COURT FILE NO.: CR-21-90000100-0000 DATE: 20220307 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – MOTAZ HAJ

Counsel: Bari Crackower and Jennifer Lynch, for the Federal Crown Caolan Moore, for the Provincial Crown Kim Schofield, for Mr. Haj

HEARD: Nov. 8 and Dec. 10, 2021

R.F. GOLDSTEIN J.

1. Overview

[1] One often hears that drug trafficking is a “victimless crime.” After all, it is often portrayed as a consensual transaction between a willing buyer and a willing seller – no different from any other economic transaction. That formulation, however, ignores – and has always ignored – the real dynamics at work in a drug deal, especially when drugs are sold to a person with mental health challenges or addiction issues. When drugs are sold to a vulnerable person, it is not some kind of neutral arms-length transaction. It is a crime of exploitation by a seller who knowingly exploits a position of dominance. A drug deal is manifestly not a victimless crime: witness what happened in this case. Mr. Haj sold fentanyl to an undercover officer and to a young woman, Hilary Retzer. He has pleaded guilty as a principal to the sale to the undercover officer and as a party to the sale to Ms. Retzer. Ms. Retzer subsequently died of an overdose.

[2] Mr. Haj now comes before the court for sentencing on two counts. There is a joint submission that Mr. Haj should be sentenced to six years in custody. Crown and defence diverge, however, on how to credit Mr. Haj with pre-sentence custody. He has been in custody now for just over two full years. The key issue therefore, on sentencing, is how to deal with pre-sentence custody.

2. The Facts

(a) Circumstances of the offence

[3] On December 9, 2019, Ms. Retzer contacted “Steve West” by cell phone. “Steve West” had a phone number of 437-236-2464. Ms. Retzer obtained a quantity of fentanyl as a result of that phone call. On December 11, 2029, Ms. Retzer tragically died of a fentanyl overdose. Her daughter found her on the bathroom floor. On the same day the Toronto Police drug squad investigated “Steve West” and the telephone number. An undercover officer contacted “Steve West” at the number. “Steve West” agreed to sell fentanyl to the officer for $180. They agreed to meet at a gas station that evening. The officer met with the driver of a vehicle. The driver, who was Mr. Haj, answered to the name “Steve” and gave the officer 1.6 grams of fentanyl in exchange for $180.00. The police then attempted to arrest Mr. Haj. He attempted to flee from the police and smashed into several police vehicles. The police finally arrested him. They found him in possession of the police buy money as well as a cell phone with the number 437-236-2464.

[4] Mr. Haj accepts that he is a party to the offence of trafficking fentanyl to Ms. Retzer, but his position is that he did not personally deal with her. He obviously personally sold fentanyl to the undercover officer.

(b) Circumstances of the offender

[5] Mr. Haj is a drug dealer. That, as best as I can figure out, is the profession that he was engaged in when he committed these offences. He admitted it to the court when I asked him if he had anything to say before I sentenced him. He very candidly admitted that he had made money by selling fentanyl.

[6] Certainly Mr. Haj’s short but very serious criminal record suggests that he is indeed a drug dealer. In 2017 he was found guilty of possession of a prohibited or restricted firearm with ammunition. He was sentenced to two months and 15 days with credit for 15 months and 15 days of pre-sentence custody. At the same time, he was found guilty of possession of a schedule 1 substance for the purposes of trafficking, for which he received 6 months consecutive.

[7] Mr. Haj is currently 29 years old. He finished high school and spent a year studying hotel management at George Brown. He is the eldest of 7 children and has generally worked odd jobs.

[8] Mr. Haj has been in custody since December 11, 2019, the day he was arrested. He has been held at the Toronto South Detention Centre. He has filed an affidavit describing the conditions there. He has spent the entirety of the COVID pandemic at the Toronto South.

[9] Mr. Haj also attached the lockdown records from the institution. The records show that he has experienced 379 days of partial or full lockdowns, or just over a year of his time in custody. As those of us who work in the criminal justice system have heard over and over again, lockdowns mean little fresh air, few showers, and not enough personal hygiene products. Lockdowns also mean that visits of family members and lawyers have been curtailed as have communications in general. During the course of the COVID pandemic Mr. Haj indicated that there was limited access to personal protective equipment and that proper social distancing is not enforced by the staff. The COVID pandemic means that the inmates have little or no access to programming resources. Mr. Haj’s descriptions have credibility – many other inmates in many other affidavits have described the same thing. Mr. Haj also described mistreatment in terms of discipline and abuse by the staff. In 2020 the Ontario Human Rights Commission issued a report on conditions at the Toronto South.

[10] Mr. Haj has community support. His sibling Areg described in a letter how the family’s main priority is to help Mr. Haj get back on his feet, complete college, and find a job.

[11] Adam Ali, a friend of Mr. Haj’s, also provided a letter of support to the Court. Mr. Ali is a consultant at Deloitte Canada and a Community Ambassador for Peacebuilder’s Canada, a charity that works in restorative justice. Mr. Ali has known Mr. Haj for 15 years. He wrote that he knows Mr. Ali to be a person of good character who is respectful and trustworthy. Mr. Haj worked on a project with him and he found Mr. Haj to be a useful member of his team. Mr. Ali indicated in the letter that he wants to assist him with re-integration in the community. Mr. Ali has put together a plan to help him.

(c) Impact on the victim

[12] There are many victims in this case. Fentanyl has become a deadly plague in our community. It has claimed many lives in the relatively short time it has been sold as an illegal drug. It has not only claimed lives directly through the many documented overdoses – of which Ms. Retzer’s is yet another horrible example – but also through the damage it has inflicted on the loved ones of those victims.

[13] Ms. Retzer’s parents, David and Liz, provided a victim impact statement. They also provided photos of Ms. Retzer and her daughter, Ava. The statement movingly described the impact of Ms. Retzer’s death on all of them. They described the pain and grief of losing a child. They described how Ava discovered her mother’s body. I infer that it must have been about as traumatic an experience that a child will ever suffer. I doubt she will ever get over that. I found the following statement by Ms. Retzer’s parents to be particularly noteworthy:

It is our hope that the sincerity of our loss and pain we live with every day is conveyed through this victim impact statement. Perhaps the more people understand what our family is going through may have some influence on preventing so many unnecessary deaths as this one.

[14] I know that there can never be a full measure of closure or healing for either David and Liz or for Ava. As the Retzers have noted in their statement, it is simply awful for parents to bury a child; it is also awful for a child to lose her mother at such a young age. It is unrealistic to expect that any of the Retzers can truly move on. I can only hope that this sentencing will be part of the process of healing.

3. Positions of the Crown and Defense

[15] Crown and defence agree that I should sentence Mr. Haj to six years. I agree with the parties that six years reflects the principles of denunciation and deterrence as well as rehabilitation. In doing so, I refer to R. v. Piri, 2020 ONSC 920 where the amount of trafficking was significant: 39.42 grams of fentanyl and .96 grams of heroin mixed with fentanyl. In addition, Mr. Piri was convicted of possessing 6.97 grams of fentanyl for the purpose of trafficking. Kelly J. sentenced Mr. Piri to 6 years less credit for pre-sentence custody. I note that the amounts of fentanyl in Piri are significantly higher than in this case. I also refer to the recent case of R. v. Perranto, 2021 SCC 46, and especially the comments of Moldaver J. regarding the dangers of fentanyl at paras. 93-100.

[16] The parties differ, however, on the amount of credit I should give for pre-sentence custody. As of the date of sentencing Mr. Haj will have served just over two years. The Crown argues that Mr. Haj should receive Summers credit of 1.5:1, which would credit him with three years: R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575; Criminal Code, s. 719(3.1). The Crown’s position on Duncan credit is that Mr. Haj should receive a further one year of credit for harsh conditions in the Toronto South Detention Centre: R. v. Duncan, 2016 ONCA 754. That is four years of total credit. Accordingly, Mr. Haj should receive a further two years in custody.

[17] Ms. Schofield, for the defence, argues that at this point Mr. Haj is essentially in a position of time served. There is no serious disagreement with the calculation of time, only the allocation. Mr. Haj provided an affidavit outlining all of the difficulty that he has encountered in the Toronto South Detention Centre. As noted, he has been incarcerated for the entirety of the COVID pandemic. There have been constant lockdowns due to staff shortages. Mr. Haj should receive enhanced credit for these difficult conditions.

4. Case Law

[18] In R. v. Duncan, 2016 ONCA 754, the Court of Appeal provided guidance is to when a trial judge may apply credit for pre-sentence custody beyond that in s. 719(3.1) of the Criminal Code (“Summers” credit). The Court stated that a trial judge may give credit for harsh conditions, as long as there is an appropriate evidentiary foundation. The Court stated at paras. 6 and 7 (I set out excerpts):

… We agree with counsel that in the appropriate circumstances, particularly harsh presentence incarceration conditions can provide mitigation apart from and beyond the 1.5 credit referred to in s. 719(3.1). In considering whether any enhanced credit should be given, the court will consider both the conditions of the presentence incarceration and the impact of those conditions on the accused. In this case, there was evidence that the appellant served a considerable part of his presentence incarceration in "lockdown" conditions due to staffing issues in the correctional institution. There was, however, no evidence of any adverse effect on the appellant flowing from the locked down conditions. Indeed, some of the material filed on sentencing indicates that the appellant made positive rehabilitative steps during his presentence incarceration.

[19] In R. v. Marshall, 2021 ONCA 344 the Court of Appeal provided further guidance in the area of credit for pre-sentence custody. Doherty J.A., for the Court, clarified how credit for harsh conditions, now called Duncan credit, is to be approached. He noted that the 1.5:1 Summers credit already takes into account difficult circumstances offenders face during pre-sentence custody. He further commented at para. 50:

The "Duncan" credit addresses exceptionally punitive conditions which go well beyond the normal restrictions associated with pretrial custody. The very restrictive conditions in the jails and the health risks brought on by COVID-19 are a good example of the kind of circumstance that may give rise to a "Duncan" credit: R. v. Morgan, 2020 ONCA 27.

[20] Most importantly Duncan credit is not a deduction but is a factor to be taken account of on sentencing (para. 52):

The "Duncan" credit is not a deduction from the otherwise appropriate sentence, but is one of the factors to be taken into account in determining the appropriate sentence. Particularly punitive pretrial incarceration conditions can be a mitigating factor to be taken into account with the other mitigating and aggravating factors in arriving at the appropriate sentence from which the "Summers" credit will be deducted. Because the "Duncan" credit is one of the mitigating factors to be taken into account, it cannot justify the imposition of a sentence which is inappropriate, having regard to all of the relevant mitigating or aggravating factors.

[21] In other words, Duncan credit cannot be allowed to turn what would be an otherwise fit sentence into an unfit sentence. It is not necessarily wrong to quantify Duncan credit, but it must not be treated the same as Summers credit (para. 53):

Often times, a specific number of days or months are given as "Duncan" credit. While this quantification is not necessarily inappropriate, it may skew the calculation of the ultimate sentence. By quantifying the "Duncan" credit, only one of presumably several relevant factors, there is a risk the "Duncan" credit will be improperly treated as a deduction from the appropriate sentence in the same way as the "Summers" credit. If treated in that way, the "Duncan" credit can take on an unwarranted significance in fixing the ultimate sentence imposed…

[22] The Crown points to R. v. Onyeachonam, 2021 ONSC 6893 as an example of Marshall in practice. The offender was found guilty of aggravated assault after a brutal beating. Mr. Onyeachonam had been subject to 501 days of full or partial lockdowns according to jail records, during a period when the COVID pandemic affected congregate living situations. Justice Low took the view that a sentence of 8 years was appropriate in the absence of mitigating factors. She treated the harsh jail conditions as a mitigating factor, and, along with the other mitigating factors, imposed a sentence of 7 years.

[23] The Crown also points to R. v. Lee, 2021 ONSC 7672. Lee was charged with murder but ultimately convicted of manslaughter. He was subject to a significant number of lockdowns. Kelly J. was of the view that an appropriate sentence of 10 to 10.5 years was appropriate, but she took into account the mitigating factor of the numerous lockdowns and harsh COVID conditions. Accordingly, she sentenced Lee to 9 years. In doing so, Kelly J. commented at para. 36:

In light of Marshall, the practice of assigning a credit of a specific number of days or months to punitive conditions of presentence custody is not to be encouraged. The reason? It may skew the fact that the harshness of pre-trial custody is only one of many factors that go into the determination of an appropriate sentence. That said, presentence custody is a relevant consideration on sentencing.

[24] Defence counsel provided a significant number of authorities regarding the appropriate allocation of Duncan credit.

[25] In R. v. Bristol, 2021 ONCA 599 the offender was sentenced to ten years for a series of break and enters. The sentencing judge made a series of errors. The Court of Appeal found that there were a significant number of mitigating factors including a Duncan credit. The Court stated at para. 12:

In deciding on seven years as the appropriate sentence we have included a Duncan credit for these periods of lockdown. As noted in R. v. Marshall, 2021 ONCA 344, at para. 52, the Duncan credit is "not a deduction from the otherwise appropriate sentence, but is one of the factors to be taken into account in determining the appropriate sentence".

[26] The defence has submitted a number of cases where judges have calculated Duncan credit on the basis of a mathematical calculation rather than treating it as a mitigating factor. These cases are all prior to the Court of Appeal’s decision in Marshall. For example, in R. v. Fermah, 2019 ONSC 3597, Molloy J. convicted the offender of several gun and drug charges. He was in custody for about 2 ½ years at the time of sentencing. Molloy J. analyzed the nature of Duncan credit in some detail. She also analyzed the lockdown evidence in detail. She found that he was subject to lockdowns for 353 days, or close to one year of his time in custody. She noted that the lockdown conditions were completely inappropriate. She noted that several judges have given offenders credit at 3:1 for each lockdown day in custody. She ultimately sentenced him to 7 years in custody, with 7 years of pre-sentence credit: in other words, time served.

[27] In R. v. Persad, 2020 ONSC 188 the offender pleaded guilty to firearms and drug offences. The parties agreed that Mr. Persad should be sentenced to 9 years. They differed, however, on the treatment of lockdown conditions of pre-sentence incarceration. Mr. Persad had been subject to lockdowns for 47% of the time that he was in custody. The Crown argued that he should receive credit for ½ to one day for each lockdown day. The defence argued that he should receive 2 ½ days for every day spent in lockdown. Schreck J. reviewed many cases that described the deplorable conditions at the particular institution. He ultimately found that Mr. Persad should receive credit of 1 ½ days for each day in lockdown.

5. Mitigating and Aggravating Factors

[28] The key mitigating factor in this case is the plea of guilty. Mr. Haj has taken responsibility for his actions. He has apologized and I take him at his word. It is true that the plea was not early. It is also true that it is a very strong Crown case on the trafficking to the undercover officer. I accept Ms. Schofield’s point, however, that there were triable issues on the trafficking to Ms. Retzer. The fact of the guilty plea in these circumstances on that count is therefore further mitigating.

[29] I note that the guilty plea has come at a time of extreme stress on the criminal justice system. The COVID pandemic resulted in a suspension of jury trials for over a year. The Chief Justice only last week instituted another suspension of jury trials in light of a new variant. These suspensions caused a tremendous backlog of cases in the Superior Court and resulted in an unprecedented demand on the Court’s resources. Under these circumstances, any plea that saves a significant amount of court time – as this one did – is also deserving of mitigation. The recent emergence of the Omicron variant is beginning to put tremendous pressure on our carceral institutions as well.

[30] I also take into account Mr. Haj’s apology and his expression of remorse. Mr. Haj was candid with the Court. He admitted that he was selling fentanyl for money. He did not try to minimize it. He apologized to the Retzer family for the harm done, although it must be said that no apology will ever be adequate.

[31] I agree that the lockdown and COVID conditions in the Toronto South are also a mitigating factor. The conditions at the Toronto South have been exceptionally difficult during the pandemic, as I have described.

[32] The main aggravating factors in this case are the two sales of fentanyl. I cannot emphasize enough the dangers of this terrible drug. We have seen enough evidence of overdoses and ruined lives that we know that selling fentanyl is almost like selling death. If it is not the worst illegal drug that we have ever seen in our community, it is certainly a contender.

[33] Another aggravating factor is that at the time of sentencing, Mr. Haj was on bail for charges of possession for the purpose of trafficking in heroin, possession for the purpose of trafficking in methamphetamine, and possession for the purpose of trafficking cocaine. It was a condition of his bail that he was not to possess illegal drugs. The charges were ultimately withdrawn, but he was still bound by those conditions at the time he committed these offences.

[34] And, of course, another serious aggravating factor is Mr. Haj’s criminal record.

6. Principles of Sentencing

[35] The principles of sentencing are well-known and I need not repeat them in detail. The main principles when sentencing persons who have been trafficking in fentanyl is that of general deterrence and denunciation. Those who would traffic in this terrible substance should know that it will attract a lengthy period of incarceration. Society must express its revulsion at this particular crime. Another sentencing principle at work in this case is that of specific deterrence. This is the second time that Mr. Haj finds himself convicted of trafficking in a serious drug. He needs to understand that if he does it again, he likely will not get bail and he will likely face an even lengthier sentence of imprisonment.

[36] Of course, any sentencing judge must also be concerned with the principle of rehabilitation. It is hard to know Mr. Haj’s real prospects for rehabilitation. He did spend time in college and has worked at various jobs. I am aware that there is a strong plan put forward by Mr. Ali, his friend, and that Mr. Haj has important support from his family – but at the end of the day, it will be up to him if he wants to succeed or not.

7. Ancillary Orders

[37] There will be a DNA order and a s. 109 order for life.

8. Sentence Imposed

[38] Mr. Haj has pleaded guilty to selling fentanyl to an undercover officer, as well as the fentanyl that killed Ms. Retzer. I think it is important for everyone to understand that this court is not sentencing Mr. Haj for manslaughter, but rather is treating Ms. Retzer’s tragic overdose as an aggravating factor when sentencing him on the sale of the fentanyl. In other words, the criminal justice system is dealing with this horrible tragedy in a way that both denounces the crime and demands accountability, and yet is fair to the offender. It is a difficult balancing act, as the Crown and the defence have recognized by jointly submitting that Mr. Haj receive a sentence of six years.

[39] When sentencing Mr. Haj, I take into account the fact that there is a joint submission. A joint submission should not be rejected unless it is contrary to the public interest or would bring the administration of justice into disrepute. I also take into account the aggravating and mitigating factors that I have listed, including Mr. Haj’s criminal record. I also take into account that Mr. Haj was candid about selling fentanyl to make money – many offenders are less than candid about it, and try to minimize their involvement. To his credit, Mr. Haj did not. I also his expressed desire to better himself and leave criminal activity behind him. Of course, many offenders say that. Actually, all offenders say that. Some mean it. Some do not mean it. Some mean it but just can’t help themselves and find themselves in trouble again. I am prepared to accept that Mr. Haj means it and that he will be able to help himself and stay out of trouble. I therefore accept the joint submission.

[40] I am left therefore with the challenging question of how much enhanced credit to give Mr. Haj for the two difficult years he has spent in custody. After the Court of Appeal’s decision in Marshall it is clear that a mathematical formula is no longer entirely appropriate. When I consider the 379 days spent in full or partial lockdown – just over a year – as a mitigating factor, however, I am not convinced that a simple time-served sentence at this point would be fit. When considering this question, I find it difficult to escape the impression that Mr. Haj has done much in his life so far except accumulate criminal convictions. Although Mr. Haj admitted to being a drug dealer, he doesn’t have to remain a drug dealer. It is up to him. My intention is therefore to craft a result that both denounces his crime, and yet gives him an incentive to put his life on track as he says he wants. After carefully reading the defence materials, and considering all the circumstances in this case, as well as the fact that this matter has been extensively pre-tried, I find no social purpose would be served by simply crediting Mr. Haj with time served and let him move on. On the other hand, I also agree that at this point there is no useful purpose to be served by keeping Mr. Haj in jail. Moreover, the recent emergence of the Omicron variant has given added impetus to take a hard look at who should remain in jail. There is an important public interest in keeping the numbers of inmates in our carceral institutions as low as possible consistent with public safety. Mr. Haj, and everyone else associated with this case, should understand that in the absence of this serious public health crisis, I may well have taken a different view of how much presentence custody to credit him with.

[41] In my view, therefore, I think the public interest will be better served by giving Mr. Haj a chance to prove that he meant what he said, that he wants to move on, stay away from selling drugs, and be a productive citizen. In my respectful view, a period of probation would accomplish that goal and allow Mr. Haj to put his money where his mouth is, so to speak.

[42] Accordingly, I will suspend the passing of sentence in light of time served, concurrent on both counts. Mr. Haj will receive total credit for time served of six years, again concurrent. That time is allocated as follows: 3 years enhanced credit pursuant to s. 719(3.1) of the Criminal Code and R. v. Summers, and a further 3 years as a mitigating factor for harsh conditions of custody, pursuant to R. v. Duncan and R. v. Marshall, especially in light of the ongoing pandemic and the virulence of the new variant.

[43] Mr. Haj will be placed on probation for two years. He will be subject to several conditions. The conditions, frankly, are simply those that Mr. Haj himself has stated in his affidavit and in his remarks to the court that he wishes to abide by. The conditions are as follows:

• Live at an address approved of by his probation officer;
• Not to possess any non-medically prescribed drugs;
• Not to own, possess, or carry a weapon;
• Take such counselling or employment programs as directed by his probation officer, and provide such documentation to the probation officer as he or she may demand;
• Seek and maintain suitable employment and provide proof of employment upon demand to his probation officer;
• Perform 200 hours of community service at a rate of 100 hours per year, and provide proof of completion to his probation officer.

Released: March 7, 2022 R.F. Goldstein J.