking drugs but in the situation where I’m at now I make great money, I have a family, I have so many set out for me that I’ve no reason whatsoever to go towards that type of lifestyle.

I’d also like to add that for the past three years I was set to bail with my surety and worked for him and learning the skills to start my business and I’ve met, pretty much came from nothing to, you know, drug addiction to doing everything possible thing I can to better myself. Whether that’s financially, physically, I work out, I do boxing, I do everything I can for my health.

I try to work and only be with my family whenever I can. I don’t engage in any type of lifestyle that has anything like that whatsoever. It’s pretty much just work and family. Ya, for the most part I used to, I wanted to prove that I can be a productive member of society . I don’t want to blame my past. I don’t want to point fingers at anything. I know that I made wrong decisions. I deeply regret my decisions, especially, like I said, not for myself but for my family for the most part.

And I just wanted to prove that I can be, I can be what society needs for me. And, ya, I’m going to respect, obviously, whatever decision you come to. I just hope that you can see me in light other than just what the charges, the charges and the paper says about me.

Ya, that would be what I have to touch on for the most part. It’s hard to come up with anything on the spot, you know, like I have a lot of emotions running through me. I’ve been very nervous for a long time. It bothers me every day and ya, I hope you can take everything I’ve done into account and ya, and I appreciate you listening to me.

Discussion and Imposition of Sentence

Summers Credit

[58] Mr. Egan was arrested on June 18, 2020 and released on bail 39 days later on July 27, 2020 . He is entitled to “Summers” credit [14] at the rate of 1.5:1 for each of those days, which equals a pre-sentence custody credit of just under 60 days.

Duncan Credit [15]

[59] Mr. Egan served those 39 days at the height of the COVID-19 pandemic so that he was “triple bunked”. Three men were housed together in a cell designed for two so that one person had to sleep on the floor, closer to the cell’s toilet. In addition, he was locked down almost continuously and had very limited access to showers or a telephone.

[60] Given those conditions Mr. Egan is entitled to some augmented credit for the hard time that he served during those 39 days on the basis of paragraph [6] of R. v. Duncan, 2016 ONCA 754, [2016] O.J. 5255 (C.A.).

[61] Moreover, at paragraph [11] of R. v. Bristol, 2021 ONCA 599 the Court of Appeal held that specific evidence of direct impact on a claimant for Duncan credit arising from lockdowns was not necessarily required.

[62] Justice Doherty explained how to assess and give effect to the sentence-mitigating effect of hard pre-sentence custody at paragraphs [50] through [53] of R. v. Marshall, 2021 ONCA 344, [2021] O.J. No. 2757 (C.A.) . [16]

[63] Justice Doherty cautioned that expressly quantifying Duncan credit has the potential to improperly skew a sentence. One of the mitigating factors that I shall weigh and consider in arriving at a fit sentence for Mr. Egan will be the punitive pre-trial incarceration conditions that he experienced.

Downes Credit [17]

[64] In Downes the Court of Appeal concluded that:

33 … [T]ime 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. I agree with Ms. Paine that it is incumbent on the sentencing judge to explain why he or she has decided not to take pre-sentence house arrest into account. The failure to do so will constitute an error in principle …

[65] When Mr. Egan was released on July 27, 2020, he was ordered into house arrest unless he was in the company of his surety.

[66] Mr. Egan’s surety was Marcus Buchanan, the proprietor of Buchanan Concrete Forming. Mr. Buchanan brought Mr. Egan into his home where Mr. Egan began to thrive. Among other things in a reference letter Mr. Buchanan said:

[T]he first year, we worked together, he caught on to everything quickly, due to us working together for the same company before in the past. Within weeks became my best employee. That was not the only thing improving. In the beginning he would stay in his room. I feel for feeling of shame, self-condemnation, and possibly confusion. Though he started to watch movies with us, eat dinner as a family, and integrated into our family. Having a true, family-oriented home can do wonders and, in my opinion, this is the perfect example.

[67] These strictures lasted for 11 months until June 21, 2021 when they were lifted. From that date onwards Mr. Egan was only subject to a curfew of 10:00 p.m. to 6:00 a.m. daily.

[68] Somewhat ironically, it is the initial strictness of the regime under which Mr. Egan began to thrive that grounds the defence’s sentencing position.

[69] Pursuant to Downes, I have taken the 11 months of house arrest into account as a relevant mitigating circumstance. [18] While I have done so I do not patently ascribe a particular number of days or months of credit as a result. Rather, these 11 months spent under stringent bail conditions have been factored into the ultimate sentence that I have crafted.

[70] Mr. Egan has clearly demonstrated that he has talents, and he has clearly demonstrated that he can be productive but that does not erase the crime that I must sanction him for committing.

[71] Section 718.1 requires that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. In R. v. Hamilton, 2004 ONCA 5549, [2004] O.J. No. 3252 (C.A.) , at paragraph [90] Justice Doherty explained that:

90 The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence. …

[72] The maximum punishment for possession of fentanyl for the purposes of trafficking is imprisonment for life.

[73] Justice Doherty went on in Hamilton to explain that:

91 The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence - especially the fault component - and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime.

[74] The cases are uniform in denouncing trafficking in fentanyl. The degree of responsibility of offenders who traffic in or possess fentanyl for the purpose of trafficking is heightened by the risk of harm to which they are prepared to expose members of the community.

[75] Nonetheless, the fitness of the sentence here must also be informed by the purpose of sentencing under the Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 10:

10 (1) 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.

[76] I can ameliorate the range of penitentiary sentence urged by the Crown. I can do so by giving full weight to the rehabilitative efforts that Mr. Egan has made and by taking Mr. Egan’s entitlement to Duncan and Downes credit into account; but I cannot and do not accede to Ms. Goldlist’s request for a conditional sentence.

[77] In my view a conditional sentence is unavailable because a sentence of two years or less for this offence would be a wholly unfit sanction for possession of 110.64 grams of fentanyl for the purposes of trafficking .

[78] The adverse consequences to Mr. Egan’s family and indeed to Mr. Egan himself cannot justify the imposition of an unfit sentence. As Justice Wagner observed in R. v. Pham, 2013 SCC 15, [2013] S.C.J. 100 :

12 … the weight to be given to collateral consequences varies from case to case and should be determined having regard to the type and seriousness of the offence.

14 … a sentence must be fit having regard to the particular crime and the particular offender. In other words, a sentencing judge may exercise his or her discretion to take collateral immigration consequences into account, provided that the sentence that is ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender.

[79] It seems to me that Mr. Egan’s reliance on Sauvé is misplaced. The Court of Appeal did not say that a conditional sentence for possession of fentanyl was appropriate in her circumstances. Ms. Sauvé was sentenced to the equivalent of just shy of a two-year sentence as a first offender. The facts in her case and her circumstances are easily distinguishable from Mr. Egan’s. The result in her case is not an analogue for Mr. Egan’s situation.

[80] As I have noted, I can ameliorate an appropriate sentence, inter alia , because of the positive things that Mr. Egan demonstrated. What I cannot due is protect Mr. Egan’s children from the consequences of his actions by imposing an unfit sentence.

[81] R. v. Lacasse, 2015 SCC 64 and R. v. Parranto, 2021 SCC 46, [2021] S.C.J. No. 46 make it clear that a developed range of sentence for a particular offence is never a straitjacket. As Justices Brown and Martin wrote at paragraph [38] of Parranto :

… sentencing is an individualized process, and parity is secondary to proportionality. Therefore, departures from … sentences above or below the range are to be expected. Even significant departures are not to be treated as a prima facie indication of an error or demonstrable unfitness. Fitness is assessed with reference to the principles and objectives of sentencing in the Code , not with reference to how far the sentence departs from quantitative appellate guidance.

[82] In Disher the Court of Appeal reduced Disher’s sentence of 12 years by one-third to eight years as a result of the sentencing judge’s failure to properly weigh Disher ’s rehabilitative potential and because a number of other cases suggested that 12 years was well beyond the range that was becoming established. Likewise, the Court reduced the seven-year sentence imposed upon his female co-accused by almost one-half to four years as a result of the sentencing judge’s overemphasis on deterrence and denunciation without properly considering the principles of restraint and rehabilitation in her circumstances.

[83] The law, as a human creation and endeavour, is subject to the same tensions and inconsistencies as are found in many human endeavours. To paraphrase Isaiah Berlin, the notion of the perfect whole, the ultimate solution in which all good things coexist is unobtainable. Justice Ken Campbell said something similar but more concretely and directly at paragraph [46] of R. v. Hatimy, 2014 ONSC 1586, [2014] O.J. No. 1154 (SCO) , by stating that there are conflicting sentencing principles that need to be balanced and reconciled.

[84] In arriving at the sentence that I am about to impose upon Mr. Egan, I have attempted to do the same – balance and reconcile the sentencing principles relevant to the facts and circumstances of this case. In addition to the need to express deterrence and denunciation I have not lost sight of either Mr. Egan’s current demonstration of his rehabilitation or of his future prospects to continue in that course, as required by s. 10 of the CDSA.

R. v. El-Azrak

[85] In R. v. El-Azrak, 2023 ONCA 440, ACJO Fairburn stressed the significant nature of offences involving fentanyl. While the court reduced Ms. El-Azrak’s sentence for trafficking in fentanyl from 13 years down to eight years, Justice Fairburn stressed the following:

[105] I want to make clear at the outset that I appreciate how extraordinary this sentence is for the extremely serious crime committed by the appellant. As such , these reasons should not be read as diluting the proper range of sentence for grave offences of this nature . The result turns exclusively upon the extreme and unique collateral circumstances at work in this case. (emphases added)

[151] We have become all too familiar with the fact that consumption of even the smallest amount of fentanyl can kill. And it does, over and over and over again. [The appellant] was a knowing purveyor of misery, all driven by nothing but greed. She failed in her duty as a pharmacist and failed in her duty as a human being.

[86] El-Azrak has aggravating features that are absent from Mr. Egan’s case. Ms. El-Azrak was a pharmacist who trafficked 2,780 100 mcg fentanyl patches for profit. She was not addicted to fentanyl or any other opioid. Nonetheless, the collateral consequences to her of a jail sentence were essentially unique, due to a rare genetic illness suffered by her and her young daughter, who would lose the day-to-day support and comfort of her mother when Ms. El-Azrak was incarcerated.

[87] The Court of Appeal for Ontario refused to consider a conditional sentence for Ms. El-Azrak despite the unique consequences that serving a lengthy penitentiary sentence would entail for her. Even prior to the release of El-Azrak I had concluded that a conditional sentence was simply not available as a fit disposition for Mr. Egan. I am confirmed in that view by the comments of the court in El-Azrak:

[156] Taking into account the extreme seriousness of the appellant’s conduct, a conditional sentence or even a low penitentiary sentence is simply not available.

[88] The trial judgment in R. v. El-Azrak, 2018 ONSC 5613, ( 2018 ONSC 5613 ), identifies that Ms. El-Azrak trafficked in 100 mcg fentanyl patches. The appeal decision states that she trafficked in 2780 of them. None of the reported El-Azrak decisions indicate, in total, how many grams of fentanyl these 2780 patches contained. That omission makes the gross quantity of fentanyl that Ms. El-Azrak trafficked unavailable for comparison to the 110.64 grams of fentanyl that Mr. Egan possessed for the purposes of trafficking.

[89] That lack of quantitative information together with the factual differences between El-Azrak and Mr. Egan’s case make it difficult to use El-Azrak as a comparator. That said, the sentence that I am about to impose might have been longer had that comparative information been available to me. [19] Nonetheless, it is clear from El-Azrak that despite the unique situation of that offender, denunciation and deterrence remain the major principles of sentencing that I must stress, while not ignoring Mr. Egan’s prospects for rehabilitation and his eventual reintegration into society.

[90] As noted above at footnote 4 in paragraph [14], Mr. Little provided several cases for my consideration. He referred to a number of these cases in support of his submission that the principles of denunciation and deterrence require a sentence of no less than six years and as much as eight years, despite the strides that Mr. Egan has made.

[91] In R. v. Peric, 2021 ONCJ 4527, [2021] O.J. No. 4527 (OCJ) , Justice Band arrived at the same range for an offender who pleaded guilty to possessing almost three ounces of fentanyl for purposes of trafficking

[92] Peric had a relatively serious and current criminal record, and he struggled with addiction. Those facts are analogous to Mr. Egan’s circumstances, except that Mr. Egan possessed almost four ounces of fentanyl. On the positive side, however, Mr. Egan appears to have overcome his addiction to opioids, while Peric was still struggling with his addiction.

[93] Taking all relevant circumstances into account, (including totality, avoiding harshness, sentencing with restraint, and, noting that this was Peric’s first penitentiary sentence), Justice Band imposed a four-year consecutive sentence on Peric.

Imposition of Sentence

[94] I have taken both Downes and Duncan into account. In addition, I have noted and weighed the fact that this will be Mr. Egan’s first actual sentence of imprisonment to a penitentiary. In addition, I have given great weight to Mr. Egan’s efforts, actions, and behaviour since he was charged.

[95] The imposition of a sentence is an indivizualized exercise. Every case presents both the opportunity and the obligation to attempt to reconcile the tension between conflicting principles. In every case that tension must be recalibrated to arrive at a fit sentence as required by s. 718.1. That is what I have attempted to do here. [20]

[96] I sentence Jesse Egan to five years in the penitentiary. Against that sentence I credit him with 39 days of pre-sentence custody, credited at 1:5 to 1, being a time-served credit of two months. Accordingly, the net sentence that I impose is one of four years and ten months.

[97] It is my hope that Mr. Egan will follow the rules under which he will be detained with the same care and perseverance that he demonstrated while on bail, so that, given the life that he has created for himself during the past three years, he will be eligible for parole at its earliest opportunity.

Dated at Hamilton, this 15 th day of August 2023

J.S. Nadel, (OCJ)

[1] He was born on September 26, 1993.

[2] Both the Crown and the defence made some references to matters contained in the ITOs during their sentencing submissions, notwithstanding.

[3] The prescriptions were for “Danielle” Egan, which is the offender’s middle name.

[4] 1. R. v Lynch , 2022 ONCA 109 ; 2. R. v. Loor , 2017 ONCA 696 ; 3. R. v. Dymkowski , 2022 ONSC 6821 ; 4. R. v. Mengesha , 2022 ONCA 654 ; 5. R. v. Olvedi , 2018 ONSC 6330 ; 6. R. v. Parranto , 2021 SCC 46 ; 7. R. v. Campbell , 2022 ONCA 666 ; 8. R v. Disher , 2020 ONCA 710 ; 9. R. v. Sidhu , 2019 ONCA 880 ; 10. R. v. Cinelli , 2018 ONSC 4983 11. R. v. Vezina , 2017 ONCJ 775

[5] R. v. Downes , 2006 3957 (ON CA) , [2006] O.J. No. 555 (C.A.) , at para. 33 .

[6] R. v. Duncan , 2016 ONCA 754 , [2016] O.J. No. 5255 (C.A.) at para. 6 .

[7] See R. v. Cinelli , [2018[ O.J. No. 4490 (SCO) per Bawden J. at [32]: … this is far from the classic addict-trafficker scenario where an addicted accused undertakes the hazards of drug trafficking in order that he might chip off a small amount of the product for his own use. Mr. Cinelli was himself a mid-level trafficker. The amount of drugs that he carried, the cash that he received and his persistence in trafficking despite all legal strictures demonstrate that he was selling for his own profit. The fact that he continued to traffic heroin even when he was in treatment and receiving methadone defeats any suggestion that his trafficking was materially connected to his addiction.

[8] R. v. Loor , 2017 ONCA 696 , [2017] O.J. No. 4628 (C.A.)

[9] 13 The appellant's circumstances supporting our decision to stay the appellant's sentence are remarkable and commendable. To the extent that the appellant's rehabilitative example and our decision encourage other offenders to undertake very significant rehabilitative steps, this unquestionably serves the public interest. Sharpe J.A.'s observations in R. v. Ghadban , 2015 ONCA 760 , at para. 23 , in relation to a sentence reduction, are apposite here: To the extent sentences imposed by courts "send a message", the message sent by reducing the sentence would be that where an offender takes unusual steps to turn his life around, those steps will be recognized by the court. In my view, the gain achieved by way of encouraging social peace and harmony from that message would greatly exceed any gain achieved by way of general deterrence and denunciation if he were required to serve the full term of his sentence at this stage.

[10] Ms. Sauvé was 19 and without any prior criminal record. She was in thrall to an older boyfriend who pressured her to become a willfully blind courier. She did not traffic the drugs and derived no financial benefit from them.

[11] R. v. Shearer , [2022] O.J. No. 2914 at paragraph [44] .

[12] See paragraphs [30] and [32] of Cinelli .

[13] I am not a qualified transcriptionist. Still, I have tried to be accurate. In addition, I have cleaned up some of Mr. Egan’s verbal stutter-steps and I have added some punctuation and paragraphing to reflect what Mr. Egan was saying more clearly.

[14] R. v. Summers , 2014 SCC 26 , [2014] 1 S.C.R. 575

[15] 2016 ONCA 754 , [2016] O.J. No. 5255 (C.A.) at [6].

[16] [50] … the 1.5:1 " Summers " credit already takes into account the difficult and restrictive circumstances offenders often encounter during pretrial custody: Summers , at paras. 28-29 . The " Duncan " credit addresses exceptionally punitive conditions which go well beyond the normal restrictions associated with pretrial custody. …

52 The " Duncan " credit is not a deduction from the otherwise appropriate sentence, but is one of the factors to be taken into account in determining the appropriate sentence. Particularly punitive pretrial incarceration conditions can be a mitigating factor to be taken into account with the other mitigating and aggravating factors in arriving at the appropriate sentence from which the " Summers " credit will be deducted. …

53 Oftentimes, a specific number of days or months are given as " Duncan " credit. While this quantification is not necessarily inappropriate, it may skew the calculation of the ultimate sentence. By quantifying the " Duncan " credit, only one of presumably several relevant factors, there is a risk the " Duncan " credit will be improperly treated as a deduction from the appropriate sentence in the same way as the " Summers " credit. If treated in that way, the " Duncan " credit can take on an unwarranted significance in fixing the ultimate sentence imposed: …

[17] R. v. Downes , 2006 3957 (ON CA) , [2006] O.J. No. 555 (C.A.) , at [33].

[18] In my view, while I have taken Mr. Egan’s time on a 10:00 p.m. to 6:00 a.m. curfew into account that stricture is of modest significance.

[19] Both R. v. Digiorgio , [2018] O.J. No. 3113 (OCJ) and R. v. Olvedi , [2018] O.J. No. 6221 (OCJ) discuss 100 mcg fentanyl patches - Digiorgio at paragraph [10] and Olvedi at paragraph [23] . I infer from those decisions that a 100 mcg patch contains 17 mg of fentanyl. If that is the case, then the 2780 patches that Ms. El-Azrak trafficked is the equivalent of 47260 mg of fentanyl or 47.26 grams of fentanyl. That is less than half of the amount of fentanyl that Mr. Egan possessed for the purposes of trafficking. However, no qualitative analysis of Mr. Egan’s fentanyl was proved so, in my view, it would not be fair to simply make a gross comparison by weight of the 110.64 grams of fentanyl that he possessed to traffic to the pharmaceutical quality of the amount of drug trafficked by Ms. El-Azrak.

[20] See R. v. Parranto , 2021 SCC 46 at the following paragraphs:

10 The goal in every case is a fair, fit and principled sanction. Proportionality is the organizing principle in reaching this goal. Unlike other principles of sentencing set out in the Criminal Code , proportionality stands alone following the heading "Fundamental principle" (s. 718.1). Accordingly, "[a]ll sentencing starts with the principle that sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender" ( R. v. Friesen , 2020 SCC 9 , at para. 30 ). The principles of parity and individualization, while important, are secondary principles.

11 Despite what would appear to be an inherent tension among these sentencing principles, this Court explained in Friesen that parity and proportionality are not at odds with each other. To impose the same sentence on unlike cases furthers neither principle, while consistent application of proportionality will result in parity (para. 32). This is because parity, as an expression of proportionality, will assist courts in fixing on a proportionate sentence (para. 32). Courts cannot arrive at a proportionate sentence based solely on first principles, but rather must "calibrate the demands of proportionality by reference to the sentences imposed in other cases" (para. 33).

12 As to the relationship of individualization to proportionality and parity, this Court in Lacasse aptly observed: Proportionality is determined both on an individual basis, that is, in relation to the accused him or herself and to the offence committed by the accused, and by comparison with sentences imposed for similar offences committed in similar circumstances. [para. 53] Individualization is central to the proportionality assessment. Whereas the gravity of a particular offence may be relatively constant, each offence is "committed in unique circumstances by an offender with a unique profile" (para. 58). This is why proportionality sometimes demands a sentence that has never been imposed in the past for a similar offence. The question is always whether the sentence reflects the gravity of the offence, the offender's degree of responsibility and the unique circumstances of each case (para. 58).