Superior Court of Justice
COURT FILE NO.: CR-16-1954 DATE: 20181127 ONTARIO
B E T W E E N:
HER MAJESTY THE QUEEN Nicholas Cooper, for the Crown
- and -
BARNA OLVEDI Brian Crothers, for the Defence
HEARD: September 26, 2018
REASONS FOR SENTENCE
PETERSEN J.
INTRODUCTION
[1] After a five day trial, I convicted Mr. Olvedi of three drug-related offences:
(i) possession of a Schedule II controlled substance (marijuana) contrary to s.4(1) of the Controlled Drugs and Substances Act (CDSA);
(ii) possession of a Schedule I controlled substance (fentanyl) for the purpose of trafficking, contrary to s.5(2) of the CDSA; and
(iii) importing into Canada a Schedule I controlled substance (fentanyl), contrary to s.6(1) of the CDSA.
[2] Pursuant to a joint request of the Crown and Defence counsel, an absolute discharge will be ordered with respect to Mr. Olvedi’s conviction for possession of marijuana under s.4(1) of the CDSA.
[3] These Reasons for Sentence deal with his other two offences, namely, importation of fentanyl and possession of fentanyl for the purpose of trafficking. Each of these offences is punishable by up to life imprisonment: ss.5(3)(a) and 6(3)(a.1) of the CDSA.
CROWN AND DEFENCE POSITIONS
[4] The Crown submits that Mr. Olvedi should receive two concurrent sentences of 17 years’ imprisonment. Defence counsel argues that a total sentence of 17 years’ imprisonment is too harsh and would exceed the range of sentence imposed on similar offenders who have committed similar offences in similar circumstances. Defence counsel submits that a sentence in the range of 8 to 12 years’ imprisonment is appropriate in this case. The Crown argues that the appropriate range of sentence is 16 to 20 years’ imprisonment given the nature, quantity and purity of the drug involved.
CIRCUMSTANCES OF THE OFFENCES
[5] On September 2, 2015, Mr. Olvedi accepted delivery of a FedEx package at his residence in Brampton, Ontario. The package originated in China and was addressed to him personally. It had been intercepted by U.S. Customs and Border Protection and was transferred to the Royal Canadian Mounted Police (RCMP). It contained 499.5 grams of a powder substance. The RCMP sent a sample of the powder to Health Canada for testing. Health Canada ascertained that it consisted of 100% pure fentanyl citrate. The RCMP replaced the original contents with a substitute powder containing the 1.1 gram sample of fentanyl citrate. An undercover officer then posed as a FedEx delivery person to complete a controlled delivery of the package to Mr. Olvedi.
[6] Mr. Olvedi left his home shortly after accepting the package. He was then arrested. His vehicle and residence were searched by the police. Numerous items were seized, including body armour, papers recording marijuana sales transactions, bongs, pipes, a digital scale, large knives, small baggies containing different varieties of marijuana and a baggie containing cocaine residue. The police also located and seized bundled stacks of cash totalling $60,550 in Canadian currency and the unopened package from China.
[7] At trial, I found that the score sheets and drug paraphernalia in Mr. Olvedi’s apartment related to his business as a marijuana dealer and his personal use of marijuana. I found that the body armour and knives were purchased by him for self-protection because of a threat to his life made by another drug dealer he called “Bruno”.
[8] Mr. Olvedi told the police that Bruno had previously supplied him with cocaine for his own personal use. He said that Bruno was high up in the hierarchy of drug distribution and had a number of people working for him. Bruno offered to pay him if he would accept delivery of a package on Bruno’s behalf. He said he agreed to act as a courier and provided his residential mailing address to Bruno. At trial, Mr. Olvedi retracted these statements made to police, but I accepted them as credible. I rejected the inconsistent exculpatory testimony that he gave at trial.
[9] While Mr. Olvedi may not have known that the package contained fentanyl when he agreed to have it delivered to his home, I found that he was wilfully blind to the fact that it contained a controlled substance. He was also wilfully blind to the fact that it would be originating from outside Canada. I convicted him based on his wilful blindness.
[10] Mr. Olvedi told police that he later regretted his decision to accept delivery of the package. He said he tried to back out of the arrangement, but he was assaulted by one of Bruno’s associates and threatened with death if he did not sign for the package when it arrived. He took the threat seriously and purchased body armour as well as knives for self-protection. I accepted these statements as credible, even though he retracted them at trial.
[11] Against his better judgment and despite some hesitation, Mr. Olvedi accepted and signed for the FedEx package when it was delivered to his home. His intention was to flip it to Bruno in exchange for cash payment, wilfully blind to the fact that Bruno would then sell its contents to illicit drug-users through an established chain of distribution.
GRAVITY OF THE OFFENCES
[12] Until relatively recently, courts in Ontario treated heroin as “the most pernicious of the hard drugs” available on the streets: R. v. Sidhu (2009), 2009 ONCA 81, 94 O.R. (3d) 609, at para.12. In 2009, the Ontario Court of Appeal described heroin as “the most addictive, the most destructive and the most dangerous” illicit drug available in our communities: Sidhu, at para.12.
[13] Sadly, there is now a much more potent and even more dangerous addictive drug widely available on the streets. As Lynch J. stated in R. v. Thorn, 2017 ONCJ 5021, at para.2, “the drugs with which we were familiar a few years ago and that we called extremely dangerous and potential killers are now somehow eclipsed by fentanyl…. [I]t is that serious a drug. It is that serious a concern in the community.”
[14] In recent years, daily news reports have covered the alarming opioid crisis in our country. Fentanyl, in particular, has assumed centre stage in the unfolding tragedy. A number of courts have found that, every day in cities across Canada, fentanyl use is resulting in overdoses and fatalities. It is ravaging communities and claiming lives: R. v. Loor, 2017 ONCA 696, at para.33; R. v. Leite, 2018 ONCJ 132 at para.7; R. v. Vezina, 2017 ONCJ 775, at para.22; R. v. Patel, 2017 ONSC 5375, at para.55; R. v. Smith, 2017 BCCA 112, [2017] B.C.J. No. 471, at paras.48 and 65; and R. v. Csincsa (21 June 2018), Manitoba, CR17-01-36464 (MB Q.B.). As Bliss J. stated in R. v. Mastromatteo, 2018 ONCJ 421, at para.8: “Words fail to convey the human cost of the fentanyl crisis that communities across the country, and this community in particular, are facing. Words have a sterility to them. Lives lost, literally and figuratively are not sterile. To put it bluntly, people are dying.”
[15] Evidence of the devastating impact of fentanyl in other communities across Ontario has been documented in several recent sentencing cases: Vezina, at para.22; Leite, at paras.17-18; Mastromatteo, at para.8; Loor at paras.33-39; Patel, at paras.27-31; and 105; R. v. Shaheen, 2018 ONCJ 150, at paras.11-12. The expert evidence in this case establishes that, in Peel Region, where Mr. Olvedi’s offences were committed, the impact of fentanyl has been no less insidious.
[16] Three experts were called by the Crown to testify in this case.
Dr. Woodall’s Testimony
[17] The first Crown witness was Dr. Karen Woodall, the case coordinator for death investigations at the Centre of Forensic Sciences in the Ontario Ministry of Community Safety and Correctional Services. She is a forensic toxicologist with expertise in the chemical composition and quantification of fentanyl, the forms in which it is produced, its general effects on the body, its use in medical settings and its abuse outside of medical settings.
[18] Dr. Woodall’s testimony established the following facts.
[19] Fentanyl is in a class of drugs called opioids, which are known to be addictive. Withdrawal from fentanyl, for those who are addicted, is a very uncomfortable experience that includes side effects of nausea, vomiting, diarrhea and profuse sweating.
[20] Fentanyl is prescribed in medical settings to treat severe pain. It is 100 times stronger than morphine. It is so potent that it is generally only prescribed to patients who have developed a tolerance to other opioids and whose pain cannot be treated effectively with other drugs.
[21] One of fentanyl’s side effects is that it can cause euphoria, which is why it is abused in non-therapeutic settings by people seeking to get high. Studies have shown that fentanyl is 20 times stronger than heroin.
[22] Pharmaceutical fentanyl is produced and used in many different forms. In hospital settings, it can be injected in liquid form or taken as a tablet or in lollipop form. It is typically prescribed to patients who have undergone surgery or who have chronic pain from an illness such as cancer. Hospital doses vary depending on a patient’s condition and tolerance, but they tend to be very small, measured in fractions of a milligram. A 0.1mg dose would not be uncommon.
[23] Fentanyl’s most popular therapeutic use outside of hospitals is in the form of patches that stick to a patient’s skin. The drug is slowly absorbed through the skin to provide the wearer with constant relief from severe chronic pain. Fentanyl patches come in two different pharmaceutical doses: 2mg and 17mg. The patch is designed to deliver the drug gradually through the skin in small doses over a 72 hour period. The 17mg patch administers 100mcg [1] of fentanyl each hour. The lower dose patch administers 12.5mcg of fentanyl per hour.
[24] The illicit sale of fentanyl patches on the street has become widespread in recent years. Pharmacy thefts, fraudulent prescriptions and misappropriated prescriptions have created a supply of illicit patches for sale to addicts. Some users withdraw the fentanyl from the patch with a syringe and then inject it. It was easier to do this with older patches that were manufactured differently. They contained a small reservoir of fentanyl in a gel format. It is more difficult to tamper in this way with the newer patches because the fentanyl is interwoven with the material. There is no reservoir, so the drug is more difficult to access. However, some users put the patch (or a piece of the patch) in their mouth and chew on it for quicker absorption of a higher dose of the drug, which presents a serious risk of toxicity, overdose and death.
[25] Illicit drug users also ingest fentanyl in a powder format. The powder can be snorted, smoked or dissolved and injected. Serious risks of toxicity accompany all of these uses. The drug slows breathing and brain function; it can result in respiratory arrest, coma and death.
[26] Powder fentanyl can be inhaled and absorbed through the skin, which means that it presents serious risks to anyone who handles it or is simply near to it. Dr. Woodall testified that she and her colleagues have strict health and safety guidelines for handling fentanyl in their laboratory. They wear protective gloves and masks.
[27] Deaths from fentanyl overdoses started to occur in the mid 2000’s. The problem intensified over time. In the past five years, there has been a dramatic increase in fentanyl-related fatalities. The problem has reached crisis proportions. Dr. Woodall testified that fentanyl has become the number one opioid identified in death investigations of drug-related fatalities. In many cases, multiple drugs are detected in the deceased’s system. Some case histories have shown that the deceased believed they were taking cocaine or heroin but ended up unknowingly ingesting a deadly drug mixture that contained fentanyl.
[28] The powder fentanyl imported by Mr. Olvedi was in citrate form. Dr. Woodall explained that pharmaceutical drugs often come in the form of a base. Fentanyl is produced in a citrate base form to make it easier to absorb into the body. It is typically used in citrate form when injected or taken as a tablet in a hospital setting. It is not used in citrate form in skin patches.
[29] When Health Canada tested the sample from the substance imported by Mr. Olvedi, it reported that the powder was 100% pure fentanyl citrate. Dr. Woodall explained that this means it was not cut with any other agent or substance such as baking powder. She noted that she had never previously worked on a case in which Health Canada recorded that the fentanyl was in citrate form.
Sergeant Ian Young’s Testimony
[30] Sergeant Ian Young works for Waterloo Regional Police Service. He has expertise with respect to the operations of illicit drug subculture including the production, preparation, cutting, distribution, packaging, methods of use and street value of illicit fentanyl. His expertise also encompasses the sources of illicit fentanyl, as well as quantities for sale and use.
[31] He testified that the majority of fentanyl found in Canada originates from other countries, mostly from China. Some illicit fentanyl has been produced in labs in Western Canada, but domestic production is rare because the pre-chemicals required for its production are highly regulated and difficult to obtain here. Fentanyl therefore typically originates from abroad.
[32] Sergeant Young worked as an investigator in the Drug Unit of Waterloo Regional Police Service for the last seven years. Before that, he was assigned for three and half years to a unit that investigated street level drug activity, among other crime. He has a total of 16 years’ experience in law enforcement with extensive experience investigating drug-related crime. During the course of his career, he has been involved in over 100 seizures of controlled substances, including numerous fentanyl seizures involving patches, pills and powder. However, he has never personally encountered 100% pure fentanyl citrate in his police work.
[33] He explained that fentanyl citrate at 100% purity is not a consumable product on the street, so it would be diluted by drug traffickers in preparation for sale. Typically, each gram of the fentanyl would be mixed with 100g of a cutting agent, most commonly caffeine. The usual cutting method is simply to place the powder fentanyl with the agent in a blender and mix them together. This is obviously not a scientific method. It results in uneven blending of the mixture, such that there are hot spots of higher fentanyl concentration in the mix. These undetectable hot spots present a serious risk of overdose to end users.
[34] Sergeant Young testified that, when it was first introduced to the illicit drug market in Canada, powder fentanyl was sold as high quality heroin to unsuspecting users who were not aware that the heroin they were ingesting was mixed with fentanyl. It was also commonly mixed with other drugs, such as methamphetamine or cocaine, which resulted in overdoses of people who were not regular opioid users and whose tolerance for fentanyl was therefore very low. It was also sometimes sold as counterfeit oxycodone pills.
[35] Sergeant Young stated that fentanyl is still sometimes passed off as another product, but that people who purchase it now usually know what they are getting.
[36] Sergeant Young testified that powder fentanyl is sold on the street, after it has been cut 100/1g, in single “point” purchases (one point equals 0.1g). It is also cut 100/1g and pressed into pills using binding agents, then sold in 0.1g pill doses. Each point (whether in powder or pill format) sells for about $30-$40.
[37] The amount imported by Mr. Olvedi -- namely 499.5 grams of pure fentanyl citrate -- would typically be cut to produce 499,500 points for sale on the street. At $30-$40/point, it would have an estimated street value of between $14,985,000 and $19,980,000. This estimate was not contested by Mr. Olvedi.
Constable Matthew Boycott’s Testimony
[38] Constable Matthew Boycott is a Peel Regional Police Officer currently assigned to the Major Drugs Bureau. Over his sixteen year career in law enforcement, he has been involved in numerous drug investigations, including cases in which fentanyl was seized, as well as cases involving oxycodone, OxyContin, morphine, cocaine, crack cocaine, marijuana, crystal methamphetamine, MDMA and heroin. I found that he was an expert qualified to give evidence, from a policing perspective, on the prevalence of illicit fentanyl in Peel region, its impact on policing and community responses to it.
[39] Constable Boycott testified about a recent upswing in the presence of illicit fentanyl in Peel Region. Statistics drawn from Niche, a police database, confirm there was a 56% increase in fentanyl-related police occurrences in this region from 2016 to 2017. The Niche database records a 41% increase in powder fentanyl seizures by Peel police in those same two years. There was also an increase in fentanyl pill seizures in Peel Region. No pills were seized in 2016, whereas 6,000 pills were seized by Peel police in 2017.
[40] The dangers presented by the prevalence of fentanyl have had an impact on policing practices and on the policing budget for the Region. Constable Boycott explained that every Peel police officer now carries a nasal naloxone kit, which can be used to reverse the effects of fentanyl and prevent an overdose. Each kit costs approximately $100. In 2017, Peel officers administered naloxone to drug users a total of 16 times during the course of their duties. They administered it 8 times during the first quarter of 2018. Constable Boycott noted that, although naloxone has been used by police to assist illicit drug users, the primary reason why it is carried by officers is as a life-saving measure for themselves, in the event that they are exposed to fentanyl during the course of their duties and require the kit to reverse the effects of the drug.
[41] The increase in fentanyl seizures in Peel Region has necessitated the establishment of a centralized exhibit processing facility to store drugs more safely and securely. A central drug property room is in the process of being built. Constable Boycott explained that it will be heavily ventilated, will have high security measures, include emergency strips on the walls and will be staffed at all times by two trained officers. This centralized facility will reduce the number of officers who are exposed to fentanyl during the course of their duties and will minimize the risks associated with handling exhibits containing the drug.
[42] Constable Boycott elaborated on the huge gain in popularity of fentanyl in the drug subcultures of Mississauga and Brampton. He said the consumer base has grown because of fentanyl’s high potency, which makes it particularly attractive to illicit drug users. He also noted that it is fairly inexpensive for dealers to set up operations by using a simple blender to cut the powder. Dealers can therefore turn a quick profit.
[43] Constable Boycott observed that fentanyl powder often gets added to other drugs and it is not always mixed properly. He echoed Sergeant Young’s testimony that, without proper measuring and blending instruments, fentanyl is cut somewhat haphazardly, which results in uneven potency of the drug sold on the street, which in turn causes spikes in overdoses.
[44] The lethal nature of fentanyl is reflected in data gathered by Public Health Ontario, which records a dramatic increase in emergency hospital visits relating to fentanyl in Peel Region between 2016 and 2017. It also records a marked increase in the presence of fentanyl in opioid-related hospital deaths in Peel Region in recent years. Only two such deaths were recorded by Public Health Ontario in 2005, whereas twenty were recorded in 2016. Public Health Ontario reports that, by 2016, fentanyl was the drug most commonly present in opioid-related hospital deaths in Peel Region (more than heroin, codeine, hydrocodone, hydro-morphine, methadone, morphine and oxycodone).
[45] Constable Boycott noted that fatalities from opioid overdoses do not always occur in hospital settings and are therefore not all captured by the Public Health Ontario data. People who die from an overdose are sometimes discovered too late for any life-saving measures to be undertaken and they are therefore not transported to hospital. Their deaths are not captured in the Public Health Ontario data.
[46] Statistics in the police Niche database include deaths that occur outside of a hospital setting. They show an alarming increase in fatal overdoses attributed to fentanyl in Peel Region. There were nine such overdoses recorded in 2014, ten in 2015, forty in 2016 and sixty in 2017. Constable Boycott noted that toxicology reports were still outstanding in fourteen of the incidents from 2017, so the number of fatalities attributed to fentanyl that year may yet increase. In the first quarter of 2018, the Niche database records 38 fatal overdoses attributed to fentanyl. Constable Boycott stated that he expects that number to rise because the data for the first quarter of 2018 is not finalized.
Manner of Importation
[47] The importing offence in this case is particularly serious because of the manner in which the substance was brought into the country.
[48] By importing powder fentanyl citrate through the FedEx courier system, a number of unsuspecting individuals were put at risk, including FedEx employees (who could have been exposed if the package were compromised) and Mr. Olvedi’s own father and brother, who resided at the address to which the package was delivered. Although no one was harmed, serious and potentially fatal consequences could have resulted if the delivery had occurred at a time when Mr. Olvedi was not home. The package could have been handled and opened by another family member.
CIRCUMSTANCES OF THE OFFENDER
[49] Mr. Olvedi is 33 years old. He was born in Romania but was raised in Brampton, Ontario. He and his parents immigrated to Canada in 1990 and settled in Brampton. He became a Canadian citizen in 1994.
[50] By his own account, he had a good upbringing with loving parents. His parents separated eight or nine years ago. His father recently re-partnered. He has maintained a good relationship with both of his parents and benefits from their continued support. He has one sibling, a younger brother, who has autism. His brother currently lives with their mother.
[51] Mr. Olvedi has a post-secondary education. He completed a program in Business Administration and Human Resources at Humber College in 2011. He has approximately six years of employment experience as a dispatcher in transportation logistics. For many years prior to his arrest, he was operating a profitable marijuana sales business.
[52] At the time of the offences, Mr. Olvedi was living in a basement apartment in his father’s home. His brother was living with their father upstairs. With the exception of three brief periods in 2008, 2017 and 2018, when he lived in rental accommodations, he has always lived with a parent.
[53] Mr. Olvedi has never been married and has no children. At the time of his arrest, he was involved in a serious relationship with a woman. His parents did not approve of the relationship and perceived the woman to be a negative influence on him. His relationship with that girlfriend has since ended.
[54] Mr. Olvedi has a criminal record with only one prior conviction for failure to comply with a recognizance in 2016. That conviction post-dates the commission of the offences in this case. Mr. Olvedi was therefore a first-time offender on the date when he committed the offences for which he is now being sentenced.
[55] During his testimony at trial, Mr. Olvedi acknowledged that he was a long-time regular marijuana user, but he denied using cocaine or other hard drugs. He feigned not even knowing what fentanyl was at the time of his arrest, which I did not find credible. After his conviction, his story changed. When he was interviewed for a Pre-Sentence Report, he advised the Probation and Parole Officer that he has used “every conceivable drug”. He stated that he has used opiates over the past five years, crystal meth over the past seven years, cocaine over the past nine years and marijuana over the past 20 years. Both of his parents confirmed to the Probation and Parole Officer that they were aware of his illicit drug use and had made numerous attempts to get him to enter a treatment program for substance abuse. His parents believe that he has a drug addiction and suspect that he may have a comorbid underlying mental health condition. There is, however, no medical evidence of diagnoses supporting their suspicions.
[56] Mr. Olvedi has been incarcerated at Maplehurst Correctional Complex since February 23, 2018. During his time in custody, he has taken advantage of the limited programs at the institution. He has completed numerous correspondence courses offered by New Life Ministries. He appears to be occupying his time as productively as possible. He has served his time without incident.
[57] The author of Mr. Olvedi’s Pre-Sentence Report noted that he presented as a co-operative person who reflected upon his actions as stupid and regretful. At the sentencing hearing, Mr. Olvedi made a very brief but apparently sincere statement to the Court, indicating that he regretted his actions and regretted what he had put his family through, but had made peace with his situation and was looking forward to moving beyond his present circumstances.
LEGAL PARAMETERS
Legislated Purposes and Principles of Sentencing
[58] The Supreme Court of Canada has ruled that “sentencing judges can properly take into account trends in their communities in fashioning an appropriate sentence”: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at p.11. The enormity of the current fentanyl crisis and its devastating impact in Peel Region cannot be ignored in this case. It underscores the need for a sentence of sufficient length to denounce Mr. Olvedi’s conduct in the strongest terms and to act as a general deterrent to those who would contemplate similar actions: Vezina, at paras.44 and 58; Loor, at para.31; Leite at paras.44 and 58; Mastromatteo, at para.66; Godreau at para.12; and Shaheen at para.15.
[59] The rising incidence of fentanyl-related deaths in the community is, however, only one relevant factor among many in determining the appropriate sentence in this case. It is not to be treated as a paramount factor that distorts the sentencing process: R. v. Priest (1996), 30 O.R. (3d) 538 (C.A.) at paras. 12-14; R. v. Sears, [1978] 39 C.C.C. (2d) 199 (Ont. C.A.) at para. 2.
[60] While the widespread danger that fentanyl poses in the community necessitates an emphasis on denunciation and general deterrence in sentencing, it is important not to lose sight of other sentencing objectives and principles, including specific deterrence, rehabilitation, totality, parity and restraint: Leite, at para.59; ss.718 and 718.2 of the Criminal Code; and s.10 of the CDSA.
[61] Furthermore, the Supreme Court of Canada has made it clear that the cardinal principal of sentencing is proportionality: Lacasse, at para.12. This means that a sentence must be proportionate to the gravity of the specific offence and the degree of responsibility and moral blameworthiness of the particular offender: s.718.1 of the Criminal Code and Loor, at para.32.
Crown’s Authorities
[62] The Crown submitted ten Ontario cases involving fentanyl-related drug offences. In some cases, the fentanyl was in the form of patches. In other cases, it was pills or powder. The purity, quantity and street value of the drug was significantly less in every case than it is in the case before me. No cases were submitted involving 100% pure fentanyl citrate.
[63] Three of the Crown’s cases are part of a foursome of decisions involving offenders who acted in concert in a sophisticated drug trafficking ring in North Bay: R. v. Baks, 2015 ONCA 560 and 2015 ONCA 615; R. v. Godreau, 2016 ONSC 6318 and R. v. Loor. The fourth case is R. v. Sinclair, 2016 ONCA 683.
[64] The accused in these cases used other people’s health cards, identities and personal information to open false patient profiles for a doctor and forged prescriptions in the unsuspecting doctor’s name. Through this fraudulent scheme, they secured and trafficked a total of 900 high-dose (100 mcg) fentanyl patches.
[65] The offenders were tried separately. All were convicted and all appealed their sentences to the Court of Appeal. Although I was only provided with the trial decision in Godreau, I note that the sentence imposed by the trial judge was modified on appeal (as discussed below).
[66] Mr. Sinclair and Ms. Baks both pleaded guilty and received initial sentences of nine years’ imprisonment pursuant to a joint submission of Crown and Defence counsel. Ms. Baks’s total sentence was reduced to six years on appeal. For each of twenty counts of trafficking fentanyl, the Court of Appeal imposed concurrent five year sentences (in addition to a consecutive one year sentence for forgery charges). The Court found at para. 4 that there were “several powerful mitigating factors” that warranted a reduction in her sentence: she was a youthful first time offender with no history of criminal involvement; her rehabilitative prospects were excellent; she acted under pressure from Mr. Sinclair, with whom she had a romantic relationship; and she provided early and full cooperation to the police. She gave a statement against two co-accused (Sinclair and Godreau), which led to a guilty plea by one of them (Sinclair). She testified against the other co-accused (Godreau). The Court of Appeal gave “significant weight” to her timely and valuable assistance to police. It also noted that her sentence should be lower than that of Mr. Sinclair, who was higher up in the scheme and had recruited her involvement.
[67] Mr. Sinclair appealed his sentence after Ms. Baks’s sentence was reduced. The Court of Appeal accepted that parity with Ms. Baks’s sentence was at the heart of the joint submission regarding his nine year sentence at trial, but found that there were fewer mitigating factors in his case. The Court held that Mr. Sinclair had “realistic” rehabilitation prospects and that his cooperation with police, while delayed, was ultimately full and useful (he had testified against Mr. Godreau). It concluded that the other mitigating factors in Ms. Baks’s case were not present and that Mr. Sinclair’s role in recruiting Ms. Baks into the criminal enterprise was a factor that counted against him. For these reasons, the Court of Appeal only reduced Mr. Sinclair’s sentence to eight years.
[68] The third offender in the North Bay fentanyl trafficking scheme was Mr. Loor. He was the lowest level member of the ring. He used fraudulent means to obtain 45 high-dose fentanyl patches that were worth between $18,000 and $20,000 on the street. He was 39 years old and had a criminal record, including a prior conviction for trafficking, but no convictions in the preceding five years. He did not profit much from his trafficking, had strong family support and young children, showed good behaviour while in custody and had done significant volunteer work in his community. The Court of Appeal upheld his sentence of six years’ imprisonment.
[69] The final offender involved in this North Bay foursome was Mr. Godreau. He was found guilty of five counts of trafficking fentanyl after a five day trial and received a sentence of 10 years’ imprisonment. The trial judge remarked that there were a “notable absence of mitigating factors” and a number of aggravating factors: the offender had a criminal record that included a prior drug trafficking conviction, he profited from the commercially lucrative scheme, he was trafficking in maximum strength fentanyl patches without regard to the potentially catastrophic consequences for his contacts and unknown users further down the line, and he exploited a circle of known drug users, including a senior citizen and his very own mother, who he knew to be a person with medical and psychological frailties.
[70] On appeal, the Court of Appeal reduced Mr. Godreau’s sentence to nine years based on the principle of parity (noting that the sentences of two of his co-accused had been reduced on appeal) and based on evidence that was not before the trial judge showing good rehabilitative prospects: R. v. Godreau, 2018 ONCA 10.
[71] There are no appellate decisions in any of the other fentanyl cases submitted to me, but my review of the jurisprudence identified three additional cases in which the Ontario Court of Appeal heard sentencing appeals in cases involving fentanyl.
[72] In R. v. Lu, 2016 ONCA 479, the Court of Appeal upheld a sentence of two and a half years’ imprisonment for possession of twenty 100 mcg fentanyl patches for the purpose of trafficking. The offender had used his mother’s lawful prescription to obtain the patches.
[73] In R. v. Fisher, 2016 ONCA 938, the Court of Appeal upheld a sentence of five years’ imprisonment for possession for the purpose of trafficking marijuana and fentanyl. The drugs were to be smuggled into a correctional institution where the offender had previously been incarcerated. The Court of Appeal stated that a five year sentence was “well within the appropriate range”, but the quantity, purity and nature (i.e. patch, pill, powder) of the fentanyl is not mentioned in the decision.
[74] Finally, in R. v. Klammer, 2017 ONCA 416, the Court of Appeal reduced the sentence of an addict first-time offender from thirty-three months’ incarceration to twenty months for trafficking fentanyl and possessing fentanyl for the purpose of trafficking. The offender had six 100 mcg patches. The relatively small quantity of the drug was a factor in the court’s decision.
[75] I am not aware of any other appellate cases involving fentanyl. Crown counsel provided me with six trial court decisions involving possession for the purpose of trafficking fentanyl, trafficking fentanyl or conspiracy to traffic fentanyl. The following is a summary of those cases.
[76] In R. v. Thorn, the offender was convicted of multiple drug offences, including possession for the purpose of trafficking fentanyl, methamphetamine and heroin. She and her boyfriend were dealing drugs for profit. They were not using drugs. The trial judge found that she was acting out of plain greed and lacked awareness of or concern for the consequences of her actions. She pleaded guilty to numerous offences and based on a joint submission, received a global sentence of six years’ imprisonment. Her first fentanyl-related offence involved two ounces (56.7g) sold to an undercover police officer and the second involved 16.6g found at her residence. The purity of the drug is not specified in the decision. She was given thirteen and one third months’ credit for pre-sentence custody and received an additional sentence of four years and six months’ imprisonment for the first count plus three years concurrent for the second count. The trial judge held that a total of six years was “within the appropriate range” because of significant mitigating factors. Ms. Thorn was given “considerable credit” for her lack of criminal record and guilty plea. Her youth and difficult upbringing were also mitigating factors; she was only 20 years old at time of the offences.
[77] The offender in R. v. Leite was a mid-to-high level dealer of addictive hard drugs. He was convicted, after an eight day trial, of multiple offences, including two counts of possession of fentanyl for the purpose of trafficking. The total amount of fentanyl found in his possession was 147.9g in powder form. The purity of the drug is not specified in the decision. The accused did not use drugs himself, so his sole motivation was greed. He was unemployed and was receiving social assistance while earning considerable profit from his drug sales. He was 29 years old, married with an infant daughter. He had no prior criminal record. He demonstrated sincere remorse and took full responsibility for his actions at the sentencing hearing. In addition to concurrent sentences totaling five years’ imprisonment for possession of cocaine and methamphetamine for the purpose of trafficking, he was sentenced to consecutive terms of six years’ imprisonment and two years’ imprisonment for the two fentanyl-related offences.
[78] In R. v. Vezina, the offender was charged with multiple firearms and drug offences, including possession of fentanyl for the purpose of trafficking. The drugs found in his possession were in powder form and weighed 205 grams. The powder consisted of a blend of heroin, fentanyl and cutting agents, with a 0.5% to 0.7% concentration of fentanyl. It had a street value, at the point level, of $61,500. Mr. Vezina had experienced family upheaval in his formative years that had negatively impacted his pursuit of a pro-social life. He had mental health issues, for which he self-medicated with street drugs. He had a longstanding addiction to illicit substances and a significant prior record for drug offences. He was cooperative with the police upon arrest and pleaded guilty to the charges. He was sentenced to a total of 12 years’ imprisonment, including 11 years for the fentanyl-related charge.
[79] In R. v. Patel, the offender was a licensed pharmacist. He created and processed 124 fraudulent prescriptions using his employer’s system and also generated false records of drug transfers to other pharmacies in order to obtain pharmaceutical drugs. He was convicted of possession of 3,000 fentanyl patches for the purpose of trafficking. The street level value of the patches was $900,000. He also had other drugs in his possession for the purpose of trafficking. Mr. Patel was 47 years old and had a wife and two children to support. The College of Pharmacists revoked his licence. His immediate and extended family were shocked by his conduct but they remained supportive. He acknowledged that his conduct was disgraceful, dishonorable and unprofessional. He underwent counselling and accepted full responsibility for his offences. These were all mitigating factors, but his crimes involved a serious multi-faceted breach of trust because of his professional and statutory duty as a pharmacist to protect the public. He not only defrauded his employer but also the Ontario Drug Plan. His moral blameworthiness was exceptionally high. He received a sentence of 11 years’ imprisonment.
[80] In R. v. Broderick, 2018 ONCJ 190, O.C.J. (Kitchener) no.17-9494-02 (April 4, 2018), the offender was part of a large-scale conspiracy to traffic in fentanyl. He had conspired to purchase multiple kilograms of “raw” fentanyl for the purpose of cutting it and selling it for profit. He pleaded guilty and received a sentence of 13 years’ imprisonment. The trial judge found some mitigating factors in his personal circumstances. He had emotional and psychological issues stemming from childhood trauma and developed a misplaced loyalty to another drug dealer. However, there were also aggravating factors. He had a criminal record, including a prior significant penitentiary sentence.
[81] In R. v. Shaheen, the offender was convicted after a trial of trafficking 5,198 high-dose fentanyl patches, worth an estimated $1,000,000 on the street. He was a successful pharmacist and businessman who owned three pharmacies. He ordered the patches from his suppliers and then provided them to a co-accused under false prescriptions. When his criminal activity became at risk of being discovered, he staged a robbery in one of his pharmacies to cover up the discrepancies in his inventory. He lied to the police and defrauded his insurance company. His position as a pharmacy owner and his efforts to cover up his actions were aggravating factors. The trial judge also noted that he was not an addict and the only motivation for his crimes was greed. As a trained professional, he was aware of the debilitating and deadly effects of fentanyl in the hands of addicts, yet he conducted a large scale trafficking scheme, profiting from the misery of others. He lacked remorse and insight into the harm he had caused. Despite some mitigating factors, the trial judge ultimately concluded that the gravity of Mr. Shaheen’s crimes placed him at the high end of the range, even for a first time offender. He was sentenced to 14 years’ imprisonment.
[82] None of the foregoing cases involved importing offences. The Crown provided me with only one fentanyl-related Ontario decision involving importation issues.
[83] In R. v. Mastromatteo, the offender was convicted of conspiracy to import fentanyl. He repeatedly procured fentanyl and other drugs from a Chinese mail-order website. He was also involved in the distribution and sale of fentanyl and had been connected to five fentanyl overdoses in the Barrie area. All five individuals who overdosed believed that they were ingesting cocaine. The fentanyl that they ingested had near fatal results.
[84] Mr. Mastromatteo was only 21 years old. A Pre-Sentence Report outlined an extremely dysfunctional family life in which he and his siblings were subjected to appalling parenting, experienced childhood abuse and neglect, and received limited schooling. He had been immersed in drug subculture since a very early age. His mother was incarcerated for driving while impaired and causing an accident that resulted in catastrophic injuries to his father. His father later died when he was 12 years old. Drugs were rampant in his mother’s home and he was encouraged to use them. He was convicted for drug possession based on heroin and OxyContin found in their residence. His mother died shortly thereafter. He was present when she was found unresponsive. His drug use escalated because of his inability to cope with his parents’ deaths. His heroin use led to a drug-induced psychosis and suicide attempt. He was subsequently diagnosed with depression and anxiety.
[85] After his arrest, Mr. Mastromatteo entered a methadone program and started attending weekly Narcotics Anonymous meetings. While on bail, he was living in a healthy and supportive family environment with his sister and her family. He pursued mental health care and complied with stringent release conditions that were tantamount to “house arrest”. He was making progress to address his addiction issues and viewed his arrest as a “blessing in disguise” that probably spared him another psychotic episode or overdose. He accepted full responsibility for his criminal actions and pleaded guilty. The trial judge had considerable sympathy for his tragic personal circumstances and recognized his good rehabilitative prospects, but found that denunciation and deterrence had to override rehabilitation in sentencing because of the serious nature of his offence. He was engaged in a commercial enterprise for profit and was conspiring to import fentanyl, which he knew to be a dangerous drug. He was sentenced to seven years and six months’ imprisonment. The trial judge noted that he would have been looking at a considerably longer sentence but for his positive post-arrest conduct.
[86] Of note are the following comments made by the trial judge in Mastromatteo (at para.52), with which I agree:
I have not been provided with any cases dealing with conspiracy to, or importing of, fentanyl. A review of the caselaw dealing with trafficking in fentanyl and the sentences that are being handed down, leads me to the conclusion that those who import or conspire to import fentanyl, being higher up in the supply chain, should be dealt with harsher than those who traffic, and that the drug itself should be dealt with more akin to heroin than cocaine.
[87] The Crown also submitted fifteen Ontario sentencing cases involving conspiracy to import, importation and possession for the purpose of trafficking heroin: R. v. Sair; R. v. Ifejika, 2013 ONCA 531; R. v. Anaso, 46 W.C.B. (2d) 252 (Ont. S.C.); R. v. Anaso, [2002] O.J. No. 4452 (Ont. C.A.); R. v. Osei, [2002] O.J. No. 5601 (Ont. S.C.), aff’d ; R. v. Ratnarajah, [1989] O.J. No. 3148 (Ont. C.J.), aff’d ; R. v. Carrero, 2010 ONSC 6285, [2010] O.J. No. 6285 (Ont. S.C.); R. v. Hui, 32 O.A.C. 141 (C.A.); R. v. Sidhu, 2009 ONCA 81, 94 O.R. (3d) 609; R. v. Huang, [1995] O.J. No. 2991 (Ont. C.J.); R. v. Thambiah, 23 O.A.C. 394 (Ont. C.A.); R. v. Wu, 167 O.A.C. 141 (Ont. C.A.); and R. v. Murtaza, 2013 ONSC 4239.
[88] The quantity and purity of the drug and its corresponding street value vary dramatically in the heroin cases submitted by the Crown, as do the personal circumstances of the offenders and the circumstances of the offences. The sentences range from seven years’ to life imprisonment, with most of the cases involving sentences between 10 and 15 years.
[89] One of the heroin cases is similar to the case before me in terms of the nature of the charges and the purity and street value of the drug involved. In R. v. Huang, two offenders were sentenced to 15 years’ imprisonment for conspiracy to import heroin into Canada and possession of heroin for the purpose of trafficking. Their scheme involved concealing heroin in the wooden frames of Chinese paintings. The total amount seized was 7 kg. It had a purity of between 90% and 96% and an estimated street value of $13,000,000, assuming that it would be cut to 25% purity and sold in hits to addicts on the street. The trial judge found that the large quantity and high street value of the drug placed the sentence in the upper range of importing offences.
[90] Although the weight of the heroin in Huang was greater, the fentanyl imported by Mr. Olvedi and found to be in his possession for the purpose of trafficking had a slightly higher street value, after cutting, at the point level (estimated to be between $14,985,000 and $19,980,000). This is explained by the fact that fentanyl is twenty times more powerful than heroin and a smaller quantity can therefore produce more individual hits and generate greater revenue, particularly when the drug is 100% pure fentanyl citrate.
Defence Authorities
[91] Defence counsel argued that the Crown’s cases did not capture the full range of sentences imposed on similar offenders who committed similar offences in prior cases. He submitted four additional cases for my consideration, two involving heroin and two involving fentanyl.
[92] In R. v. Ramos, 2014 ONSC 6822, two offenders were convicted of trafficking in heroin as the result of a sale to a police agent of 478.3 grams of heroin with a purity of 51%. One of the offenders, Mr. Oyegoke, delivered the drugs in exchange for $30,000. The trial judge found that he was a middleman and was not the originating source of the heroin. There was no evidence to connect him to the importation of the drug. He did, however, receive a fraction of the proceeds of sale and acknowledged that his actions were financially motivated. He had a record of prior criminal convictions, most of which were for financially motivated offences; none were drug-related. He had completed a number of courses while incarcerated and expressed remorse for his actions to the Probation and Parole Officer who prepared his Pre-Sentence Report. The trial judge reviewed the relevant case law and concluded that the range of sentence established by the Court of Appeal for a conviction for trafficking in a half kilogram of heroin is eight to twelve years. Mr. Oyegoke was sentenced to eight years’ imprisonment.
[93] The quantity of heroin in the Ramos case was similar by weight to the quantity of fentanyl in this case, but the potency and purity of the drug in Mr. Olvedi’s possession renders his offence more serious. Moreover, Mr. Olvedi has been convicted not only of possession for the purpose of trafficking, but also of importing fentanyl into Canada. The Ramos case does not assist me in determining the appropriate range of sentence for importation.
[94] Defence counsel also relied on R. v. Brown, 2016 ONSC 2997, in which the facts bore some similarity to the offence committed by Mr. Olvedi. The case involved a controlled delivery of a package containing 1.133 kg of heroin to a residential address. The offender may not have had actual knowledge of the fact that the package contained heroin, but he was wilfully blind to it. There was an “extraordinarily serious aggravating factor” in Mr. Brown’s case that is absent in Mr. Olvedi’s case, namely Mr. Brown had his sister sign for the package and therefore put her at risk in an effort to insulate himself. Mr. Brown also had a record of prior criminal offences, though they were mostly petty crimes and did not weigh heavily as an aggravating factor. The trial judge found that Mr. Brown had mitigating serious health problems, such that serving a long sentence would be a hardship for him. The trial judge also found that his health problems and criminal record “more or less balance each other out”. Although the package of heroin delivered to Mr. Brown’s sister had originated in Tanzania, there was no conviction for importing or conspiracy to import the drug. Mr. Brown was sentenced to nine years’ imprisonment for possession of heroin for the purpose of trafficking. The purity of the drug is not specified in the decision.
[95] Defence counsel also relied on R. v. Lu, 2016 ONSC 292, in which the offender was convicted of multiple drug offences, including possession for the purpose of trafficking fentanyl. A large quantity of various drugs was seized from his residence, including 7,815 small pills, 522 of which contained fentanyl. The concentration of the fentanyl in the pills is not mentioned in the decision. Mr. Lu was not an addict and was trafficking in drugs solely for financial gain. He had a prior related criminal record and his current offences were committed only one year after his release from jail for a marijuana trafficking conviction. The trial judge gave him seven months’ credit for being under stringent release conditions prior to trial and imposed an additional global sentence of five years’ imprisonment, with the fentanyl-related sentence running concurrent to other sentences.
[96] Finally, Defence counsel relied on R. v. Joumaa, 2018 ONSC 317, in which the offender was sentenced to four years’ imprisonment for two counts of possession for the purpose of trafficking, one involving cocaine and the other involving 139 fake oxycodone pills containing unknown quantities of fentanyl. Mr. Joumaa may not have actually known that the pills in his possession contained fentanyl. There were a number of aggravating factors identified by the trial judge, including a youth court criminal record, but Mr. Joumaa was just barely 18 years old when he was arrested. He pleaded guilty. His young age and his plea were both significant mitigating factors in the trial judge’s reasons for sentence. These mitigating factors are absent in Mr. Olvedi’s case and distinguish the Joumaa case from the case before me.
Discussion of Case Law
[97] The current case law reflects a wide range in sentencing for possession for the purpose of trafficking in fentanyl. As Sopinka, J. stated in Vezina (at para.56): “No set ranges have been established given that the landscape is changing so rapidly.… The nature of the drug itself is changing as well such that its prevalence in powdered form is emerging and much of the sentencing precedents have dealt with pill or patch form.”
[98] Due to fentanyl’s relatively recent introduction into Canada’s illicit drug subculture, not many cases involving fentanyl trafficking and no fentanyl importation (or conspiracy to import) cases have been decided by appellate courts. In the Loor decision released on September 8, 2017, the Ontario Court of Appeal commented (at para.50):
Few fentanyl trafficking cases have reached this court. It is thus perhaps too early in our jurisprudence to establish a [sentencing] range. But I think it fair to say that generally, offenders – even first offenders – who traffic significant amounts of fentanyl should expect to receive significant penitentiary sentences.
[99] It is unclear what constitutes “significant amounts of fentanyl” but six high dose (100 mcg) patches must not be what the Court of Appeal had in mind because it reduced the sentence in R. v. Klammer to twenty months’ imprisonment. The quantity and purity of the fentanyl in the Fisher case - in which the Court of Appeal upheld a five year sentence – are unknown.
[100] In this case, Mr. Olvedi was in possession of 499.5 grams of pure fentanyl citrate powder. Given the purity of the substance, both counsel agree that this constitutes a significant amount of fentanyl by any measure and should therefore attract a significant penitentiary sentence.
[101] Although the cases provided by Crown and Defence counsel are helpful, few deal with fentanyl in powder form and none deals with pure fentanyl citrate. Most involve substantially less quantity of the drug or fentanyl diluted by cutting agents (or both). There is not a sufficiently substantial body of jurisprudence to identify a range of sentence for the offence of possessing a substantial amount of 100% pure fentanyl citrate. There is even less guidance in the jurisprudence regarding the range of sentence for importing a substantial amount of undiluted fentanyl citrate.
[102] A decade ago, when heroin was the “the most pernicious of the hard drugs” available on the streets, the Ontario Court of Appeal held that “first offender couriers who import large amounts of high grade heroin into Canada for personal gain should expect to receive sentences consistent with the twelve to fourteen year range”: R. v. Sidhu, at paras.12 and 14. The Court specified that “large amounts” did not necessarily mean multiple kilograms and added (at paras.15): “That range of sentence may seem harsh to some, but it is necessary to protect our country and our citizens from the ravages of heroin. Those who would engage in its importation must know that they will pay a heavy price.”
[103] Importing fentanyl must be treated at least as seriously as importing heroin because fentanyl is known to be twenty times stronger than heroin. As Sopinka, J. stated in Vezina (at p. 56), “[t]he dangers of fentanyl have become well known, which puts traffickers [and importers] on notice that their conduct will attract significant custodial penalties.” I therefore conclude that the range of sentence proposed by Defence counsel in this case, namely 8 to 12 years’ imprisonment, is too low for a first time courier who imports a large volume of high purity fentanyl for personal gain.
Aggravating Factors in this Case
[104] The Crown argued that the powder format in which the drug was imported should be treated as an aggravating factor. Unlike fentanyl pills and patches, fentanyl citrate in powder form poses serious health risks to anyone who comes into contact with it (by absorption through the skin) or is simply near it (because it can be inadvertently inhaled). Moreover, powder fentanyl is often mixed into other drugs and sold as counterfeit oxycodone pills or high-purity cocaine or heroin. It has frequently been ingested by addicts who believed that they had purchased a less potent substance, with fatal results. Even when sold openly as fentanyl, the drug is cut in such a haphazard fashion that it frequently contains hot spots of high concentration that are undetectable and potentially lethal.
[105] While fentanyl patches may not pose as serious a risk to persons who are inadvertently exposed to them (such as police officers, in the course of their duties), they are nevertheless extremely dangerous to drug addicts who use them without proper medical supervision. Drug users who purchase illicit patches on the street may know what product they are buying, but they still run a high risk of overdose because they tend not to use the patches in the manner prescribed by medical professionals. Sergeant Young testified about the various ways in which patches are abused. He stated that they are typically cut up and pieces of the patch are then smoked or burned on a piece of tin foil, with the fumes inhaled as the drug evaporates. Dr. Woodall testified about people whose deaths she investigated and who she determined had overdosed by chewing on fentanyl patches. The dangers of fentanyl patches must not be underestimated.
[106] Despite the dangers inherent in the powder form of fentanyl, I do not accept the Crown’s submission that cases involving powder fentanyl must necessarily always attract harsher sentences than cases involving fentanyl patches. The purity of the drug must be taken into consideration in each case: Vezina, at para.56, adopted in Leite at para.18.
[107] In this case, the quantity and purity of the fentanyl citrate are serious aggravating factors. Fentanyl is highly addictive, extremely potent and very dangerous. It has caused many deaths in Peel Region and elsewhere in Canada. Mr. Olvedi imported a large quantity (499.5g) of 100% pure fentanyl citrate, which has a street value of over $14 million. The purity increases the seriousness of his offences because the purer the drug, “the wider its potential distribution, and therefore the greater harm it may cause in the community”: R. v. Hamilton (2004), 186 C.C.C. (3d) 129 (ONCA), at para.151. The quantity and purity imported would produce almost half a million hits on the street, with catastrophic and potentially fatal consequences for countless end-user addicts who would purchase and ingest it.
[108] I should note that both the Crown and Defence counsel agreed that Mr. Olvedi’s wilful blindness is not a mitigating factor: Sidhu, at paras.16-19. He cannot expect to receive a lighter sentence simply because he deliberately kept himself in the dark about the precise nature (powder fentanyl citrate) and quantity of the substance he was importing when he agreed to receive the package for Bruno.
[109] Another aggravating factor is that Mr. Olvedi agreed to accept delivery of the package for financial gain. He admitted to the arresting police officer that he did it because he “just wanted to make some money”. He told the police that Bruno was going to pay him $3,000. I suspect that the promised payment was likely higher, given the quantity and street value of the drug, though I recognize that its value at the bulk half-kilo level would be less than its value at point level after cutting. In any event, even if the promised payment was only $3,000, it is clear that Mr. Olvedi was not importing the fentanyl in order to feed his own drug addiction. Although he is an illicit drug user, there is insufficient evidence to conclude that he is an addict, which might have served to reduce his moral blameworthiness: R. v. Barkow, 2008 ONCJ 84. He agreed to import the drug for personal financial gain. His motivation was greed.
Mitigating Factors
[110] At the time that these offences were committed, Mr. Olvedi did not have a criminal record. This is a mitigating circumstance, but it must be viewed in the context of his admission that he had been trafficking marijuana for many years. He has a long history of undetected involvement in criminal drug-related activity, which causes me to give his clean record less weight.
[111] Mr. Olvedi was cooperative with the police upon arrest. He told them where they could find the package in his apartment. This is a mitigating factor.
[112] Mr. Olvedi expressed remorse. This also constitutes a mitigating factor but it is tempered by the fact that his remorse was only expressed post-conviction.
[113] A more compelling mitigating factor is that Mr. Olvedi has persuaded me, on a balance of probabilities, that he accepted delivery of the FedEx package reluctantly and after being threatened with death if he changed his mind. I accepted as credible Mr. Olvedi’s statement to the police that he attempted to resile from his agreement to receive the package but was threatened by Bruno. I found this to be credible because it explained the presence of body armour and weapons in his possession and also because the police officer who posed undercover as a FedEx agent corroborated Mr. Olvedi’s testimony that he hesitated to accept the package when it was delivered. While these circumstances do not absolve Mr. Olvedi of culpability, they lessen his moral blameworthiness.
[114] The strongest mitigating factor is Mr. Olvedi’s excellent rehabilitation potential. He is a mature offender but he is still relatively young and has many qualities to succeed as a law-abiding member of the community. He had a healthy childhood, not one blighted by abuse or neglect. He has supportive parents, a post-secondary education, several years of work experience and demonstrated business skills (albeit related to the unlawful trafficking of marijuana). If he applies his education, skills and experience to appropriate goals, he can turn his life around. He appears to have adopted the right attitude since his arrest. He has participated in numerous courses during his pre-sentence incarceration. He is focused on the future and is keen to put his mistakes behind him. If he maintains this focus and positive outlook, he has excellent prospects for living a productive pro-social life.
Disposition
[115] Mr. Olvedi’s offences are extremely serious. He was not only in possession of a large quantity of pure fentanyl citrate for the purpose of trafficking, he also imported it into Canada from overseas. Importing an opioid drug – especially one with the lethal potency of fentanyl – is one of the most serious offences in our criminal law.
[116] The principle of restraint, however, must not be overlooked and rehabilitation remains an important goal of sentencing. In my view, the 17 year sentence proposed by the Crown in this case exceeds that which is necessary to satisfy the goals of denunciation and deterrence. It would be crushing and could extinguish any hope for Mr. Olvedi’s rehabilitation.
[117] With respect to Mr. Olvedi’s conviction for importing fentanyl, I have concluded that a sentence of 15 years’ imprisonment is proportionate to the gravity of the offence and Mr. Olvedi’s degree of personal responsibility and moral blameworthiness. This sentence satisfies the principle of restraint and achieves parity with sentences imposed on other offenders who committed similar crimes in similar circumstances, though there are no other cases in which the circumstances involved importing a large quantity of 100% pure fentanyl citrate.
[118] For possession of fentanyl for the purpose of trafficking, I impose a concurrent sentence of 12 years’ imprisonment. This sentence would be lower but for the quantity and purity of the fentanyl in his possession.
[119] I will hear submissions from counsel regarding the calculation of credit for time already served in custody.
[120] There will be an order in Form 5.03 for the taking of DNA samples from Mr. Olvedi (pursuant to s. 487.051 of the Criminal Code).
[121] Pursuant to s.109(2) of the Criminal Code, Mr. Olvedi is prohibited from possessing any firearm, other than a prohibited firearm or restricted firearm, and any cross-bow, restricted weapon, ammunition and explosive substance for ten years and he is prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.
FORFEITURE AND FINES
[122] A total of $60,550 in cash was seized by police from Mr. Olvedi’s apartment. On August 29, 2017, Mr. Olvedi obtained an order that $49,790.63 of the seized funds be released to his Defence counsel in trust, to pay for legal fees, pursuant to s.462.34 of the Criminal Code. The sum of $10,759.37 remains in the custody of the Crown.
[123] The Crown requests an order of forfeiture of the $10,759.37, as well as a fine in lieu of forfeiture of an additional amount of $34,240.63 (for a total of $45,000).
[124] Pursuant to s.462.37(1) of the Criminal Code, if I am satisfied on a balance of probabilities that any portion of the $60,550 constitutes proceeds of crime and is related to the commission of Mr. Olvedi’s offences, I must order that the portion in question be forfeited to the Crown. I do not believe that the money was related to the offences for which Mr. Olvedi was convicted because the package of fentanyl citrate was intercepted and seized by police before it could be delivered to its intended recipient, at which point Mr. Olvedi would have been paid.
[125] Pursuant to s.462.37(2) of the Criminal Code, even if I am not satisfied that the money is related to the commission of the specific offences for which I have convicted Mr. Olvedi, I may make an order of forfeiture if I am persuaded, beyond a reasonable doubt, that the funds constitute proceeds of crime.
[126] I strongly suspect that some of the money was likely related to prior occasions when Mr. Olvedi was paid for acting as a consignee/receiver of imported drugs. That fact has not, however, been established beyond a reasonable doubt. The Crown did not lead any evidence in an effort to link the seized funds to other illicit importing activities.
[127] The Crown relies instead on Mr. Olvedi’s admission during the trial that $45,000 of the funds constitutes revenue from his illicit marijuana trafficking business. Based on Mr. Olvedi’s own testimony, I am satisfied beyond a reasonable doubt that at least $45,000 of the funds seized constitutes proceeds of crime. The conditions have therefore been met for a discretionary order of forfeiture of $45,000 under s.462.37(2) of the Criminal Code.
[128] Section 462.37(3) of the Criminal Code provides that, if the conditions are met for an order for forfeiture under s.462.37(1), but the property cannot be made subject to a forfeiture order because it has been transferred to a third party, the Court may order the offender to pay a fine equal to the value of the property in lieu of forfeiture.
[129] Defence counsel argues that I ought to order forfeiture of only the $10,759.37 in the Crown’s custody and decline to exercise my discretion to impose a fine in lieu of forfeiture in the amount of $34,240.63. He notes that the Order releasing a portion of the seized funds to pay for legal fees was done with the Crown’s consent. He submits that Mr. Olvedi does not have the means to pay a fine in excess of $34,000 and will therefore end up facing additional jail time under s.462.37(4) of the Criminal Code simply for hiring a lawyer. He argues that this constitutes an injustice.
[130] I disagree with these submissions for the following two reasons. First, the Crown’s consent to the Order to release a portion of the funds for legal fees is not a relevant consideration because the Crown must be presumed to have consented with knowledge of the fine in lieu or forfeiture mechanism set out in s.462.37(3) (4) of the Criminal Code.
[131] Second, as the Ontario Court of Appeal has stated, the purpose of forfeiture orders and fines in lieu is to extract the profits of criminal activity from offenders. There is no injustice in refusing to relieve an offender from the obligation to account for proceeds of crime because some of the money was used to pay legal fees: R. v. Rafilovich, 2017 ONCA 634, at paras.18-27. That would undermine the very purpose of the statutory provisions that are designed to deprive offenders of the proceeds of their crimes. Mr. Olvedi acknowledges that $45,000 of the money found in his apartment constitutes revenue from his unlawful marijuana trafficking. Even though a portion of the funds has been released to his counsel to pay for legal fees, he should still be required to account for all of that money, otherwise he would effectively be permitted to profit from his criminal activities.
[132] I therefore order that the amount of $10,759.37 shall be forfeited to the Crown and Mr. Olvedi must pay a fine in the amount of $34,240.63 in lieu of forfeiture of that amount. If this fine is not paid, Mr. Olvedi will be required to serve a mandatory minimum sentence of twelve months’ incarceration, pursuant to s.462.37(4)(a)(iii) and (4)(b) of the Criminal Code.
[133] Pursuant to s.737(1) of the Criminal Code, Mr. Olvedi is also ordered to pay a mandatory $200 victim fine surcharge for each of his two offences.
[134] I will hear submissions from Defence counsel regarding the amount of time required to pay these fines.
Petersen J. Released: November 27, 2018
COURT FILE NO.: CR-16-1954 DATE: 20181127 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN - and - BARNA OLVEDI REASONS FOR SENTENCE Petersen J.
Released: November 27, 2018
