Overview
[1] Kaleb Benjamin (Mr. Benjamin) plead guilty to count 1 in an information which charged that on or about the 5th day of September 2023 at the City of Toronto he trafficked in a Schedule I substance, namely Fentanyl, contrary to section 5(2) of the Controlled Drugs and Substances Act.
[2] By agreement, all of the facts in relation to a total of 4 instances of trafficking in fentanyl to an undercover police officer between September 5, 2023 and October 11, 2023 are to be taken into account in determining the appropriate sentence on Count 1 to which Mr. Benjamin plead guilty.
[3] Mr. Benjamin was born on October 3, 2002, so he was 20, on September 5, 2023, when he committed the trafficking in Count 1 which was the subject of the plea.
[4] The amounts of fentanyl sold to the undercover officer were as follows:
- September 5, 2023 - 9.48 grams for $300
- September 12, 2023 - 6.43 grams for $300
- September 22, 2023 - 3.38 grams for $300
- October 11, 2023 - 3.54 grams for $300.
[5] Mr. Benjamin had no prior adult or youth criminal record. He had just turned 21 shortly before the last sale of fentanyl to the undercover officer on October 11, 2023.
[6] Following a judicial pretrial, Mr. Benjamin entered an early plea of guilty on July 23, 2024 and the matter was adjourned for sentencing submissions which were heard on February 25, 2025.
Background of Mr. Benjamin
[7] A very thorough presentence report dated September 16, 2024 was filed in evidence. It reports that Mr. Benjamin had an unstable childhood. He is a young black man whose parents never married nor did they ever live together. He was raised by his maternal grandmother and mother during his formative years and moved frequently back and forth between his mother’s home in Louisiana and his father’s home in Toronto in a continuing pattern until the age of 18.
[8] As a young child, he was exposed to domestic violence between his mother and her then partner. He suffered trauma as a result of observing that domestic violence.
[9] By the age of 17, he began to live with his father and his paternal grandmother, and developed negative behaviour by associating with criminal peers. He lacked structure and parental supervision which contributed to an unstable home environment.
[10] Mr. Benjamin lived in Toronto with his father and paternal grandmother at a time when his father struggled with drug addiction. His father and paternal grandmother were evicted from their home leaving them with nowhere to live. Counsel advises that Mr. Benjamin was homeless at the time of his trafficking offence.
[11] Mr. Benjamin last attended grade 11 at a secondary school in Toronto and quit his academic studies at the age of 17 during the height of the Covid pandemic. He struggled with school as he had been diagnosed with ADHD but had not followed through with medication prescribed for this condition.
[12] During his teenage years and at the time that he committed his trafficking offence, he used opioids and had become addicted to Percocet. According to the presentence report, at the time of this offence, he was desperate for money while continuing to suffer from his Percocet addiction. It reports that he last used opioids shortly before his offence. Mr. Benjamin stated to the court that he is now drug free.
Mr. Benjamin’s Progress While on Bail
[13] Mr. Benjamin has been on a very strict house arrest bail since October 2023, a period of 16 months. He has had no new charges, and no alleged violations of his strict bail conditions.
[14] At the time of the presentence report in September 2024, it was reported that Mr. Benjamin was currently employed full-time working remotely at home as a call centre agent Monday to Friday 9:00 a.m. to 5:45 p.m. While he was laid off for a period of time for not meeting the company’s sales quotas, he was eventually rehired by the same employer.
[15] As noted in the presentence report, Mr. Benjamin enrolled in the substance abuse program for African Canadian youths offered by CafCan Social Services starting July 10, 2024 with weekly counselling sessions.
[16] Mr. Benjamin has pursued counselling through CafCan Social Services. A report from his program worker Krystal Clear Harvey dated November 15, 2024 is extremely favourable. It reports that Mr. Benjamin regularly attended his counselling sessions with a positive attitude and engaging spirit. It reports that he was open and thoroughly discussed his history of trauma and its impact on him. The report said he demonstrated his desire to continue on a positive path, that he would like to continue with regular counselling and that he is open to submitting regular urine tests.
[17] A letter from the apprenticeship administrator of Labourers International Union (Liuna) Local 506, Training Centre dated February 5, 2025 confirmed that Mr. Benjamin successfully completed the hazardous materials worker apprenticeship program that took place from November 11 to December 13, 2024, a period of five weeks. The classes ran five days a week and six hours per day. The report notes that as he has completed this current training program, he is currently waiting to get dispatched to work.
Social Supports
[18] Mr. Benjamin currently resides with his father and his father’s partner, Ms. Sabrina Debeau, who was his surety. Ms. Debeau reported to the presentence report author that she had seen a positive change and big growth in Mr. Benjamin, especially in the last six months prior to the report of September 2024. The presentence report author states at page 8:
“Presently, the subject resides with his father and his surety Ms. Sabrina Debeau, with no plans to reside elsewhere after his sentencing. To his benefit, it appears the subject has substantial support from Ms. DeBeau, who is capable of motivating the subject, assisting him with future employment and providing added structure to his life. The subject’s responsiveness, coupled with positive relationships with family and friends, will allow him to achieve his goals. Moreover the subject appears to have the motivation to contribute to society in a positive way given that securing a career is an important goal the subject wishes to focus on.”
[19] The presentence report notes that Mr Benjamin “accepts full responsibility and expresses remorse. His insight into his actions shows an understanding of the consequences of such negative behaviour.” The presentence report concludes that should the court consider community supervision as a part of its disposition “it would appear that the offender is a suitable candidate”.
Mr. Benjamin’s Statement to the Court
[20] At the conclusion of the sentencing hearing, Mr. Benjamin expressed his sincere remorse for having committed this offence. He expressed his sincere determination to continue pursuing a prosocial life, never offending again, assisted by a new relationship with a partner, who works as a nurse, which provides him with motivation and support. He told the court that he has surrounded himself with good role models and has taken active steps to start a career in the trades by completing the necessary training.
The Position of the Parties
[21] The Crown accepts the numerous mitigating circumstances in this case resulting from the significant efforts Mr. Benjamin has made to adopt a prosocial life and achieve significant rehabilitation while living under strict house arrest for a period of 16 months. The Crown also acknowledges the mitigating effect of the absence of any criminal record for Mr. Benjamin, and his status as a youthful first offender.
[22] However, the Crown submits that the seriousness of the four instances of trafficking fentanyl, in the amounts trafficked in this case, requires that a penitentiary sentence of three years be imposed, after giving a credit of six months Duncan credit to reflect the strict house arrest release conditions which Mr. Benjamin has had for 16 months. The Crown also requests a DNA order, a s.109 weapons prohibition and a forfeiture order.
[23] The defence submits that, having regard to Mr. Benjamin’s youthful age, the absence of any prior record, and the extraordinary steps he has taken to pursue counselling, take specific employment training, comply with 16 months of strict house arrest with no alleged breaches, as a racialized youthful first offender a conditional sentence of two years less a day with house arrest would meet all of the applicable sentencing principles.
The Law
The Principles of Sentencing
[24] Section 10 of the Controlled Drugs and Substances Act states:
“Purpose of sentencing
Section 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.”
[25] The general principles of sentencing are established in the following provisions of the Criminal Code. Section 718 states:
“The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, 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:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
(b) to deter the offender, and other persons, from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims, or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community”
[26] Section 718.2 states:
“A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, …
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) 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.”
[27] The fundamental principle of sentencing is the principle of proportionality. Section 718.1 of the Criminal Code states that a sentence, “must be proportionate to the gravity of the offence and the degree of responsibility of the offender”.
[28] In R. v. Ipeelee, 2012 SCC 13, the Supreme Court of Canada defined the principle of proportionality as follows at para. 37:
“The fundamental principle of sentencing (i.e., proportionality) is intimately tied to the fundamental purpose of sentencing — the maintenance of a just, peaceful and safe society through the imposition of just sanctions. Whatever weight a judge may wish to accord to the various objectives and other principles listed in the Code, the resulting sentence must respect the fundamental principle of proportionality. Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system. As Wilson J. expressed in her concurring judgment in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 533:
“It is basic to any theory of punishment that the sentence imposed bear some relationship to the offence; it must be a “fit” sentence proportionate to the seriousness of the offence. Only if this is so can the public be satisfied that the offender “deserved” the punishment he received and feel a confidence in the fairness and rationality of the system.
Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other.”
[29] In its decision on the appropriate sentence for large scale commercial trafficking in fentanyl, R. v. Parranto, 2021 SCC 46, the Supreme Court of Canada reaffirmed the importance of the principle of proportionality in sentencing. The majority stated at paragraphs 10 and 12:
“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.
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).”
[30] In Ontario, the Court of Appeal has provided explicit guidance on the significance of drug addiction as an individualizing factor in sentencing for drug trafficking.
[31] In R. v. C.N.H., 2002 ONCA 4918, Rosenberg J.A. stated at para. 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.”
[32] Indeed, as noted by the Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64, at para. 4:
“One of the main objectives of Canadian criminal law is the rehabilitation of offenders. Rehabilitation is one of the fundamental moral values that distinguish Canadian society from the societies of many other nations in the world, and it helps the courts impose sentences that are just and appropriate.”
[33] The sentencing principle of rehabilitation is important when sentencing a youthful first offender.
[34] The Court of Appeal has stressed the principle of restraint in imposing a custodial sentence on a youthful first offender. As Gillese J.A. stated in R. v. Batisse, 2009 ONCA 114, [2009] O.J. No. 452 at paras. 32-34:
“[32] The principle of restraint operates in three ways in the present case. First, it is an important consideration because the appellant was a first offender. As such, the restraint principle requires that the sentencing judge consider all sanctions apart from incarceration and where, as here, incarceration must be imposed, the term should be as short as possible and tailored to the individual circumstances of the accused: see R. v. Priest (1996), 1996 ONCA 1381, 30 O.R. (3d) 538, [1996] O.J. No. 3369 (C.A.), at p. 545 O.R. [page 651]
[33] Second, the principle of restraint requires the sentencing judge to consider rehabilitation in determining the appropriate length of the sentence. In lowering a sentence given to a first offender, this court stated in R. v. Blanas, 2006 ONCA 2610, [2006] O.J. No. 364, 207 O.A.C. 226 (C.A.), at para. 5:
“[G]eneral deterrence cannot be the sole consideration. The appellant is relatively youthful and has no prior record and appears to have the full support of her family and community. Appropriate consideration must be given to the rehabilitation of the appellant.”
[34] In serious cases and cases involving violence, rehabilitation alone is not the determinative factor -- general deterrence and denunciation are also significant factors to be considered. However, as this court ruled in R. v. Dubinsky, 2005 ONCA 5668, at para. 1, it is an error to focus almost exclusively on general deterrence and fail to consider individual deterrence and rehabilitation, especially when sentencing a first offender.”
[35] The Court of Appeal has recently summarized and re-stated the importance of principles of restraint and rehabilitation in sentencing youthful first offenders convicted of serious crimes, such as crimes of violence, in which denunciation and general deterrence are important sentencing principles. In R. v. Habib, 2024 ONCA 830, Chief Justice Tulloch stated at paras. 29-36:
“[29] The appellant also argues that the sentencing judge overlooked some of the principles governing sentencing youthful adult offenders for their first criminal offence. I agree. He did not apply these principles because he incorrectly assumed that the gravity of the offence rendered them secondary.
[30] The courts respect the need to hold young adults accountable for serious crimes that, like the ones the appellant committed, involve significant personal violence. The courts must denounce the actions of young adults who commit these offences and impose sentences that, to the extent possible, adequately deter them from reoffending. General deterrence also gains importance. [2] Due to these offences’ gravity and public safety risks, significant prison terms may be necessary. It is not always possible to avoid incarceration, impose only a very short prison term, or select a sentence at the low end of the range. [3] See R. v. Jackson (2002), 58 O.R. (3d) 593 (C.A.), at para. 60; R. v. Borde (2003), 63 O.R. (3d) 417 (C.A.), at para. 37; and R. v. Brown, 2015 ONCA 361, 126 O.R. (3d) 797, at paras. 4-5 and 9. These principles may help prevent older, more sophisticated perpetrators and organized criminal groups from preying on and recruiting young adults to commit violent crimes on the theory that those young adults will not be imprisoned if apprehended. See R. v. Ahmed, 2017 ONCA 76, 136 O.R. (3d) 403, at para. 65; R. v. Hamilton (2004), 2004 ONCA 5549, 72 O.R. (3d) 1 (C.A.), at para. 147.
[31] Sentencing judges must also respect several other settled principles when sentencing youthful offenders for their first criminal offence. First, they must practice restraint. This requires them to avoid imprisoning young adults when possible. When imprisonment is necessary, it also requires them to make the sentence as short as possible to achieve the principles and objectives of sentencing. See Priest, at pp. 544-546. Second, they must prioritize rehabilitation as the paramount sentencing objective. Where necessary, they must also prioritize specific deterrence. See Brown, at paras. 5 and 10. Third, they cannot focus exclusively on denunciation and general deterrence or elevate those objectives above rehabilitation and specific deterrence. See Borde, at para. 36; Brown, at para. 7. Fourth, they must consider young adults’ reduced moral culpability and the harsher impact that incarceration causes them due to their stage of life. See R. v. Hills, 2023 SCC 2, 477 D.L.R. (4th) 1, at paras. 161 and 165; R. v. Bertrand Marchand, 2023 SCC 26, 487 D.L.R. (4th) 201, at paras. 132 and 152.
[32] Sentencing judges must always give serious and sufficient consideration to all these principles. Merely referring to them as relevant is not always sufficient to show their proper application. Failing to apply or unreasonably underemphasizing them is an error in principle. See Ijam, at para. 52; R. v. Faroughi, 2024 ONCA 178, 435 C.C.C. (3d) 1, at para. 81.
[33] The courts have long followed these principles because they protect society, which Parliament has made the fundamental purpose of sentencing. Because young adults are still maturing, they have “high rehabilitative prospects.” See Bertrand Marchand, at para. 152. Often, the shock of arrest and conviction is a turning point that leads them to reflect on their actions, avoid crime, and choose a pro-social path. Prioritizing rehabilitation thus helps protect society by preventing reoffending. See R. v. Swann, [1975] O.J. No. 137 (C.A.), at para. 4; R. v. Dunkley, [1976] O.J. No. 1663 (C.A.), at para. 4; and R. v. Demeter and Whitmore (1976), 1976 ONCA 1413, 32 C.C.C. (2d) 379 (Ont. C.A.), at pp. 381-382.
[34] In contrast, crushing sentences can endanger society by “harden[ing]” young defendants into an anti-social path. See R. v. Desir, 2021 ONCA 486, at paras. 32 and 47; see also Dunkley, at para. 4. Unfortunately, despite the best efforts of correctional authorities, prisons sometimes struggle to rehabilitate young adults. See Hills, at para. 165. Instead, they can become a “finishing school” for crime because they may contain bad influences to which impressionable young adults are vulnerable, such as drugs, gangs, bullying, violence, and negative peers and mentors who share anti-social values and criminal experience. See R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 16; see also Hills, at para. 165; and R. v. Wismayer (1997), 1997 ONCA 3294, 33 O.R. (3d) 225 (C.A.), at pp. 242-243.
[35] These principles also respect Parliament’s direction to impose proportionate sentences. As Hamilton held, at para. 91, proportionality requires courts to consider factors that “decrease the offender’s personal responsibility.” For young adults, immaturity is one such factor. While as adults they are morally responsible for their actions, “[f]ull maturity and all the attributes of adulthood are not magically conferred on young [adults] on their 18th birthdays.” See R. v. Clarke, [2018] EWCA Crim 185, [2018] 1 Cr. App. R. (S.) 52, at para. 5. Instead, young adults are more impulsive, emotionally volatile, and susceptible to negative influences and bad judgment. This can make them less blameworthy than more mature adults. See R. v. Scott, 2015 ABCA 99, 28 Alta. L.R. (6th) 78, at para. 13; Fournier c. R., 2012 QCCA 1330, at paras. 42-45. By accounting for immaturity, courts ensure that turning 18 “does not present a cliff edge for … sentencing.” See Clarke, at para. 5; see also Bertrand Marchand, at para. 132; R. v. Leask (1996), 1996 MBCA 17936, 113 Man. R. (2d) 265 (C.A.), at para. 3.
The Crown Cases
[36] In his very fair and able submissions, Crown counsel acknowledges the substantial mitigating factors in this case, including the very young age of Mr. Benjamin (20 turning 21) at the time of his sales of fentanyl to the undercover officer, the absence of any prior criminal record, the traumatic and challenging circumstances of his youth, and the significant gains Mr. Benjamin has made in pursuing training for employment, counselling for his underlying trauma, and compliance with strict house arrest bail and no further allegations of criminal behaviour over the past 16 months.
[37] Nevertheless, the Crown submits that a penitentiary sentence is required to give effect to the primary principles of denunciation and general deterrence, having regard to the extremely dangerous nature of fentanyl and the amount Mr. Benjamin trafficked in the 4 transactions to be taken into account in this sentencing.
[38] The Crown relies upon the recent decision in R. v. Ahmed, 2024 ONSC 6664, and R. v. Lynch, 2022 ONCA 109, while noting that there are precedents such as R. v. Brockington, 2021 ONSC 159 in which conditional sentences for trafficking in fentanyl by youthful first offenders have been imposed. The Crown submits that it is principally the quantity of fentanyl sold by Mr. Benjamin to the undercover officer which makes a conditional sentence in this case an inappropriate balancing of the aggravating and mitigating factors which must be considered in imposing a fit sentence.
[39] Defence counsel notes the exceptional mitigating circumstances in this case, and notes that in exceptional circumstances courts have imposed conditional sentences for trafficking fentanyl where the individualized circumstances of the offender make it a fit sentence proportionate to the culpability of the offender and the seriousness of the offence.
[40] Defence counsel submits that each of the cases involving actual incarceration relied upon by the Crown are distinguishable from the case before the court.
[41] In R. v. Ahmed, supra, the offender had no prior record, sold a total of 10.77 grams of fentanyl to an undercover officer in 3 transactions, the last being for 6.98 grams for $750. However, the offender was 30 years old at the time of the offence, not a youthful first offender. Upon arrest, he was in possession of a further 2.24 grams of fentanyl and a digital scale.
[42] In R. v. Ahmed, supra, the court stated at para. 30:
“In the circumstances of this case, I agree with the Crown that three years is at the lower end of the appropriate range. As observed by Nakatsuru J. in R. v. Lawal, 2024 ONSC 3621, at para. 27, a penitentiary sentence is required even with mitigating factors.”
[43] In R. v. Lawal, supra, Justice Nakatsuru acknowledged that exceptionally conditional sentences can be given for fentanyl trafficking. In that case the offender was convicted of trafficking in fentanyl on 3 occasions, and was also found to be in possession of multiple cell phones, 30.96 grams of fentanyl in 6 separate baggies, along with scales and plastic packaging. He was convicted of 3 counts of trafficking in fentanyl and 1 count of possession of fentanyl for the purpose of trafficking.
[44] Justice Nakatsuru held that a period of actual incarceration was required principally because the 22-year old offender in that case, who was not an addict, not only sold fentanyl, but was found to be in possession of 30.96 grams of fentanyl for the purpose of trafficking. He stated at paragraph 27 of that case:
“While ranges can be departed from and conditional sentences can be exceptionally given for fentanyl trafficking, I am not persuaded that the circumstances in your case justify it. The multiple trafficking and the possession of an ounce of fentanyl for the purpose of trafficking charges, despite all the mitigating factors, requires a penitentiary sentence.”
[45] The Crown also relies on the decision of the Court of Appeal in R. v. Lynch, 2022 ONCA 109. In that case, the Court of Appeal cited a number of errors of law by the trial judge and substituted a six-year sentence for the four years imposed at trial for the 29-year-old accused convicted of trafficking fentanyl. The facts are significantly different in that case than the case at bar as the accused was 29 years of age at the time of the offence, and sold an undercover officer fentanyl or cocaine on six occasions accepting responsibility for a total of 965.01 g of cocaine, 149.28 grams of MDMA and 41.37 grams of fentanyl. The Crown had sought a sentence of 10 years at trial.
[46] The Crown notes the decision of Justice Bliss in R. v. Brockington, supra, in which an addict fentanyl trafficker who sold 3.5 grams of fentanyl to an undercover officer for $750 was sentenced to a two years less a day conditional sentence with house arrest for the entire period of the conditional sentence, principally based upon the fact that the accused had taken exceptional steps to overcome his addiction, was 23 years old at the time of the offence, had a tumultuous childhood, trafficked to support his addiction, and had no prior criminal record.
Analysis
[47] The offence of trafficking in fentanyl is an extremely serious offence. The act of trafficking fentanyl, an extremely dangerous and addictive drug, exposes members of the public to grave risk and causes significant harm to our communities: R. v. Campbell, 2024 SCC 42 at para. 132; R. v. Ahmed, supra, at paras. 23-24.
[48] A proportionate sentence for trafficking fentanyl must give significant emphasis to denunciation and general and specific deterrence in light of the gravity of any offence involving trafficking in fentanyl.
[49] However, it is also appropriate to bear in mind that a properly structured conditional sentence can satisfy the sentencing objectives of deterrence and denunciation. As stated by Lamer C.J. in R. v. Proulx, 2000 SCC 5 at para. 22:
“The conditional sentence incorporates some elements of non-custodial measures and some others of incarceration. Because it is served in the community, it will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community, and the promotion of a sense of responsibility in the offender. However, it is also a punitive sanction capable of achieving the objectives of denunciation and deterrence. It is this punitive aspect that distinguishes the conditional sentence from probation, …..”
[50] In R. v. Proulx, supra, the Court rejected a presumption against conditional sentences for certain categories of offences. Lamer C.J. stated at paras. 79, 81 and 83:
“79 Thus, a conditional sentence is available in principle for all offences in which the statutory prerequisites are satisfied….
81 In my view, while the gravity of such offences is clearly relevant to determining whether a conditional sentence is appropriate in the circumstances, it would be both unwise and unnecessary to establish judicially created presumptions that conditional sentences are inappropriate for specific offences. Offence-specific presumptions introduce unwarranted rigidity in the determination of whether a conditional sentence is a just and appropriate sanction. Such presumptions do not accord with the principle of proportionality set out in s. 718.1 and the value of individualization in sentencing, nor are they necessary to achieve the important objectives of uniformity and consistency in the use of conditional sentences.
83 My difficulty with the suggestion that the proportionality principle presumptively excludes certain offences from the conditional sentencing regime is that such an approach focuses inordinately on the gravity of the offence and insufficiently on the moral blameworthiness of the offender. This fundamentally misconstrues the nature of the principle. Proportionality requires that full consideration be given to both factors. As s. 718.1 provides:
A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” [Emphasis added.]”
[51] Section 742.1 sets out the statutory pre-conditions for the availability of a conditional sentence. It states in part:
“If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the conditions imposed under section 742.3, if
(a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2;
(b) the offence is not an offence punishable by a minimum term of imprisonment…..”
[52] Sentencing jurisprudence in Ontario has recognized that a proportionate sentence for a youthful first offender trafficking in fentanyl may, in appropriate circumstances, involve the imposition of a conditional sentence.
[53] In R. v. Shearer, 2022 ONCJ 288, a 20-month conditional sentence, with full house arrest and 100 hours of community service was imposed on a 22-year old addict first offender who sold .43 grams of fentanyl to an undercover police officer for $100, and was found with 2.84 grams of fentanyl in his home. The accused in that case had made substantial efforts to overcome his addiction while on bail.
[54] In R. v. Gordon, 2023 ONCJ 157, Justice Silverstein imposed a conditional sentence of two years less a day, with house arrest for 15 months, on a plea to possession of fentanyl for the purpose of trafficking. The accused was observed by police engaging in three hand-to-hand suspected drug transactions over 30 minutes. The police approached the accused and arrested him, and found 53 packages of fentanyl and individual bags and 73 packages of crack cocaine on his person. He had prior convictions involving a property offence and fail to comply with a recognizance in 2007, and a conviction for possession of a Schedule I substance in 2009. He had a traumatic youth and had become an addict trafficking to support his addiction. Before sentencing, he had taken drug treatment, become drug-free for six months, and developed a solid record of employment.
[55] As previously noted, Justice Bliss in R. v. Brockington, supra, imposed a conditional sentence of two years less a day on an addict trafficker who sold 3.5 g of fentanyl to an undercover officer for $750.
[56] In R. v. Lacasse, 2015 SCC 64, at para. 58, Wagner J. stated:
“There will always be situations that call for a sentence outside a particular range: although ensuring parity is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. Once again, everything depends upon the gravity of the offence, the offender’s degree of responsibility, and the circumstances of each case.”
[57] Following the recent authoritative statements from our Court of Appeal in R. v. Habib, supra, I accept that for a youthful first offender, even one who has committed a serious offence such as trafficking in fentanyl, the paramount sentencing principles of general and specific deterrence and denunciation must be carefully balanced with restraint and rehabilitation, in order to achieve a sentence which is proportionate to both the gravity of the offence and the moral blameworthiness of the offender.
[58] In my opinion, given the lack of any prior criminal record, the youth of Mr. Benjamin, his traumatic past and the exceptional progress he has made while on a strict house arrest release, a conditional sentence of 2 years less a day, with house arrest for the entire sentence, achieves a proportionate sentence in this case giving full effect to principles of denunciation, and general and specific deterrence, while providing for Mr. Benjamin’s continued rehabilitation which, in my opinion, will serve to protect the public from further offences. In my opinion, on the particular facts of this case, this conditional sentence, served in the community, would not endanger the community and is consistent with the fundamental purpose and principles of sentencing.
[59] I will impose substantial obligations to perform community service, both during the conditional sentence, and in a probation period of three years. Community service will serve to reinforce that this offence was an offence which endangered the community, and community service will provide reparation for the harm done to the community, pursuant to section 718 of the Criminal Code. It will also assist in Mr. Benjamin’s rehabilitation by engaging him in prosocial community service, working with other prosocial members of the community, who may be good role models for Mr. Benjamin of persons devoted to the good of the community in their daily work.
[60] Accordingly, my sentence in this case is a conditional sentence of imprisonment of 2 years less a day, served in the community on the following terms:
For the entire sentence of two years less a day, Mr. Benjamin will be subject to house arrest every day with absence from his house permitted on the following terms:
(i) to go to and from, and while attending at, employment pursuant to a schedule to be provided in advance to his conditional sentence supervisor;
(ii) to go to and from, and while attending at, any further academic or vocational education or training, with details of such educational or training program to be provided in advance to the conditional sentence supervisor;
(iii) to perform community service as directed by the conditional sentence supervisor;
(iv) to attend counselling or rehabilitation sessions with Krystal Clear Harvey at CafCan Social Services, or such additional or other counselling as may be directed by your conditional sentence supervisor, including counselling for substance abuse;
(v) to attend to the necessaries of life for a period of four hours per week on a date and time to be agreed upon with the conditional sentence supervisor;
(vi) to attend emergency medical or dental care for himself or his immediate family, and to attend routine medical or dental appointments, scheduled in advance, and provided to the conditional sentence supervisor;
(vii) for any other specific reason approved in advance in writing by the conditional sentence supervisor.Mr. Benjamin shall perform 150 hours of community service within the first 18 months of the conditional sentence at a rate and schedule to be set by the conditional sentence supervisor.
He shall possess no weapons as defined by the Criminal Code.
Mr. Benjamin must sign releases to permit his conditional sentence supervisor to monitor compliance with the conditions of his sentence.
[61] At the conclusion of the conditional sentence, Mr. Benjamin will be placed on probation for three years with the following terms:
(i) report to your probation officer within 3 business days of the beginning of your probation and thereafter as directed;
(ii) take such counselling or rehabilitation programs as may be directed by your probation officer;
(iii) make reasonable efforts to seek and maintain employment and/or further education and provide proof thereof to your probation officer;
(iv) sign releases to permit your probation officer to monitor your compliance with the terms of your probation;
(v) perform 100 hours of community service within the first 18 months of your period of probation at a rate established by your probation officer;
(vi) possess no weapons as defined by the Criminal Code.
[62] I also order that Mr. Benjamin provide a DNA sample as this offence is a secondary designated offence. There will also be a s.109 weapons prohibition for 10 years, and a forfeiture order.
Date: March 7, 2025
Justice David Porter