COURT FILE No: 22-37200089-01 DATE: October 24, 2024
O N T A R I O C O U R T OF J U S T I C E
B E T W E E N :
HIS MAJESTY THE KING
-AND-
JEVOI SANGSTER
Before: Justice M. G. March
Submissions heard on: September 16, 2024 Reasons for Sentence released on: October 24, 2024
Counsel: Timothy McCann, Standing Agent for the Federal Crown Daniel Varilone, Counsel for Mr. Sangster
March, M.G., J. :
Introduction
[1] On March 12, 2024, Jevoi Sangster (“Sangster”) pleaded guilty before me to two offences as follows:
a) possession for the purpose of trafficking in fentanyl contrary to s. 5(3)(a) of the Controlled Drugs and Substances Act (“the CDSA”), and
b) possession for the purpose of trafficking in cocaine contrary to s. 5(3)(a) of the CDSA.
[2] The offences were committed on July 29, 2022, in Pembroke, ON. At that point in time, Mr. Sangster was 18 years and 34 days old without any criminal or youth record.
[3] For various reasons, chief amongst them,
a) Sangster’s sentencing on July 27, 2023, to 285 days of imprisonment after receiving credit for the equivalent of 444 days spent in pre-trial detention before pleading guilty in Newmarket, ON, and being convicted of possession of a prohibited or restricted firearm, and of failure to comply with a release order,
b) his subsequent release from custody in February 2024,
c) his pleas of guilty before me on March 12, 2024 and awaiting the preparation of a Pre-Sentence Report (“PSR”), and
d) the unavailability of his counsel, counsel for his co-accused, Timothy Williams (“Williams”) and Crown counsel until September 16, 2024,
the resolution of this matter was delayed inordinately for some six months.
Circumstances of the Offences
[4] On July 29, 2022 in Pembroke ON, members of the Ontario Provincial Police (“OPP”) executed a search warrant at 362 Mary St., Apt. 1 belonging to Joanne and Nigel Reis. In the Information to Obtain the warrant, the OPP learned that people were coming from Toronto to sell illegal drugs locally. Sangster, his co-accused, Williams, and R.D.H., a seventeen-year-old born on […], 2005, all three of whom are young Black males from the GTA [1], were found in the apartment when the OPP executed the warrant.
[5] Sangster had on his person at the time of his search by police 7 grams of powdered fentanyl and 7 grams of powdered cocaine. Williams had 50 grams of cocaine. R.D.H. had cocaine (26 grams) and fentanyl (10 grams) in his possession as well.
[6] Located on a weigh scale within the residence was 70 grams of fentanyl with another 40 grams beside it.
[7] The OPP also found a loaded 9 mm Glock handgun, which had been hidden behind the fridge in the kitchen of the apartment. The gun was analyzed for DNA and fingerprints with negative results.
[8] The drugs on the scale and the gun could not be positively linked to Sangster, Williams or R.D.H. Wisely, I venture, Crown counsel did not try to prove which of the occupants of the residence was responsible for the gun and other drugs located therein.
[9] Numerous cell phones were however forensically searched. One was determined to have belonged to Sangster. The texts contained in the phone's memory storage was suggestive of him having recently trafficked in illegal drugs. There were also photos of him holding large sums of cash.
[10] Williams was dealt with by me on September 16, 2024 by way of a joint submission for a fourteen month, conditional sentence for possessing cocaine for the purpose of trafficking. The young person, R.D.H., received a non-custodial disposition in Youth Court of two years probation for having possessed fentanyl and cocaine for the purpose of trafficking.
[11] At the time of his arrest, Sangster was cooperative with the OPP.
Circumstances of the Offender
[12] Sangster is now 20 years of age. He was born in Toronto and has lived there most of his life with periodic stays in Jamaica.
[13] He resides in a three-bedroom apartment on the 5th floor with his mother, Nocketta Shand, and his 11-year-old half-sister in Scarborough. His parents separated when he was 4. His father, Austin Burgher, was deported to Jamaica due to criminal involvement in Canada.
[14] Since Sangster was old enough, he has acted in a caregiving role to his younger sister to help out his working, single mom.
[15] Sangster’s father, Mr. Burgher, died in September 2021. Mr. Burgher was visiting his godson in Bridgeport, CT, USA. The godson was suffering from mental illness when he shot and killed his girlfriend, just 19 years old at the time, and Mr. Burgher, then 59.
[16] Sangster is soon to become a father himself. At the time sentencing submissions were made on September 16, 2024, his girlfriend, was six months pregnant. Sadly, she was also his co-accused in respect of the offences, which were recently disposed of in Newmarket.
[17] Before the outbreak of the COVID-19 pandemic, Sangster hoped to become a player in the National Basketball Association (“NBA”). As a boy, he would sleep with his basketball. He was a talented prospect.
[18] His dedicated mother would drive him from their home in Scarborough to Brampton to allow him to play competitive basketball in the GTA. He was scouted by Florida State University. Of course, all basketball programs halted during COVID-19.
[19] From that point, Sangster struggled with online schooling and eventually dropped out. He managed to achieve a grade 11 equivalency while in custody. He plans to attend the Durham Alternative Secondary School following sentencing for these offences, if possible.
[20] Since April 2024, Sangster has been employed by his uncle, an electrician, doing side jobs on weekends.
[21] Sangster grew up in a rough area of Toronto where drug dealing, violence and shootings are rampant, and there is a constant police presence. His best friend was killed in their neighbourhood around the same time his father was. Sangster does not want his child to grow up where and the way he did.
[22] During the era of COVID-19, he fell in with the wrong crowd. He was always around criminal types when he played basketball at the local courts. His bad associations led to poor decisions on how to make money, which he needed to assist his mother and sister.
[23] Since his release from the Central East Detention Centre, Sangster has been leading a quiet life, remaining inside his home for the most part, and helping, where he can, his uncle, mother and sister.
[24] The author of the PSR prepared on behalf of Sangster indicated that his mother, Ms. Shand, described him as “kind, respectful and loving”. In her letter submitted to the Court during sentencing submissions, Ms. Shand recounted:
“When the pandemic hit, when everything stopped, he had to stop playing basketball. He couldn't travel to see his dad. He had to now complete his remaining school years virtually until further notice. I was still working because I was taking care of the elderly. Jevoi stepped up even more. He helped me in many ways during the pandemic. He made sure clean clothes were waiting for me at the door, so that I could remove all my work clothes there and put them in a plastic bag to head straight to the washing machine, so that everyone in the house including himself were safe and healthy. He watched his sister and made sure she was sitting in her classes while I was at work. He made meals when I was just too tired to make anything to eat. He was the shoulder I could cry on when the work got so intense that I didn't know how to keep doing it. He became my best friend outside of my circle of friends.”
[25] Concerning alcohol and drug use, Sangster told the PSR author that he began using alcohol at age 17. However, he does not like the taste of it. He started smoking weed at 16, but stopped because he was playing basketball. It resumed with the commencement of the pandemic when he was 18.
[26] He also experimented with the use of Percocet at age 18, when he was introduced to it on the street. He needed it to help with the pain he was experiencing after he got into a fight and required stitches to his hand. At present, he takes these pills twice per week because, as he said, “I have a lot of anxiety; it helps calm me down; it helps me sleep.”
[27] He denied that his drug use was a factor in respect of the commission of his offences before the Court. He uses marijuana occasionally still; however, his mother, Ms. Shand, indicated to the PSR author that she has no concerns with Sangster’s substance use.
[28] Regarding his participation in the offences, Sangster described his situation as being “in the wrong place at the wrong time”.
[29] On the subject of the danger of selling fentanyl, Sangster stated he does not use it, but he knows that, “It's killing a lot of people, and it's not something people should be giving to other people. I learned from my mistakes that you shouldn't be selling that to people, giving that to people; it's a bad thing. It’s a bad thing to the people who look at it from the outside; the people who do it don’t think it’s wrong. I don’t really think about that stuff.”
[30] He denied when asked by the PSR author that he was involved in any gang activity.
[31] He has suffered from “TIC syndrome” since age 10. The condition causes uncontrollable twitching of his muscles. The symptoms worsen when he is experiencing anxiety, or he feels under pressure or angry. He is being treated for it with prescription medication. He also commented that he can cope with his stress and anger by smoking weed.
[32] Overall, he described himself as a calm person, ambitious and wanting to go after things in life.
[33] The impression he left on his PSR author was that it was not clear to her that he had a true appreciation for what led him to his brushes with the criminal justice system. She identified her particular areas of concern as follows:
“ . . . poor decision making, engaging in impulsive and risky actions, disregard for public safety, access to weapons, potential substance abuse issues and negative peers and/or associates.”
[34] The PSR author felt that he could benefit from “counseling services that would provide him with an opportunity to examine, challenge and restructure his thought processes to understand the situation he has found himself in”.
Crown’s Position on Sentence
[35] Crown counsel seeks a period of incarceration of two to three years of imprisonment for Sangster.
[36] Denunciation and deterrence are the salient sentencing principles to be taken into account by the Court. The provision of a conditional sentence ought not to be considered an option, because to impose one would endanger community safety and otherwise be inconsistent with the purposes and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code of Canada (“the Code”).
[37] A strong message of general deterrence must be sent to the young people of the GTA who come to our communities in Renfrew County to set up shop in drug houses with an aim to selling dangerous, illegal drugs to impoverished, despondent people. Bluntly put, they peddle their poison and leave quickly again with pockets full of cash.
[38] According to Crown counsel, Sangster minimized his responsibility for his criminal conduct. He described his situation as one of being in the wrong place at the wrong time. In truth, he planned his trip and his purpose for being in Pembroke. It was profit-driven and not tied to any addiction of his own.
[39] Despite his letter of apology, he lacks any real understanding of the harm trafficking in drugs causes and its inherent wrongfulness. A five-year-old would be capable of appreciating the lethal nature of fentanyl.
[40] The fact of having been charged with serious offences in Pembroke did not open Sangster’s eyes and deter him. He continued to offend when he went home, where shortly afterwards, he was charged with possessing a loaded handgun and breaching his conditions of release. No great effort was shown to improve himself while awaiting disposition on his first spate of charges.
[41] While acknowledgement should be given to his youth, his pleas of guilt, his lack of a criminal record at the time he committed the offences and the challenges he faced growing up how and where he did, the Court’s focus cannot be completely on his individual circumstances. The impact his criminal activity has had upon our community must be recognized. Too many people have already died through fentanyl abuse.
[42] When considered in this light, denunciation and general deterrence take on enormous dimensions.
[43] By way of ancillary orders, the Crown submitted that Sangster should be:
a) forbidden from possessing any weapon or any other thing for a period of 10 years as set out in s. 109 of the Code,
b) ordered to provide a sample of his DNA to the authorities under section 487.051 of the Code, and
c) subjected to forfeiture of the drugs, cash and other trafficking paraphernalia found on or about his person at the time of his arrest.
Defence Position on Sentence
[44] Defence counsel submits that the appropriate punishment for Sangster would be a conditional sentence of two years less a day to be served in his community, and to be followed by two years of probation.
[45] The defence did not take issue with any of the ancillary orders sought by the Crown.
[46] Even though the principles of denunciation and deterrence are primary, they can be achieved through the imposition of a conditional sentence.
[47] Restraint must be exercised in fashioning an appropriate disposition for Sangster.
[48] The defence argued that the principles of rehabilitation and re-integration into society must be given due consideration in determining a fit sentence for Sangster.
[49] Sangster was barely 18 years old when he committed the crimes for which he must now be punished. The defence agreed Sangster’s offences are serious, but the Court should account for his young age and lack of complete understanding of the risk at which the community is placed through the illicit sale of fentanyl, and the havoc it has wrought.
[50] Defence counsel argued that Sangster made incredibly poor decisions in his efforts to make money to assist his mother and sister. This was the conduct of a very young, Black man who made bad choices.
[51] The Court must also have regard for the principles of parity and proportionality. If he had been arrested for what he had done just a month or so earlier than he was, he would have been governed by the Youth Criminal Justice Act, and treated more leniently, much like his marginally younger companion was.
[52] The defence reminded the Court of how individualized the sentencing construct must be in tailoring a fit disposition to the individual offender.
[53] Defence counsel supplied the Court with numerous authorities as examples where conditional sentences have been imposed for low end, fentanyl trafficking.
[54] In sum, the defence contended that Sangster must be treated as a youthful, first offender, who is terrified about going back to jail. He has learned his lesson. His eyes have been opened. He is desperate for a chance to break free of being labelled a criminal since his 18th birthday. He is ready to live a prosocial life.
Analysis
[55] In arriving at a fit disposition for Sangster, I must, of course, apply the relevant principles of sentencing now codified at sections 718 to 718.3 of the Code. Sentencing is always a unique, individualized exercise. No two cases are completely alike. Nor are any two offenders completely the same.
[56] Sangster’s sentence must be an appropriate one upon consideration of the circumstances of the offences he committed, as well as his personal circumstances.
[57] Most importantly, the punishment I impose must be proportionate to the seriousness of his offences and the degree of his responsibility for them.
[58] The majority for the Supreme Court of Canada (“SCC”) in R. v. Lacasse, 2015 SCC 64 articulated at paragraph 12 the primary function to be performed by an appellate court in reviewing the appropriateness of dispositions chosen by sentencing judges as follows:
“[P]roportionality is the cardinal principle that must guide appellate courts in considering the fitness of a sentence imposed on an offender. The more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier the sentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime’s consequences, but also on the moral blameworthiness of the offender. Determining a proportionate sentence is a delicate task.”
Denunciation and Deterrence
[59] In my view, the principles of denunciation and deterrence are paramount when one sentences an offender for trafficking in lethal, illegal drugs. (see R. v. Disher, 2020 ONCA 710 at paras. 15 and 27)
[60] The message must be delivered to Sangster and others like him that if one takes the risk of engaging in this deadly, but immensely lucrative, criminal activity of fentanyl drug trafficking, one can expect to go to jail. People like Sangster ought to learn from the punishment meted out to him what their fate will be, should they carry on as he did.
Separation from Society
[61] Offenders must be separated from society where necessary. Clearly, incarceration must always be the penal sanction of last resort.
[62] I must be satisfied, before I give effect to the Crown’s submission on sentence, that nothing short of a period of imprisonment of two years or greater will suffice to satisfy the principles and purposes of sentencing set out at sections 718 to 718.2 of the Code. (see s. 742.1 (a) of the Code)
[63] Included amongst the principles of sentencing enumerated in sections 718 to 718.2 of the Code is restraint, which I will address in some depth below.
Rehabilitation
[64] Justice Gillese in Disher reminded sentencing judges as follows:
[27] Lacasse is clear: an error in sentencing justifies appellate intervention only when it appears that the error had an impact on the sentence (at para. 44). While I agree with the sentencing judge that deterrence and denunciation were the primary sentencing objectives, it was nonetheless an error to fail to consider Mr. Disher’s rehabilitative potential.
[65] Sangster has strong support from his family members. It is readily apparent from my reading of the PSR that his mother, Ms. Shand, has always tried her best for him, and attempted to steer him clear of the negative influences which abounded in the neighbourhoods where he grew up. She encouraged his interest in basketball. She tirelessly drove him around the GTA and elsewhere, including the U.S., to try to help him fulfil his sporting ambitions.
[66] Through no fault of Sangster’s, nor his mother’s, COVID-19 intervened and changed everyone’s world. Sangster made very poor choices, to say the least, in its wake.
[67] I am buoyed in my confidence however, that Sangster is trying to right his recently listing ship. I accept that real jail scared him. He does not want to go back. Furthermore, if anything is ever going to motivate him to effect positive change, it will be the imminent birth of his child.
[68] Noteworthy, Sangster has managed to remain free of any new charges since his release from custody in February of this year. He wishes to pursue a career as an electrician with his uncle’s assistance. All of this bodes well for his future.
Promotion of a Sense of Responsibility and Acknowledgement of Harm
[69] In my view, a conditional sentence can reflect the principles of denunciation and deterrence where harsh conditions such as house arrest are imposed.
[70] I am worried about Sangster’s lack of a complete appreciation for the seriousness of the crimes he committed, but I must take into consideration his youth. When he trafficked in fentanyl and cocaine, he had just become an adult in the eyes of the law.
[71] He is beginning to understand the seriousness of his crimes, and how life choices have landed him where he is today, but he is far from any true epiphany as to why. The sentence I impose will guide him along that path, I hope.
Aggravating and Mitigating Circumstances
[72] I find the following features of the offences committed by Sangster to be aggravating:
a) the gravity of trafficking in a lethal drug, which has been a scourge on Canadian society for many years, and particularly in the community of Pembroke (see R. v. Oskem, 2019 ONSC 6283 at para. 9; InsideOttawaValley.com – ‘Like playing Russian roulette every day’: Pembroke plagued by overdose and opioid crisis, September 3, 2024, Renfrew Mercury article by Evelyn Harford),
b) the fact Sangster’s criminal activity must have been planned and profit driven, notwithstanding who he wished to financially assist from his ill-gotten gains, and
c) he incurred further charges while on bail for these offences.
[73] The mitigating factors are as follows:
a) Sangster pleaded guilty and saved the Crown and the Court the sizeable expense of proving his guilt,
b) the expression of remorse he made to the author of his PSR and to the Court is genuine (see Schedule “A” attached to these Reasons), I believe, and he demonstrates some seminal insight into the seriousness of his offending,
c) he is a youthful first offender with good prospects for prosocial reintegration in his community, and
d) he has the ongoing support of his family and friends who will assist with his rehabilitation.
Parity
[74] Section 718.2 (b) of the Code provides:
“A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.”
The Case Law
[75] Crown and defence counsel drew my attention to several authorities attempting to assist the Court in identifying the appropriate range for the sentence which ought to be imposed in Sangster’s case.
[76] Below I will refer to the case law which I find to be particularly helpful to my task of arriving at a proper sentence for him.
[77] In Disher at para. 30, Gillese J.A. opined:
The caselaw on sentences for trafficking in fentanyl is still developing. There are only a few such appellate decisions, which I discuss below. I also set out some relevant lower court decisions. Caution in considering the caselaw is warranted not just because of its inchoate state but also because of the difficulties in comparing quantities of fentanyl given the differences between patches, pills and powder.
[78] Four years on since Disher, I have not found any clear appellate authority for determining the appropriate ambit of sentence for trafficking in smaller quantities of fentanyl by street level dealers.
[79] In R. v. Brazier, 2023 ONSC 6315, Boswell J. aptly had this to say:
[61] Settling on a sentence for the trafficking in fentanyl is more difficult.
[62] In R. v. Loor, 2017 ONCA 696, the Court of Appeal declined to fix a range of sentence appropriate to trafficking in fentanyl on the basis that insufficient cases involving fentanyl trafficking had reached that court. It was considered by the court to be “too early in [the] jurisprudence to establish a range”. Even so, Laskin J.A. observed that offenders, even first offenders, who traffic significant amounts of fentanyl should expect to receive significant penitentiary sentences.
[63] Mr. Loor had used a forged prescription to obtain 45 fentanyl patches, which he trafficked. He was sentenced to 6 ½ years in prison. That sentence was upheld on appeal.
[64] Loor was decided six years ago. A lot of fentanyl has been trafficked in Canada in the meantime. Courts were alive to the dangers of fentanyl in 2017, but are acutely more aware of it now, as is the public. I have already referenced Justice Moldaver’s comments in Parranto, where he referred to fentanyl as “public enemy number one”.
[65] Nevertheless, we continue to lack appellate guidance in the form of a sentencing range for street-level trafficking in fentanyl. See, for instance, R. v. Disher, 2020 ONCA 710, at para. 30 and R. v. Olvedi, 2021 ONCA 518.
[66] Recently, in R. v. Tonkin, 2023 ONSC 2139, my colleague Nakatsuru J. reviewed a number of cases involving the trafficking of relatively small amounts of fentanyl. He concluded that the sentences imposed in these cases generally reflect the low penitentiary range. The cases he surveyed included:
R. v. Oksem, 2019 ONSC 6283 where a 22-year-old, first-time offender was sentenced to 18 months in prison on a guilty plea to possessing 5.62 grams of fentanyl and 7.64 grams of cocaine for the purpose of trafficking;
R. v. M.H., 2018 ONCJ 397 where a 34-year-old, first-time offender with an opioid addiction was sentenced to 2 years less a day in prison on a guilty plea to possessing 3.5 grams of fentanyl for the purpose of trafficking;
R. v. Menzie, [2020] O.J. No. 654 where a 23-year-old, first-time offender was sentenced after a trial to just over 26 months for possessing just 5.05 grams of fentanyl for the purpose of trafficking;
R. v Clayton, 2018 ONSC 4125 where a 43-year-old, first-time offender with addiction and mental health issues was sentenced to 26 months in prison, following a guilty plea to possessing 45 patches of fentanyl;
R. v. Willis, 2019 ONSC 7324 where a repeat offender was sentenced to 30 months following a guilty plea to possessing 6.2 grams of fentanyl and heroin for the purpose of trafficking;
R. v. Lu, 2015 ONCA 479 where the offender was sentenced to 30 months in prison following a trial where he was found guilty of possessing 20 fentanyl patches for the purpose of trafficking; and,
R. v. Gatfield, 2015 ONCJ 526 where the offender was sentenced to 30 months in prison following a guilty plea to trafficking two fentanyl patches.
[67] Undoubtedly, the jurisprudence is continuing to develop in terms of sentencing for trafficking in small amounts of fentanyl. But the trend appears to be towards lengthier sentences as the profound harmfulness of fentanyl sinks in.
[68] Mr. Brazier trafficked only a small amount of fentanyl to Mr. Glover on two occasions. But that small amount was more than enough to kill. As my colleague, Bawden J., observed in R. v. Cinelli, 2018 ONSC 4983, at para. 20, a dose of fentanyl powder as small as two milligrams can be lethal.
[69] While it may still be premature to fix a range for trafficking in small quantities of fentanyl, it would appear to me that the range is beginning to settle into something between 18 months on the low end and 36 months on the high end, depending on the particular aggravating and mitigating circumstances present. Such a range makes sense in light of the Woolcock range of sentences for trafficking in small quantities of cocaine, and taking into account the significantly greater harm caused by fentanyl.
[80] Defence counsel drew my attention to instances where conditional sentences have been imposed for trafficking in fentanyl.
[81] In R. v. Gordon, 2023 ONCJ 157, Silverstein J. imposed a conditional sentence of two years less a day for a 35-year-old offender who, while trafficking in Toronto, was found to possess upon arrest, 12.07 grams of fentanyl, 7.02 grams of cocaine, and 30 hydromorphone pills.
[82] Mr. Gordon also had a prior, but unrelated criminal record.
[83] In R. v. Grant, 2021 ONCJ 507, Calsavara J. meted out a conditional sentence of two years less a day, plus three years of probation, for an 18 year old offender with no criminal record, who possessed for the purpose of trafficking:
a) 9.5 grams of fentanyl,
b) 26 grams of crack cocaine,
c) 13.2 grams of powdered cocaine, and
d) 4 grams of methamphetamine.
[84] In describing the circumstances of the case, Her Honour stated:
[17] Mr. Grant is not a user himself. He was not involved in the trade to fuel his own addiction. One of the motivations had to have been for profit – an easy and fast way to make money. He earned money off desperate addicts. His product poisoned people. It destroys lives. I have no evidence that Mr. Grant was involved in this offence beyond a few days—and I am basing this on the SMS messages tendered at trial—but nonetheless in doing so, he contributed to the supply in the community of several types of opioids – not just fentanyl.
[85] In settling upon a two year less a day conditional sentence for Mr. Grant, Calsavara J. observed:
[30] I recognize that this is an exceptional sentence and a departure from the usual sentence that can be expected for these offences – however, in my view the circumstances are exceptional: this was an isolated foray by an 18 year old person of otherwise good character who had a challenging upbringing and a difficult life event that led to a familial bond to bad influences. Since then the offender has matured and in the two years since has many achievements and has shown he is re-committed to the right path. For a youthful first-time offender, the restraint principle requires that a sentencing judge consider all sanctions apart from incarceration: R. v. Batisse (2009), 2009 ONCA 114, 93 O.R. (3d) 643 and R. v. Priest (1996), 30 O.R. (3d) 538.
[86] Notably, Grant is the closest on its facts to the case before me.
[87] In R. v. Morris, 2021 ONCA 680, a unanimous five-member panel of the Court of Appeal for Ontario spoke squarely to the duty of the sentencing judge in the following passage:
[56] A sentencing judge has a specific and focused task. A sentencing judge must impose a sentence tailored to the individual offender and the specific offence. While evidence relating to the impact of anti-Black racism on an offender will sometimes be an important consideration on sentencing, the trial judge’s task is not primarily aimed at holding the criminal justice system accountable for systemic failures. Rather, the sentencing judge must determine a fit sentence governed by the fundamental tenets of criminal responsibility, including free will, and the purposes, principles and objectives of sentencing laid down in Part XXIII of the Criminal Code: R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773 (“Nur (SCC)”), at para. 43, aff’g 2013 ONCA 677, 117 O.R. (3d) 401 (“Nur (ONCA)”); R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at paras. 39-45; Hamilton, at paras. 2, 87; see also Michael C. Plaxton, “Nagging Doubts About the Use of Race (and Racism) in Sentencing” (2003) 8 C.R. (6th) 299, at pp. 306-7.
[88] In Morris, the offender was a young Black man, 23 years old when he committed several offences related to the possession and concealment of a loaded prohibited/restricted handgun. He was convicted by a jury and was sentenced in July 2018 to one day in jail, plus 18 months of probation, following deductions from the carceral component of the sentence he would otherwise have received on account of breaches of his rights under s. 7 of the Canadian Charter of Rights and Freedoms, and consideration given to his 243 days of pre-trial detention credited at the rate of 1.5:1.
[89] The appeal was allowed, and the sentence imposed was varied to one of two years less a day imprisonment to be followed by the terms of probation imposed by the trial judge. However, the sentence, given the passage of time for hearing the appeal, was permanently stayed.
[90] At issue on the appeal was the evidence admitted at sentencing by the trial judge regarding “longstanding overt and institutional systemic anti-Black racism” and how that racism negatively affected Mr. Morris.
[91] Earlier, on the reception of social context evidence, the panel for the Court of Appeal held at para. 13:
Courts may acquire relevant social context evidence through the proper application of judicial notice or as social context evidence describing the existence, causes and impact of anti-Black racism in Canadian society, and the specific effect of anti-Black racism on the offender;
Consistent with the rules of admissibility, a generous gateway for the admission of objective and balanced social context evidence should be provided;
[92] Elaborating on the use to which such evidence can be put, the Court of Appeal stated:
[87] While we do not agree that evidence of the impact of anti-Black racism on an offender can diminish the seriousness of the offence, or that systemic inequalities diminish the court’s authority, or indeed, its obligation to denounce serious criminal conduct, we do accept that evidence of anti-Black racism and its impact on the specific offender can be an important consideration when determining the appropriate sentence.
[88] Sentencing judges have always taken into account an offender’s background and life experiences when gauging the offender’s moral responsibility for the crime and when choosing from among available sanctions. Over 40 years ago, the Appeal Division of the Nova Scotia Supreme Court in R. v. Bartkow (1978), 24 N.S.R. (2d) 518 (App. Div.), at p. 522, put it this way when describing the purposes of a presentence report:
Their function is to supply a picture of the accused as a person in society - his background, family, education, employment record, his physical and mental health, his associates and social activities, and his potentialities and motivations.
[93] However, the Court of Appeal went on to say:
[97] There must, however, be some connection between the overt and systemic racism identified in the community and the circumstances or events that are said to explain or mitigate the criminal conduct in issue. Racism may have impacted on the offender in a way that bears on the offender’s moral culpability for the crime, or it may be relevant in some other way to a determination of the appropriate sentence. Absent some connection, mitigation of sentence based simply on the existence of overt or institutional racism in the community becomes a discount based on the offender’s colour. Everyone agrees there can be no such discount: see e.g., F.H.L., at paras. 45-49; R. v. Elvira, 2018 ONSC 7008, at paras. 21-25; R. v. Ferguson, 2018 BCSC 1523, 420 C.R.R. (2d) 22, at paras. 126-29; and R. v. Biya, 2018 ONSC 6887, at para. 36, rev’d on other grounds, 2021 ONCA 171.
[94] It was Mr. Morris’s “strong and ever-present fear of many people around him in his community, including the police, [which] was offered as an explanation for his possession of the loaded gun”. That was the connection. It was therefore open to the trial judge in his case to find that anti-Black racism played a role in generating this fear.
[95] In R. v. Stewart, 2022 ONSC 6997, Copeland J., as she then was, interpreted the language chosen by the Court of Appeal in Morris, (i.e. “some connection”), as follows:
[70] Morris explains that in order for circumstances related to systemic discrimination to be factor in sentencing, there must be some connection between the offences and the disadvantages the offender faced tied to systemic discrimination. This was stated as follows in Morris (at paras. 76 and 97):
Evidence that an offender’s choices were limited or influenced by his disadvantaged circumstances . . . speaks to the offender’s moral responsibility for his acts.
There must . . . be some connection between the overt and systemic racism identified in the community and the circumstances or events that are said to explain or mitigate the criminal conduct in issue.
[71] Based on the factual information in the EPSR, the opinion of the social worker in the EPSR (which I accept), and judicial notice of the nature of system anti-Black racism which I am entitled to rely on according to Morris, I am satisfied that there is a link between disadvantage that Mr. Stewart has faced linked to systemic discrimination and his offending. The ESPR establishes a number of risk factors for offending in Mr. Stewart’s life linked to systemic discrimination. These include growing up in a low income, single-parent household, living in low socio-economic communities, ongoing experiences of witnesses gun violence, insufficient educational support for his intellectual disabilities when he entered high school, leading to difficulties in his education attainment, and an absentee father.
[96] To my mind, the correlation can be drawn between the incessant violence and sale of drugs, notwithstanding a formidable police presence in the community in which Sangster was raised, and his desensitization to the moral blameworthiness inherent in drug trafficking.
[97] I hearken back to what Sangster himself said to the author of his PSR about his life experience as a child growing up in Scarborough. He stated:
“I've always been in the environment where violence can happen. We didn't have much money, so we've always lived in places where stuff happens. I've seen it . . . It's a good neighborhood [Mornelle Court], but it's also a bad neighborhood. I've seen people getting robbed, people getting hurt. I've never been a stranger to that type of stuff. My mom did the best she can to get us out, but she didn't have lots of money.”
[98] To borrow the analogy of Crown counsel, most five-year-olds would know the inherent harm in the sale of fentanyl, if they came from middle to upper class white backgrounds where the sale of illegal drugs around public basketball courts is more than likely non-existent. The situation is markedly different for the marginalized, working class, underprivileged, Black, five-year-old, who has to grow up in that type of environment through no fault of his own, nor any exercise of free will on his part.
[99] I find that Sangster experienced those realities in his life from a very young age, and it impacted his thought processes and values. He tried to avoid the temptation of easy money through the sale of drugs. COVID-19 intervened and put an end to his dream of making it to the NBA. He gave up and gave in. (see Morris at para. 154)
[100] Already, he has paid a heavy price for the lifestyle he tried to avoid as a boy but fell into as a young adult. He has spent the equivalent of two years less a day in jail.
[101] At this juncture, I must now decide what to do with him in treating him as a first-time, youthful offender, just 18 years and one month of age when he committed the crimes for which I must sentence him. He made bad choices, but he did not come to them with the same moral blameworthiness that should attach to someone with the vast array of options in life unavailable to less fortunate segments of society.
[102] On this note, I take guidance from what the Court of Appeal ultimately concluded in Morris. The panel was clear on the use to which social context evidence can be used. They held:
[102] Social context evidence can also be relevant on sentencing even if it does not tend to mitigate the offender’s moral culpability. As indicated earlier, social context evidence can provide valuable insight, both with respect to the need to deter the offender from future conduct, and the rehabilitative prospects of the offender. Evidence about an offender’s background and circumstances allows the sentencing judge to more accurately assess how sometimes competing objectives of sentencing, such as rehabilitation and denunciation, can best be blended to produce a sentence that accords with the proportionality principle and serves the fundamental purpose of sentencing articulated in s. 718.
[103] The Court of Appeal in Morris went on to conclude, with wisdom and eloquence:
[106] In summary, social context evidence, which helps explain how the offender came to commit the offence, or which allows for a more informed and accurate assessment of the offender’s background, character and potential when choosing from among available sanctions, is relevant and admissible on sentencing. Acknowledging the reality of anti-Black racism and its impact on offenders like Mr. Morris during the sentencing process enhances the legitimacy of the criminal justice system in the eyes of the community and, in particular, those in the community who have good reason to see the criminal justice system as racist and unjust. A sentencing process which frankly acknowledges and addresses the realities of the offender’s life takes one important step toward the goal of equal justice for all.
[104] I am acutely focused on, as well, what occurred with R.D.H., the young person, who was involved in the same joint enterprise as Sangster. He received no jail time, but because Sangster was nine months older than his accomplice, Crown counsel urges upon me a low-end penitentiary sentence. I see no fundamental fairness in such a disposition for Sangster.
[105] In Morris, the Court of Appeal explained parity’s interaction with proportionality as follows:
[108] The parity principle in s. 718.2(b) requires that to the extent offenders and their offences are similar, their sentences should be similar. Parity aims at substantive equality. If there are material differences between the circumstances of the offence or the offender, those differences must be reflected in the sentences imposed. A sentence which takes those differences into account does not offend the parity principle, but instead properly recognizes the relationship between that principle and the fundamental principle of proportionality: Friesen, at paras. 32-33; Ipeelee, at para. 79.
[106] R.D.H. had more drugs for sale than Sangster. Arguably, employing quantitative, but not qualitative reasoning, the features of his offences would be more aggravating than Sangster’s.
[107] Although the Court of Appeal was unwilling to equate the restraint principle, specifically codified as it is, to be exercised in favour of Indigenous offenders, the panel nevertheless endorsed an approach by sentencing courts to be ever mindful of the over-incarceration of Black offenders as well. They pointed out in paras. 123 and 125:
[I]n considering the restraint principle, courts should bear in mind well-established over-incarceration of Black offenders, particularly young male offenders. Finally, as with Indigenous offenders, the discrimination suffered by Black offenders and its effect on their background, character, and circumstances may, in a given case, play a role in fixing the offender’s moral responsibility for the crime, and/or blending the various objectives of sentencing to arrive at an appropriate sanction in the circumstances.
The requirement of a sentence of imprisonment does not, however, end the operation of the restraint principle. That principle requires the court, if it determines that a sentence of less than two years imprisonment would be appropriate, to consider whether the term of imprisonment could be served in the community under a conditional sentence: Criminal Code, s. 742.1. The restraint principle favours conditional sentences over incarceration if a conditional sentence is consistent with the proportionality principle: see R. v. R.N.S., 2000 SCC 7, [2000] 1 S.C.R. 149, at para. 21.
[108] Finally, the Court of Appeal re-emphasized at para. 180:
When the appropriate sentencing range includes sentences at or below the two-year mark, a sentencing judge must give careful consideration to the imposition of a conditional sentence. As outlined earlier, conditional sentences, properly used, can ameliorate the longstanding problem of the over-incarceration of young Black men.
[109] I am satisfied that defence counsel’s submissions, the letters of support he provided to the Court during the sentencing, and the PSR prepared for Sangster have provided me with sufficient information to craft punitive terms of a conditional sentence, which will sufficiently address the need for denunciation and deterrence in this case. I intend to impose house arrest and I will require Sangster to wear an anklet to allow for more effective enforcement of this condition. His liberty will be restricted, but available sanctions do exist to allow him to avoid further incarceration.
A Fit Sentence for Sangster in the Circumstances of the Offences He Committed and His Personal Circumstances
[110] It warrants repeating that the length of time for which I will imprison Sangster must pay adequate respect to the principles of denunciation and deterrence without losing sight of his good prospects for rehabilitation.
[111] To achieve this, I shall impose a two year less a day conditional sentence of imprisonment plus three years of probation.
Conclusion
[112] Upon assessment of all relevant provisions of the Code, I must jail Sangster for a period of two years less a day going forward from today’s date. I find I can go no lower if I am to sufficiently address the pressing principles of sentencing in this case, primarily, deterrence and denunciation. The breakdown will be as follows:
a) trafficking in fentanyl contrary to s. 5(2) of the CDSA – two years less a day, and
b) trafficking in cocaine contrary to s. 5(2) of the CDSA – one year concurrent.
[113] Sangster is far from the perfect candidate for a conditional sentence, but he is no hardened criminal. As a sentencing judge, I need not throw up my hands and tell Sangster at this point and going forward from today, the only judicial response to any continued offending on his part is jail.
[114] At the root, I fear that, if I had acceded to the Crown’s submission and sent Sangster to the penitentiary, I would have risked institutionalizing him for life. No one in society would benefit from such an outcome. The cycle of anti-Black racialization, poverty, desperation, poor life choices, and crime would go on for him, and perhaps his unborn child too. Instead, I prefer to hold him accountable, but at the same time, give him one last chance at hope for a better future.
[115] I will permit him to serve his sentence conditionally on the following terms:
a) keep the peace and be of good behaviour,
b) appear before the Court when required to do so,
c) report by telephone today to a supervisor and thereafter report as required in the manner directed by the supervisor,
d) remain in Ontario unless he has the prior written permission of the Court or his supervisor to leave the province,
e) notify the Court or the supervisor in advance of any change of name or address and promptly notify the Court or supervisor of any change in employment or occupation,
f) attend and actively participate in any assessment and counseling as directed by his conditional sentence supervisor including for substance abuse, grief and anger management,
g) do not possess a weapon as that term is defined in the Code,
h) do not possess any drug or substance for which he does not hold a medical prescription,
i) do not associate directly or indirectly with Joanne Reis, Jessica Dupont, Timothy Williams or R.D.H.,
j) reside at an address approved by the supervisor and not change that address without obtaining the consent of the supervisor in advance,
k) abide by a condition of home confinement and be fitted with a GPS monitor to allow for more effective enforcement of the house arrest, to which he will be subjected for the first 16 months, with the usual exceptions for attending school or work, assessment or counseling, medical emergencies for himself or a member of his immediate family, or with the prior written approval of his supervisor, and permitting him to be out of his residence from 1:00 PM to 5:00 PM each Saturday in order to acquire the necessities of life,
l) respect a curfew between 11:00 PM and 6:00 AM for the remaining eight months less a day upon conclusion of the home confinement term, and again with the usual exceptions as set out in paragraph k) above, and
m) sign all releases required of him by his conditional sentence supervisor to allow the supervisor to ensure he acts on all assessment and counseling recommendations made.
[116] Following service of the conditional sentence order, I shall place Sangster on probation for a period of three years on the same terms of the conditional sentence set out above, but for the terms of home confinement and curfew.
[117] By way of ancillary orders, Sangster shall be required:
a) to provide a sample of his DNA to the authorities under section 487.051 of the Code by November 24, 2024,
b) to be prohibited for a period of 20 years from possessing any weapon or thing as set out in s. 109 of the Code, and
c) to forfeit to the Crown for their destruction all illegal drugs found on his person at the time of his arrest on July 29, 2022.
[118] Lastly, I will waive the imposition of any victim fine surcharge for Sangster. I find it would cause him undue hardship to him to have to pay even a modest fine given his limited means.
DATED: October 24, 2024
March, M.G., J.
Endnotes
[1] As defined by Wikipedia: The Greater Toronto Area, commonly referred to as the GTA, includes the City of Toronto and the regional municipalities of Durham, Halton, Peel, and York. In total, the region contains 25 urban, suburban, and rural municipalities. The Greater Toronto Area begins in Burlington in Halton Region to the west, and extends along Lake Ontario past downtown Toronto eastward to Clarington in Durham Region.
