Court of Appeal for Ontario

Date: 2019-04-08 Docket: C66306

Judges: Doherty, Pepall and Trotter JJ.A.

Between

Her Majesty the Queen Respondent

and

Michael Alan Lynn Applicant/Appellant

Counsel

Robert Sheppard, for the appellant

Jason Mitschele and Ira Glasner, for the respondent

Heard and released orally: April 4, 2019

On appeal from the sentence imposed on September 7, 2018 by Justice Alissa K. Mitchell of the Superior Court of Justice.

Reasons for Decision

[1] The applicant seeks leave to appeal his sentence of 26 months, less credit for pre-trial custody of four months, plus two years' probation for possession of hydromorphone for the purpose of trafficking.

[2] He submits that this sentence is excessive given the small quantity of drugs found in his possession, the fact that he is a drug addict, and given his efforts at rehabilitation. In particular, he asserts that the sentencing judge gave no consideration to his progress towards rehabilitation.

[3] We do not agree with this submission.

[4] The sentencing judge was acutely aware of the applicant's addiction and his efforts at rehabilitation. Indeed, she had adjourned his sentencing on numerous occasions over the course of almost two years to give him an opportunity to receive treatment for his drug addiction in a residential treatment facility. However, the five-month residential treatment program he was to join did not materialize due to a conflict he had with a staff member shortly after his arrival. He ultimately failed to appear on the date set for his sentencing and the sentencing judge was required to issue a bench warrant for his arrest. Prior to the sentencing, the applicant confirmed that he was using opiates again. He also committed further offences while on bail pending sentence.

[5] The applicant was trafficking in hydromorphone, a synthetic heroin substitute with deadly and destructive effects. Absent exceptional circumstances, the sale of heroin, even in small amounts by first offenders who are addicts, calls for a penitentiary sentence: R. v. Farizeh, [1994] O.J. No. 2624 (Ont. C.A.), at para. 5.

[6] The sentencing judge gave detailed reasons for her decision. In addition to considering s. 10(1) of the Controlled Drugs and Substances Act, and the applicant's efforts at rehabilitation, she addressed the circumstances of his offence, including the small quantity of drugs involved and his personal circumstances. She concluded that his stated desire and willingness to receive and participate in further addiction counselling and treatment rang hollow and made a finding that he did not present with exceptional circumstances. He was a victim because his low-level trafficking was a means to feed his drug habit, but he was also an offender.

[7] She stated that the sentence imposed had to deter others and point the applicant in a different direction. Given his track record and desperate need for effective treatment, she reasonably concluded that a custodial sentence of 26 months was warranted. She also recommended that his custodial sentence be served in an institution where he would receive treatment for his addiction.

[8] The sentencing judge considered the relevant factors and applied appropriate principles. Moreover, she was in the best position to do so. The sentence was fit and we see no reason to interfere.

[9] We note that the applicant will be parole eligible in about a week. We are told he has taken some rehabilitative steps. No doubt the Parole Board will give careful consideration to his early release on parole.

[10] Leave to appeal sentence is granted, and the sentence appeal is dismissed.

"Doherty J.A."

"S.E. Pepall J.A."

"Gary T. Trotter J.A."