COURT FILE NO.: CR–19–100-0689 DATE: 20210219 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – GIANLUCA SALVATI

Counsel: S. James, for the Crown H. Gonzalez, for the Accused

HEARD: January 7, 2021

BEFORE: P.J. Monahan J.

REASONS FOR SENTENCE

[1] On September 29, 2020, following a judge-alone trial, I found Gianluca Salvati guilty of the following offences: (i) possession of cocaine for the purpose of trafficking, contrary to s. 5 of the Controlled Drugs and Substances Act (the “CDSA”); (ii) possession of fentanyl for the purpose of trafficking, contrary to s. 5 of the CDSA; (iii) possession of crack cocaine for the purpose of trafficking, contrary to s. 5 of the CDSA; (iv) possession of proceeds of crime not exceeding $5000, knowing that all or part of the property has been derived directly or indirectly from the commission of an indictable offence, contrary to s. 355 (1) of the Criminal Code; and (v) breach of a condition of a recognizance requiring that he be in the presence of his surety at all times, contrary to s. 145 (3) of the Criminal Code.

[2] He is before the court today for sentencing.

Circumstances of the Offences

[3] On November 5, 2018 police executed a search warrant at a private residence in Toronto. Mr. Salvati was arrested as he was exiting a bathroom on the second floor of the residence. On a vanity in the bathroom was a clear Ziploc bag containing 85 grams of powder cocaine, 52 grams of crack cocaine and 9 grams of fentanyl, along with a small digital scale. The street value of the drugs in the Ziploc bag was between approximately $9680 and $20,600, depending on the manner in which it was packaged and sold.

[4] I found Mr. Salvati to be in possession of the contents of the Ziploc bag. I further found that this quantity of drugs, together with the digital scales found in the Ziploc bag, was consistent with possession for the purpose of trafficking and inconsistent with possession for personal use.

[5] Mr. Salvati also had $2180 of Canadian currency folded with an elastic band in his right front pocket, and was subject to a recognizance requiring that he be in the presence of his surety at all times.

Circumstances of Mr. Salvati

[6] A Pre-Sentence Report (PSR) has been prepared which provides helpful background with respect to Mr. Salvati’s circumstances.

[7] Mr. Salvati is 27 years old. He was born in Toronto and raised by his mother. Although his mother worked as a waitress for a couple of years when Mr. Salvati was younger, his mother is not currently employed and relies on social assistance. For most of his childhood, his biological father had limited involvement in his upbringing. However, from time to time Mr. Salvati’s father would come around to the home, and Mr. Salvati was exposed to domestic violence involving his father physically abusing his mother.

[8] Mr. Salvati indicates that he currently has a good relationship with his mother and little to no relationship with his father.

[9] For most of his life, Mr. Salvati has resided in the Eglinton West and Keele neighbourhood. He reports that he was suspended many times while in school due to fights with both students and teachers, in addition to truancy issues. Due to his behavioural issues and academic needs, Mr. Salvati was transferred to an alternative school around grade 9. However, Mr. Salvati stopped attending the alternative school by choice and completed the remainder of his grade 9 and 10 credits while he was in custody. He has no current involvement in educational programming, with his highest level of education being grade 10.

[10] Mr. Salvati reports that his last effort to find employment was about five years ago, but that his efforts were interrupted by his involvement with the legal system. According to his mother, about four years ago Mr. Salvati suffered a back injury from a police chase he was involved in that ended in a car accident, and since that time he has relied on social assistance for income when in the community. According to Ministry records, Mr. Salvati has been connected to employment support agencies by Probation Services in the past but has often failed to follow through with these contacts.

[11] Mr. Salvati indicated that he has previously been addicted to cocaine and marijuana. He began using marijuana around 13 years of age, experimenting with a friend at school and then using it to relieve stress. At the age of 18 Mr. Salvati began experimenting with cocaine. His cocaine use rapidly increased, to the point where he was using daily depending on how much money he had at the time.

[12] Mr. Salvati has been connected with various forms of substance use counselling in the past. According to Ministry records, he has often failed to follow through on referrals and has never completed any consistent form of counselling for addiction. Mr. Salvati reported that he has been in contact with staff at the Toronto East Detention Centre to inquire about programming that would address drug use. On November 5, 2020, he completed a one-hour life skills session on substance use.

[13] Although Mr. Salvati is still in his twenties, he has an extensive criminal record with a total of 21 entries over the past 12 years. This includes five convictions for drug offenses between 2009 and 2013, two of which involved possession for the purpose of trafficking. Mr. Salvati also has two prior firearms offenses, as well as convictions for assaults, motor vehicle offenses and multiple breaches of community supervision.

[14] The PSR concludes by noting that if Mr. Salvati is to make progress in the community, he will need to address a range of issues including poor coping mechanisms, lack of involvement with educational programming or employment supports, and connections with negative peers. Until he does this and demonstrates the necessary motivation to address these concerns, the author of the PSR is of the view that his risk of further offending is ever present.

Positions of the Parties

[15] The Crown seeks a sentence of seven years in custody, less credit for pretrial detention. Counsel for Mr. Salvati submits that a sentence of five years in custody, less credit for pretrial detention would be appropriate.

[16] The parties also differ on the extent to which enhanced credit should be provided due to the fact that Mr. Salvati has been subjected to extensive lockdowns since his arrest in August 2019, as well as the fact that conditions of incarceration have been significantly more harsh since the onset of the Covid 19 Pandemic in March of 2020.

Applicable Sentencing Principles

[17] The purpose and principles of sentencing are set out in s. 718 of the Criminal Code. Parliament has mandated that the fundamental purpose of sentencing is to protect society and contribute to respect for the law and the maintenance of a just, peaceful and safe society. Trial judges are required to impose a just sanction that furthers one or more of the following six objectives:

i. to denounce unlawful conduct; ii. to deter the offender and others from committing offences; iii. to separate offenders from society, where necessary; iv. to assist in the rehabilitation of offenders; v. to provide reparations for harm done to victims or the community; and vi. to promote a sense of responsibility in offenders, and acknowledge the harm done to victims and to the community.

[18] A fundamental principle of sentencing is proportionality, namely, that the sentence imposed be proportionate to the gravity of the offence and the degree of responsibility of the offender. A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. Further, a court that imposes a sentence shall also take into consideration the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences, committed in similar circumstances; the principle that, where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; and the principle that courts should exercise restraint in imposing imprisonment.

Aggravating and Mitigating Circumstances

[19] There are a number of aggravating circumstances in the present case.

[20] First, Mr. Salvati has a fairly continuous criminal record stretching over the past 12 years. His record includes five drug-related convictions, two of which involved possession for the purpose of trafficking, as well as convictions for firearms, assaults and breaches of conditions.

[21] Also aggravating is the significant quantity of drugs seized upon Mr. Salvati’s arrest, with a street value of as much as $20,000. The Crown expert who testified at trial is of the opinion that Mr. Salvati is a street to mid-level trafficker.

[22] A further aggravating circumstance is the fact that amongst the drugs seized at the time of Mr. Salvati’s arrest was close to 10 grams of fentanyl. As Bawden J noted in R. v. Cinelli, 2018 ONSC 4986, fentanyl has created a public health crisis “which is of a different dimension than anything that Canada has ever seen from the sale of illicit drugs.” Of particular concern is the rising number of accidental deaths resulting from overdoses of fentanyl mixed with opioids such as heroin and cocaine. A dose of fentanyl powder as small as two milligrams can be lethal.

[23] The range of sentence for trafficking in fentanyl is still being established. However, it would appear that the range for fentanyl is no less than it would be for comparable amounts of heroin, which has traditionally been seen as attracting the highest drug-related sentences.

[24] It is difficult to find any significant mitigating factors in this case. Mr. Salvati is still a relatively young man and has the support of his mother, who attended the trial. However, Mr. Salvati has not been employed for the past five years, nor has he been involved in any educational programming. The PSR questions whether Mr. Salvati has the motivation to move away from the criminal lifestyle which he has embraced for the past decade or more. His potential for rehabilitation appears relatively limited at this time.

Analysis

[25] The Crown relies upon a number of recent cases in which sentences of seven years or more were imposed for trafficking in fentanyl and/or heroin. For example, in Cinelli, Bawden J. imposed a sentence of seven years for three separate sets of offenses involving significant amounts of heroin and fentanyl. Similarly, in R v. Ribble, 2019 ONCJ 640, Agro J. of the Ontario Court of Justice imposed a sentence of eight years for possession of fentanyl and a mixture of heroin for the purpose of trafficking.

[26] There is no doubt that the offence of possession of fentanyl for the purpose of trafficking can attract sentences in the range of seven years or more. I would note, however, that in cases where sentences of this length have been imposed, there were particular aggravating circumstances which are not present here. For example, in Cinelli the accused was convicted of three separate sets of offenses committed over a 13-month period, involving 20 grams of fentanyl powder and 80 grams of heroin. In Ribble, in addition to possessing both heroin and fentanyl, the accused also had a loaded firearm.

[27] In fact, most of the fentanyl-related cases relied upon by both Crown and defence resulted in sentences in the range of 5 to 6 years, even in instances where there were very significant quantities of drugs involved. For example, in R v. Prestula, 2018 ONSC 4214 the accused was arrested after selling a half kilogram of cocaine. He was also found to be in possession of 13.7 grams of fentanyl. When on release for these offenses he sold a small quantity of drugs to another officer, and a warrant executed on his home recovered 79.41 grams of cocaine, 81.6 grams of crack cocaine and 35.5 grams of methamphetamine. Quigley J. imposed a sentence of five years and three months imprisonment.

[28] In R. v. Duregger, the accused was convicted of possession of 49.3 grams of fentanyl, 51 grams of cocaine and 103 grams of methamphetamine for the purpose of trafficking. He also had an extensive criminal record. Even taking into account the large quantity of drugs involved, Conlan J. imposed a sentence of five years.

[29] Also relevant is R. v. Piri, 2020 ONSC 920, where the accused was convicted of possessing 39.42 grams of fentanyl for the purpose of trafficking; he had also trafficked in 6.97 grams of fentanyl. The duration of the trafficking was lengthy, having occurred on numerous occasions and spanning several months. Kelly J was of the opinion that a fit sentence for these offenses was six years.

[30] I would also observe that there are a number of cases in which sentences of less than five years have been imposed, despite the fact that the accused was found to be in possession of significant amounts of fentanyl for the purpose of trafficking. For example, in R. v. Broderick, 2020 ONSC 7434, the accused was in possession of 6.79 grams of a mix of fentanyl and heroin in a clear plastic baggie. He was 38 years old and had a related criminal record, although he also had clear potential for rehabilitation. Spies J. determined that a fit sentence was three and half years.

[31] Taking into account the various aggravating and mitigating factors in this case, including the significant amount of fentanyl in Mr. Salvati’s possession, and in the context of the relevant precedents, I find that a fit global sentence for these offenses to be five years, less time for presentence custody.

Credit for Presentence Custody

[32] Mr. Salvati has been in custody since August 21, 2019, a total of 548 days. In addition, counsel are agreed that Mr. Salvati is entitled to a credit of a further 31 days from an earlier period of pretrial custody. Thus Mr. Salvati has a total of 579 actual days of pretrial custody. Applying the normal Summers credit on a 1.5 to 1 basis results in a credit of 869 days.

[33] Mr. Salvati seeks enhanced credit for two other aspects of his pre-trial incarceration: (i) the 87 days in which he has been subjected to partial or full lockdowns, which his counsel suggests should result in an additional Duncan credit of 1.5 days for each day of lockdown; and (ii) the restrictive conditions of incarceration imposed since mid-March 2020 in order to prevent the spread of Covid-19 in provincial correctional institutions. Counsel suggests that Mr. Salvati should receive an additional day of credit for each of the approximately 300 days of incarceration since March 15, 2020.

[34] Mr. Salvati testified and was cross-examined on these matters in the course of his sentencing hearing. Mr. Salvati stated that when the detention centre is on lockdown, access to showers and phone calls is limited and yard time is either reduced or eliminated. Since the onset of the Covid 19 pandemic, visits from family and friends, as well as most programming, have been cancelled. In the first few months after Covid 19, their food was often delivered cold or even frozen.

[35] The Crown agrees that Mr. Salvati should be granted enhanced credit for days under lockdown as well as for the restrictive conditions imposed on inmates since the onset of the Covid 19 pandemic, but disputes the amount of credit proposed by Mr. Salvati. The Crown suggests an additional 30 days credit for lockdowns and an additional 60 days for the impact of Covid.

[36] As Duncan makes plain, there is no precise formula for granting enhanced credit for onerous conditions of incarceration. Having heard from Mr. Salvati as to the inpact of these conditions on him, I conclude that he should be granted an additional half day credit for each of the 87 days of lockdown (i.e. a credit of 44 days), as well as an additional credit of 0.25 days for the period commencing March 16, 2020, which marked the onset of more restrictive conditions in provincial correctional institutions. This results in an additional ‘Covid-19’ credit of 85 days (340 days x .25 = 85 days).

[37] As a result, in addition to the Summers credit of 869 days, Mr. Salvati is entitled to an additional credit of 129 days, for a total credit of 998 days for pretrial custody.

Disposition

[38] Mr. Salvati’s sentence shall be entered as follows:

a. Count 1, possession of cocaine for the purpose of trafficking: 5 years b. Count 2, possession of fentanyl for the purpose of trafficking: 5 years, to be served concurrently with the sentence for count 1; c. Count 3, possession of crack cocaine for the purpose of trafficking: 5 years, to be served concurrently with the sentence for count 1; d. Count 5, possession of proceeds of crime: 6 months, to the served concurrently with the sentence for count 1; and e. Count 11, breach of a condition of a recognizance: 6 months, to be served concurrently with the sentence for count 1.

[39] Taking into account the 998 days of credit for pre-trial custody, Mr. Salvati has 827 days, or two years and 97 days, remaining to be served concurrently on counts 1, 2 and 3. He has completed his sentences on counts 5 and 11.

[40] I also impose a s. 109 weapons prohibition for life, an order for the taking of a DNA sample, and a forfeiture order.

P. J. Monahan J. Released: February 19, 2021