Court File and Parties

Court File No.: CR-23-10000167 Date: 2024-11-05 Ontario Superior Court of Justice

Between: His Majesty the King – and – Ralph George

Counsel: Karolina Visic and Elisa Mastrorillo, for the Crown Christian Pearce, for Ralph George

Heard at Toronto: August 26 and October 28, 2024

J.K. Penman

Overview

[1] On two occasions within a few weeks, Mr. George was in possession of two loaded firearms and a significant quantity of serious drugs for the purpose of trafficking. Mr. George is a young black man who has dealt with more than his share of trauma and challenges. I now have the difficult task of determining a sentence that properly reflects the gravity of these offences but does not result in a sentence that “crushes” Mr. George.

[2] On March 8, 2024, I dismissed a defence application to exclude the evidence found in Mr. George’s residence on June 15, 2022: R. v. Manna-Silva & George, 2024 ONSC 1366. On April 16, 2024, Mr. George entered a not guilty plea with the facts not disputed, to the June 15 charges of possession of a loaded firearm and possession for the purposes of trafficking fentanyl, cocaine and methamphetamine, reserving his right to appeal.

[3] Mr. George also entered a guilty plea to July 4, 2022, charges of possession of a loaded firearm and related charges including failure to comply with a release order, and possession for the purpose of trafficking fentanyl, cocaine, and methamphetamine.

[4] The Crown is seeking a sentence of 8 years for the June 15 drug offences and 3 years for the firearm offences, for a total sentence of 11 years. On the July 4 charges the Crown seeks a sentence of 5 years for the Criminal Code offences and 9 years for the drug offences, for a total sentence of 14 years. This is a global sentence of 25 years. Considering totality, the Crown argues the appropriate sentence should be 20 years before any credit for time Mr. George has spent in custody since his arrest.

[5] Counsel for Mr. George submits that an appropriate global sentence is in the range of 12 to 14 years, less credit for his pre-sentence custody. Fundamentally, the defence position is that I properly assess Mr. George’s background, the correlation of his background to his offending, and apply the principle of totality.

[6] The issues for me to decide in this case are as follows:

a. What is the appropriate sentence considering the aggravating and mitigating factors?

b. How much should Mr. George’s global sentence be reduced to comply with the principle of totality?

[7] For the following reasons, I am satisfied the appropriate global sentence is one of 14 years, reduced to 10.5 years to reflect credit for his pre-sentence custody. This sentence is well lower than the sentence sought by the Crown. However, I am satisfied that this is a just and fit sentence when considering the principle of totality and Mr. George’s significant mitigating circumstances.

Sentencing Principles and Factors

[8] A proportionate sentence will reflect the seriousness of the offence, Mr. George’s moral culpability, and the harm caused. It is a delicate and highly individualized exercise: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 12; R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, at para. 66.

Aggravating Factors

i) Seriousness of the Offences

[9] On June 15, 2022, police attended 221-1070 Sheppard Ave West in response to a 911 call. Mr. George jumped from the balcony of Unit 221 to the ground level and ran away from the building to evade the police. Upon entering the unit police observed cash and drugs, and seized 202.39 grams of cocaine mixed with levamisole, 41.46 grams of methamphetamine, 85.80 grams of fentanyl and $14 765.00, along with digital scales and a Ziploc bag.

[10] Police obtained a warrant for the apartment. A further 247.04 grams of methamphetamine was seized, along with a .25 caliber Walter Mod 9 semi-automatic firearm and 7 rounds of .25 caliber ammunition. Police also seized several documents in the name of Ralph George, a notebook containing names and phone numbers, men’s clothing, two vacuum sealers and an iPhone. A warrant was issued for Mr. George’s arrest but was not executed until his arrest on July 4, 2022.

[11] On July 4, 2022, police received a 911 call indicating that Mr. George was armed with a firearm in a “Mac Spot” electronics store located at 1230 King Street West in Toronto. He was captured on video surveillance entering the store carrying a brown paper bag. At 4:17pm, Mr. George took a loaded firearm out of his waistband and put it into the paper bag, which he placed on the counter. He turned towards the store entrance, raised his arms, and surrendered to police.

[12] The paper bag was searched and found to contain a loaded firearm, 92.23 grams of fentanyl, 232.62 grams of methamphetamine, 101.81 grams of cocaine and 13.16 grams of crack cocaine. The bag also contained a bag of elastics, a digital scale, a lighter, charger, cigarettes and a metal pill press. Mr. George was searched and found to have $6810.00 and a single bullet in his pocket.

The firearm was a Glock Model 26 Gen 5, 9mm Luger caliber semi-automatic handgun, with its serial number defaced. It was loaded with 9 cartridges of 9mm Luger caliber, centrefire ammunition. The bullet in his pocket was also 9mm Luger caliber ammunition.

[13] Loaded handguns poses a significant and immediate risk to members of the public. Anyone who carries a loaded handgun in public undermines our collective sense of security: Morris, 2021 ONCA 680, at para. 68.

[14] Fentanyl is an extremely dangerous drug. Trafficking in fentanyl is particularly serious and has become a national crisis. “Fentanyl has had—and continues to have—a real and deadly impact on the lives of Canadians”: R. v. Parranto, 2021 SCC 46, [2021] S.C.R. 366, at para. 96.

ii) Firearm Possession while in Public

[15] On July 4, 2022, Mr. George had a loaded firearm in his waistband while in public in the middle of the day.

iii) Quantities and Variety of the Drugs

[16] The quantities and varieties of the three drugs that were being possessed are serious on their own and in combination, as they are all “hard drugs” and dangerous. Mr. George was in possession of 85 and 92 grams of fentanyl, 202 and 101 grams of cocaine, and 288 and 232 grams of methamphetamine. In my view, the quantities situate Mr. George at the mid-level of the drug trade hierarchy. This is not street level trafficking.

[17] The quantities involved and cash seized suggests profit motivated, commercial trafficking, as opposed to an addiction. This is aggravating on its face, but when viewed in the context of Mr. George’s background, is somewhat mitigated.

[18] It was suggested that Mr. George was running a “sophisticated” operation, based on how quickly he was able to access additional drugs after the raid on his apartment. I am not of the view that this necessarily bespeaks sophistication, but it does suggest that Mr. George was heavily entrenched in the drug culture. To be fair, Mr. George in the pre-sentence report (“PSR”) acknowledges that he had been selling drugs from a young age.

iv) Criminal Record

[19] Mr. George has one prior conviction for trafficking in a Schedule 1 substance for which he received a suspended sentence, probation for 1 year, with credit for the equivalent of 100 days pre-sentence custody. It would appear the sentence he received did not deter Mr. George from reoffending.

[20] Further aggravating is that Mr. George was on bail and probation at the time of the offences.

v) Fleeing from Police

[21] It is aggravating that Mr. George fled from police on June 15, 2002, when they entered the apartment.

[22] Mr. George was at large for the June 15 offences by the time he was arrested on July 4. The Crown argued this is aggravating because it demonstrates a pattern of behaviour. While it is true that Mr. George was committing similar offences while at large, he did not have the benefit of the deterrent effect of a prior sentence.

Mitigating Factors

[23] There are several significant mitigating factors in this case.

i) Mr. George’s Difficult Upbringing

[24] Social context evidence relating to an offender’s life experiences may be used, where relevant, to mitigate an offender’s degree of responsibility and/or to assist in the balancing of principles and objectives of sentencing to fashion a sentence that best serves the purposes of sentencing as set out in s. 718 of the Criminal Code: Morris, 2021 ONCA 680, at paras. 13, 75-81, 87-107.

[25] I had the benefit of a very helpful, detailed, and informative pre-sentence report, which addresses social context issues relating to Mr. George’s life experiences and background. [^1] This information has been essential to my determination of a fit sentence in this case.

[26] Much of the information contained in the PSR is hearsay. However, I can consider hearsay evidence at a sentencing hearing if it is credible and trustworthy: R. v. Gardiner, [1982] 2 S.C.R. 368, at p. 414. I am satisfied that the information contained in the PSR is credible and trustworthy.

[27] Mr. George’s personal circumstances are tragic. He is now 23 years old having been born in Saint Vincent on February 12, 2001. He came to Canada when he was 10 years old because his mother was fleeing an abusive relationship at the hands of Mr. George’s father. Mr. George’s mother, Natasha George was “traded for sex by her family as a child and married off to an abusive older man at an early age.” Ms. George had her first child at 12 years old. Nissa White, Mr. George’s child protection worker, confirmed the information that Ms. George was subject to regular, extreme physical and sexual abuse by her husband, which often took place in front of the children. Mr. George is the second of her three children.

[28] Although Mr. George did not experience any sexual abuse from his father, he was subject to regular physical abuse. On one occasion when he was six years old, he hit his father while trying to protect his mother. His father grabbed a machete and aimed it towards his neck in what appeared to be an attempt to kill him. Mr. George raised his hand to protect himself, resulting in his arm being cut open. According to Ms. White, “Ralph has many scars all over his body as a constant reminder of the abuse he suffered at the hands of his father”. Mr. George’s mother was eventually able to raise enough money to flee to Canada as a refugee seeking asylum due to domestic violence.

[29] Before coming to Canada, Mr. George witnessed and experienced a great deal of poverty, crime, and violence in his neighbourhood. As early as seven years old, he witnessed people being decapitated in the streets along with shootings related to gang violence. On one occasion he was at his “uncle’s mechanic shop in the slums” with his brother when a vehicle pulled up and someone from the car started shooting at people in the area. His brother, Imari George, confirmed this account.

[30] Mr. George’s father introduced him to drug trafficking by giving him “weed” to sell when Mr. George was 5 years old. He witnessed drug trafficking in Canada beginning when he was 10 years old. Mr. George began selling drugs at a young age, and at the time of these offences was selling drugs to support his family.

[31] Mr. George was the subject of regular physical abuse from his father even after his mother left for Canada and he was living with his grandparents. Mr. George’s grandfather purchased a firearm to protect Mr. George and his siblings from their father. In my view, this began the normalization for Mr. George of carrying a firearm for “protection”. Firearms and gun possession were regular occurrences for Mr. George in St. Vincent. It was “normal” to have a firearm, and if you did not have one, you would be a “target”. Once Mr. George came to Canada and was exposed further to guns and became a victim of violence himself, he started carrying a firearm for “protection”.

[32] I am mindful, however, that this factor is only entitled to limited mitigation when balanced with the dangers associated with the decision Mr. George made to carry a loaded firearm in a public place, putting the public at risk: Morris, 2021 ONCA 680, at para. 101.

[33] Mr. George’s mother was eventually able to bring the children to Canada. Once in Canada Mr. George and his family lived in a lower income neighbourhood. According to Ms. White, “Once in Canada, Ralph’s suffering did not stop, he had to live in poverty, having to adjust to a new culture without support, deal with his mother’s mental health ups and downs as well as her physical abuse of him.”

[34] Mr. George’s experiences with the police in Toronto included being stopped because the police believed he was selling drugs or had guns, even when he was as young as 12 years old. Mr. George was regularly carded and experienced several raids at his home where nothing was “recovered”. Both he and his mother were treated aggressively by the police. Mr. George told the PSR writer that he feels “lucky that he was not shot at by police”.

[35] Mr. George was not offered a proper education in St. Vincent. He recounted walking an hour to and from school daily with no shoes. Physical abuse in the classroom was normal and led to him skipping and eventually quitting school when he was about 8 years old. When he came to Toronto, Mr. George “barely had any” prior education. It does not appear that his educational issues were addressed once he came to Canada, including his undiagnosed learning disorder. When he was 15 years old, he was assessed and found to be at below the first percentile for reading comprehension. To his credit, Mr. George has now completed grade 10.

[36] When Mr. George was 12 years old, the Catholic Children’s Aid Society became involved because of his behavior issues, his mother’s mental health issues, and her arrest for a domestic assault. Mr. George and his siblings were taken into care and placed in different homes. Ms. White described Mr. George’s situation: “While in care Ralph continued to struggle with his past traumas, a learning disability, a new culture, growing up in group care in mostly rural settings, and being subjected to strict rules and confines of living in group care. Ralph lived in 16 different placements, living in Toronto, Pickering, Carrying Place, Belleville, Brampton and Guelph.” Mr. George experienced racism while in the care system, including racial slurs from white children.

[37] On two different occasions Mr. George was sexually assaulted by female group home workers, one of whom was formally charged and convicted. The first incident occurred when Mr. George was 14 years old and the worker was 26 years old. This was reported to police by Mr. George’s child protection worker, but Mr. George did not want to provide a statement to police.

[38] When Mr. George was 15 years old, a second staff member began a sexual relationship with him. When other staff became aware of what was happening, the female staff member claimed that Mr. George “forced himself on her”. Police became involved but did not believe Mr. George. According to Mr. George the police thought he was just “trying to ruin a white lady’s life”. The worker was subsequently charged and eventually convicted. Mr. George began feeling suicidal and was admitted to hospital for a few months.

[39] Mr. George has been left with a distrust of the police who did not believe him and portrayed him as a liar. According to Ms. White, this incident has had a “huge effect” on Mr. George and his mental health, describing him as “heartbroken” by what happened. Mr. George also believes that the female youth worker received a light sentence for someone who abused a position of authority. He thinks her sentence would have been more severe if she had abused a white child. There is an on-going lawsuit with respect to this incident.

[40] Based on the information in the PSR, I am satisfied that there is a link between the disadvantage that Mr. George has faced, including systemic discrimination, and his offending. The author of the PSR said the following, “…this writer acknowledges that growing up in such an environment with these experiences may have the potential to increase the subject’s vulnerability to become desensitized to violence, use of weapons, as well as reduce his ability to develop prosocial attitudes, positive community supports and achieve education/employment successes.”

[41] I have taken judicial notice that anti-Black racism, has been, and continues to be, a reality in Canadian society, in particular within the criminal justice system. Anti-Black racism can have a profound and insidious impact on those who must endure it on a daily basis: Morris, 2021 ONCA 680, at para. 1.

[42] I am satisfied that the trauma and abuse he suffered and witnessed his mother suffering at the hands of his father; growing up in a low-income household; years in the foster care system; twice being the victim of sexual assault; negative experiences with the police; ongoing experiences of witnessing firsthand drug trafficking and gun violence; and woefully inadequate educational support in combination with an undiagnosed learning disability all contributed to the choices Mr. George made to get involved in criminal activity.

ii) Impact of Charter Breaches

[43] I am entitled to consider police misconduct, including Charter breaches, during the sentencing process, provided the incidents giving rise to the breach are rationally connected to either the circumstances of the offence or of the offender: R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at paras. 48-50.

[44] Counsel for Mr. George argued, and the Crown conceded that there should be some mitigation for the Charter breaches that occurred when police entered his apartment on June 15. In my reasons on the Charter application, I found that there were no exigent circumstances warranting the officers remaining inside the unit once it was secured. I found the search of their apartment that day violated Mr. George and Ms. Manna-Silva’s s. 8 rights.

[45] There is no formula or guide for determining how much mitigation is warranted, but the more serious the violation, the greater the mitigation. I did not find the s. 8 breaches particularly serious because the police ultimately obtained a valid warrant. Nonetheless, I agree there should be some mitigation for the Charter violations.

iii) Programming while in Custody

[46] Programming while in custody can have an impact on an offender’s rehabilitation: R. v. Disher, 2020 ONCA 710, 153 O.R. (3d) 88, at para. 20. Mr. George has made attempts to “better” himself by taking part in programming at the jail. Mr. George agreed that while at the Toronto South Detention Centre (TSDC), he did not take part in any programming, although he was adamant that very little, if any, was offered to him. Once he was at the Toronto East Detention Centre (TEDC), Mr. George took and completed all the programs that were offered to him. He also put himself on a waiting list for education programs to assist with obtaining his high school diploma.

[47] After the sentencing hearing with the consent of all counsel, I was forwarded letters from the TSDC and the TEDC. The letter from the TSDC indicated that there were at least three programs available to Mr. George—Anger Management, Being an Effective Father, and the Black Speaker’s Series. A letter from the TEDC indicated that Mr. George was not and has never been on a waiting list for an education program. The Crown argued that this demonstrates a weakness in the reliability of Mr. George’s evidence about the conditions at the jail generally.

[48] I accept Mr. George’s evidence that while he was at the TSDC he was overwhelmed with his situation, and the only “programs” he was offered were playing cards with a worker or a music program. He agreed there are likely other programs offered at TSDC, but he was not offered any “certificate” programs. I am also satisfied that Mr. George believed he had put himself on a waiting list for an education program while at the TEDC. Mr. George described the conversation, the worker and the general time frame when this conversation took place. In my view, the fact that Mr. George is not on a waiting list may well have nothing to do with what Mr. George thought had been done, and what he intended to have happen. Having heard Mr. George testify, I am satisfied that in his mind he was on a waiting list, and that he has a legitimate interest in furthering his education.

[49] The Crown argued that the efforts Mr. George did make to take programming were not made until after he had entered his pleas and should be looked at with some skepticism. I am not persuaded by this submission. Within a few months of arriving at TEDC, he made efforts to place himself on a waiting list for an education program. While at the TEDC he completed every program he was offered. I accept that these were genuine attempts to improve his situation looking to the future. Programs such as “Managing Stress”, “Anger Management”, “Goal Setting”, and “Looking for Work” are directly tied to areas that Mr. George needs to work on as part of his rehabilitation.

iv) Positive Rehabilitative Prospects

[50] First, Mr. George is a youthful offender. At the time of these offences, he was 20 years old. In combination with the factors which I refer to below, this lends support for his potential for rehabilitation.

[51] Second, Mr. George pled guilty to the July 4 offences, albeit on the eve of trial. Mr. George’s plea to the June 15 charges occurred relatively quickly after my ruling on the Charter application. I am satisfied, firstly, that this was responsible litigation, as there was merit to the Charter motion as evidenced by my finding of Charter violations. Both pleas saved weeks of court time which in this busy jurisdiction is significant.

[52] I am also satisfied that Mr. George has shown genuine remorse for his conduct, and his pleas are an indication of that remorse. I had the benefit of Mr. George’s allocution in which he acknowledged the bad decisions he has made in his life, spoke about his hopes for a relationship with his daughter, and apologized to his family and the court.

[53] Mr. George and Ms. Manna-Silva have been in a relationship since he was 20 years old and have a daughter who is almost two years old. Ms. Manna-Silva describes Mr. George as a “really good” person, believing that the trauma and abuse he suffered has contributed to his involvement in the criminal justice system. Ms. Manna-Silva described Mr. George getting emotional when discussing his past traumas, and that he has voiced intentions of getting additional counselling.

[54] I am satisfied that Mr. George has significant rehabilitative potential. I base this finding on all the information referred to above. Nissa White, his child protection worker, said the following in 2021, “Despite Ralph’s life circumstances, he has many strengths and a determination to have a better life. Even with all the negative life experiences Ralph has endured, he is still kind and empathetic toward others, he is committed to a great life for himself and has a hopefulness about his future”. I accept this characterization of Mr. George and believe his wish for a better future still applies today. He has much to do, however, to make this a reality.

v) Immigration Consequences

[55] A further factor that is mitigating is the collateral immigration consequences that will befall Mr. George once sentence is imposed. Because of the length of sentence he is bound to receive Mr. George faces deportation with no right of appeal. This factor, however, cannot justify a sentence which is inconsistent with the fundamental purpose and principles of sentencing.: R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739 at para 19; R. v. Johnson, 2013 ONSC 4217, at para. 25.

vi) Conditions of Detention as a Mitigating Factor

[56] The conditions in which a defendant are held before sentencing can be considered a mitigating factor on sentence: R. v. Marshall, 2021 ONCA 344, at paras. 52-53.

[57] Mr. George was in custody at the Toronto South Detention Centre from the time of his arrest on July 4, 2022, until May of 2023. He was then moved to the Toronto East Detention Centre. Mr. George testified at the hearing as to the conditions that he has experienced at both institutions, including being assaulted shortly after his arrival at the TEDC that resulted in him going to the hospital.

[58] As is unfortunately typical for both institutions, many of those days he experienced either a full or partial lockdown, almost entirely because of staff shortages. This resulted in restricted access to, among other things, fresh air and time outside of his cell, the phone to call his family or lawyer, and the showers. Mr. George was triple bunked and sleeping on the floor for 54 of the days he was at the TEDC. Mr. George’s cellmates use of the washroom was, to say the least, uncomfortably close to Mr. George’s head.

[59] Because of the assault at the TEDC, Mr. George spent much of his time in the Stabilization unit, where inmates are at best out of their cells for two hours a day. Or to put it in the obverse, inmates on this unit are in their cells at least 22 hours a day. On 35 occasions the institution failed to provide Mr. George with his two hours out of his cell. Mr. George experienced feelings of frustration, anger, and depression, in addition to anxiety relating to an asthma condition.

[60] The reality for Mr. George is that he spent most of his time in custody, in a very small space for hours and sometimes days on end. I agree with the characterization that these kinds of custodial conditions are abusive. I join a chorus of judges in condemning the conditions at these institutions. That these conditions have been and continue to be a result of staff shortages is inexplicable.

[61] I am satisfied that Mr. George’s time in pre-sentence custody warrants significant mitigation.

Range of Sentence for Drug Offences

[62] The most serious offence in the present case is the possession of fentanyl for the purpose of trafficking. Although it is agreed that the sentences for the drug possession run concurrently, the sentences for the fentanyl counts must reflect the “total gravity of the joint fentanyl, cocaine, and methamphetamine trafficking operation, because the size, variety and scope of the entire operation is an aggravating factor”: R. v. England, 2024 ONCA 360, at para. 102; R. v. Wisdom, 2024 ONSC 4047, at para. 48.

[63] Mr. George was in possession of 85 and 92 grams of fentanyl, 202 and 101 grams of cocaine, 288 and 232 grams of methamphetamine, situating Mr. George at the mid-level of the drug trade hierarchy. In my view, the appropriate range of sentence for the possession of fentanyl for the purpose of trafficking in this case is six to seven years. This takes into consideration the relevant aggravating and mitigating circumstances, and Mr. George’s potential for rehabilitation.

[64] The following is a review of some recent cases outlining the appropriate range of sentence for fentanyl trafficking offences. Justice Code, in Wisdom, 2024 ONSC 4047 and R. v. Owusu, 2024 ONSC 671, at paras. 32-40, analyzed the range of sentences for fentanyl trafficking, referring to several authorities including the Supreme Court of Canada decision in Parranto, 2021 SCC 46.

[65] The Supreme Court in Parranto, 2021 SCC 46 established a “starting point” of 9 years for “wholesale commercial level” fentanyl trafficking. The Supreme Court also reiterated that with a view to proportionality, sentencing judges are free to depart from the starting point and move up or down based on the specific characteristics of the offender: at para. 61.

[66] In Owusu, 2024 ONSC 671 the accused was convicted after trial of being in possession of 127.5 grams of fentanyl. He had a youth record and somewhat limited mitigating circumstances. Code J. was satisfied that he was a “mid-level” trafficker and that nine years was the appropriate sentence before considering the totality principle. At para. 37, Code J., referred to the decision of R. v. Lynch, 2022 ONCA 109, at paras. 5 and 14-15, where the Court of Appeal held that while the appropriate range for “mid-level traffickers” in cocaine is 5 to 8 years, fentanyl is a more dangerous drug than cocaine warranting longer sentences: see also R. v. Gordon-Brown, 2024 ONSC 1300, at para. 46.

[67] Wisdom, 2024 ONSC 4047 was a case of two accused found guilty after trial of possession of various drugs for the purpose of trafficking and possession of a loaded firearm. Jason Wisdom was found to have been in possession of 356.88 grams of fentanyl, in addition to cocaine, crack cocaine and methamphetamine. This is almost three times the amount of fentanyl possessed by Mr. George. Code J., found that he was at the higher end of the cases reviewed in Parranto, 2021 SCC 46, warranting a sentence of 12.5 years. The accused was also convicted of being in possession of a loaded firearm. This was his third conviction for being in possession of a loaded firearm. Applying the totality principle and appropriate credits, Mr. Wisdom received a global sentence of 17 years.

[68] Dae-Shawn Wisdom was convicted of possessing 95.45 grams of fentanyl in addition to cocaine and methamphetamine. He was found not guilty of the possession of a loaded firearm offence. Code J. found that he was a “mid-level” trafficker with uncertain rehabilitative prospects. The final sentence for Dae-Shawn Wisdom was 7 years and 4 months. In the case of both accused, the trafficking was in the context of a purely commercial enterprise.

[69] In R. v. Sidhu, 2019 ONCA 880, the accused was in possession of 89.5 grams of fentanyl along with methamphetamine and heroin. He had few mitigating factors, a related record and had resumed commercial trafficking within a few months of his release from custody. The Court of Appeal upheld a sentence of 8 years and 2 months.

[70] In R. v. Champagnie, 2024 ONSC 4960, the accused pled guilty to two counts of possession for the purpose of trafficking in fentanyl. He was found to be in possession of over 200 grams of fentanyl, attempted to flee from police, and had a serious criminal record. He also, however, had several significant mitigating factors. Roberts J., sentenced Mr. Champagnie to 6.5 years, noting that “ranges are not straight-jackets”: at para. 54.

[71] Based on the amounts of fentanyl involved, I am satisfied that Mr. George is at the low end of “mid-level trafficking”. Applying the principles and ranges outlined above, in my view the appropriate sentence for the June 15 possession of drugs for the purpose of trafficking is 6 years. For the July 4 possession of drugs for the purpose of trafficking, the appropriate sentence is 6.5 years. These sentences are at the low end of the range but take into consideration the significant mitigating factors.

Range of Sentence for Firearm Offences

[72] As I have reviewed, Mr. George was found in possession of significant quantities of serious drugs. On both occasions he was also found in possession of a loaded firearm. I must determine a fit sentence for both sets of offences.

[73] Denunciation, deterrence, and protection of the public are paramount considerations in determining a fit sentence for crimes involving firearms: R. v. Nur, 2013 ONCA 677, 117 O.R. (3d) 401, aff’d 2015 SCC 15, [2015] 1 S.C.R. 773; R. v. Mohiadin, 2021 ONCA 122, at para. 12. Firearms in this city are far too prevalent, and loaded firearms, pose a significant danger to the public.

[74] Loaded firearm possession for first offenders typically attracts a sentence in the range of 3 to 5 years. Sentences at the higher end of the range are typically applied where there is evidence that a firearm was possessed in connection with other criminality, such as drug trafficking connected to the firearm possession: R. v. Marshall, 2015 ONCA 692, at paras. 47-48; R. v. Graham, 2018 ONSC 6817, aff’d 2020 ONCA 692, at para. 38; R. v. Beharry, 2022 ONSC 4370, at para. 31.

[75] For example, in R. v. Carrol, 2014 ONSC 2063, Molloy J. analyzed the effect of Nur, 2013 ONCA 677 and R. v. Smickle, 2013 ONCA 678 on the appropriate range of sentence for well-situated first offenders. Nur was 19 years old, he had pleaded guilty, he had strong support from his pro-social family, and he had excellent rehabilitative prospects. Smickle was found posing with a gun while alone in the privacy of an apartment. Both were first offenders. Molloy J. held that 2 years less a day to 3 years was now the appropriate range of sentence In this kind of first s 95 offence case involving well situated first offenders.

[76] In R. v. Lu, 2019 ONSC 5933, Spies J., sentenced an offender to 32 months for possession of a loaded firearm while also in possession of drugs. He had pled guilty, had a youth and adult record, but was found to have good rehabilitative prospects.

[77] However, our Court of Appeal has also held that sentences at or just below the 2-year mark may be appropriate for some s. 95 offences: Morris, 2021 ONCA 680, at para. 131. In some cases, a conditional sentence may even be appropriate. For example, in R. v. Burke-Whittaker, 2024 ONSC 2906, Goldstein J., sentenced an offender to 2 years less a day to be served as a conditional sentence. The accused brought a loaded prohibited firearm to a funeral and ended up discharging it in response to gunfire by others (the court found the discharge was not in self-defence). There were significant mitigating factors, including remorse and a guilty plea, and a supportive family. He also made significant rehabilitative efforts while out on bail, including starting a business and working towards becoming a firefighter. See also Beharry, 2022 ONSC 4370 and R. v. Stewart, 2022 ONSC 6997.

[78] I am satisfied that a sentence of 2.5 years for the June 15 firearm possession offence is appropriate. The firearm was in a residence, not in public albeit not stored particularly carefully. The firearm was loaded, and 7 rounds of ammunition were found in the residence. Drugs were also located in the residence, but I am unable to find that the possession of the firearm in those circumstances was as a “tool of the trade”.

[79] For the July 4 firearm possession offence, a sentence of 3 years is appropriate in the circumstances. The gun was being carried in public, was loaded with an additional single bullet in his pocket, along with a quantity of drugs that were possessed for the purpose of trafficking.

[80] These sentences are at the low end of what is the appropriate range, but account for Mr. George’s mitigating circumstances and potential for rehabilitation.

Application of the Totality Principle

[81] Where sentences are to be served consecutively, however, the totality principle requires a sentencing judge to ensure that the aggregate sentence does not exceed the overall culpability of the offender. The purpose is to ensure the proportionality principle is met by imposing a sentence which is “just and appropriate” and does not exceed the offender’s overall culpability, nor is it “unduly harsh” or “crushing”: R. v. M. (C.A.), [1996] 1 S.C.R. 500, at p. 531. Consideration of the totality principle is statutorily mandated by s. 718.2I of the Criminal Code.

[82] The sentences for the firearm offences will run consecutive to the sentences for the drug offences: R. v. Crevier, 2013 ONSC 2630, aff’d 2015 ONCA 615; R. v. Graham, 2018 ONSC 6817, aff’d 2020 ONCA 692. The sentences imposed for the July 4 offences will run consecutive to the sentences imposed for the July 15 offences.

[83] The July 4 breach of prohibition order sentence will also run consecutive to ensure that court orders have “real meaning”: Owusu, 2024 ONSC 671, at para. 29. See also Carrol, 2014 ONSC 2063; Graham, 2018 ONSC 6817; and R. v. Ellis, 2016 ONCA 598.

[84] The total sentence based on the analysis above leads to a sentence of 19 years:

• 6 years for the June 15 drug offences,
• 2.5 years to run consecutive for the June 15 firearm offence.
• 6.5 years for the July 4 drug offences,
• 3 years to run consecutive for the July 4 firearm offence.
• 1 year consecutive for the breach of prohibition order.

[85] In my view this would offend the totality principle as it is “unduly long or harsh” for an offender of Mr. George’s age in combination with his other mitigating circumstances. But for the significant mitigating circumstances in this case, a sentence approaching that suggested by the Crown might have been appropriate. I am concerned, however that a sentence in the range the Crown suggests would be “crushing” for Mr. George.

[86] There is no doubt that the offences for which Mr. George has been found guilty are serious and warrant significant denunciatory sentences. Mr. George made the choice to engage in what is obviously serious, illegal activity and had been doing so for an extended period. Fentanyl trafficking and loaded firearm possession are crimes that pose a significant danger to the public.

[87] It is also clear, however, that Mr. George’s difficult background and upbringing has had a significant impact on him, with a direct correlation to his offending. I accept that Mr. George did not appreciate the significant consequences he might face when he decided to begin possessing fentanyl for the purpose of trafficking. I appreciate this cuts both ways, but Mr. George was in a situation where trafficking in drugs appeared to be his only means of escaping his impoverished situation. With no education and no work prospects, Mr. George turned to what had become the norm for him since he was a child. Carrying a firearm was also the “norm”, starting with watching his grandfather buy a firearm for protection when Mr. George was a child.

[88] This cannot be a situation akin to “throwing away the key”. In my view, Mr. George has rehabilitative potential. At some point he will be released. He is young, has the support of his mother and girlfriend, has shown remorse, and wants to change his life for the better.

[89] While the totality principle ensures proportionality, it also ensures that the sentencing objective of rehabilitation is not “overshadowed” by the competing objectives of denunciation and deterrence. This was explained by our Court of Appeal in R. v. Johnson, 2012 ONCA 339, 291 O.A.C. 350, at para. 18, “in this regard, the authorities recognize that where the ultimate effect of the combined sentences is to deprive the offender of any hope of release or rehabilitation, the functional value of these sentencing principles meets the point of diminishing returns”: see also R. v. C (J.A.), 26 O.R. (3d) 462 (C.A.) and England, 2024 ONCA 360, at para. 92.

[90] The totality principle also incorporates the principle of restraint. Restraint is important in this case where a substantial sentence is being sought for a 23-year-old offender who has never been to the penitentiary.

[91] In the result, the combined consecutive sentences of 19 years will be reduced by 5 years to a sentence of 14 years, to comply with the totality principle.

i) Credit for Time Spent in Pre-Sentence Detention

[92] Mr. George has been in custody since July 4, 2022. As of the sentencing date of November 5, 2024, that is 856 days. Mr. George is entitled to receive 1.5 days credit for each day he has been in custody which is 1284 days or 3.5 years.

Disposition

[93] Applying the principle of totality and considering the mitigating and aggravating factors, Mr. George will receive a sentence of 14 years. The sentence is further reduced by 3.5 years to reflect pre-sentence credit. Accordingly, the remaining sentence to be served is 10.5 years.

[94] The sentences are broken down as follows. With respect to the June 15 offences:

a. Count 1: two years for the possession for the purpose of trafficking methamphetamine;

b. Count 2: three years for the possession for the purpose of trafficking cocaine concurrent;

c. Count 3: six years for the possession for the purpose of trafficking fentanyl, concurrent, reduced by two years for totality, for a four-year sentence; and

d. Count 6: two and a half years for the possession loaded firearm, consecutive.

[95] For the July 4 offences:

a. Count 7: three years consecutive for possession loaded firearm;

b. Count 11: one year concurrent for possession firearm serial number removed;

c. Count 15: one year consecutive for possession firearm contrary to a prohibition order;

d. Count 16: 30 days concurrent for failure to comply with release order not to possess non-medically prescribed drugs;

e. Count 17: six and a half years for possession for the purpose of trafficking fentanyl, consecutive, reduced by three years for totality, for a sentence of three and a half years;

f. Count 18: four years concurrent for possession for the purpose of trafficking cocaine; and

g. Count 19: three years concurrent for possession for the purpose of trafficking methamphetamine.

[96] In addition, there will be the following orders:

a. A mandatory s. 487.051(1) DNA Order;

b. A mandatory order under s. 109(1) prohibiting possession of firearms and other weapons as described in that act for life;

c. A Forfeiture Order pursuant to s. 490.1(1), and

d. The victim fine surcharge will be waived.

J.K. Penman J. Released: November 5, 2024

[^1]: The sentencing was adjourned for the defence to obtain an Impact of Race and Cultural Assessment Report (“Morris report”). This report was not going to be available for an unreasonable amount of time. Counsel agreed to proceed with a PSR, and I requested that the probation officer preparing the report turn their minds to issues of race and culture.