Court File and Parties

Court File No.: CR-22-00000014-0000 Date: 2023-09-11 Ontario Superior Court of Justice

Between: His Majesty The King And: Jonathan Samuel

Counsel: Jordan Tekenos-Levy, for the Crown Daniel Molloy, for the Accused

Heard: September 5, 2023

Reasons for Sentence

Muszynski J.

[1] Following a judge alone trial, on June 30, 2023, I convicted Jonathan Samuel of various offences, the most notable being possession of fentanyl and cocaine for the purpose of trafficking: see R. v. Samuel, 2023 ONSC 3913.

[2] On September 5, 2023, I heard sentencing submissions. These are my reasons for sentence which were given orally on September 8, 2023. To the extent that there are discrepancies between by oral and written reasons, the written reasons will prevail.

Circumstances of the Offence

[3] In the early morning hours of June 10, 2021, police were called to a Kingston hotel following reports of a violent domestic disturbance in one of the guest rooms. Officers were directed to a room on the 8th floor by hotel staff where they found a female in distress. Mr. Samuel, who had been in the hotel room with the distressed female, climbed onto the balcony of a neighbouring hotel room. It was not his room. He was trespassing. Confronted by the police, Mr. Samuel claimed he was on the balcony to pray. He then threw a small bag containing 58.2g of fentanyl and 102g of cocaine, worth thousands of dollars off the balcony to the street below.

Circumstances of Mr. Samuel

[4] Mr. Samuel is 31 years old and a new father. He elected not to request a pre-sentence report, including an enhanced pre-sentence report, even though as a racialized offender he understood he would have been entitled to do so. There were no letters of support filed. Mr. Samuel opted not to speak on his own behalf at the hearing.

[5] Mr. Samuel’s personal circumstances can only be gleaned by both his criminal record, filed by the Crown at the sentencing hearing, and through submissions of counsel. There is little evidentiary weight I can give to these submissions.

[6] According to his counsel, Mr. Samuel had an uneventful childhood. His parents divorced when he was 15 years old. It was around that time that Mr. Samuel began drinking alcohol. Mr. Samuel completed high school and was enrolled in a business course pre-COVID that he had hoped to continue this year before he was arrested on the subject charges. With respect to employment, Mr. Samuel previously worked as a manager for a security firm. Counsel for Mr. Samuel describes his client as incredibly intelligent and well spoken.

[7] In the later part of 2020, Mr. Samuel started using cocaine and spending time with the wrong crowd. Counsel for Mr. Samuel reported that the only true periods of sobriety that Mr. Samuel has had since he was 15 years old are when he was in custody or on parole. Mr. Samuel has been willing to participate in programing related to his addiction issues.

[8] Mr. Samuel has a criminal record, including the following convictions:

• 2011: driving with more than 80 mg of alcohol;
• 2012: robbery, using an imitation firearm, failure to comply; flight while being pursued by peace officer;
• 2015: assault, mischief, disobeying order of the court;
• 2016: assault with a weapon, aggravated assault, uttering threats, failure to comply with probation order, falsifying credit cards;
• 2022: possession of a Schedule I substance, failure to comply with probation order;
• 2023: operate a conveyance while prohibited, flight while pursued by peace officer.

[9] The longest sentence Mr. Samuel received previously was 33 months in relation to the aggravated assault conviction. Mr. Samuel did not spend time in a federal institution due to the pre-sentence custody he had served in that instance.

[10] There is no evidence to support Mr. Samuel’s purported addiction issues other than perhaps reading between the lines on his criminal record, nor any evidence of his involvement in addiction counselling post-arrest.

Positions of the Parties

[11] The Crown submits that a fit and just global sentence in this case is 7 years (84 months) less pre-sentence custody. Specifically, the Crown submits that the global sentence can be broken down across Counts as follows:

• Count 1: obstruction of a peace officer in the execution of his duty, contrary to Section 129(a) of the Criminal Code of Canada, R.S.C. 1985, c. C-46.– 2 months;
• Count 2: enter a dwelling-house without lawful excuse with intent to commit an indictable offence therein, contrary to Section 349(1) of the Criminal Code.– 2 months consecutive to Count 1;
• Count 3: for the purpose of trafficking, possess Fentanyl, contrary to section 5(2) of the Controlled Drugs and Substances Act, thereby committing an indictable offence under section 5(3)(a) of the Controlled Drugs and Substances Act – 6.5 years (78 months) consecutive to Counts 1 and 2;
• Count 4: for the purpose of trafficking, possess Cocaine contrary to Section 5(2) of the Controlled Drugs and Substances Act, thereby committing an indictable offence under section 5(3)(a) of the Controlled Drugs and Substances Act – 18 months concurrent to Count 3;
• Count 6: failure to comply with a condition of a release order (residence) – 1 month consecutive to Counts 1, 2, and 3;
• Count 7: failure to comply with a condition of a release order (not to possess CDSA) – 1 month concurrent to Counts 6;
• Count 8: failure to comply with probation order (keep the peace) – 1 month consecutive to Counts 1, 2, 3, and 6.

[12] Mr. Samuel takes the position that a fit and just global sentence in this case is 2 years less a day to be served conditionally in the community in addition to Mr. Samuel’s pre-sentence custody. If the court finds that a conditional sentence is not acceptable, Mr. Samuel submits that a custodial sentence of no more than an additional 2 years beyond the pre-sentence custody already served is appropriate.

[13] There is an agreement that, as of September 1, 2023, Mr. Samuel had served 227 real days of custody for these charges. Using the typical 1-1.5 credit for pre-sentence custody and rounding up slightly to account for conditions Mr. Samuel encountered while in custody (COVID), it is agreed that any sentence that I impose should be reduced by 1 year on account of pre-sentence custody served.

[14] The parties consent to the ancillary orders sought by the Crown including: a DNA order; a s. 109 weapons prohibition for life; and a forfeiture order with respect to the items seized by police.

Principles of Sentencing

[15] The principles of sentencing are largely codified. Section 718 of the Criminal Code, R.S.C. 1985, c. C-46, sets out the fundamental purpose of sentencing which is to “protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society” by imposing sentences that have one or more of the following objectives:

a. denouncing unlawful conduct; b. deterring the offender and others from committing crimes; c. separating offenders from society where necessary; d. assisting in the rehabilitation of the offender; e. providing reparations for harm done to the victim or to the community; f. promoting a sense of responsibility in the offender; and g. acknowledging the harm done to victims and the community.

[16] The principle of proportionality is set out in s. 718.1 of the Criminal Code. This is a foundational principle of sentencing. Any sentence I impose must reflect the gravity of the offence and the responsibility of the offender.

[17] I am also required by s. 718.2 of the Criminal Code to take the following matters into consideration when imposing a sentence:

a. the sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender; b. the sentence should be like sentences imposed on similar offenders for similar offences committed in similar circumstances; c. offenders should not be deprived of liberty if less restrictive sanctions may be appropriate; and d. all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to the victim or the community should be considered for all offenders.

[18] Section 10 of the CDSA provides further guidance on sentencing in the context of drug offences, although none of the aggravating factors identified in the provision apply in this particular case.

[19] Courts have repeatedly held that in cases involving hard drugs such as fentanyl and cocaine, denunciation and deterrence are the primary factors to consider in reaching a fit and just sentence.

Analysis

Mitigating factors

[20] There are few mitigating factors in this case.

[21] Mr. Samuel is 31 years old. He is not a youthful offender. He has a criminal record and therefore is disentitled to the leniency that is afforded to a fist time offender.

[22] Counsel for Mr. Samuel submits that while there was no guilty plea, his client worked cooperatively with the Crown to allow for an efficient trial, which should have some mitigating impact on sentencing. There were admissions made at trial; however, the impact of those admissions in my view is not so significant that it results in a notable mitigating impact on sentencing.

[23] There is no pre-sentence report that can speak to Mr. Samuel’s prospects of rehabilitation, nor any evidence that can shed light on whether the offences before the court are tied to Mr. Samuel’s own addiction issues such that I can consider these as mitigating factors.

Aggravating factors

[24] The chief aggravating factor I consider in determining a fit sentence in this case is the nature of the substance – fentanyl – that Mr. Samuel possessed for the purpose of trafficking. Fentanyl is an extremely addictive and powerful opioid. In the relatively recent Supreme Court of Canada case of R. v. Parranto, 2021 SCC 46, Moldaver J. highlights the devastating impact of fentanyl on individual users and within our communities, writing that “fentanyl has altered the landscape of the substance abuse crisis in Canada, revealing itself as public enemy number one.”: at para 93.

Caselaw review

[25] While acknowledging that no two cases are alike, counsel each submitted caselaw to provide insight on the types of sentences handed down for convictions of this nature.

[26] The Crown relies on the following cases in support of its position that an appropriate global sentence is 7 years in custody:

• R. v. Robinson, 2023 ONCA 205: 8.5-year global custodial sentence, early guilty plea, charges for possessing a handgun and impaired driving, 56g fentanyl, 35g heroin, 105.5g cocaine.
• R. v. Griffith, 2022 ONSC 6406: 5-year custodial sentence, offender had a young son, was employed, had family support and was a good prospect for rehabilitation, 58g fentanyl, 68g cocaine.
• R. v. Mastromatteo, 2018 ONCJ 421: 7-year and 6-month custodial sentence following a guilty plea, related criminal record, youthful offender, 63g fentanyl.
• R. v. Thombs, 2022 ONCJ 165: 9-year global custodial sentence, related criminal record, nature and quality of drugs, supporting young son, addiction issues, 54.3g fentanyl.
• R. v. Zannoli, 2023 BCCA 163: 6-year custodial sentence after trial, serious drug related record, 50g fentanyl.
• R. v. Disher, 2020 ONCA 710: 8-year custodial sentence after guilty plea, principal actor in trafficking, nature of substance and criminal record considered.

[27] Mr. Samuel relies on the following cases in support of his position that an appropriate sentence is a significant conditional sentence:

• R. v. Leite, 2019 ONCA 121: 6-year custodial sentence for fentanyl count, 147.9g of fentanyl.
• Her Majesty the Queen v. Duregger, 2018 ONSC 1749: 5-year custodial sentence, 49.3g of fentanyl, 51g cocaine, 103g methamphetamine, lengthy criminal record, guilty plea.
• R. v. Jaber, 2021 ONCJ 247: 4-year custodial sentence after guilty plea, 223.4g of fentanyl/heroin, 9,000 pills of meth, handguns, bundles of cash, cannabis, agreement that the offender has been rehabilitated, positive PSR.
• R. v. Gordon, 2023 ONCJ 157: Conditional sentence of 2 years less a day imposed followed by 18 months probation, 12.07g fentanyl, 7.02g cocaine, 30 hydromorphone, criminal record, evidence of addiction issues.
• R. v. Musa, 2022 ONSC 3734: 9 ¾ custodial sentence following trial, youthful offender, 130g fentanyl, 36g cocaine, 39g meth, handgun, cash.
• R. v. Achilles, 2022 ONCA 382: Court of Appeal upholds trial sentence of 8 year custodial sentence, 135.1g fentanyl, 729.9g meth, handgun.

[28] In reviewing the cases put forward by the parties, I am mindful that no two cases are alike. Mr. Samuel’s situation is unique. Here, unlike some of the cases relied on by counsel, there is no weapons which is an aggravating factor considered by the sentencing judges in some of the cases put forward by counsel. There is also a lack of mitigating factors here that are present in many of the cases relied on by the parties.

Conclusion

[29] After considering the sentencing objectives, the cases relied on by the parties, the mitigating and aggravating factors that apply in this case, the general principle that a sentence should be proportionate to an offender’s moral blameworthiness, Mr. Samuel’s personal circumstances – including his criminal record - the need to exercise restraint, and the principle of parity, I decline to order a conditional sentence and find that a period of incarceration is warranted.

[30] While a conditional sentence is available for these offences, Mr. Samuel’s criminal record - with several convictions for failing to comply with court orders – does not give me any comfort of his ability to comply with one that I might craft. Further, the serious nature of this charges, and lack of mitigating circumstances, supports a jail sentence.

[31] The 7-year global custodial sentence proposed by the Crown is, in my view, excessive – if only slightly.

[32] Globally, I find that a fit and just sentence for Mr. Samuel is 6-years incarceration less pre-sentence custody which, as agreed, enhanced is one year. Mr. Samuel is therefore sentenced to a further 5-years in custody.

[33] Mr. Samuel’s global sentence is broken down as follows:

• Count 1: obstruction of a peace officer in the execution of his duty, contrary to Section 129(a) of the Criminal Code of Canada, R.S.C. 1985, c. C-46.– 2 months;
• Count 2: enter a dwelling-house without lawful excuse with intent to commit an indictable offence therein, contrary to Section 349(1) of the Criminal Code.– 2 months consecutive to Count 1;
• Count 3: for the purpose of trafficking, possess Fentanyl, contrary to section 5(2) of the Controlled Drugs and Substances Act, thereby committing an indictable offence under section 5(3)(a) of the Controlled Drugs and Substances Act – 5.5 years, less pre-sentence custody, for a total of 4.5 years, consecutive to Counts 1 and 2;
• Count 4: for the purpose of trafficking, possess Cocaine contrary to Section 5(2) of the Controlled Drugs and Substances Act, thereby committing an indictable offence under section 5(3)(a) of the Controlled Drugs and Substances Act – 18 months concurrent to Count 3;
• Count 6: failure to comply with a condition of a release order (residence) – 1 month consecutive to Counts 1, 2, and 3;
• Count 7: failure to comply with a condition of a release order (not to possess CDSA) – 1 month concurrent to Counts 6;
• Count 8: failure to comply with probation order (keep the peace) – 1 month consecutive to Counts 1, 2, 3, and 6.

[34] I further make the following ancillary orders:

a. A DNA order; b. A weapons prohibition pursuant to s. 109 for life; c. A forfeiture order for all material seized.

Muszynski J. Released: September 11, 2023