Court File and Parties
Date: January 9, 2024 Ontario Court of Justice, Toronto
Between: His Majesty the King — and — Melanie Pereira
For the Crown: D. MacAdam For the Defendant: A. Marchetti Submissions heard: October 6, November 20, 2023
Reasons for Sentence
Russell Silverstein, J.:
A. Introduction
[1] On January 13, 2023, after a trial, I found the offender, Melanie Pereira, guilty of conspiracy to traffic cocaine, conspiracy to traffic fentanyl and possession for the purpose of trafficking in both drugs.
B. The Circumstances of the Offence
[2] What follows is a summary of the details of this offence. My trial judgment, R. v. Pereira, 2023 ONCJ 17, sets out the circumstances of the offence in somewhat greater detail.
[3] Police had set up surveillance and audio probes in an investigation of Tyler Burke and Kevin Henningham. That investigation yielded overwhelming evidence that they were members of a conspiracy to traffic cocaine and fentanyl. A woman named “Mel”, whom I found was the offender, Melanie Pereira, was one of their co-conspirators. It was planned that the drugs would be transported by Ms. Pereira north from Toronto in a blue Honda with licence #CARA 393. This car belonged to Mr. Burke’s sister.
[4] Mr. Burke confided in Ms. Pereira regarding the details of the conspiracy. He instructed her as to how to cut and package the drugs.
[5] Ms. Pereira participated in the jockeying of cars and people (including Mr. Burke) in pursuit of preparing the Honda for the transport of drugs to Northern Ontario. Once the Honda’s new tires were installed, she drove it away from the tire shop on June 19, 2020. Her destination was an apartment she was seen entering that the police later searched, which search revealed that the apartment was a stash house containing a cocaine press, and other drug paraphernalia.
[6] On June 20, 2020, the Honda in question was stopped by the OPP as it was being driven north on Hwy 400 near Barrie. The cocaine (1.152 kilos) and fentanyl (52.2 grams), which were the objects of the conspiracy, were discovered in the trunk of the car. Ms. Pereira was driving the car and was the sole occupant when it was stopped.
C. The Circumstances of the Offender
[7] Ms. Pereira is in her early thirties. Her parents came to Canada from Portugal in 1985. They returned to Portugal when she was a teenager and she remained in Canada. She worked part-time through high school but did not graduate. She started working full-time in service jobs after leaving school.
[8] She became pregnant with her first child in April 2021, after being charged with these offences. She is now a single mother to a two-year-old daughter and is expecting another child in June 2024. Neither of these pregnancies was planned.
[9] Ms. Pereira has never been a drug user. Her parents are now back in Canada, and she has been living with them, paying rent, since charged. She is currently employed in the restaurant business.
[10] In June of 2020 she lost her job due to Covid. Her precarious financial situation is what drove her to join this conspiracy, after having been introduced to her co-conspirators by a high school friend.
[11] Ms. Pereira says that she deeply regrets what she has done, as she now faces being separated from her first child and giving birth to her second child while serving a sentence of imprisonment.
[12] Ms. Pereira enjoys the support of her family as well as from various respected members of the community who speak highly of her generosity and good character.
D. The Positions of the Parties
[13] Mr. MacAdam seeks an eight-year sentence on the fentanyl charges and a 5–6-year concurrent sentence on the cocaine charges, with the usual ancillary orders.
[14] Mr. Marchetti seeks a reformatory sentence of two years less a day.
E. The Principles of Sentencing
[15] The principles of sentencing are set out in Part XXIII of the Criminal Code.
[16] 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.
[17] 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."
[18] Section 718.2 of the Code also dictates that, in imposing sentence, the court must also apply 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.
[19] When it comes to trafficking in large quantities of hard drugs, the primary aim in sentencing is denunciation and general deterrence. This type of offence is more likely to be influenced by a general deterrent effect as it ordinarily requires some degree of planning. R v. Maric [2019] O.J. No. 2757 (S.C.J.); R v. Duncan 2016 ONSC 1319, [2016] O.J. No. 1013 (SCJ); R v. Pastukhov [2019] O.J. No. 6273 (O.C.J.); R v. Tello 2018 ONSC 2259, [2018] O.J. No. 2201 (S.C.J.) aff’d [2023] O.J. No. 2274 (C.A.)
F. The Aggravating Circumstances
[20] The most aggravating feature of this case is the relatively significant amount of fentanyl, a lethal drug. R. v. Parranto, 2021 SCC 46 at paras. 93 – 100; R. v. Lynch, 2022 ONCA 109 at para. 15-16.
[21] The large amount of cocaine, also a dangerous drug, is also aggravating. R. v. Maone, 2020 ONCA 461; R v. Duncan, 2016 ONSC 1319, [2016] O.J. No. 1013, para. 26.
[22] Ms. Pereira did not succumb to drug criminality because of drug addiction, but rather did so for money.
[23] As concerns Ms. Pereira’s precise role in the trafficking conspiracy, I am convinced that she had the confidence of the leaders, Mr. Burke and Mr. Henningham. She assisted in the packaging of the drugs and drove them in the direction of Thunder Bay and was going to somehow participate in their sale there.
[24] Whether she was going to do so alone or in the company of Mr. Burke or others is unclear. Mr. MacAdam argued that the intercepted conversation between Ms. Pereira and Mr. Burke (June 14, 2020, on board a car) proves that Ms. Pereira was going to stay on in Thunder Bay and oversee the distribution of the drugs, as opposed to merely delivering them to the conspiracy’s customer/distributer. This, he argues, militates in favour of an increased sentence. After listening to this conversation with the assistance of the provided transcript, I can only conclude that Mr. MacAdam’s proposed finding is quite possible, but I am not convinced of it beyond a reasonable doubt. As a result, I do not consider this possible scenario as aggravating.
[25] Nor am I inclined to take judicial notice that Thunder Bay is a particularly vulnerable community as concerns the trafficking in these drugs. While the Supreme Court of Canada in R. v. Parranto notes that it is open to trial judges to consider the vulnerability of a targeted community, and that local judges may draw on their experience to support such a finding, such as one local judge did in R. v. Solano-Santana, 2018 ONSC 3345, the Court’s judgment does not, in my view, support me making such a finding in this case in the absence of evidence to this effect, which evidence could have been called on the sentencing hearing, but was not.
G. The Mitigating Circumstances
[26] The most significant mitigating factor is the fact that Ms. Pereira is a relatively young first offender.
[27] There is no evidence that Ms. Pereira had a controlling voice as concerns the workings of the conspiracy.
[28] Given the tremendous support of her friends and family as well as her fundamentally good character I do not believe that Ms. Pereira is at risk of committing further criminal offences. I believe she has great prospects for rehabilitation.
[29] She clearly regrets the poor decisions she made. Notwithstanding her choice not to plead guilty, I find that she is nonetheless remorseful.
[30] There will be two children who will suffer from the prolonged separation from their incarcerated mother. I think it goes without saying that the longer this separation, the more difficult it will be on them. I must consider this consequence when sentencing Ms. Pereira and this consequence is clearly mitigating.
[31] Mr. MacAdam urges me to minimize this mitigation, lest it undermine one of the primary goals of sentencing for drug trafficking, that of general deterrence. He essentially argues that I must be careful not to send a message to similar potential traffickers that getting pregnant and having children will reduce their criminal jeopardy.
[32] While general deterrence is important, it must not be allowed to entirely eclipse relevant factors personal to the individual offender. This sentencing goal, as well as denunciation, must not overwhelm the analysis. As noted by the Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64, sentencing is first and foremost an individualized process.
H. The Most Relevant Precedents
[33] As set out above, it is a well settled principle of criminal law that similar sentences should be imposed on similar offenders for similar offences in similar circumstances. Criminal Code, s. 718.2 (b); R. v. Lacasse, supra at para 2.
(a) R v. Loor 2017 ONCA 696
[34] This Ontario Court of Appeal decision makes clear that even first offenders who traffic in significant amounts of fentanyl should expect to receive significant penitentiary sentences. Loor, supra at para. 50.
(b) R. v. Lynch 2022 ONCA 109
[35] Mr. Lynch sold an undercover officer fentanyl or cocaine on six occasions. Prior to the completion of the seventh transaction, he was arrested and charged with the various drug offences. He pleaded guilty to the offences. In doing so, he accepted responsibility for a total of 965.01 grams of cocaine, 149.28 grams of MDMA and 41.37 grams of fentanyl. The trial judge sentenced the respondent to four years. Before the trial judge the Crown had sought a sentence of ten years. The defence had sought a sentence of three years. On a Crown appeal of sentence the Court of Appeal, characterizing Mr. Lynch as a mid-level fentanyl trafficker, increased his sentence to six years, having regard to his age (29 years), his guilty plea and his minor, unrelated criminal record. Nordheimer J.A. reiterated the Court of Appeal’s holding in R. v. Maone, supra, that the range for such offenders is 5 – 8 years. Lynch, supra, at para. 14
(c) R. v. Griffith, 2022 ONSC 6406
[36] Mr. Griffith, after not contesting the alleged facts after failing in his attempt to have the evidence excluded, was sentenced to five years for possession for the purpose of trafficking in approximately 68 grams of powder cocaine and 3.25 grams of crack cocaine which were found on Mr. Griffith’s person when arrested. Approximately 58 grams of fentanyl was found in his car. Mr. Griffith was also found in possession of over $3,000 in Canadian currency.
[37] Mr. Griffith was 38 years old. He was single with a 13-year-old son. Although separated from the son’s mother, they amicably shared parental responsibilities. Mr. Griffith lived with his mother and two brothers. He was a member of the Carpenters Union and worked on construction projects. Between 2003 and 2006 Mr. Griffith was convicted of assault, obstructing a peace officer and two counts of possession of a Schedule I substance under the CDSA. For the final possession charge, in June 2006, he received a 90-day intermittent sentence and 12 months’ probation.
(d) R. v. Burke and Henningham
[38] I am informed by counsel that Mr. Burke and Mr. Henningham were prosecuted in connection with the conspiracy involving Ms. Pereira. The sentencing of Ms. Pereira’s co-conspirators is a relevant consideration in her sentencing.
[39] As concerns Mr. Burke, in the context of a contested s. 8 Charter application the charges against him were stayed. We thus get no guidance from his sentencing since there was none.
[40] As for Mr. Henningham, he pleaded guilty to several offences, one of which was trafficking in cocaine (not fentanyl), in connection with Ms. Pereira’s conspiracy, and some of which were offences unrelated to this conspiracy. I do not know how the sentence was apportioned as between all these offences. He received a total prison sentence of six years and a forfeiture order of $450,000. Given the mixed nature of his plea and sentence, it is difficult to extract much meaning from his sentence.
I. Conclusion
[41] Considering the principles of sentencing outlined above, the circumstances of the offences and Ms. Pereira’s level of responsibility in the trafficking scheme, Ms. Pereira’s character and personal circumstances, the circumstances of her two children (one in utero), and the relevant jurisprudence, I sentence Ms. Pereira as follows:
Count 10: Conspiracy to traffic cocaine: 60 months. Count 11: Conspiracy to traffic fentanyl: 60 months concurrent. Count 14: Possession for the purpose of trafficking in cocaine: 60 months concurrent. Count 15: Possession for the purpose of trafficking in fentanyl: 60 months concurrent.
[42] There will be a s.109 order for 10 years and a DNA order.
Released on January 9, 2024 Justice Russell Silverstein
