Court File and Parties

COURT FILE NO.: 8728/23 DATE: 2024-11-27

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – JOSEPH PAUZE Defendant

Counsel: Benjamin Pritchard, for the Federal Crown Kenneth G. Walker, for the Defendant

HEARD: October 21 and November 15, 2024

VARPIO J.

Reasons for Sentence

[1] Mr. Pauze is guilty of possessing fentanyl for the purposes of trafficking and being in the possession of crystal methamphetamine (R. v. Pauze, 2024 ONSC 4540).

[2] At the sentencing hearing, the Crown sought a penitentiary term of imprisonment in the 4-to-8-year range for the fentanyl and a further 3 to 6-month sentence for the crystal methamphetamine (consecutive), while Mr. Pauze sought a conditional sentence.

The Offender

[3] Mr. Pauze comes before the court as a 68-year-old man in poor health. He uses crystal methamphetamine. He has had a leg amputated and he clearly suffers from medical issues associated with his lifestyle.

[4] I note that Mr. Pauze has a lengthy record that includes eight convictions for simple possession of illegal substances, three convictions for possession for the purposes of trafficking, and one conviction for production of banned substances. His longest sentence has been eight months for production of a Schedule II substance in 2012. After this sentence, Mr. Pauze’s record shows a 10-year gap until 2022 when he received a 60-day conditional sentence for assault causing bodily harm.

[5] Given the foregoing, it is abundantly clear that Mr. Pauze has been involved in the criminal and drug subcultures for some time. His personal and health problems must be fueled by his own addictions.

[6] With that said, I know very little else about Mr. Pauze.

The Circumstances of the Offence

[7] Fentanyl is an incredibly dangerous drug. Its impact upon communities is both powerful and tragic.

[8] As Moldaver J. stated at paras. 93 and 94 in R. v. Parranto, 2021 SCC 46:

As grave a threat as drugs such as heroin and cocaine pose, that threat pales in comparison to the one posed by fentanyl and its analogues. Indeed, over the past decade, fentanyl has altered the landscape of the substance abuse crisis in Canada, revealing itself as public enemy number one.

Synthetically produced and readily available on the illicit market, fentanyl is an extremely dangerous and powerful painkiller and sedative. As with other opioids, such as heroin and morphine, it is a highly addictive substance, which, when taken outside of controlled medical environments, puts its users at risk of serious harm, including brain damage, organ damage, coma, and death. Fentanyl's potential for harm is, however, significantly greater than other opioids. It is, for example, estimated to be 80-100 times more potent than morphine and 25-50 times more potent than pharmaceutical grade heroin. Given its strength, a lethal dose will often be less than two milligrams, an amount as small as a single grain of salt (R. v. Smith, 2016 BCSC 2148, 363 C.R.R. (2d) 365, at para. 24). The risk of overdose and death from fentanyl is thus extremely high, particularly for naïve users or where it is taken in combination with other substances, such as alcohol or other opioids. The risk of overdose is also one that can be difficult to guard against, as traffickers often surreptitiously mix small amounts of fentanyl with other substances to create a cheaper product with the same effects, thereby drastically increasing their profitability (H. Hrymak, "A Bad Deal: British Columbia's Emphasis on Deterrence and Increasing Prison Sentences for Street-Level Fentanyl Traffickers" (2018), 41 Man. L.J. 149, at p. 153). This deceptive practice leaves users vulnerable and unaware, especially as fentanyl is physically indistinguishable from other hard drugs, such as heroin, oxycodone, and cocaine (C. C. Ruby, Sentencing (10th ed. 2020); Smith, at para. 24; R. v. Joumaa, 2018 ONSC 317, at para. 12).

[9] Locally, Sault Ste. Marie is in the midst of an opioid crisis: see R. v. Elie, 2019 ONSC 2248; R. v. Bernardi and Nocioli, 2020 ONSC 7077. The courts in this community are filled with cases involving fentanyl and much has been written in the local media about the impact that opioids have had. Indeed, Sault Ste. Marie’s plight is such that the community was featured on the national television program W5 as having a particularly serious drug problem.

The Principles of Sentencing

[10] I am firstly governed by the principles of sentencing as described by s. 718 of the Criminal Code of Canada and hereby instruct myself regarding same.

[11] The Crown provided me with R. v. Disher, 2020 ONCA 710 wherein the Court of Appeal for Ontario stated at paras. 31 and 32:

The caselaw on sentences for trafficking in fentanyl is still developing. There are only a few such appellate decisions, which I discuss below. I also set out some relevant lower court decisions. Caution in considering the caselaw is warranted not just because of its inchoate state but also because of the difficulties in comparing quantities of fentanyl given the differences between patches, pills and powder. Bearing in mind these notes of caution, the caselaw indicates that a sentence of eight years is consistent with that received by offenders similarly situated to Mr. Disher, a mid-level recidivist trafficker of heroin adulterated with fentanyl.

The appellant and respondent suggest that the following appellate cases warrant consideration: R. v. Loor, 2017 ONCA 696, [2017] O.J. No. 4628, and the cases of Mr. Loor's associates in the trafficking ring; R. v. Lloyd, 2019 BCCA 128, [2019] B.C.J. No. 631; and R. v. Sidhu, 2019 ONCA 880, [2019] O.J. No. 5630.

At para. 50 of Loor, this court said that offenders who traffic significant amounts of fentanyl should "expect to receive significant penitentiary sentences". It upheld a six-year sentence for Mr. Loor, a member of a drug-trafficking ring who had trafficked in 45 fentanyl patches obtained through a forged prescription. Although Mr. Loor was a low-level member of the trafficking ring, he played a necessary role in it. He had a criminal record that included a prior conviction for trafficking.

[12] The court also examined cases where meaningful penitentiary sentences were imposed for trafficking in fentanyl at paras. 33 to 35:

The two higher-ups in the trafficking scheme in which Mr. Loor was involved ultimately received sentences of six years and eight years respectively. See R. v. Baks, 2015 ONCA 560, [2015] O.J. No. 3996, supplementary reasons reported at R. v. Baks, 2015 ONCA 615, reducing a nine-year sentence to six years, with five years concurrent allocated to the 20 fentanyl trafficking counts and R. v. Sinclair, 2016 ONCA 683, [2016] O.J. No. 4737, reducing a nine-year sentence to eight years.

In Lloyd, the British Columbia Court of Appeal upheld a six-year sentence for an offender found in possession of 51.29 grams of heroin mixed with fentanyl. The offences arose from a violent incident with the police and included a number of other convictions, including for weapons. Mr. Lloyd had ten prior convictions for possession for the purpose of trafficking.

In Sidhu, this court upheld a net sentence of eight years and two months for an offender who trafficked in fentanyl, had a prior, related record, and returned to trafficking shortly after being released from custody. The quantity of fentanyl in Sidhu was 89 grams, more than twice that which Mr. Disher had.

Lower court cases are also consistent with a sentence of eight years. See, for example, R. v. Baldwin, [2018] O.J. No. 2447 (C.J.) (eight years; quantity of fentanyl was 115.09 grams); R. v. Shevalier, [2017] O.J. No. 7247 (C.J.) (eight years; quantity of fentanyl was 28.13 grams). While the Crown pointed to R. v. Vezina, 2017 ONCJ 775, [2017] O.J. No. 6027, where the offender was sentenced to 12 years less pre-trial custody, I do not see it as particularly helpful because the offender in Vezina had 204.49 grams of a blend of heroin and fentanyl for the purposes of trafficking - approximately five times the amount Mr. Disher possessed.

[13] While Disher predates Parranto, it is important to note that the Supreme Court of Canada in Parranto effectively agreed that sentences for mid-level and higher-level traffickers required meaningful penitentiary terms in the normal course of affairs. Indeed, I note that Code J. recently imposed a double-digit penitentiary sentence for trafficking in fentanyl: R. v. Wisdom, 2024 ONSC 4047.[^1]

[14] Mr. Pauze’s counsel provided me with two cases, R. v. Gordon, 2023 ONCJ 157 and R. v. Woods, 2024 ONCA 664 wherein conditional sentences were imposed and/or upheld for cases involving fentanyl trafficking. These cases contain meaningful mitigating circumstances that involve either drug rehabilitation that was completed prior to sentencing, youthful offenders, and/or a lack of a criminal record. These factors are not present in Mr. Pauze’s case.

[15] Recently, in R. v. Campbell, 2024 ONSC 2220, Boswell J. canvassed the state of the sentencing jurisprudence. At paras. 37 to 51, Boswell J. described a number of cases and factors that suggested that the range for mid-level trafficking fell between 5 and 8 years.

[16] At para. 42, Boswell J. laid out the “higher end” of the cases he considered:

A number of cases have applied Lynch since it was released. Amongst others:

(a) R. v. Owusu, 2024 ONSC 671, where Code J. imposed a 9-year sentence for possession of 127.75 grams (or roughly 4.5 ounces) of fentanyl for the purpose of trafficking. He imposed it consecutive to a sentence of 9 years for various firearms offences. He reduced the global sentence to 15 years to account for the totality principle;

(b) R. v. Pereia, 2024 ONCJ 11, where Silverstein J. imposed a 5-year sentence for possession of 52.2 grams of fentanyl for the purpose of trafficking;

(c) R. v. Williams, 2023 ONSC 6273, where Allen J. imposed a 4-year sentence for possession of 187 pills comprised of fentanyl and acetaminophen. She indicated that she would have imposed a sentence of six or seven years but for her consideration of the totality principle (Mr. Williams was already serving time for another, unrelated offence). The pills in issue were referred to as "fake Oxies" because they looked like the prescription drug, Oxycontin. There was uncertainty as to the relative amounts of fentanyl and acetaminophen in each pill. Allen J. provided, at para. 36, a helpful summary of other cases involving possession of fentanyl for the purpose of trafficking, including:

• R. v. Aden, 2021 ONSC 2370: 113.9 grams of fentanyl - 7 years, less pre-trial custody;
• R. v. Ansah, 2021 ONSC 6339: 85 grams of fentanyl - 5 years for fentanyl, 3 years for firearm reduced to 6 years on totality, less pre-trial custody;
• R. v. Beauparnt, 2022 ONSC 4686: 38.9 grams of fentanyl - 5 years;
• R. v. Griffith, 2022 ONSC 6406: 68 grams of fentanyl - 5 years;
• R. v. Musa, 2022 ONSC 3734: 130 grams of fentanyl plus a loaded firearm and other drugs - 7 years consecutive to a firearm offence (reduced to 8 years in totality);
• R. v. Piri, 2020 ONSC 920: 27.22 grams of fentanyl (plus other drug offences) - 6 years less pre-trial custody;
• R. v. Shramek, 2021 ONSC 436: 156.7 grams of fentanyl (plus other drugs) - 7.5 years;
• R. v. Richer, 2022 ONSC 6872: 22 grams of fentanyl (plus other drugs) - 4 years.

[17] At paras. 43 and 44 of his reasons, Boswell J. stated:

There have been numerous other relevant cases, but the foregoing provide a good overview and generally demonstrate sentences falling within a range of 5 to 8 years for possession of fentanyl for the purpose of trafficking in mid-level amounts.

What is not clear from the caselaw is where the demarcating line is between low-level, or street-level trafficking, and mid-level trafficking? Crown counsel took the position during sentencing submissions that the number of tablets possessed by Mr. Campbell was consistent with mid-level trafficking. The Crown did not adduce any expert evidence at trial, however, about that issue.

[18] At para. 46, Boswell J. described another case (which counsel also provided to me), R. v. Tonkin, 2023 ONSC 2139:

In R. v. Tonkin, 2023 ONSC 2139, Nakatsuru J. reviewed a number of cases involving the trafficking of relatively small amounts of fentanyl and concluded that the sentences imposed in those cases generally reflected the low penitentiary range. Those cases included:

• R. v. Oksem, 2019 ONSC 6283: 5.62 grams of fentanyl and 7.64 grams of cocaine - 18 months;
• R. v. M.H., 2018 ONCJ 397: 3.5 grams of fentanyl - 2 years less one day;
• R. v. Menzie, [2020] O.J. No. 654: 5.05 grams of fentanyl - 26 months;
• R. v. Clayton, 2018 ONSC 4125: 45 patches: 26 months;
• R. v. Willis, 2019 ONSC 7324: 6.2 grams of fentanyl and heroin - 30 months;
• R. v. Lu, 2015 ONCA 479: 20 fentanyl patches - 30 months; and,
• R. v. Gatfield, 2015 ONCJ 526: 2 fentanyl patches - 30 months.

The Aggravating and Mitigating Features

[19] The Crown submitted that the following constitute the aggravating features of Mr. Pauze’s case:

a. The nature and quantity of the drug possessed for the purpose of trafficking (over 20 grams of fentanyl); b. Mr. Pauze’s record; and c. Sault Ste. Marie’s current opioid crisis.

[20] Mr. Pauze’s counsel submitted that Mr. Pauze’s situation contained meaningful pieces of mitigation including:

a. Mr. Pauze’s age b. Mr. Pauze’s infirmities; c. The gap in his record; and d. The fact that, in their testimony before me, the police indicated that Mr. Pauze was cooperative during the arrest.

Analysis

[21] I am uncertain as to where 20-odd grams of fentanyl fits within the trafficking scheme. I heard no expert evidence in that regard. That amount does not meet the level of 100+ grams of fentanyl that were being considered in Wisdom, for example. Nonetheless, this quantity of narcotics does not appear to constitute “street level” trafficking, given the fact that the amount of fentanyl seized represents “big bucks” as was conceded by Mr. Pauze at trial. Thus, I find beyond a reasonable doubt that Mr. Pauze was involved in trafficking at a level beyond simple street level trafficking. As to Mr. Pauze’s specific role (whether he was a drug mule, or performed some other function) and as to the actual level of trafficking, that is something about which I can only speculate.

[22] Given the foregoing, and given the applicable jurisprudence, the sentence suggested by Mr. Pauze’s counsel would seem to be possible where weighty mitigating features are present and/or where smaller levels of fentanyl were possessed. While I accept counsel’s submission that Mr. Pauze has mitigating aspects to his case, they are not particularly powerful considerations. Indeed, Mr. Pauze does not get the benefit of youth, nor does he come to court with no (or even a short-ish) criminal record. Rather, he has an extensive record with relevant entries that include multiple convictions for trafficking-related offences. This is not a case where a person makes an error (or a series thereof) and faces criminal sanction for the first time. This is the case of a veteran, albeit sympathetic, offender who is caught for offences similar to those that have brought him to court in the past. Rehabilitation is not a realistic consideration.

[23] Denunciation, specific deterrence and general deterrence must be the primary sentencing objectives in this case given Mr. Pauze’s record and the amount of fentanyl seized. The weight to be accorded to these sentencing principles is made more pronounced because, as was noted above, this community is in the midst of a serious opioid crisis.

[24] Nothing short of a meaningful penitentiary sentence would be adequate in the circumstances. A clear message must be sent to those who traffic in fentanyl: such behaviour will not be countenanced by the courts and the penalties imposed by courts must serve as a deterrent. While the amount of fentanyl seized suggests that the sentence should be at the lower end of the range, Mr. Pauze’s relevant record demands that the sentence be higher than that.

[25] Therefore, when I consider the statutory sentencing principles as described in s. 718 of the Criminal Code of Canada, the governing jurisprudence, as well as the aggravating and mitigating features of Mr. Pauze’s case, I hereby find that Mr. Pauze ought to be sentenced as follows:

1. On count #1, possession for the purposes of trafficking fentanyl, Mr. Pauze shall receive a six-year sentence; and
2. On count #2, possession of methamphetamine, Mr. Pauze shall receive a six-month sentence (concurrent to the sentence in count #1).[^2]

[26] I hereby order that Mr. Pauze forfeit the items seized during the investigation pursuant to ss. 16 and 17 of the CDSA.

[27] I also order that Mr. Pauze be subject to a lifetime weapons prohibition as per s. 109 of the Criminal Code of Canada.

[28] Finally, Mr. Pauze shall provide a sample of his DNA to the authorities as per s. 487 of the Criminal Code of Canada.

Varpio J.

Released: November 27, 2024

Footnotes

[^1]: It must be noted, however, that Code J. was dealing with a considerably larger amount of fentanyl than the amount that was in Mr. Pauze’s possession. [^2]: I choose to make the sentence concurrent (as opposed to consecutive) as a result of the principle of totality.