Court File and Parties
COURT FILE NO.: CR-24-90000227-0000 DATE: 20241105
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – MICHAEL HUGH
Counsel: Elisa Mastrorillo, Counsel for the Public Prosecution Service of Canada Terrance Luscombe, Counsel for Michael Hugh
HEARD: October 1, 2024
HIMEL J.
Reasons for Sentence
[1] Michael Hugh entered a plea of guilty to a charge of possession of fentanyl for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 as amended (the “CDSA”). He had elected to be tried by a judge sitting alone.
[2] The plea inquiry pursuant to s. 606(1) of the Criminal Code, R.S.C., 1985, c. C-46 (the “Code”), was satisfied. Mr. Hugh confirmed that he was entering the plea voluntarily, that he understood that the plea was an admission of the essential elements of the offence, that he was aware that he was giving up his right to have a trial, that he understood the nature and consequences of the plea, and that he was aware that this court was not bound by any agreement made between counsel regarding the sentence. Mr. Hugh also acknowledged that he was aware of the possible collateral immigration consequences, including deportation proceedings, as a result of this conviction, and advised that he was entering the plea of his own accord.
[3] Counsel have made their submissions on sentence. The following are my reasons for sentence.
Factual Background
[4] The facts were admitted pursuant to s. 655 of the Code. On Tuesday, March 23, 2021, members of the Toronto Police Service conducted surveillance in the Moss Park area due to concerns regarding drug dealing in the area. At 12:37 p.m., Officers Lewis and McDonald set up in the area of Jarvis Street and Queen Street East with a clear view of the Fred Victor Shelter located at 145 Queen Street East in Toronto. Shortly after 12:40 p.m., Officer Lewis observed two individuals, later identified as Donell Roberts and Michael Hugh approach the TTC bus shelter at the northeast corner of Jarvis Street and Queen Street East.
[5] Shortly after 12:44 p.m., Officer Lewis observed Mr. Roberts reach into his right vest pocket and remove a clear sandwich-sized plastic bag. He handed the bag to Mr. Hugh. Mr. Hugh took the bag with his right hand and put it in one of his pockets. Officer Lewis believed that there were drugs in the bag.
[6] Officer Lewis maintained observations of Mr. Roberts and Mr. Hugh. The two always remained in close proximity to one another, never separating more than 5 feet apart. At approximately 12:59 p.m., a male approached Mr. Hugh. The male provided Mr. Hugh with cash. Police believed that they observed Mr. Hugh hand the male a quantity of drugs after receiving the cash. At 1:00 p.m., Officer Lewis called for the arrest of both men. Officer Filippin placed Mr. Hugh under arrest and advised him of his right to retain and instruct counsel. Officer Filippin searched Mr. Hugh incident to arrest and located the following: 11.38 grams of grey fentanyl packaged in 28 red dime bags within a clear plastic bag in Mr. Hugh’s right front pant pocket; 4.32 grams of purple fentanyl packaged in 26 green dime bags within a clear plastic bag in Mr. Hugh’s left front pant pocket; and $240.25 in Mr. Hugh’s inner right jacket pocket. Officer Filippin also located a large knife on Mr. Hugh.
[7] In 2021, the street value of the 15.70 grams of fentanyl located on Mr. Hugh was $1,080.00-$2,160.00 CAD. A heavy fentanyl user typically uses between 0.5 grams - 1.5 grams of fentanyl per day. A consistent fentanyl user typically uses between 0.25 grams - 0.5 grams of fentanyl per day. One gram of fentanyl produces approximately 10-20 hits if snorted, smoked, or injected. Mr. Hugh possessed the 15.70 grams of fentanyl located on him for the purpose of trafficking. Mr. Hugh was not authorized to carry the knife, a concealed weapon, located on him incident to his arrest.
Evidence on the Sentencing Hearing
[8] Crown counsel filed an Agreed Statement of Facts which has been marked as an exhibit. Mr. Hugh has no criminal record.
[9] Counsel for Mr. Hugh, Mr. Luscombe, submitted an affidavit from Mr. Hugh’s wife, Audrelyn Escoffery, the contents of which will be discussed below. Mr. Luscombe also filed a letter dated March 5, 2023, from Dr. Julian A.C. Gojer, Forensic Psychiatrist, concerning the issue of Mr. Hugh’s fitness to stand trial. Further submitted were medical records from the North York General Hospital, dated April 28, 2022, when Mr. Hugh attended at the emergency department having suffered a stroke. The records indicate that the stroke affected his right leg but that symptoms improved with therapy. However, he cannot receive other rehabilitation because of lack of coverage. Records state that his wife said that his speech and memory have been impacted. Mr. Luscombe also submitted a decision of Justice Felix of the Ontario Court of Justice which held that Mr. Hugh was fit to stand trial on November 17, 2023. Finally, counsel provided the court with a copy of a letter, dated July 24, 2024, from Jean Marie Vecina, an immigration lawyer, outlining the impact of Mr. Hugh pleading guilty to the charge of possession of fentanyl for the purpose of trafficking, which is an indictable offence that carries a maximum penalty of life imprisonment. The letter states that, as a person without permanent status in Canada, the conviction will result in a removal order which becomes effective as soon as the sentence is completed.
[10] Mr. Hugh spoke at the conclusion of the sentencing hearing and said that he is sorry for his actions. He was using drugs but has stopped since his arrest.
Positions of the Parties
Position of the Crown
[11] Crown counsel, Ms. Mastrorillo, submits that an appropriate sentence in this case is one of 3 years of imprisonment less credit for pre-sentence custody. Mr. Hugh was detained for 3 days and released on March 26, 2021. She submits that at 1.5:1, he would receive credit of 6 days of pre-sentence custody. Counsel also asks the court to impose an order for a sample of his DNA to be taken pursuant to s. 487.051(3) of the Code, a weapons prohibition order under s. 109 for a period of 10 years, and a forfeiture order regarding the cell phones, cash and the knife.
[12] Ms. Mastrorillo takes the position that the range of sentence for possession of this amount of fentanyl is 2.5 to 4 years and the circumstances in this case should place it in the mid to low range. Thus, she argues that 3 years is appropriate. Crown counsel points to the relevant jurisprudence supporting her position. In the case of R. v. Loor, 2017 ONCA 696, the Ontario Court of Appeal upheld a conviction and a sentence of 6 years for three counts of using a forged document (the prescription) and three counts of trafficking in fentanyl (45 patches). Justice Laskin wrote at para. 33: “Unless used for therapeutic purposes, under proper medical supervision, fentanyl is a highly dangerous drug. Its widespread abuse, though recent, has quickly become entrenched in our country. Every day in our communities, fentanyl abuse claims the lives of Canadians.”
[13] Justice Laskin went on to discuss how potent and therefore dangerous fentanyl is. He considered the various aggravating and mitigating factors in the case. He also noted that few fentanyl trafficking cases had reached the court at that time but said, at para. 50, “Offenders – even first offenders – who traffic significant amounts of fentanyl should expect to receive significant penitentiary sentences.”
[14] In the case of R. v. Zain Mirza, an unreported decision of Justice Cecile Applegate released on May 30, 2023, the court sentenced the offender who was 22 years old at the time of the offences, had no criminal record, and had entered guilty pleas to 3 years of imprisonment concurrent on each count of possession of cocaine and possession of fentanyl for the purpose trafficking. The court reviewed the jurisprudence, and, in light of the principles of denunciation and deterrence, she held that a 3-year jail sentence was appropriate. The amount of fentanyl in question was 13 grams. In R. v. Bieber, 2022 ONCJ 53, Justice M.G. March sentenced an offender who pleaded guilty to impaired operation of a conveyance by alcohol or drug, possession of property obtained through the commission of an indictable offence, possession of a dangerous weapon, and possession of fentanyl for the purpose of trafficking. He had no criminal record and was in possession of a similar amount of fentanyl (14.1 grams) to Mr. Hugh. The court imposed a sentence of 42 months (3.5 years) with 3 months of credit in accordance with R. v. Downes (2006), 79 O.R. (3d) 321 (C.A).
[15] Crown counsel outlined the aggravating factors in this case, particularly, the danger of fentanyl as referenced in R. v. Parranto, 2021 SCC 46, [2021] 3 S.C.R. 366, in R. v. Loor, and as indicated by the fact that s. 5(2) of the CDSA carries a maximum penalty of life imprisonment. This offence was committed by Mr. Hugh during the opioid crisis in Toronto, which existed in 2021, and continues today. Police had attended at the area due to complaints about drug trafficking in Moss Park. Further, Mr. Hugh had a weapon on him when the drugs were found, which is an aggravating factor. The offence was profit motivated. It involved two different colours of fentanyl in two dime bags and with $240.25 on Mr. Hugh’s person, all suggesting the commercial element of the offence. According to the drug expert, the value of the drugs was between $1,080.00 and $2,160.00. The location of the offence in front of the Fred Victor Shelter is also an aggravating factor as the drugs were likely sold to vulnerable persons with addiction issues.
[16] Ms. Mastrorillo acknowledges the mitigating factor that Mr. Hugh entered a guilty plea but submits that it was not early in the proceedings and suggests that there were protracted fitness issues raised which delayed the case. Justice Felix found at para. 16 of his decision regarding fitness that Mr. Hugh was “malingering”. Crown counsel notes that Mr. Hugh has health issues arising from the stroke which occurred in April 2022, after the offence date and following his arrest in March 2021. Justice Felix reviewed all reports concerning Mr. Hugh’s cognitive and mental health issues and considered the information to be inconsistent. Ms. Mastrorillo submits that this court should rely on the decision of Felix J. regarding Mr. Hugh’s fitness and the comments regarding malingering. She also argues that the age factor alone is not a mitigating factor in determining a prison sentence unless the evidence shows that the person, “has little chance of serving the sentence before passing away”: O’Reilly c. R., 2017 QCCA 1286, at para. 39.
[17] As for the fact that Mr. Hugh does not have a criminal record, Crown counsel points out that Mr. Hugh has only been in Canada for 14 years. There is no information on prior employment or prosocial behaviour. Apart from the affidavit of Mr. Hugh’s wife, there is no recent information on Mr. Hugh’s health including what has happened since the July 2023 report and his prognosis. Regarding the immigration consequences of a conviction, the Crown acknowledges that they are significant, but that since he has no status in Canada and is here illegally, the consequences should have no bearing on the decision.
[18] Crown counsel submits that the Supreme Court decision in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61 and the Criminal Code provide that a conditional sentence is available if the sentence imposed is less than two years of imprisonment and the safety of the community would not be endangered. In this case, see para. 27 in Mirza, imposing a sentence of less than 2 years is not appropriate. Furthermore, where there is a risk of re-offending as is the case with drug trafficking offences and the offence is a serious one, it cannot be said the safety of the community would not be endangered if Mr. Hugh was given a conditional sentence and permitted to serve his sentence in the community. Rather, a custodial sentence is necessary to satisfy the objectives of denunciation and deterrence.
[19] As for any concerns as discussed in R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, there is no evidence before the court that connects anti-Black racism to the offence. Finally, no credit should be given in accordance with R. v. Downes because Mr. Hugh was released on his own recognizance and the only conditions were to report to the Bail Program.
Position of the Defence
[20] Defence counsel, Mr. Luscombe, asks the court to impose a conditional sentence of imprisonment. He relies on a number of decisions to support his position. In R. v. Russell, 2023 ONCJ 133, Silverstein J. imposed a sentence of two years less one day to be served in the community as a conditional sentence for a plea of guilty on one count of possession of fentanyl for the purpose of trafficking and one count of possession of proceeds of crime. He cites the decision of R. v. Williams, 2023 ONCJ 259, where Monahan J. sentenced the offender to a conditional sentence following a guilty plea to one count of possession of fentanyl for the purpose of trafficking. In the case of R. v. Nacinovich, 2020 ONSC 7604, Leibovich J. sentenced the offender to a conditional sentence following a guilty plea to possession of fentanyl for the purpose of trafficking after the evidence of one Crown witness was heard.
[21] In R. v. Han, 2022 ONCJ 343, De Filippis J. imposed a conditional sentence with house arrest where the 24-year-old first offender pleaded guilty to possession of fentanyl for the purpose of trafficking. Justice De Filippis referenced the decision of R. v. Priest (1996), 30 O.R. (3d) 538, where the court held that in the case of a youthful first offender, all other dispositions before imposing a custodial sentence should be explored and if a custodial sentence is appropriate, a first sentence of imprisonment should be as short as possible and tailored to the individual circumstance of the accused rather than solely for the purpose of general deterrence: Han, at para. 19. I will have more to say about the circumstances of these decisions below.
[22] Finally, counsel points to the decision of R. v. Desmond-Robinson, 2022 ONCA 369, where the Ontario Court of Appeal held that a sentence of 2 years less a day served in the community as a conditional sentence followed by 2 years of probation for a firearm offence was appropriate for an offender with no criminal record who had made a terrible error in judgment: at para. 18. The court wrote, at para. 13, that the trial judge erred as the Court of Appeal has recognized that a conditional sentence may be appropriate in certain circumstances: see Morris. In Morris, the Court of Appeal held that a sentencing judge should give careful consideration to the imposition of a conditional sentence, where appropriate, which can “…ameliorate the longstanding problem of the overincarceration of young Black men”: at para. 180.
[23] Counsel points out that the offence involves a single day only of possession of fentanyl for the purpose of trafficking. There is no suggestion that Mr. Hugh engaged in ongoing trafficking. This was not a project case. Rather, it arose because of the complaints in the area and that the police were asked to watch the Fred Victor Shelter in particular. While Mr. Hugh had fentanyl in two sets of packaging, there was nothing to suggest that he was involved in the packaging. He was a low-level dealer. At the time of the offence, Mr. Hugh was a fentanyl user. This was a way of supporting his addiction.
[24] Dr. Goger wrote a letter in which he referenced the use of fentanyl which ended after Mr. Hugh was arrested. Mr. Hugh is 63 years old, is from Jamaica, has no contact with siblings although he has one adult daughter in Jamaica. He is estranged from the mother of his daughter. Mr. Hugh came to Canada on a visitor’s permit and stayed. He has no immigration status. He is married and at the time of the offence, he and his wife had begun to look into immigration sponsorship. They had hoped to rectify his immigration status.
[25] Mr. Hugh worked as an usher in a movie theatre until the COVID-19 pandemic. He lost his job and was not further employed. He has a Grade 9 education. He resides with his wife. Mr. Hugh suffered a stroke but has not received regular medical care because of his immigration status. He was not able to continue occupational therapy because of lack of coverage. He needs to be re-assessed for his medication. He has hypertension and Type 2 diabetes. Mr. Hugh’s wife is on ODSP. In an affidavit filed by her, she outlined the daily lifestyle of Mr. Hugh who is unable to look after himself. He is right-handed but cannot use his hand due to the stroke. He does not leave the apartment other than for court. He cannot walk without falling.
[26] Counsel for Mr. Hugh submits that if Mr. Hugh was incarcerated, he would be unable to participate in activities. He requires assistance to do anything. Being incarcerated would endanger his physical health due to his propensity to fall. That he suffered a stroke and there is permanent weakness is outlined in the medical records filed. Mr. Hugh’s wife is in the best position to describe his current condition and his capacity to deal with daily living. She was not cross-examined by the Crown.
[27] Mr. Luscombe says that the Occupational Follow-up Report of May 1, 2022, which was filed, confirms that Mr. Hugh has a high risk of falling. He needs hourly supervision. He is unable to do occupational therapy due to the lack of coverage. In his submissions, Mr. Luscombe referred to the decision of R. v. Hills, 2023 SCC 2, 477 D.L.R. (4th) 1, where the Supreme Court wrote the following: “Courts should consider the effect of a sentence on the particular offender. The principle of proportionality implies that where the impact of imprisonment is greater on a particular offender, a reduction in sentence may be appropriate”: at para. 135.
[28] Counsel for Mr. Hugh also cited the decision of R. v. Kelly, 2013 ONCJ 428, where O’Donnell J. sentenced a 56-year-old first time offender who pleaded guilty to three fraud-related charges arising out of her employment. He considered the impact of her medical condition which was that she suffered from multiple sclerosis, diabetes and high blood pressure and was under doctor’s care. She was taking multiple medications and using a walker. Justice O’Donnell noted, at para. 24: “The relevance of a defendant’s medical condition in mitigation of sentence (either duration or format) is long recognized, including by various courts of appeal in Canada.” He sentenced Ms. Kelly to a period of imprisonment of 90 days served intermittently on two counts of fraud and to 639 days of imprisonment for the third fraud, served as a conditional sentence in the community plus three years of probation. One of the cases relied upon in R. v. Kelly was the decision of R. v. A.R. (1994), 92 Man. R. (2d) 183 (C.A.), where the court allowed a sentence appeal, set aside the prison term and suspended the passing of sentence and ordered probation. Justice Twaddle wrote as follows:
An accused’s infirmity, always a factor to be considered, may warrant a reduction in the sentence that would otherwise have been imposed or a different kind of sentence. It all depends on the nature and effect of the infirmity and the nature and seriousness of the crime. Compassion must neither be stifled nor allowed to take control.
[29] Defence counsel responds to the Crown’s submission regarding the location of the offence and says that the fact that the offence occurred outside Fred Victor Shelter should not be considered an aggravating factor as Mr. Hugh was a user as well. The circumstances were not the same as someone coming there to do drug trafficking who was from outside of that community. Counsel also responds to the Crown’s comment regarding the fact that Mr. Hugh has no criminal record but that he was only in Canada for 14 years. She had said that for this reason the fact he has no record should not be mitigating but Mr. Luscombe asks the court to find otherwise.
[30] Counsel for Mr. Hugh says that there were Charter issues in that police did not have reasonable and probable grounds to arrest Mr. Hugh, and they unlawfully strip-searched him. Counsel submits that Mr. Hugh has accepted responsibility for his actions and the lengthy litigation on his fitness should not be held against him. The attendances in court were not frivolous and despite the litigation to determine fitness, the guilty plea is a mitigating factor and should not be ignored.
Analysis and the Law
[31] Before turning to the specific circumstances of this case, I first consider the general sentencing principles which apply. The fundamental purpose of sentencing is set out in s. 718 of the Criminal Code. It is to ensure respect for the law and to promote a just, peaceful and safe society. The imposition of just sanctions requires that I consider the sentencing objectives referred to in this section which include denunciation of unlawful conduct, deterrence of the offender and other persons from committing offences, separating offenders from society where necessary, rehabilitation of offenders, providing reparation for harm done to victims or to the community, promoting a sense of responsibility in offenders, and acknowledgement of the harm done to victims and the community.
[32] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. When imposing sentence, I am to take into account certain factors which may increase or reduce the sentence because of aggravating or mitigating circumstances. The sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. This is known as the principle of parity reflected in s. 718.2(b). Where consecutive sentences are imposed, the combined sentences should not be unduly long or harsh otherwise known as the principle of totality reflected in s. 718.2(c). The offender should not be deprived of liberty if less restrictive sanctions are appropriate and all available sanctions other than imprisonment that are reasonable in the circumstances, should be considered for all offenders, particularly Aboriginal offenders. These are known as the principles of restraint reflected in ss. 718.2(d) and (e).
[33] I now turn to the relevant jurisprudence on sentencing applicable to the offences in this case. In cases involving persons convicted of trafficking and possession for the purposes of trafficking in controlled substances, the courts have ruled that deterrence and the protection of the public are of paramount consideration. The nature and quantity of the drug are relevant to the issue of sentencing. Whether there is a significant element of commercialism, the role of the offender and the circumstances of the offender are all relevant considerations. In passing sentence, the court may consider the well-being of younger but presently uncommitted potential users of drugs and in so doing, impose a sentence which emphasizes the protection of the public. The court will also look to the circumstances of the offender including whether the offender has an addiction to drugs.
[34] Cases involving possession for the purpose of trafficking where the drug is fentanyl and the quantities are significant often attract sentences that can be in the range between 6 and 9.5 years where the amount of fentanyl is significant with some exceptions: see R. v. Sidhu, 2019 ONCA 880; R. v. Disher, 2020 ONCA 710, 153 O.R. (3d) 88, R. v. Boose, 2023 ONCA 493; R. v. Loor, 2017 ONCA 696, and R. v. Smith, 2023 ONCA 500.
[35] In the decision of R. v. Parranto, the Supreme Court of Canada upheld that the Alberta Court of Appeal correctly intervened where it found that the sentences imposed at first instance were demonstrably unfit for cases of largescale fentanyl trafficking and that severe penalties involving double-digit penitentiary terms were appropriate.
[36] While the case at bar does not involve largescale commercial trafficking in fentanyl, the comments of Justice Moldaver are relevant regarding the dangers posed by trafficking in hard drugs including direct and indirect harms to society and the specific dangers posed by largescale fentanyl trafficking given the potency of the drug and the risk of overdose and death. While he wrote that heavy penitentiary sentences are appropriate for offenders who have trafficked in large quantities of fentanyl, he did say at para. 99, “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.” Thus, while the range of sentence discussed by the Supreme Court in Parranto is not applicable to the case at bar, the comments regarding the consequences of fentanyl trafficking and the dangers of this drug are pertinent.
[37] Although the sentences for trafficking or possession of fentanyl for the purpose of trafficking are generally penitentiary sentences, where the trafficking is low level and the offender is a user, the sentence may be less. For example, as noted above, in the case of R. v. Russell, Silverstein J. sentenced the 37-year-old offender who was a single father with four children whom he supported to two years of imprisonment less one day served in the community as a conditional sentence. Mr. Russell was trafficking fentanyl for profit at the time. Since his arrest, the court was satisfied that he had turned his life around and was doing volunteer work and worked part-time as a fitness trainer. He had pleaded guilty and expressed remorse for his actions. Justice Silverstein reviewed the range of sentences for possession for the purpose of trafficking in fentanyl and referenced cases where a conditional sentence had been imposed: see R. v. Shearer, 2022 ONCJ 288, and R. v. Grant, 2021 ONCJ 507.
[38] In R. v. Williams, P.F. Monahan J. sentenced the 25-year-old offender who had pleaded guilty to one count of possession for the purpose of trafficking in fentanyl to two years less one day served as a conditional sentence. He had a difficult upbringing which was outlined in the Enhanced Report filed with the court. Justice Monahan noted that, although the sentences for possession for the purpose of trafficking in fentanyl can attract a long sentence as noted in R. v. Oksem, 2019 ONSC 6283, in exceptional cases, a conditional sentence has been given: Williams, at paras. 28 and 30.
[39] For example, in R. v. Grant, after a trial, the offender was found guilty of possession of 9.5 grams of fentanyl for the purpose of trafficking, possession of 26 grams of cocaine for the purpose of trafficking, possession of 13.2 grams of powder cocaine, possession of 4 grams of methamphetamine for the purpose of trafficking. He was 18 years old with no criminal record and was characterized as a low-end level trafficker. He was not an addict. He had a challenging upbringing. He completed high school while on bail and was accepted to college and working at two jobs at the time of sentencing. Justice Calsavara described the case as exceptional and imposed a sentence of two years less a day served as a conditional sentence followed by three years of probation.
[40] In R. v. Gordon, 2023 ONCJ 157, the offender was an addict trafficker with a minor record and was in possession of 12.07 grams of fentanyl, 7.02 grams of cocaine and 30 pills of hydromorphone. He had since his arrest been involved in mental health treatment, had secured housing, and was working. He received a sentence of 2 years less a day served as a conditional sentence followed by 18 months of probation.
[41] In R. v. Nacinovich, the offender pleaded guilty to possession of 8.6 grams of fentanyl for the purpose of trafficking after the trial had started. He was 41 years old, an addict trafficker with a lengthy record who had been clean for 18 months at the time of sentencing. He was sentenced to two years less one day served as a conditional sentence less credit for presentence custody.
[42] In R. v. Han, De Filippis J. sentenced a 24-year-old who pleaded guilty to possession of 15.6 grams of fentanyl for the purpose of trafficking. She had no criminal record and while she had been addicted to fentanyl, she had since attended drug counselling and was employed.
[43] In the recent decision of R. v. Stewart, 2024 ONSC 281, Natkatsuru J sentenced a 19-year-old first time offender, who pleaded guilty to possessing 9.9 grams of fentanyl and a loaded prohibited handgun to a sentence of two years less a day to be served as a conditional sentence followed by a period of two years of probation.
[44] In each of these cases, the jurist considered the circumstances to be exceptional and imposed a sentence of 2 years less a day served as a conditional sentence.
Decision
[45] Sentencing involves the exercise of discretion and requires the sentencing judge to consider the individual circumstances of the offender, the circumstances of the offence and the need for the sentence to meet the sentencing objectives outlined by Parliament. The goal of sentencing is to impose a just and fit sentence, responsive to the facts of the individual offender and the particular circumstances of the commission of the offence: R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455, at para. 44. The sentencing process is an individualized one, but the court must remain mindful of the jurisprudence regarding similar offences committed by similar offenders in similar circumstances. As the courts have said, sentencing ranges are not “straightjackets”: R. v. Lacasse, 2015 SCC 64, [2015] 3 SCR 1089, at para. 57.
[46] In considering both the circumstances of the offence and the circumstances of this offender, I consider the relevant aggravating and mitigating circumstances. I must also consider that like offenders should be treated alike. I consider the following circumstances to be relevant in the case of Mr. Hugh.
[47] Mr. Hugh is 63 years of age and was born on March 23, 1961. He was 60 years old when this offence was committed. Mr. Hugh was born in Jamaica and was raised by his paternal grandmother. He received a grade 9 education and then worked in construction. He came to Canada in 2011 on a visitor’s visa, stayed on and now has no immigration status. He is married to Audrelyn Escoffery who is 65 years old, a Canadian citizen, retired and receives disability benefits. He has no income, has mobility issues and no health coverage because of his lack of immigration status.
[48] Ms. Escoffery described that Mr. Hugh uses a cane to walk around the apartment and uses his hand to support himself for balance. He falls quite often. She said that he spends approximately 75% of his time in bed. He cannot put on his shoes, he cannot cook, he cannot dress himself or shower on his own. He often cannot get to the bathroom on time to use the toilet. He does not leave the apartment unless he must go to court. Ms. Escoffery shops for him, gives Mr. Hugh his medication, and assists him if he has to leave the apartment. She believes that he could not do any of the basic activities without assistance which would likely not be available in prison.
[49] As discussed in the medical records filed, Mr. Hugh had a stroke on April 28, 2022, and spent two weeks in North York General Hospital. He does not have OHIP coverage and has not received rehabilitation or speech therapy. Dr. Gojer was of the view that in addition to his mobility issues, he has memory problems and suffers from depression. He provided the opinion on March 5, 2023, that Mr. Hugh was unfit to stand trial at the time of the assessment. However, Justice Felix conducted a fitness hearing on November 17, 2023, at which time he concluded that Mr. Hugh was fit to stand trial.
[50] Mr. Hugh was arrested on these charges on March 23, 2021, and released from custody on March 26, 2021. He has been on a recognizance since that time. I am advised that he has not re-offended.
[51] Cases regarding the appropriate range of sentence for possession of fentanyl for the purpose of trafficking emphasize denunciation and deterrence. The effect of fentanyl on drug users is a relevant consideration and the courts view the incredibly negative impact of this drug on users and on society as relevant. While the Supreme Court in Parranto dealt with sentencing for commercial high-level drug trafficking in fentanyl, the court’s comments regarding the harm caused by this drug are especially relevant. The jurisprudence cited by the Crown supporting a substantial penitentiary term for possession of fentanyl for the purpose of trafficking highlight the ills caused by this drug.
[52] In the case at bar, there are many factors in mitigation including that Mr. Hugh was a first-time offender. He pleaded guilty to the charge and has expressed remorse. He is taking responsibility for his actions. He has saved valuable court resources at a time when resources are scarce in the aftermath of the COVID-19 pandemic. Mr. Hugh has strong family support through his wife.
[53] The aggravating factors include the nature of the offence, the type of drug involved, and the effect of this type of drug on the public. Fentanyl is one of the deadliest illicit substances. The prevalence of fentanyl in the community is of grave concern. Mr. Hugh was in possession of fentanyl for the purpose of trafficking to earn a profit.
[54] A sentence for this offence must emphasize denunciation and deterrence. There are cases where the courts have imposed a penitentiary term for possession of fentanyl for the purpose of trafficking in similar quantities (15 grams). I am mindful that there are cases that call for a sentence outside a particular range as ranges are only guidelines. The determination of a just sentence is a highly individualized exercise: Lacasse, at paras. 57 and 58.
[55] There are a number of mitigating factors which take this case below the range in my view. They include the guilty plea, that Mr. Hugh has taken responsibility, that court resources are scarce, and that Mr. Hugh has several medical conditions which would result in serving time in a jail setting to be very difficult for him. The aggravating factors are the quantity of the drug and the nature of the drug. Crown counsel maintains that Mr. Hugh should not receive a benefit from the guilty plea as there were protracted fitness hearings held lasting months and requiring the expenditure of multiple resources. Crown counsel also raises that the only person who described Mr. Hugh as a “user/dealer” was Dr. Gojer. Finally, she argues many of Mr. Hugh’s physical ailments pre-dated the stroke and his medical condition should not be considered mitigating.
[56] With respect, I view the guilty plea by Mr. Hugh as having shown an expression of remorse and that it has saved the court the resources that would have been necessary for a trial. That Mr. Hugh’s fitness was in issue and was before the court for some time should not be held against him. There were indicators that he was unfit to stand trial at one point of time as discussed by Dr. Gojer, but his condition has improved and the court in November 2023 found him fit to stand trial. Counsel assures me that he is able to instruct counsel and I have observed him to be able to follow the proceedings before me during sentencing.
[57] The issues raised by the case of R. v. Morris, concerning anti-Black racism, did not really arise in the case. Specifically, no connection was made between anti-Black racism and the “circumstances or events that are said to explain or mitigate” the trafficking offence: Morris, at para. 97. No Enhanced Report was filed and while the evidence filed before me did raise certain aspects of a difficult personal background for Mr. Hugh, the factor of anti-Black racism was not really submitted as a relevant mitigating factor. However, even where no Enhanced Report is filed, the court may be able to consider the circumstances of anti-Black racism in sentencing the offender, but there must be some connection to the circumstances said to mitigate the offence: Morris, at para. 97. In Morris, the Ontario Court of Appeal highlighted the principles of denunciation, deterrence, protection of society, the role of mitigating personal circumstances, and the offender’s prospects for rehabilitation. The court took into account the matter of anti-Black racism as a relevant consideration. The court also highlighted the considerable discretion given to sentencing judges to decide how best to blend the various legitimate objectives of sentencing. Again, no argument was made connecting anti-Black racism to the commission of the offence. However, I do consider Mr. Hugh’s background of personal hardship which includes the factor of anti-Black racism and his use of drugs to be relevant factors to be recognized in the sentencing process.
[58] There is no question that a period of imprisonment must be imposed for this offence. However, although aggravating circumstances relating to the offence increase the need for denunciation and deterrence, a conditional sentence may be imposed even if such factors are present. Each case must be considered individually: see R. v. Proulx. Section 742.1 of the Code provides that if the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in s. 718 to 718.2 of the Code, a conditional sentence may be imposed provided it does not fall in one of the listed categories in (b) through (d). Proulx highlights that a conditional sentence is available for all offences in which statutory pre-requisites are satisfied and that a conditional sentence can provide a significant amount of denunciation and deterrence particularly when onerous conditions are imposed. As was stated by the Supreme Court, when the objectives of rehabilitation, reparation and promotion of a sense of responsibility may realistically be achieved, a conditional sentence will likely be the appropriate sanction, subject to considerations of denunciation and deterrence.
[59] I again emphasize that it is a principle of sentencing that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate (see s. 718.2(d)) and that “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, particularly Aboriginal offenders (see s. 718.2 (e)).
[60] In light of Mr. Hugh’s role in the offence which involved being in possession of the drug for low level trafficking on one occasion, that he was a user of drugs and involved in the drug trade to satisfy his own habit, that he had no criminal record and that his medical condition is such that he would have great difficulty serving his sentence in jail, I am of the view that an appropriate sentence is one of two years less one day served in the community as a conditional sentence. There is no statutory bar to imposing a conditional sentence; it would still provide a significant amount of denunciation and deterrence and serving the sentence in the community would not endanger the community’s safety and would be consistent with the fundamental purpose and principles of sentencing set out in s. 718 of the Code.
[61] I agree that credit for pre-sentence custody should be given at 1.5:1 in accordance with R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, which would equal 6 days. Mr. Hugh has been on bail for 3.5 years without incident. In R. v. Downes, Justice Rosenberg of the Ontario Court of Appeal wrote that time spent while on stringent bail conditions is a relevant mitigating factor that a sentencing judge must consider at para. 37. The court is to look at the factors of the length of time on bail subject to the conditions, the stringency of the conditions, the impact on the offender’s liberty and the offender’s ability to carry on normal relationships, employment and activity. The judge has discretion to determine the impact of such mitigation. There is no set formula for credit. The conditions of Mr. Hugh’s release over the past three years have not been stringent. He has remained in his home mainly due to his medical condition and not due to the terms of his release. However, I still am of the view that some credit for the terms of judicial interim release for 3 years and his full compliance with those terms should be granted in the amount of five months.
Result
[62] Mr. Hugh shall be sentenced as follows: for the offence of possession of fentanyl for the purpose of trafficking, he shall be sentenced to 2 years less one day of imprisonment. He shall be credited with 6 days of pre-sentence custody in accordance with R. v. Summers. He shall receive further credit of 5 months (150 days) in accordance with R. v. Downes. The balance of the sentence to be served as a period of imprisonment is 573 days or 1 year and 208 days. His sentence of imprisonment shall be served in the community with the following conditions: in addition to the statutory conditions in s. 742.3(1) which I impose, Mr. Hugh must report to his supervisor forthwith and attend as often as his supervisor deems appropriate. He shall reside at 77 Finch Avenue East, suite 352, Building C with his wife Audrelyn Escoffery or such address as approved by his supervisor; he shall be under house arrest for the first twelve months of the conditional sentence and shall only leave the house for the purpose of attending appointments with his supervisor, to attend counselling, to attend medical appointments for himself or members of his immediate household, and to shop once each week for four hours as permitted by the conditional sentence supervisor; he may leave the house if he is in the company of his wife Audrelyn Escoffery; however, in any event, he shall be in the house between the hours of 10:00 p.m. and 6:00 a.m. each day for seven days each week.
[63] For the remaining months of the conditional sentence, he shall be permitted to leave his residence, but he shall be subject to a curfew between the hours of 10:00 p.m. to 6:00 a.m. each day for seven days each week. The only exceptions are for medical emergencies for himself or a member of his household or with the prior approval of his supervisor. During the entire period of the conditional sentence, he shall attend counselling, educational training or work as directed by his supervisor and sign any necessary releases; he shall abstain from owning, possessing or carrying a weapon and he shall not apply for or possess a firearm acquisition certificate or gun licence.
[64] Following this period of imprisonment, Mr. Hugh is placed on probation for two years. In addition to the statutory conditions, he shall reside at an address approved by his probation officer; he shall attend and participate in any counselling and/or treatment as directed by his probation officer and sign any necessary releases; he shall abstain from owning or possessing any weapons; he shall report to his probation officer forthwith following the conclusion of the conditional sentence and as often as the probation officer deems necessary.
[65] In summary, with the 3 years that Mr. Hugh has been on bail, the 2 years less one day imprisonment to be served as a conditional sentence and the two years of probation, he will be under the court’s supervision for 7 years.
[66] I further make an order under s. 109(1) prohibiting Mr. Hugh from possessing any weapon as defined by the Criminal Code for 10 years. I also order that Mr. Hugh provide a sample of his DNA pursuant to s. 487.051 of the Criminal Code. Finally, there will be an order of forfeiture of the phones, cash and the knife seized by police at the time of the arrest. The Victim Fine Surcharge is waived.
Himel J.
Released: November 5, 2024