Court File and Parties

Court File No.: CR-22-90000029 Date: 2024-11-22 Superior Court of Justice – Ontario

Re: R v. Prajaphan Sivashothy

Before: S.F. Dunphy J.

Counsel: Volodomyr Fedorchuk and Emma Skowron, for the Crown D. Sid Freeman, for the Defendant

Heard at Toronto: November 22, 2024

Reasons for Decision - Sentencing

[1] On January 31, 2024 Mr. Sivasothy was found guilty by a jury of possession for the purposes of trafficking of 55.78 grams of fentanyl found secreted in the wheel well of a vehicle rented by him and seized by police on August 12, 2020. He is before me today for sentencing.

Circumstances of the offences

[2] During the evening of August 11-12, 2020, Mr. Sivasothy and two friends met up at a mid-town Toronto bar where one of them worked for some drinks. Mr. Sivasothy drove to the bar to join them in a station-wagon style rental car. Mr. Sivasothy lived in Scarborough and had rented the car about 5 days earlier from a Toronto Pearson airport rental counter and it was due to be returned two days later. After a while, the trio decided to go downtown to continue their night out, going to another bar and staying well into the early morning hours.

[3] When it was time to leave, one of Mr. Sivasothy’s companions thought he was more sober than Mr Sivasothy and drove the rental car to a nearby parking lot with the initial intention of parking the vehicle there and taking an Uber home together to their homes in Scarborough. Once parked, Mr Sivasothy took the wheel and advised his companions he was able to drive. The group then left the parking lot in the vehicle with Mr. Sivasothy at the wheel. The two passengers believed they were all heading back towards Scarborough but soon found themselves on a downtown side street they did not recognize. They were not very familiar with downtown Toronto.

[4] The details of what followed are less important than the impression left upon the two passengers in the vehicle once again being driven by Mr. Sivasothy. Mr. Sivasothy stopped the vehicle on a side street and got out of the car to begin chatting with some people on the street, leaving his companions in the car. They pleaded with Mr. Sivasothy in their native Tamil to come back and get into the car and leave. Whether justified or a figment of their alcohol-fuelled imagination, Mr. Sivasothy’s two companions came to believe they were in some degree of danger from the people Mr. Sivasothy was talking to. They decided to get away and quickly. The companion in the front seat slid over to the driver seat, took the wheel and left the area at speed while the other dialed 911 and alerted the police to what they perceived as some kind of robbery in progress. Police responded to the frantic 911 call from the two who had little more than a general idea where they were. Police eventually located the vehicle and its two occupants parked at a condominium building on St. Mary Street. Meanwhile, Mr. Sivasothy made his own way home to Scarborough without them or his rented vehicle. Police searched the vehicle and located approximately 56g of fentanyl vacuum-sealed in a ZipLock bag inside a brown paper bag itself secreted in the spare tire wheel compartment in the back area of the vehicle.

[5] The jury found that Mr. Sivasothy was in knowing possession of the fentanyl which was possessed for the purpose of trafficking. Ms. Freeman correctly points out that I cannot infer very much beyond that fact from the trial evidence. “Purpose of trafficking” is a broad concept and just where within the spectrum of trafficking purposes Mr Sivasothy’s possession lay cannot be said without speculating to some degree. There is no evidence that he was directly selling to end users, for example. The quantity of the fentanyl, the manner of its packaging, the place where it was hidden and the context in which it was found all provided sufficient context for the jury to infer knowing possession for the purpose of trafficking.

Circumstances of the offender

[6] Mr. Sivasothy is currently 28 years of age. He was 23 years of age at the time of the offence in question, just over four years ago. He is and was thus a relatively youthful offender. He was released after two days in custody on very non-restrictive release conditions (no curfew and no house arrest). He had no prior record and has had no reported violations of his release conditions since [^1]. From the pre-sentence report, I can find virtually nothing in his history that presages the activity for which he was convicted.

[7] He comes from a supportive and apparently successful family. His parents are an insurance broker and a realtor respectively. He has a younger brother with whom he has a good relationship. He graduated from high school and began to pursue further vocational college training in the automotive sphere away from home in Barrie. He abandoned this about 1.5 years into a four-year program. He has been working full time in customer service for an insurance company for the past five years and appears to have held full or part-time work more or less continuously since graduating from high school. His work ethic and experience thus seem quite positive. He does not appear to have had more than what might be described as the usual dalliances of youth in occasional abuse of alcohol or marijuana but now rarely uses alcohol and has discontinued use of marijuana altogether.

[8] Mr. Sivasothy is a young black man of South Asian (Tamil in this case) background. While I can certainly take some judicial notice of general factors associated with racism in society as discussed by the Court of Appeal in R. v. Morris, 2020 ONCA 680, there is no tangible disadvantage that appears to emerge from the evidence arising from this. He had a stable family life. He did fairly well in school. He pursued some post-secondary education but ultimately decided it was not for him. He appears to have worked quite steadily throughout. There is no indication of any disadvantage associated with his housing conditions, neighborhood or school. But for this episode, he seems to have led a fairly successful and industrious life given his stage in life.

[9] In short, this episode in his life seems quite unexplained, an observation I make not as a criticism but merely as an observation. Nothing in the evidentiary record – including the Pre-Sentence Report – gives me much of an indication as to why he did what he did. It is thus difficult to form a view about rehabilitation prospects that does not come with the caveats that this unanswered question raises. The lack of understanding of what impelled Mr. Sivasothy to become mixed up in all of this necessarily limits the degree of confidence I can have that he would not do it again. All of the characteristics of industriousness and diligence which I am being asked to lean upon to infer that Mr. Sivasothy is, in effect, already rehabilitated and has learned his lesson were equally present before August 2020. I simply have no basis to assess whether he himself has acquired any insight into what brought him here and how to avoid a recurrence.

Aggravating and mitigating circumstances

[10] I find the following mitigating circumstances to be present in this case:

a. Mr. Sivasothy is a youthful offender. He was three months shy of his 24th birthday when the events occurred. b. Mr. Sivasothy has no prior convictions on his record. c. Mr. Sivasothy’s rehabilitation prospects appear to be positive although that observation must be tempered to some degree at least by noting that there is simply no sign of any insight on his part into what led him to this juncture. This tempering of a mitigating circumstance must itself be tempered by the fact that Mr. Sivasothy maintained his innocence of the charge throughout – a claim the jury did not accept but which cannot be transformed directly or indirectly into an aggravating circumstance either.

[11] I find the following aggravating circumstances to be present:

a. The substance that Mr. Sivasothy was convicted of possessing for the purpose of trafficking is fentanyl and in relatively substantial quantity (56g or just under 2 ounces). This is a particularly deadly controlled substance capable of killing with only a relatively small overdose and which accounts for a very significant and on-going death toll in several Canadian cities including Toronto. The degree of moral culpability of someone prepared to participate in inflicting this deadly drug on the community without regard to the risk to life being run by others is particularly high.

Position of the parties

[12] The Crown’s position on sentencing was as follows:

a. Custodial sentence of 6.5 years less two days actual (3 days grossed up) presentence custody; and b. Ancillary orders of DNA (mandatory) and mandatory s. 109 prohibition (10 years).

[13] The Defence position on sentence was that Mr. Sivasothy is eligible for and should receive a conditional sentence of two years plus probation if the court thinks necessary plus an appropriate degree of community service. Should the court impose a custodial sentence, the Defence asks for a waiver of the victim impact surcharge.

Application of sentencing principles

[14] The Criminal Code prescribes a number of sentencing principles which a sentencing judge must review in fashioning a fit and proper sentence. The principles are prescribed but their relative weight and the manner of their application will vary from case to case reflecting the fundamentally personalized nature of the exercise.

[15] Proportionality requires that a sentence reflect the gravity of the offence and the degree of responsibility of the offender.

[16] I was asked to conclude that the gravity and degree of responsibility of this offender must be considered mitigated or at least unproved given the lack of evidence as to the precise concentration of fentanyl in the package seized and the lack of evidence as to his precise role in trafficking fentanyl. I reject both of these arguments. First, the agreed statement of fact at trial stipulated that the substance in the bag was tested and confirmed as fentanyl. Second, the gravity of this offence is not dependent upon the precise manner in which Mr. Sivasothy intended to traffic in the fentanyl that the jury found he possessed for the purpose of trafficking. The crime requires only the intention of engaging in any activity that satisfies the definition of trafficking with the substance in question not some prior activity at a different time. Any activity in furtherance of trafficking participates in causing the vast social harm fentanyl leaves in its wake.

[17] Fentanyl is among the deadliest controlled substances subject to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. The Supreme Court of Canada has recognized that the degree of social condemnation of fentanyl trafficking is evolving towards a more severe view by reason of the gravity of the offence and the moral culpability of an offender demonstrating such a reckless disregard for human life in trafficking in this substance: R. v. Parranto, 2021 SCC 46, [2021] 3 SCR 366 at paras. 70-71. In R. v. Lynch, 2022 ONCA 109, Nordheimer J.A. noted that fentanyl “is known to be a much more dangerous drug than almost any other” and that this reality “directs that a sentence imposed for trafficking in fentanyl should be as long or longer than a corresponding sentence imposed for trafficking in cocaine” (Lynch at para. 15).

[18] I do not propose to review in depth the numerous cases cited to me. By way of short summary:

a. R. v. Lynch, 2022 ONCA 109: sentence of 6 years; possession for purpose of trafficking of 965g cocaine, 149g MDM and 41g fentanyl – court found 6-8 year range appropriate; b. R. v. Disher, 2020 ONCA 710: sentence for eight years for possession for purpose of trafficking of 42 grams of mixed fentanyl and heroin; c. R. v. Loor, 2017 ONCA 696 at para. 50 “generally offenders – even first offenders – who traffic significant amounts of fentanyl should expect to receive significant penitentiary sentences”; d. R. v. Margison, 2022 ONCA 211: 8 year sentence for possession for purpose of trafficking of 44g of fentanyl; e. R. v. Thombs, 2022 ONCA 850: 9 year sentence upheld for possession for purpose of trafficking of 54.35g fentanyl plus hydromorphone (3.2g), Oxycodone (4.9g) and methamphetamine (20.63g); f. R. v. Robinson, 2023 ONCA 205: 10 year sentence for possession for purpose of trafficking of 56g fentanyl, 35g heroin, 105.5g cocaine, 16.5g crack also a handgun and impaired driving reduced by 18 months due to harsh pandemic conditions; g. R. v. Griffith, 2023 ONCA 822 confirmed 5 year sentence for possession for purpose of trafficking of 58g fentanyl, 68g cocaine, 3.25g crack and proceeds of $3,000; h. R. v. Abdella, 2024 ONSC unreported, 27 year old racialized first-time offender, approx.. 57g fentanyl plus cutting agents, sentence of six years.

[19] The amount of fentanyl involved in this case – between one and two ounces - is clearly in the mid-level trafficking range. It is certainly significantly greater than “commercial trafficking on a minimal scale” that might more readily produce a sentence materially outside the range discussed in the above-cited cases. The estimated “street value” of this quantify of fentanyl was in the range of about $10,000 at the relevant time.

[20] In the case of this particular crime, the intention of Mr. Sivasothy in possessing the substance, the nature of the substance and the quantity of it viewed in combination enable me to conclude that the crime in this case is an exceptionally serious one within the constellation of controlled-substance crimes and that Mr. Sivasothy’s degree of moral blameworthiness is also quite high having regard to the observations of the courts in Parranto and Lynch among others.

[21] Parity is the next major sentencing objective that I examine. It is in pursuit of this broad sentencing objective that the subject-matter of appropriate ranges arises.

[22] Determining a sentencing range by reference to precedents is always fraught with difficulty. Sentencing ranges are starting points for analysis, not mathematically precise dictates of the outcome of that analysis: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 at paras. 57-60. The sentencing process prescribed by the Criminal Code is fundamentally an individualized process. The various precedents I have referred to above contain numerous distinguishing aggravating features that are simply not present here such as the presence of other controlled substances being trafficked, greater (or sometimes lesser) quantities of fentanyl, prior criminal records with or without a relevant history of trafficking, the presence of proceeds of crime or weapons, etc. Many of the precedents also contain mitigating circumstances that are absent here – more than few involving guilty pleas, for example. The process is unavoidably customized to the particular circumstances of each case and the application – appropriately weighted – of the governing principles dictated by s. 718 et seq. of the Criminal Code of which parity is but one.

[23] This case quite properly can be characterized as a mid-level trafficking case. That conclusion is not the end of the analysis but it does provide an appropriate framework from which to view the process of fashioning a fit sentence.

[24] My review of the jurisprudence leads me to conclude that the appropriate range to be considered here is between five and eight or even nine years. There may be reasons to depart from this range in either direction, but adjusting for distinguishing and common factors in the jurisprudence cited to me by the parties (the Defence cited primarily non-fentanyl cases which I found to be of limited use in this part of the exercise), the range is I think a reasonable view of the current state of the law from a parity perspective.

[25] Denunciation and deterrence are required to bear considerable weight in fashioning a fit and proper sentence among the applicable sentencing principles where, as here, the moral culpability and degree of responsibility are particularly high for the reasons noted in Parranto and the other precedents noted above.

[26] I have discussed the conundrum which is Mr. Sivasothy’s prospects of rehabilitation above. Overall, despite the lack of any insight as to what brought Mr. Sivasothy to this juncture, I remain satisfied that his prospects of rehabilitation are good. He has a strong pro-social family and social network and clearly has sufficient motivation and self-discipline to seek and maintain steady employment. All of these qualities augur well for his prospects with the one cloud on the horizon being that these same qualities were present before the crime before me was committed and did not deter him then.

[27] I must now tie all of these disparate threads together and describe a conclusion and a basis for it.

[28] First, I agree with the defence that a conditional sentence is not prohibited in this case and I fully accept that in appropriate cases, a conditional sentence is fully capable of satisfying the objective of general deterrence. However, a conditional sentence may only be considered pursuant to s. 742.1 of the Criminal Code where a court imposes a sentence of less than two years.

[29] Second, Mr. Sivasothy’s status as a youthful first-time offender and his prospects of rehabilitation also require serious thought be given to the potential outcome of a conditional sentence, but that consideration must be undertaken in the context of all of the other sentencing objectives before me.

[30] However, third I find that the weight of the other sentencing objectives inexorably draw me to the conclusion that a conditional sentence would be entirely inadequate. The gravity of the offence, the high degree of moral blameworthiness of the offender, society’s need for denunciation of this conduct in the strongest possible terms, the need for deterrence all strongly pull towards the very range of outcomes that the parity principle suggests even if the first two observations dictate a degree of leniency.

[31] Leniency of course is a matter of context. While I am satisfied that a lenient sentence is in order, a lenient sentence in this context must nevertheless give proper weight to the gravity of this offence, to Mr. Sivasothy’s high degree of responsibility and to society’s very strong and important interest in denunciation and deterrence. In my view a sentence of less than two years would be manifestly unfit in the circumstances of this case having regard to the applicable sentencing objectives which means that s. 742.1 of the Criminal Code cannot be applied.

[32] I find my self echoing the words of DeLuca J. in Abdella where he commented about the offender in that case (at p. 14):

“You present as a paradox because you have got family support, you seem to be a decent guy who has never been in trouble before…everything points to a person who could be successful and yet I have got to sentence you in relation to fentanyl…and the sentences for fentanyl are absolutely significant and rightly so”.

[33] In my view a sentence of 5 years strikes a reasonable balance in all the circumstances here present. To quote from DeLuca J. again (at p. 15):

“it recognizes that you are a good person who can do good in this society, but it also sends a message that people should not be dealing with this drug. The next while is going to be tough for you.”

[34] I am sure that Mr. Sivasothy will receive every consideration from the parole board for the early release possibilities that the law permits. He will emerge from this and those same qualities of industriousness and his strong family and social networks will be waiting for him to enable him to pick himself up and make a fresh start.

[35] The Defence requested an order pursuant to s. 737(2.1) waiving the payment of the mandatory victim surcharge. In the present case, the mandatory surcharge amounts to $200 under s. 737(2)(b)(ii) of the Criminal Code. There is no evidence before me establishing that such an amount would impose an undue hardship upon Mr. Sivasothy who has been working full time for many years at this point. I do not consider that I have a basis to make such an order waiving the surcharge in these conditions.

Disposition

[36] Accordingly, Mr. Sivasothy is sentenced as follows:

a. Five years in prison less 2 days actual or 3 days “grossed up” pre-sentence custody; b. A mandatory DNA order; and c. A mandatory s. 109(1)(c) prohibition which I fix for a period of 10 years.

[37] Mr Fedorchuk also requested an order returning to Mr. Sivasothy the contents of his wallet which will be signed by me as soon as prepared.

[38] Orders accordingly.

S.F. Dunphy J. Date: November 22, 2024

[^1]: There was a 2021 incident resulting in an impaired driving conviction that did not result in any request to alter his release conditions nor any charge of violating them.