Reasons for Judgment on Sentence

Court File No.: CR-23-90000430-0000
Date: 2025-02-05
Ontario Superior Court of Justice

Between:
His Majesty the King
– and –
Spiro Rusha

Appearances:
C. Kalantzis, for the Crown
R. Barrs, for Mr. Rusha

Heard: November 26, 2024

R. Maxwell

Introduction

[1] Following a trial before me, Mr. Rusha was found guilty[^2] of:

• possession of fentanyl for the purpose of trafficking;
• possession of cocaine for the purpose of trafficking;
• possession of MDMA for the purpose of trafficking;
• possession of benzimidazole for the purpose of trafficking;
• possession of alprazolam for the purpose of trafficking;
• possession of oxycodone for the purpose of trafficking;
• possession of psilocybin for the purpose of trafficking;
• possession of property obtained by crime over $5000; and
• possession of property obtained by crime under $5000.

[2] He appeared before me for a sentencing hearing on November 26, 2024. These are my reasons for judgment on sentence.

Positions of the Parties

[3] On behalf of the Crown, Mr. Kalantzis seeks a custodial sentence of 6 years in custody. Mr. Kalantzis also seeks a s. 109 order for life, a DNA order, and a forfeiture order for all property and money seized.

[4] On behalf of Mr. Rusha, Mr. Barrs seeks a conditional sentence of 2 years less one day. He opposes the forfeiture order, but does not contest the other ancillary orders sought by the Crown.

The Circumstances of the Offences

[5] On September 20, 2022, Mr. Rusha was arrested at a gas station near Broadview Avenue in connection to an ongoing investigation. On a search incident to his arrest, he was found to be in possession of fentanyl and $615 in cash. Inside the Burberry satchel he was carrying, police also located a small cutter, two iPhone cell phones, marijuana packaging containing a small amount of marijuana, a small black wallet, Belmont cigarettes, and rolling paper.

[6] On September 20, 2022, members of the Toronto Police Service Major Crime Unit executed a search warrant under the Controlled Drugs and Substances Act (CDSA) at Mr. Rusha’s residence located at 402-65 Gamble Avenue in Toronto. In searching Mr. Rusha’s bedroom, the police located numerous controlled substances and cash.

[7] In total, Mr. Rusha was found to be in possession of:

• 21.37 grams of fentanyl;
• 53.94 grams of cocaine;
• 5.7 grams of benzimidazole, of which there were 5 tablets pressed as Percocet, 6 tablets pressed as 8mg Dilaudid, 4 tablets pressed as Oxycodone 80, more tablets pressed as Oxycodone 80, and 4 tablets pressed as Oxycodone 30;
• 2.3 grams of alprazolam (Xanax) (8 tablets);
• 4.72 grams of oxycodone (8 tablets);
• 2.09 grams of MDMA;
• 3.47 grams of psilocybin;
• cash totaling $615 on his person, incident to his arrest; and
• cash totaling $26,200, bundled by denomination into 11 bundles, located in a lockbox in his bedroom.

[8] The police also located two weighing scales, among other items.

[9] Mr. Rusha admitted to being in possession of all the controlled substances and cash. Based on the totality of the evidence, I found that he possessed the substances for purposes of trafficking and that the cash seized was property obtained by crime.

Circumstances of Mr. Rusha

[10] A pre-sentence report was prepared for the sentencing hearing and provides some background on Mr. Rusha. Mr. Rusha is now 25 years old. He is the eldest of two children. He and his mother and father immigrated to Canada from Greece in 2002, where they had been living after fleeing from their home country of Albania. Mr. Rusha’s homelife was healthy and supportive. They are a close family. His parents are hard-working. His father supported the family through his roofing company, which he maintained until March of 2024. As described below, Mr. Rusha’s father suffered a serious workplace injury in March of 2024. He sustained severe injury to his pelvis and now uses a wheelchair. Mr. Rusha’s mother works at a warehouse retailer.

[11] Mr. Rusha graduated from high school on schedule and entered a 2-year program for heating and cooling technicians. He left the program after one semester because he needed money to help cover the cost of legal services. He resumed working with his father in his roofing company.

[12] Mr. Rusha began to experience conflict with the law in 2016 when he was charged with serious offences. In January of 2019, he was the victim of a robbery during which he was shot in the abdomen. He suffered very serious abdominal injuries. He was in the hospital from January 13 to February 9, 2019. He underwent multiple surgeries to repair the damage from the gunshot wounds. He required a colostomy bag. He experienced complications in his recovery. He was treated with opioids for his pain while he was in the hospital. When he was discharged from the hospital, he continued to experience severe pain. He was also treated for anxiety.

[13] He began serving a penitentiary sentence in relation to his convictions for assault with a weapon in 2020, while he was still recovering from his injuries. Mr. Rusha stated through the pre-sentence report that the experience was traumatizing for him.

[14] When he was released on parole, he resumed working as a roofer. He and his father started a roofing company together in 2022. His father has been unable to work as a roofer since his accident in 2024. Before his arrest for these charges, Mr. Rusha was earning $800-1000/week in his roofing company. Mr. Rusha’s family expressed great apprehension about the prospect of Mr. Rusha going to jail for an extended period of time because, among other concerns, he was the main financial support for the family after his father’s accident. He has been unable to work full-time since his father’s accident because he helps with his father’s care.

[15] Mr. Rusha continues to enjoy a close relationship with his family.

[16] Mr. Rusha began experimenting with drugs in his late teens. After he was shot in 2019, he was prescribed hydromorphone for pain management. When he was discharged from the hospital, Mr. Rusha struggled to manage his pain. He reported that he was discharged with no prescribed pain medication, which resulted in his turning to buying drugs off the street. He was also suffering emotional and psychological issues, at times feeling suicidal. He was addicted to pain medication when he was incarcerated serving his penitentiary sentence. When he was released from prison in November of 2021, he reported initially doing well, but relapsed into drug use in 2022 when a friend died. He stated he was using fentanyl on a daily basis while continuing to work in his roofing company.

[17] There is evidence that he sought treatment after his arrest on these charges. Letters from Courtney Niven and Syed Faruk, both social workers with Rapid Access Addiction Medicine at the Michael Garron Hospital were filed as exhibits on the trial. Mr. Rusha became a patient of the clinic on December 29, 2022 and has participated in weekly groups as well as individual psychotherapy. He continues to be a patient of the clinic. He was also taking suboxone for drug withdrawal management, which he reports he no longer needs.

[18] He also sought support for his mental health through the Yonge Street Mission. He completed five counseling sessions through the HOPE program which assists clients managing the process of criminal charges in conjunction with other facets of their lives. The manager of the program, Peter Nojd, reports that Mr. Rusha shows good insight and expressed a desire to change.

[19] In 2023, Mr. Rusha completed 150 hours of volunteer work through a company that sorts donated clothing and in assisting in other community events, and through his church. Family members express committed support for Mr. Rusha, believing he has potential to have a good future and contribute positively to the community.

Principles of Sentencing

[20] I begin with the most fundamental principles of sentencing set out in ss. 718, 718.1 and 718.2 of the Criminal Code.

[21] The overriding purpose of sentencing is to encourage respect for the law and the maintenance of a “just, peaceful and safe society”. As the Ontario Court of Appeal observed in R. v. Morris, 2021 ONCA 680, para 58, the individualization of the sentencing process means that these objectives will not necessarily point to the same sentencing disposition.

[22] Section 718.1 provides that the sentence I impose must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The sentence I impose must reflect the circumstances of the offence and the attributes of the individual responsible for the crime: see also R. v. Ipeelee, 2012 SCC 13, para 37; R. v. Lacasse, 2015 SCC 64. A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. Further, a court that imposes a sentence shall also take into consideration the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences, committed in similar circumstances; the principle that, where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; and the principle that courts should exercise restraint in imposing imprisonment.

[23] Section 10(1) of the Controlled Drugs and Substances Act states as follows respecting the fundamental purpose of sentencing under that Act:

Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community.

[24] In cases involving the possession of various opioids including fentanyl for the purpose of trafficking, the objectives of denunciation and deterrence are paramount. I note, however, that Mr. Rusha’s prospects for rehabilitation, totality, and restraint are also all relevant factors in fashioning a sentence in this case, given Mr. Rusha’s relatively young age and his efforts to pursue rehabilitation.

Aggravating and Mitigating Factors

[25] There are a number of aggravating features in this case.

[26] First, is the nature of the drug. Fentanyl is an extraordinarily dangerous drug. In R. v. Parranto, 2021 SCC 46, paras 70, 94, 96-97, Justice Moldaver (as he then was) observed, at para. 94, that fentanyl is 80-100 times more potent than morphine and 25-50 times more potent than pharmaceutical grade heroin. A lethal dose is often less than 2 milligrams. He went on to cite grim statistics, at paras. 96-97 about opioid-related deaths, with fentanyl involved in 71% of those deaths. Further, as noted in Parranto, at para. 70, the moral culpability rises with the risk of serious harm the trafficker is prepared to expose others to: see also R. v. Lynch, 2022 ONCA 109, para 17; R. v. Cinelli, 2008 ONSC 4986, para 16.

[27] Second, there is the quantity of the fentanyl seized. Given the evidence I heard at trial, the quantity seized represents multiple potential typical sales.

[28] Third, the fentanyl was located with other controlled substances and nearly $27,000 in cash. In my view, the combination of the quantity and variety of controlled substances located in Mr. Rusha’s apartment is most consistent with a mid-level trafficking enterprise. The quantity of money, combined with the quantity and variety of drugs and scales seized from Mr. Rusha’s home reflects that the drug trafficking was not a single instance of trafficking, or a “one off”, but rather was an ongoing income-producing business for Mr. Rusha.

[29] Fourth, Mr. Rusha has a criminal record. It is limited and unrelated but it is, nevertheless, serious. He was convicted in January of 2020 of two counts of assault with a weapon. He received a sentence of 29 months and 2 days on top of 28 days of pre-sentence custody. He was convicted in April of 2020 of possession of a weapon and failing to comply with a court order, for which he received a jail sentence of 30 days, concurrent on each count.

[30] Fifth, he committed these offences while he was on statutory parole for his 2020 convictions.

[31] In mitigation, at 23 years old at the time of the offences, Mr. Rusha was relatively youthful.

[32] As outlined above, he has engaged in some rehabilitative efforts. It would appear that since his release on bail for these charges, he has used his time to work on himself through his volunteer work, his mental health counselling, and in accessing supports for drug addiction.

[33] I note that while Mr. Rusha has enjoyed a stable and supportive family and had a healthy upbringing, he did experience significant trauma in his life when he was shot in the stomach in 2019. Whether that incident occurred as a retaliatory response to the assaults he committed giving rise to the 2020 criminal convictions does not change the fact that Mr. Rusha experienced a lengthy hospitalization and a difficult recovery process. I accept that he may have used some fentanyl or other opioids to help manage his pain following his injury.

[34] He reports having abstained from drug use for the past two years. He has expressed a willingness to enter residential treatment if he is granted a conditional sentence. Mr. Barrs provided me with a letter confirming that Mr. Rusha has a confirmed placement at Reascent’s Madison Avenue Centre, an intensive addiction treatment program, beginning on June 27, 2025.[^3]

[35] Further, I note as a collateral consideration that due to his father’s inability to work following his injury in 2024, Mr. Rusha is a significant financial contributor to his family and that his family will be adversely impacted if he is incarcerated and unable to assist with his father’s care and provide financial support to his family. The family’s circumstances will no doubt be made more difficult if Mr. Rusha is incarcerated. However, as noted in R. v. Suter, 2018 SCC 34, para 56, and R. v. Morgan, 2020 ONCA 279, para 10, collateral consequences cannot be used to reduce a sentence to a point where the sentence becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender.

Range of Sentence

[36] Section 5(3) of the CDSA provides for a maximum penalty of life imprisonment for a conviction for possession of a schedule 1 substance for the purpose of trafficking. Fentanyl and cocaine are both Schedule 1 substances. There is no applicable minimum sentence.

[37] Sentencing ranges and a review of similar cases are useful in ensuring that the parity principle is met and that similar penalties are imposed for similar offences of a similar nature involving similar offenders. Sentencing ranges are, however, only guidelines. The sentencing of an individual is, necessarily, an individualized process, as the Supreme Court reiterated in R. v. Lacasse, 2015 SCC 64.

[38] The Crown submits that the appropriate range of sentence for these offences is four to seven years. He submits that the sentence in this case should be in the higher end of the range, 6 years because Mr. Rusha was engaged in a mid-level trafficking enterprise and was not selling drugs (or buying drugs for that matter) to supply his own addiction.

[39] The general range for mid-level commercial trafficking in fentanyl set out in the caselaw is in the 5 to 7 year range: R. v. Salvati, 2021 ONSC 120, para 15; R. v. Oksem, 2019 ONSC 6283, para 19; R. v. Malabre, 2024 ONSC 6111, para 27.

[40] The Crown raised numerous cases in support of its position that a fit sentence in this case is six years.

[41] In R. v. Loor, 2017 ONCA 696, para 33, the court upheld a sentence of 6 years in custody for the accused who was a lower level member of a drug trafficking ring. The accused had a prior conviction for trafficking but also had strong family support and young children. He did not profit substantially from the trafficking. The Court spoke, at para. 33, of the dangers of fentanyl driving the gravity of the offence.

[42] In R. v. Jenkins, 2018 ONSC 2018, the accused possessed 22.7g of heroin mixed with fentanyl and 20.5g of cocaine. He was also on parole. He had addiction issues and was seeking treatment. The Court sentenced the accused to 6.5 years. I would note that the accused had a prior conviction for possession for the purpose of trafficking which attracted a penitentiary sentence of 3.5 years.

[43] R. v. Cinelli, 2018 ONSC 4983, the accused was sentenced to 7 years in custody for possessing 20 grams of fentanyl and 80 grams of heroin. He pled guilty to the charges. He had a drug addiction.

[44] R. v. Piri, 2020 ONSC 920; the accused pled guilty to possessing 27.22 grams of fentanyl and smaller quantities of heroin and fentanyl mixes for the purpose of trafficking. He had a difficult upbringing and was considered to be an addict trafficker and a “middleman”. The accused had a criminal record which stemmed from addiction. The court imposed a sentence of 6 years in custody.

[45] R. v. Davison, 2021 ONCJ 492 – The accused pled guilty to possessing 20.41g of fentanyl and other quantities of other drugs for the purpose of trafficking, including another 27g of fentanyl. The accused was sentenced to a 6-year sentence.

[46] In R. v. Salvati, 2021 ONSC 1284, paras 26-30, the accused was found guilty of possessing 9 grams of fentanyl and 130 grams of cocaine for the purpose of trafficking. The accused was a youthful offender with a criminal record. In arriving at a sentence of 5 years in custody, the Court observed, at paras. 26-30, that there are many examples of cases involving significant quantities of fentanyl where the offender has been sentenced to custody in the range of 5 to 6 years.

[47] Finally, in R. v. Campbell, 2022 ONCA 666, the appellant was found guilty of possessing 14.33g of a mixture of fentanyl and heroin for the purpose of trafficking. No other drugs or substantial amount of cash were located. The appellant had a lengthy criminal record. Mitigating was that fact that he had four children, who he supported. The Court upheld a sentence of 6 years and rejected the Defence request for a conditional sentence order.

[48] In my view, given the aggravating and mitigating circumstances, the appropriate sentence in this case is one in the range of 5 to 6 years. The Crown’s position of 6 years is not unreasonable and would not be out of step with cases which have attracted 6-year sentences in similar circumstances. However, I am mindful of Mr. Rusha’s age, his efforts to improve his addictions and mental health, his lawful employment history, and his family circumstances, all of which provide positive indicators of his potential for rehabilitation. I am also mindful of the principle of restraint. In all of the circumstances, I am prepared to sentence Mr. Rusha to the lower end of that range, to a sentence of 5 years. I would note that, in my view, this is a low sentence, given the quantity of fentanyl and cocaine seized in this case.

[49] It follows then, given my conclusion that the fit sentence in this case is a penitentiary sentence, that this is not an appropriate case for a conditional sentence, as the Defence has requested. In my view, the gravity of the offence, in particular the amount of fentanyl and cocaine, possessed together and with other controlled substances, requires a penitentiary sentence to achieve the paramount principles of denunciation and deterrence and to reflect a sentence which is proportionate to the gravity of the offences. As an aside, the fact that Mr. Rusha has a conviction for breaching a court order and the fact that he committed these offences while on parole and under supervision are further factors weighing against the imposition of a conditional sentence.

[50] I have considered the decision of DeFillipis J. in R. v. Han, 2022 ONCJ 343, para 22, which the Defence relies on for its position that a conditional sentence is appropriate in this case. There is no question, as DeFillipis J. sets out in Han, that conditional sentences are available for offences of this nature. I also agree with his observation at para. 22, which has been noted in many other cases, that conditional sentences can accomplish the sentencing principles of denunciation and deterrence, even with the most serious offences.

[51] However, the facts in the Han decision are distinguishable from the case before me. Ms. Han was a first-time offender with no criminal record, she had highly mitigating circumstances, and she played a minimal role in the offence. Mr. Rusha is being sentenced on a different factual basis and with different circumstances than those presented by the accused in the Han decision.

[52] On my own review of caselaw in which offenders convicted of possession of fentanyl for the purpose of trafficking received a conditional sentence, most if not all occurred in the context of the offender pleading guilty, the offender being a first-time offender, and often presented with exceptional circumstances. The cases also all generally involved much smaller quantities of fentanyl than what was seized in this case. See R. v. Golizadeh, 2023 ONSC 4686; R. v. Grant, 2021 ONCJ 507; R. v. Tonkin, 2023 ONSC 2139; R. v. Nacinovich, 2020 ONSC 7604.

[53] Therefore, for all of the reasons set out, having regard for the aggravating and mitigating circumstances, the circumstances of the offence, and of the offender, in my view, a fit sentence in this case is one of 5 years in custody.

Disposition

[54] Mr. Rusha’s sentence shall be entered as follows:

a. Count 1: possession of fentanyl for the purpose of trafficking: 5 years;
b. Count 2: possession of cocaine for the purpose of trafficking: 5 years to run concurrent with the sentence for count 1;
c. Count 3: possession of MDMA for the purpose of trafficking: 1 year to run concurrent with the sentence for count 1;
d. Count 4: possession of benzimidazole for the purpose of trafficking: 1 year to run concurrent with the sentence for count 1;
e. Count 5: possession of alprazolam for the purpose of trafficking: 1 year to run concurrent with the sentence for count 1;
f. Count 6: possession of oxycodone for the purpose of trafficking: 1 year to run concurrent with the sentence for count 1;
g. Count 7: possession of psilocybin for the purpose of trafficking: 1 year to run concurrent with the sentence for count 1;
h. Count 8: possession of property obtained by crime over $5000: 1 year to run concurrent with the sentence for count 1; and
i. Count 9: possession of property obtained by crime under $5000: 1 year to run concurrent with the sentence for count 1.

[55] I make an order pursuant to s. 109 of the Code prohibiting Mr. Rusha from possessing any firearms, ammunition, and other weapons as defined by the Code for life.

[56] There will be an order under s. 487.051 of the Code authorizing the taking of a sample of a bodily substance that is reasonably necessary for the purpose of forensic DNA analysis.[^4]

[57] Finally, there will be a forfeiture order for the substances, property, and cash seized.

[58] I thank both counsel for their assistance. I wish Mr. Rusha good luck.

R. Maxwell
Released: February 5, 2025

Endnotes

[^1]: Reasons for Judgment on sentence were delivered orally on January 24 and February 4, 2025. The latter reasons addressed two counts on the Indictment for which sentence was inadvertently not pronounced on January 24, 2025. These written reasons reflect the complete disposition on the matter.

[^2]: R. v. Rusha, 2024 ONSC 6548.

[^3]: I was advised that following the passing of sentence on these matters, the Crown will consent to Mr. Rusha’s release pending an appeal of these matters. As such, he will in all likelihood be able to take advantage of the placement while he is released on bail.

[^4]: The possession for the purpose of trafficking offences are secondary designated offences under the Code. I have weighed Mr. Rusha’s privacy interests against the public interest in maintaining a sample of DNA in the databank. I am satisfied that the order is warranted in the circumstances of this case.