Court File and Parties
COURT FILE NO.: CR: 21-370 DATE: 2023-04-06
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING J. Razaqpur, for the Public Prosecution Service of Canada
- and -
MICHAEL DALIA L. Shemesh and M. Little, on behalf of the offender
HEARD: January 11, 26, February 22, and March 3, 2023
Reasons for Sentence
A.J. GOODMAN J.:
[1] On November 14, 2022, the offender, Michael Dalia (“Dalia”), plead not guilty to several drug offences including possession of fentanyl and cocaine for the purpose of trafficking, contrary to the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”) and a Criminal Code offence. The offender did not challenge the Crown’s case and an Agreed Statement of Facts was filed. Subsequently, Dalia was convicted on the counts. The offences are alleged to have occurred on March 18, 2020 in the City of Hamilton.
[2] The Charter applications were dismissed by Arrell J. on August 19, 2022.
[3] Mr. Razaqpur for the Federal Prosecution Service seeks a jail sentence of 16 years for the fentanyl-related counts and five to seven years concurrent for the other drug counts, less pre-sentence custody, along with various ancillary orders. The Crown submits that the large amount of drugs implicated in this case, approximately 1.7 kilograms of fentanyl, along with other illicit drugs, including a significant quantity of cocaine, warrants a substantial penitentiary sentence to reflect the principles of denunciation and deterrence.
[4] Ms. Shemesh, on behalf of her client, requests a global sentence of 10 years, less pre-sentence custody with enhanced credit. While it is conceded that the offender may be a mid-level trafficker, the defence submits that the range of sentence suggested by the Crown is excessive and is more suited for the largescale commercial trafficker. The defence says that Dalia presents with significant mitigating factors, including but not limited to the situation that befell him while housed at various custodial institutions, including during the pandemic. When reduced for the requisite mitigation and other credits, counsel submits that the remaining time to serve is approximately one to two years. There is essentially no issue with respect to the ancillary orders requested by the Crown.
Circumstances of the Offence
[5] The circumstances of the convictions at trial are outlined in the Agreed Statement of Facts filed by the Crown. Briefly, the salient facts include:
On March 18, 2020, the Justice of the Peace Valeriano granted two s. 487 search warrants for the home and vehicle of the accused. Officers of the Hamilton Police Service were searching for a firearm, ammunition, magazines for the firearm, and a cellular phone. The warrants permitted the search of a 2014 black GMC Sierra, and the house located at 51 Greening Avenue, Stoney Creek, (“the residence”).
This search warrant arose from a domestic assault related allegation made by complainant, Sarah Chrin.
On March 18, 2020 at 9:20 AM Officer Simpson observed Dalia’s Black GMC Sierra pickup truck in the driveway at the residence. At 10:07 AM Simpson observed a male and female (later determined to be Michael Dalia’s parents: Carmen Dalia (“Carmen”) and Luisa Casciola-Dalia (“Luisa”) depart the residence. At 11:08 AM Simpson observed Dalia on the front porch of the residence.
Later that day, the police obtained the two aforementioned search warrants for the residence, along with Dalia’s pickup truck. Dalia was driving alone in his pickup truck when police stopped his vehicle and arrested him at Barton Street East and Fruitland Road at 6:30 PM. Search incident to arrest of Dalia located on his person four cell phones inside the pocket of his hoodie, a quantity of currency in his pant pocket (bills held with an elastic band totalling $2510.00), and a wallet containing various cards belonging to Dalia. Furthermore, 4.27 grams of blue fentanyl mixed with phenacetin, dimethylsulphone and caffeine was located on Dalia.
In the pickup truck police located a scale in the driver’s door, which was determined to have residue of cocaine, fentanyl and methamphetamine on it. Police also located 3.89 grams of cocaine in the driver’s door. Police also located a jacket on the back seat of the truck, which contained various documents and drug debt lists.
Following his arrest, Dalia was transported to the police station. Police then executed the search warrant at the residence. Found throughout the residence were large quantities of cash, cocaine and fentanyl. The largest quantities of drugs located in the home were found in two plastic ammunition boxes located sitting on the floor in the kitchen / dining room area next to the dining table.
As explained by Detective Constable Matthew Dugdale, due to its relatively high strength, illicit fentanyl must be mixed with other substances to create a product suitable for sale on the street. Cutting highly pure fentanyl is required to ensure that the end user does not die from an overdose and in order to maximize both volume and profits. Detective Dugdale’s evidence is that procaine, lidocaine, phenacetin and caffeine are all substances used to cut illicit drugs. Detective Dugdale’s report at para 188-197 addresses in greater detail the presence of cutting agents located in this investigation: procaine, lidocaine, phenacetin, caffeine.
A BB gun was seized from the residence. According to police, it is difficult to discern the difference of a BB gun from a real firearm. A vacuum sealer was also seized. The presence of a money counter combined with the large volume of cash seized is indicative of possession of drugs for the purpose of trafficking.
Detective Dugdale’s evidence is that the value of fentanyl varies based upon the volume purchased. The total amount of fentanyl seized in this matter is 1,702.19 grams. Based upon the pricing ranges for fentanyl provided in Detective Dugdale’s report, this equates to an approximate value of $510,657 if sold for $30.00 per point (the low end of per-point pricing), or $174,121.72 if sold for $2,900 per ounce (the low end of ounce pricing). Detective Dugdale’s evidence is that a typical dose of street level fentanyl (that which has been diluted or “cut” for sale) is 0.1 grams. Based upon the typical dose weight, the amount of fentanyl seized in this matter equates to approximately 17,021 doses at 0.1 grams per dose.
The total amount of cocaine seized in this smatter is 614.44 grams. Based upon the pricing ranges for cocaine provided in Officer Dugdale’s report, this equates to an approximate value of $49,155.20 if sold for $40 per 0.5 gram (the low end of 0.5 gram pricing), or $20,890.96 if sold at $8500 per 9-pack (9 ounces or ¼ kilogram) (the low end of 9-pack or ¼ kilogram pricing). Detective Dugdale’s report indicates that a typical dose of powdered cocaine is 0.1 to 0.2 grams. A typical dose of crack cocaine (a harder rock like form of cocaine suitable for smoking) is 0.1 grams. Based upon the typical dose weight, the amount of cocaine seized in this matter equates to approximately 6,144 doses at 0.1 grams per dose.
It is admitted that the fentanyl and cocaine seized by police in this investigation was possessed for the purpose of trafficking.
The bundle of cash located in the pants of Dalia and from the basement wall tested positive for particles of cocaine and fentanyl. It is admitted that the two packages of cash located in the wall cavity in the basement ($19,800 and $110,000 respectively) were possessed as proceeds of crime.
Circumstances of the Offender
[6] Dalia filed an affidavit along with a detailed personal log and other information related to his time in custody pending disposition. I have also received information from the various institutions where Dalia was housed.
[7] Dalia also provided character references from long-time personal and family friends, which I have briefly summarized:
a. Rebecca de Foreest, a self-employed massage therapist, has stayed friends with Dalia “because he is not only a positive addition to [her] life but a loyal and trustworthy person (and those are hard to come by).” She writes, “[o]ver the years, [we] have had many life and spiritual talks, always examining ourselves, our choices, and reflecting on how to be better, not only for ourselves, but also for those around us.”
b. Paul Megna, a licensed realtor of approximately 15 years, writes that Dalia is a good man, a loyal friend and a loved son who “deserves a chance at making things right for himself and his family.”
c. Alayna Kushner, who holds a Social Service Worker diploma, writes that in the 22 years she has known Dalia, he has “demonstrated numerous qualities as a valuable person in our society.” For instance, “[h]e is always the first to help elderly neighbours with shoveling in the winter, or to lend a pump to the neighbourhood kids for their bicycle tires.” She also states that Dalia has a strong support system of family and friends within his community who are good influences.
d. Connie Cage, a retired manager at the Bank of Montreal, states that Dalia has always been a very warm hearted, kind, respectable, generous and considerate person—“the type of person that, if you had nothing, he would give you the shirt off his back even if it was the last thing he owned.”
Case Law
[8] I have been provided with numerous cases from both counsel on the issue of the appropriate sentence to be imposed. Although the law is clear that each case turns on its own specific facts, a careful review of these cases, to the extent I can find similarities to the case before me, does assist me in determining what an appropriate range is for the sentence to be imposed. As some of the cases relied upon by counsel are distinguishable on the facts or the circumstances of the particular offender, my intention is to briefly set out those cases that are somewhat similar to the issues in the case at bar.
[9] The Supreme Court of Canada recently addressed the appropriate sentence for fentanyl trafficking in the seminal case of R. v. Parranto, 2021 SCC 46, 411 C.C.C. (3d) 1.
[10] In Parranto, the court affirmed that proportionality is the organizing principle in sentencing, and parity and individualization, while important, are secondary principles which inform the proportionality assessment: at paras. 9-12. Thus, the majority held, “[a]ll sentencing starts with the principle that sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender”: Parranto, at para. 10, citing R. v. Friesen, 2020 SCC 9, at para. 30.
[11] In determining the appropriate sentence, judges are required to balance a multiplicity of factors having regard to the objectives and principles defined in Part XXIII of the Criminal Code. The exercise is discretionary and is “[m]ore of an art than a science”: Parranto, at para. 9.
[12] At para. 68, the majority in Parranto determined the national range of sentences for trafficking large quantities of fentanyl to be eight to 15 years of custody:
A more accurate range based on a review of reported case law nationally would be in the region of 8 to 15 years. For example, eight-year sentences were imposed in Smith (2019) (1834 pills, as part of an 11-year sentence), as well as R. v. Leach, 2019 BCCA 451 (11,727 pills, as part of a 16-year sentence); R. v. Sinclair, 2016 ONCA 683; R. v. Solano-Santana, 2018 ONSC 3345 (5000 pills); R. v. White, 2020 NSCA 33, 387 C.C.C. (3d) 106 (2086 pills); and R. v. Borris, 2017 NBQB 253 (4200 pills). Other sentences imposed include: an 8-year and two-month sentence in R. v. Sidhu, C.J. Ontario, No. 17-821, June 16, 2017, aff’d 2019 ONCA 880, in which the offender trafficked 89 g of fentanyl and other drugs soon after being released on parole; a 10-year sentence in R. v. Petrowski, 2020 MBCA 78, 393 C.C.C. (3d) 102, for trafficking 51 g [of] fentanyl where the offender used a co-accused to insulate himself from detection; 11 years for trafficking 204.5 g of a fentanyl blend in R. v. Vezina, 2017 ONCJ 775; 13 years for trafficking 232 g [of] fentanyl and large quantities of other drugs as part of a sophisticated drug trafficking operation in R. v. Mai, [2017] O.J. No. 7248 (Ont. S.C.J.); and 15 years for a profit-motivated offender who was the directing mind of a “large-scale drug trafficking operation involving an enormous amount of fentanyl” in R. v. Fuller, 2019 ONCJ 643 (the offender possessed about 3 kg of fentanyl in the course of the conspiracy).
Moldaver J. wrote an authoritative concurring judgment in Parranto, in which he recognized that fentanyl “has altered the landscape of the substance abuse crisis in Canada” such that the gravity of harm caused by fentanyl trafficking now far exceeds that of trafficking heroin and cocaine: at paras. 86-87, 93, 96. As such, sentencing for fentanyl trafficking should reflect this increased understanding, as Moldaver J. explained at para. 101:
Fentanyl trafficking, and largescale trafficking in particular, are a source of unspeakable harm. Accordingly, while the range of sentences currently imposed for the directing minds of largescale fentanyl operations straddles the upper single digits and lower double digits, sentencing judges should feel justified, where circumstances warrant, in applying a higher range, consisting of mid-level double digit sentences and, in particularly aggravating circumstances, potential sentences of life imprisonment.
[13] The impact of the fentanyl crisis in the Hamilton region was noted in the case of R. v. Ribble, 2019 ONCJ 640, aff’d 2021 ONCA 897, a decision from the Ontario Court of Justice in this jurisdiction. At paras. 52-53, Agro J. stated:
More recently, fentanyl powder has flooded the illicit drug market and the number of fentanyl powder cases is rapidly increasing across the province and notably in this jurisdiction.
In Hamilton, I see fentanyl abuse regularly identified as underlying many of the offences committed in this jurisdiction; possession of fentanyl charges have increased in plea court and fentanyl users are the new norm in drug treatment court. Sadly, our detention centre is notorious for drug overdoses, including fentanyl.
[14] Cases including Ribble that have imposed sentences in the upper single digits tend to involve lesser amounts of fentanyl. The offender in Ribble had 15.9 grams and was sentenced to nine years’ imprisonment, inclusive of a 1 year consecutive term for prohibition breaches. The offender in R v. Sidhu, 2019 ONCA 880, who had a prior related record, trafficked 89 grams of fentanyl and was sentenced to eight years. In R v. Disher, 2020 ONCA 710, the case involved 42.6 grams of fentanyl and carfentanil, with the offender having an extensive criminal record spanning 15 years including prior offences for trafficking. On appeal, the original 12 year sentence was reduced to eight years.
[15] In R. v. Fuller, 2019 ONCJ 643, Latimer J. discussed the “overwhelming” harm caused by fentanyl and the need for courts to bring denunciation and deterrence to the forefront in response: at paras. 30, 53. The offender in Fuller was the “directing mind” of a fentanyl, cocaine, and methamphetamine trafficking ring, and had three kilograms of fentanyl in his possession (one of which was returned to his supplier due to poor quality). Considering the nature of fentanyl and the general direction in R. v. Loor, 2017 ONCA 696 (that “offenders – even first offenders – who traffic significant amounts of fentanyl should expect to receive significant penitentiary sentences”), Latimer J. imposed a 15-year sentence for the fentanyl-related count. While the offender was remorseful and pleaded guilty at an early opportunity, the amount of fentanyl and other schedule narcotics was “enormous,” and he was a repeat drug offender who acted “solely for personal profit”: at paras. 51-52.
[16] The co-accused, on the other hand, received a 13-year sentence following a joint submission. The admitted facts in her case included her co-conspirator possessing three kilograms of poor quality fentanyl: see R. v. Broderick, (4 April 2018), Doc. 17-9494-02 (Ont. C.J.). Relative to her co-accused, her lesser sentence was reflective of her “subordinate role” in the trafficking ring and her extra early guilty plea which was entered before a preliminary inquiry was set: Fuller, at paras. 50, 52.
[17] In his decision, Latimer J. also referred to the unreported case of R. v. Yu (21 September 2017) (S.C.), rev’d on other grounds, 2019 ONCA 942. In Yu, the young offender with no prior record pleaded guilty to trafficking in association with a criminal organization, conspiracy to traffic in a controlled substance, and possession of various narcotics for the purpose of trafficking. A significant quantity of drugs was seized from his residence: 232 grams of fentanyl, 620 grams of heroin, 983 grams of cocaine, 250 grams of methamphetamine, 1149 grams of MDMA, 1261 grams of ketamine, and 3557 grams of marijuana. MacMahon J. treated fentanyl with particular emphasis, being “twenty times more powerful than heroin” and therefore “the most deadly, illicit drug available on the streets of [Kitchener]”, and imposed a total sentence of 13 years’ jail.
In R. v. Imeson, 2019 ONCJ 245, McKay J. sentenced two individuals with significant criminal histories who pleaded guilty to possession of fentanyl, carfentanil and methamphetamine for the purpose of trafficking. They jointly possessed 434 grams of carfentanil, 176 grams of fentanyl, one kilogram of methamphetamine, and more than $94,000 in Canadian currency. their criminality was “motivated by greed and a thirst for profit” amidst an opiate crisis was an aggravating factor: at para. 29. McKay J. imposed a 12-year sentence for the carfentanil count, with concurrent sentences of ten and six years for fentanyl and methamphetamine, respectively.
[18] R. v. Janisse, 2022 ONSC 4526 was a decision released after Parranto. The offender had two kilograms of fentanyl in his possession and was found guilty of multiple counts of possession of cocaine, fentanyl, and crystal methamphetamine for the purpose of trafficking. He was sentenced to 16 years in prison for the fentanyl-related count.
[19] Janisse involved a significant quantity of drugs (a total of 21 kilograms of cocaine and two kilograms of fentanyl, with an estimated street value of over one million dollars) and large sums of money (nearly $100,000 was seized). In addition to the “immeasurable harm” and “despair” the drugs are known to cause, the circumstances in Janisse were aggravated by the finding that it was a commercial enterprise: at para. 36. Further, the judge concluded that any prior convictions did not appear to have a deterrent effect.
[20] In mitigation, the judge found that Janisse’s counsel conducted the trial in a very efficient manner. An agreed statement of facts was filed, with no viva voce evidence called. This saved significant court resources, particularly at a time when the court was dealing with a backlog of cases caused by the pandemic. Taking into account the mitigating circumstances, the gravity of the offences, the offender’s moral responsibility and the harm caused to individuals and the community at large, the judge imposed a global sentence of 16 years.
[21] R. v. Lu, 2022 ONSC 1918 also dealt with a commercial-level drug offender with no prior record. He was convicted of trafficking in 0.5 kilograms of cocaine, 0.5 kilograms of fentanyl, and 0.5 kilograms of fentanyl and heroin, amongst other counts. The Crown sought an eight to 12 year jail sentence arguing the offender was the main player in the trafficking scheme, while the defence sought a sentence of three to four years. Di Luca J. found that while the offender was not the main player of the scheme himself, he was a “high-level trusted associate”: at para. 71. He imposed a global sentence of nine and a half years.
[22] In addressing some of the cases provided by the defence, I accept Mr. Razaqpur’s submissions regarding the general sentencing ranges for these types of offences as considered by various courts in British Columbia. Bearing in mind that one must consider the circumstances of the offender, and without commenting on the appropriateness of sentences for the specific jurisdiction, I am persuaded that some of these British Columbia cases tend to address sentencing for these comparable types of drug offences on a more lenient scale. [1] These cases are instructive, but for the most part, are distinguishable when contrasted to the range of sentences generally imposed in Ontario for similar drug offences.
General Principles
[23] The court is guided by the principles of sentencing as set out in the CDSA and ss. 718 to 718.2 of the Criminal Code. As directed by s. 718 of the Criminal Code, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing sanctions that reflect enumerated objectives. Those objectives include denunciation of the unlawful conduct, deterrence and rehabilitation. It is also important to impose a sentence that promotes a sense of responsibility in offenders and an acknowledgement of the harm done to victims and to the community.
[24] Section 718.2 of the Criminal Code addresses the principles of totality, parity and the principle of restraint among other factors. Section 718.2 also addresses specific aggravating and mitigating factors that shall be taken into consideration based on certain enumerated principles. The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The circumstances of the offence and of the offender must be analyzed to identify the aggravating and the mitigating factors.
[25] The primary objectives in cases of this nature are general deterrence and denunciation: see e.g. Fuller, at para. 53; R. v. Olvedi, 2021 ONCA 518, 157 O.R. (3d) 583, at para. 57. General deterrence is an established sentencing objective based on the premise that the sentence imposed on an offender will discourage people who may otherwise consider committing a similar offence: see R. v. Bissonnette, 2022 SCC 23, 469 D.L.R. (4th) 387, at para. 47; R. v. B.W.P., 2006 SCC 27, [2006] 1 S.C.R. 941, at paras. 2-3; R. v. Foster, 2020 QCCA 1172, at para. 26; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 107; R. v. Biancofiore (1997), 119 C.C.C. (3d) 344 (Ont. C.A.), at para. 23. Denunciation requires that a sentence communicate society’s condemnation of the offender’s conduct: see Bissonnette, 2022 SCC 23, at para. 46; Proulx, at para. 102.
Aggravating Factors
[26] The aggravating factors in this case include the nature of the drugs and their quantity. The sheer magnitude of the drugs is undisputed. This case can be categorized as the one of the most significant amounts of fentanyl seized in Hamilton. There were also some elements of preparation and sophistication.
[27] The offender’s criminal record includes dated convictions back to the year 2002 with possession of a scheduled substance, assault causing bodily harm and fail to comply with a recognizance. In May 2004, he was convicted for possession of a schedule substance for the purpose of trafficking x2 and received 30 months’ jail along with 56 days of pre-sentence custody. In 2010, he was convicted of five assault-related counts and was sentenced to two years in jail with probation, along with credit for 18 months of pre-sentence custody. In 2014, the offender had another conviction for possession of a schedule substance, and in 2018 a fail to comply with an undertaking.
Mitigating Factors
[28] While the offender plead not guilty to the various counts, he did not dispute the facts as read in by the Federal Crown. It is true that there was some initial disagreement between the parties regarding the facts and the nature of the intended plea. This led to extensive and somewhat heated negotiations. I understand that following the Charter ruling rendered by my colleague, it was always the offender’s intention not to contest the charges, all the while protecting his interests for an appeal to the Court of Appeal. This has been established by the exchange of emails filed by the defence.
[29] In his comments to the court, Dalia had expressed some degree of regret and he has the backing and support of his family and friends. He had presented favourable character references and has completed several programs or sessions while incarcerated awaiting disposition.
Analysis
[30] As mentioned, in Parranto, Moldaver J. emphasized fentanyl’s devastating harm in the context of sentencing fentanyl traffickers, at paras. 98-99:
The time has thus come for our perception of the gravity of largescale trafficking in fentanyl to accord with the gravity of the crisis it has caused. Largescale trafficking in fentanyl is not a crime marked merely by the distribution and sale of an illicit substance; rather, it is a crime marked by greed and the pursuit of profit at the expense of violence, death, and the perpetuation of a public health crisis previously unseen in Canadian society….
My comments that follow do not apply to sentences for street-level trafficking, or where traffickers are motivated by a need to support their own addiction. Rather, the focus of this guidance is on the directing minds of largescale fentanyl trafficking operations.
[31] While Moldaver J. is referencing largescale commercial trafficking operations in fentanyl rather than “street-level” trafficking, I observe that at para. 96 of Parranto, he refers to the fact that “[b]eyond its mere potential to cause harm, however, fentanyl has had – and continues to have – a real and deadly impact on the lives of Canadians.”
[32] Indeed, trafficking in fentanyl has been described as a national crisis reflective of the increasing understanding of the gravity of the harm it causes.
[33] I am mindful that the conclusions in Parranto may be distinguishable by virtue of the largescale operation in that case, and may not necessarily apply to street-level trafficking or those who are motivated by a need to support their own addictions. While recognizing that this case involves significant quantities of fentanyl, it cannot be termed as a commercial or largescale enterprise. However, I accept that Dalia was on the scale of a high-end mid-level trafficker (supplier to street-level supplier), in the oft-referred-to five step hierarchy. [2]
[34] There is no doubt that the general principles arising from the Parranto case include the statement that fentanyl has changed the landscape of substance abuse in Canada.
[35] Of course, the principles of proportionality and totality ought not be lost in the analysis of this offence and circumstances of the offender.
[36] That being said, there is no doubt that the courts recognize the insidious and detrimental impacts of fentanyl on the community and society at large. Deterrence and denunciation are paramount considerations as there is a continued need for a firm response by the courts for increased sentences for fentanyl-related crimes.
[37] As all counsel concede, the sentencing decision in this particular drug case is most challenging.
[38] Possessing fentanyl in amounts found in this case can justify a sentence in the range of eight to 15 years: see e.g. Parranto, at para. 68; Olvedi, at paras. 58-60. As an aside, I observe that possessing multiple kilograms of cocaine similarly often results in high single-digit or even double-digit penitentiary sentences: see e.g. R. v. Maone, 2020 ONCA 461, at paras. 12-13; R. v. Nero, 2008 ONCA 622, at para. 11; R. v. Brissett, 2019 ONCA 11; R. v. Sandhu, 2016 ONSC 7946.
[39] There does not seem to be much dispute between the parties that Parranto sets a floor at eight years for sentences for high-level distribution of fentanyl. While this case is not a commercial enterprise per se, the parties acknowledge that the appropriate range of sentence in this case is between eight and 16 years, albeit the Crown does neither accept nor agree that the low end of this range is appliable n this case.
[40] I note that in the case of R. v. Margerison (2020), 169 W.C.B. (2d) 167, (rev’d on other grounds, 2022 ONCA 211), the court imposed an eight-year sentence for a third-time offender who had 44 grams of fentanyl in his possession: at para. 25. Given the circumstances, including the offender’s prior trafficking convictions, the court found a “significant” sentencing range was appropriate: at para. 25. See also Sidhu; Disher.
[41] With respect, I must reject the defence’s proposed sentence of 10 years for the fentanyl-related count. While counsel’s stated position is within the referred-to range, it is clearly not reflective of the principles of denunciation and deterrence arising in this case when considering the circumstances of this offence and of the offender. Recall that Dalia has prior related convictions. He had in his possession profoundly large amounts of fentanyl, cocaine and other illicit drugs, with an imitation weapon, along with all of the known paraphernalia for the purpose of trafficking in these substances. There are some elements of sophistication in the manner or preparation for distribution.
[42] As I am persuaded that the offender before me is on the very high-end of the “mid-level” hierarchy of traffickers with all of the attendant circumstances, I tend to lean towards the Crown’s stated position on sentence. I am also entitled to take judicial notice of the insidious impact of fentanyl in the Hamilton and greater community as delineated in Ribble.
[43] Mr. Razaqpur’s position reflects the level of sentence suggested by the authorities from various superior and appellate courts with respect to offenders who traffic or otherwise distribute significant amounts of fentanyl and/or cocaine. Indeed, the Crown’s suggested sentence of 16 years for the fentanyl count is well-reasoned.
[44] That being said, I am not prepared to go as high as Mr. Razaqpur ably suggests. With due consideration to Ms. Shemesh’s able submissions, the range of sentences imposed for related offences; including that the defence conceded the Crown’s case after the failed Charter challenges with the intention to avoid a trial, I conclude that the fentanyl-related count warrants a global sentence of 13 years in jail.
Pre-Sentence Detention
[45] There is evidence that Dalia spent a significant amount of time in custody subject to lockdowns because of staffing shortages, and was also subject to quarantine for periods of time. In addition to this, he was often “triple bunked” and, at times had only sporadic access to fresh air. The unacceptability of such conditions has been the subject of frequent judicial disapproval: see e.g. R. v. Powell, 2020 ONCA 743, at para. 30; R. v. Johnson, 2022 ONSC 5899, at paras. 69-70; R. v. S.H., 2022 ONSC 4900, at paras. 88-90; R. v. Doyle, 2022 ONSC 2489, at paras. 54-59; R. v. T.T., 2022 ONSC 722, at para. 46; R. v. Osman, 2022 ONSC 648, at paras. 41-43, R. v. Fermah, 2019 ONSC 3597.
[46] Unduly harsh conditions of pre-sentence custody are a relevant factor on sentencing and reductions in sentence to account for them are often referred to as a “Duncan credit” after the decision in R. v. Duncan, 2016 ONCA 754.
[47] As Ms. Shemesh points out, “Duncan credit” has become a routine part of sentencing in the Toronto courts due to the Ministry of the Solicitor General’s steadfast refusal to address the systemic problems that justify it.
[48] During the sentencing hearing, Dalia provided both viva voce evidence and other documentation related to the various custodial institutions where he spent the past several years. In his affidavit, he asserts, inter alia:
I was arrested and placed into custody on March 18, 2020. I was in custody at the Hamilton Wentworth from March 19, 2020, until August 13, 2021. On August 13, 2021, I was transferred to the Central North Correctional Centre due to the ongoing construction at Hamilton Wentworth. On August 29, 2021, I was transferred back to Hamilton Wentworth. On September 9, 2021, I was transferred back to the Central North Correctional Centre due to the continuing construction at the Hamilton Wentworth. On September 30, 2021, I was transferred back to the Hamilton Wentworth Detention Centre. On June 30, 2022, I was again transferred to the Maplehurst Correctional Complex.
As of January 11, 2023, I will have spent at least a portion of the following number of days at each institution: Hamilton Wentworth: 799 days *includes 6 partial days; Central North Correctional Centre: 39 days *includes 4 partial days Maplehurst Correctional Complex: 196 days (up until January 11, 2023).
I have also kept my own journal since approximately May 1, 2020. I have reviewed the contents of the subpoenaed “lockdown records” with my counsel. I understand that, according to the records, while I was housed at the Hamilton Wentworth Detention Centre, I was on some form of lockdown for approximately 123 of the days that I was an inmate. I have also had an opportunity to review the content of the lockdown records from the Central North Correctional Centre. I was locked down for 17 days. I have also had the opportunity to review my lockdown records from the Maplehurst Correctional Complex. Those records are from approximately June 30, 2022, until November 21, 2022. According to the records, during the above-noted 145-day timeframe I was on lockdown 74 of those days. I disagree with the accuracy of the lockdown records.
According to my journal, I was on some form of lockdown at the Hamilton Wentworth Detention Centre for approximately 291 days from May 1, 2020, until June 30, 2022. From approximately May 1st, 2020, until approximately July 27th, 2020, there were rotating “50/50” lockdowns. This meant that half of the range would be allowed out of their cells while the other half of the range would be confined to their cells. I understand that this procedure was in response to the Covid-19 pandemic to try and follow some form of social distancing. My best estimate is that I was triple bunked for over half of my time in custody at Hamilton Wentworth.
According to my journal, I was on some form of lockdown for 31 of the days that I spent at Central North. From June 30, 2022, until November 30, 2022, I had been on some form of lockdown for 123 different days. When we had been subjected to a lockdown, we were not permitted to leave our cells. We were provided all of our meals in our cells, and if we were fortunate enough, we were provided a “shower program” that allowed us to at least have access to a shower. We were able to make use of the shower or the phone, but often this very brief window of time did not afford us the opportunity to make use of both. On many lockdown days, the shower program was not offered at all – meaning we did not have access to a shower, a very basic human right – particularly during a global pandemic when hygiene is critical. … I had gone multiple weeks and even months at a time without my sheets being changed. In addition to the difficulties that I had experienced as a result of these locked down days and nights during the pandemic, access to fresh air was also significantly impacted. During the pandemic I was fearful that I would contract the virus due to living in such close quarters with other inmates or from the guards coming and going from the institution. Despite being double-vaccinated, I feel as though there were two occasions when I may have contracted Covid. I did not seek medical attention for this because I was fearful that if I was covid-positive, I would be targeted by other inmates.
Prior to my incarceration, I had been diagnosed with ADHD and I have experienced significant learning challenges throughout my life. I struggle with reading and writing. I have not been permitted to speak to my mother since March 19, 2020. Even when my parents’ charges were withdrawn, the crown was still opposed to any communication as between my parents and I. Moreover, even after I had plead guilty, [3] the Crown was still opposed to any communication. This non-communication order has been especially difficult for me. Moreover, my father had open-heart surgery in March of 2022. The surgery had complications and I was fearful that I would never be able to see my dad again and I was concerned that I was not able to contact my mother to check in with her on my father’s recovery.
I have also experienced significant medical and physical distress since being in custody. On my second day in jail, I was assaulted, and I suffered a fractured orbital bone. I also sustained a foot fracture from the assault and an eye injury that caused bleeding and injuries to my mouth that required 6 stitches. There was no follow-up appointment to see how my foot or other injuries were healing. I now experience constant earaches on the side of my orbital bone injury. My eyes are constantly watery and my vision often goes blurry. I also experience frequent headaches. Throughout my time in custody, I have periodically broken out in a rash. I have been provided with various soaps and creams, but they have not assisted in mitigating the breakouts. I had also experienced severe discomfort due to my legs being swollen. I was prescribed medication to help assist the water retention. I had also been experiencing pain in my lower abdomen for the entirety of my time in custody. I finally just had an ultrasound, and I was advised that I have a hernia. I will require a specialist to determine if I require surgery.
In addition to the medical difficulties that I have experienced since being placed into custody, I also have several pre-existing medical conditions including: a hyper-inflated lung, Kyphotic (curved spine), a severed right Achilles tendon, a right knee injury, and significant teeth and mouth pain that will require jaw realignment surgery at some point. Prior to being arrested and being placed into custody I had been receiving medically prescribed testosterone and Pregnyl injections. The reason for these regular injections is because I have low levels of testosterone.
I was advised by my Doctor that I need to maintain an injection regimen of 3x per week or I would risk becoming irrevocably infertile. During my incarceration at Maplehurst, this fertility treatment ceased. The medical staff at Maplehurst informed me that the Pregnyl medication was on back-order and not available. I have been advised by medical personnel at Maplehurst that the Pregnyl replacement drug is now in stock. Despite the drug now being available, the doctor at Maplehurst is unwilling to prescribe it to me without approval from a specialist. I have now gone 11 weeks without receiving this treatment. I am saddened and fearful of the prospect that I will never be able to have children. I just recently received approval to see a specialist.
Another difficulty that I have experienced while in custody is sleeping. When I was in custody at the Hamilton Wentworth Detention Centre, I was able to secure an appointment at a local sleep apnea clinic. I was advised that I would be taken overnight to the clinic so that professionals could monitor my sleep and determine whether I have sleep apnea. That appointment was cancelled, and it has not been rescheduled.
One of my biggest sources of frustration and angst during my time spent in pre-trial custody is the multiple times that I have been required to transfer from Hamilton Wentworth to other custodial institutions. On July 20, 2022, at Maplehurst, my cellmate and I were subject to a cell inspection. The hatch was not opening or closing properly and the guard inspecting my cell blamed me for the malfunction. Toilet water was thrown all over my cell, peanut butter was smeared on my items, and other canteen items such as chips and chocolate bars, protein powders were destroyed and strewn all over the cell. When I returned to the cell that I was housed in, my cell partner, the on-duty Sergeant and myself were shocked at the state of disarray that the cell was in. At this point, I told the Sergeant that this was not acceptable. My statement upset the officer that was responsible for destroying my cell and he forcibly removed me from the cell causing injuries to my wrist and it reaggravated my knee injury. There is a misconduct on my institutional record as a result of this incident. I am in the process of trying to fight that finding and have it removed from my record…
[49] During his testimony, Dalia went on to discuss his conditions of incarceration, specifically since September 2020: “It has been a significant challenge for me during my time in pre-sentence custody. I have physical health challenges, mental-health challenges, and I have been in custody for the entirety of a global health pandemic.”
[50] In addition to the offender’s affidavit, there were extensive records filed by both the defence and the Crown. The Crown’s materials include a letter from the Ministry of Solicitor General Correctional Services dated May 24, 2022 and Lockdown Summary, along with OTIS - Shared Cell and Bed Assignments spreadsheet. Some of the information includes references to dates of confinement, lockdowns due to COVID or other reasons, minimal or no yard time, lack of showers, double or triple bunking and the like.
[51] The Crown challenged the veracity of the offender’s records and his testimony in relation to his custodial circumstances and also called several institutional witnesses.
Analysis: Pre-Sentence Custody
[52] With regards to the Duncan credit, as a mitigating factor in the overall sentence, and as directed by the Court of Appeal in R. v. Marshall, 2021 ONCA 344, I am prepared to consider this additional mitigating feature as a reduction to apply towards the global sentence.
[53] Unlike the “Summers” credit, which is a deduction from what is determined to be the appropriate sentence, the “Duncan credit” is one of the factors that is taken into account in determining the appropriate sentence. A court may, but is not required to, identify a specific number of days or months as “Duncan credit”: see Marshall, at para. 53. [4]
[54] This approach is intended to address and reflect the harsh jail conditions endured by the offender during the recent pandemic, and in this case, Dalia’s specific, medical and other unique circumstances.
[55] As mentioned, Dalia has provided extensive evidence in support of his position. Generally, the evidence adduced during the sentencing hearing tends to support Dalia’s assertions about “partial” or “full” lockdowns, and the lack of privileges and other issues that befell him while being housed and transferred to various detention centres. I am also cognizant of his significant health challenges and concerns whilst incarcerated, although the offender tended to exaggerate some of his complaints regarding treatment or the responses provided by the professional medical staff at the jail.
[56] In addressing the appropriate “credit”, both counsel spent much time discussing the unreported case of R. v. Ali (11 February 2022), Oshawa, 21/15513 (S.C.)—the high water mark for sentencing related to the trafficking of carfentanil in Ontario. The amount of drugs seized in that case was unprecedented as to its volume. This included 26.5 kilograms of a carfentanil mixture, as well as other drugs, along with various prohibited firearms. Boswell J. was faced with a joint position from counsel. Before the imposition of pre-sentence credit, the judge upheld the joint position of a global sentence of 23 years. However, as counsel references, the judge further reduced the sentence down to 12 years based on some application of the Duncan factors.
[57] As I dialogued with counsel, I have some difficulty with the reduction and application of the pre-sentence credits in that case. However, it is neither my position nor intent to critique the learned trial judge’s discretion of enhanced credit, but to merely point out that I believe the ultimate decision appears to encroach upon the principles of proportionality, as well as the direction arising from Marshall, at para. 52.
[58] The offender also advanced the case of Fermah, in support of his enhanced credit argument. In Fermah, Molloy J. did not intend to go through each and every basis for allowing an enhanced credit under the Duncan principles. Nonetheless, she calculated a 3:1 credit based on the facts in that case. It is apparent that Molloy J. was addressing the specific and dire situation that befell that offender at the Toronto South jail. That decision was, no doubt, intended to send a signal to the authorities in their dealing with inmates. While not too dissimilar from the case at bar, the judge’s quantitative analysis was rendered prior to the direction in Marshall. Although I do not intend to follow the enhanced 3:1 approach applied by the learned judge in Fermah, a review of the case is instructive.
[59] Another recent case advanced by the defence on this issue is R. v. Dubajic, 2023 ONSC 516. Unlike Dubajic, the parties here do not agree on the amount of pre-sentence credit to be afforded. Nonetheless, the judge applied a 1:1 credit as a mitigating consideration for the offender having spent three years in pre-sentence custody.
[60] Dalia asserts that he has been subjected to 445 days of full or partial lockdowns amongst other issues while housed at various institutions. However, the jail records speak otherwise.
[61] Mr. Razaqpur prepared a very helpful chart outlining all of the lockdown segments at the various custodial institutions. In Maplehurst, the offender was in custody from June 30, 2022 to January 18, 2023. There were 81 full lockdown days and 12 partial lockdown days for a total of 93 occurrences, and the offender was triple bunked for four days. In Central North Institution, he was in custody from August 13, 2021 to August 29, 2021 and September 9, 2021 to September 30, 2021. There were 15 full lockdown days and three partial lockdown days for a total of 21 occurrences. In Hamilton Wentworth, Dalia was in custody from March 19, 2020 to August 13, 2021, from August 29, 2021 to September 9, 2021, from September 30, 2021 to June 30, 2022 and then from January 18, 2023 to date; a total of 76 full or partial lockdown days per Sergeant Aitkins’ testimony. There were also 30 effective lockdown days from February 25, 2021 to March 26, 2021 as a result of the pandemic, for a total of 106 full or partial lockdown days. The offender was triple bunked for a total of 118 days.
[62] The offender was also the subject of several misconducts at both Maplehurst and Hamilton Wentworth institutions.
[63] As mentioned, while the offender’s information is challenged by the Crown, I accept much of his evidence on this issue. However, it can be said that there is some embellishment when contrasted with the institutional records. While Dalia’s information may be reliable, various segments of his logs must be reduced for any periods that are not supportable or exaggerated. For example, the six month period from December 2021 to June 2022 in the “dorm unit” at Hamilton Wentworth jail was not subject to any lockdowns.
[64] Although I did not intend to go line by line with the lockdown days in dispute, I have considered more than just the numerical number of lockdowns (whether full or partial). Here, there were other significant dynamics at play that were detrimental to Dalia’s living arrangements and documented health issues while he was incarcerated at the various institutions.
[65] In my consideration of the robust evidence adduced at this sentencing hearing, including the offender’s detailed affidavit and daily logs, I am persuaded that I ought to provide substantial enhanced credit as a mitigating factor in the imposition of sentence.
[66] In my review of all of the relevant circumstances, including the aforementioned analysis tempered by the institutional reports and OTIS records, the overall sentence for the fentanyl-related count is mitigated or reduced at an approximate 1:1 basis, or the equivalent of three years.
Disposition
[67] I impose a s. 109 weapons prohibition order for life. The offender will provide a DNA sample pursuant to s. 487.051 of the Criminal Code.
[68] A forfeiture order is granted.
[69] With respect to the count related to the possession for the purpose of trafficking in fentanyl, the 13 year sentence is to be reflected on the warrant of committal. However, it is mitigated further by the plethora of evidence related to Dalia’s time in various custodial institutions awaiting disposition. In applying the Duncan credit as a mitigating factor in the overall analysis, the ultimate sentence to be imposed for this specific count is 10 years.
[70] The offender has a total of three years and 19 days of pre-sentence custody. With the usual Summers credit at 1.5:1, that is the equivalent of 55 months (or four years and seven months).
[71] Therefore, the net disposition is as follows: Dalia is sentenced to serve a term of imprisonment in a federal penitentiary of 65 months or five years and five months for the fentanyl-related count. For the count of possession for the purpose of trafficking in cocaine, five (5) years concurrent; and possession of property obtained by crime over $5000, the sentence is three (3) years concurrent and concurrent.
[72] The victim surcharge is waived.
A.J. Goodman J.
Date: April 6, 2023
Footnotes
[1] For example, R. v. Cashman, [2022] B.C.J. No. 2214 (S.C.), R. v. Chan, 2021 BCSC 1607.
[2] See e.g. R. v. Barkow, 2008 ONCJ 84; R. v. Haye, [2013] O.J. No. 6493 (S.C.), at para. 11, aff’d [2014] O.J. No. 6575 (C.A.) citing R. v. Okash, 2010 ONCJ 93.
[3] The plea was recorded as “not guilty”, but the offender did not challenge the Crown’s case.
[4] Where the quantum of “Duncan credit” is specified, the conceptual distinction explained in Marshall will not affect the ultimate sentence the offender will be required to serve. However, it will affect how the Warrant of Committal on Conviction is completed, as it requires the court to identify the term of imprisonment that would have been imposed before credit is granted pursuant to s. 719(3.1). As a result, “Duncan credit” is not specifically identified on the Warrant of Committal.
