Ontario Court of Justice

Date: September 1, 2016

Court File No.: 15-01978 Newmarket

Between:

Her Majesty the Queen

— AND —

Jan Mark Jardenico

Sentencing

Before: Justice Joseph F. Kenkel

September 1, 2016

Counsel:

• Mr. Matthew Capotosto — counsel for the Crown
• Mr. David Heath — counsel for the defendant

KENKEL J.:

[1] Mr. Jardenico was convicted at trial of possession of 55 grams of Ketamine for the purpose of trafficking. The Crown requests a 12 month sentence be imposed given the amount of the drug and the fact of a prior related conviction. The defence submits that a sentence of 90 days would best meet the purpose and principles of sentencing in this case.

[2] The decision in R v Phan 2015 ONSC 4681 provides a thorough overview of sentencing principles and cases involving ketamine offences. I've also relied upon R v Trinh 2015 ONCJ 670. In Phan her Honour found that ketamine trafficking sentences range between six months to 14 years. Circumstances that tended to push sentences to the higher range were large amounts and prior record. Lower sentences resulted in cases involving youthful first offenders, guilty pleas, small amounts, no violence. See: Phan at paras 60-77.

[3] Deterrence, denunciation and protection of the public are the primary goals in sentencing those involved in Ketamine trafficking. Rehabilitation remains an important goal in this case.

[4] The aggravating factors in this case:

• The amount 55 grams (although less than in many of the reported cases)
• The prior conviction for PFTP involving ketamine which resulted in a 23 day time-served sentence

[5] The following circumstances mitigate sentence:

• The fact that the accused is an addict trafficker, not motivated solely by greed
• He's taken treatment for drug addiction with regular urine screens showing no signs of drug use over a total of 15 samples during the past 15 months
• The accused's steady employment history and otherwise stable lifestyle although he's not presently employed
• He's performed 20 hours of community service at a community centre
• The accused has complied with the terms of release including over a year with a curfew condition
• The accused's statement of remorse on sentencing which was genuine and showed that rehabilitation was well underway

[6] Ketamine is a "dangerous disassociative anesthetic drug" that is chemically related to PCP. Phan at para 56. It can produce hallucinations, disassociation, sedation and amnesia. Users can become psychologically addicted to the drug. R v Daniels 2015 ONSC 2520. These effects have led to Ketamine to be used as a "date rape" drug. Phan at para 57, R v Kwok 2015 BCCA 34 at para 69. The significant risk ketamine poses to the public requires a strong deterrent and denunciatory sentence. The automatic 12 month mandatory minimum no longer applies. R v Lloyd 2016 SCC 13.

[7] In Trinh the accused first offender received a 6 month sentence for possessing approximately 200 grams of ketamine. He had the mitigating effect of a guilty plea and was a single parent raising his daughter. The amount involved in this case is significantly lower but several factors that mitigated the sentence for Trinh are not present here.

[8] I agree with both counsel that a custodial sentence is required and given the prior conviction for the same offence, the circumstances of the offence and the dangers posed by the drug I find that the 90 day sentence proposed by the defence would not meet the purpose and principles of sentence whether or not it was served intermittently.

[9] There is a prior related conviction, but the 23 day time-served sentence indicates that offence must have involved a relatively small amount. The 55 grams in this case is not small, 272 typical doses, but it is lower than the amounts mentioned in many of the cases where higher sentences have been imposed. I agree with the defence that the accused's significant efforts towards rehabilitation support a sentence towards the lower end of the range for these facts.

[10] Mr. Jardenico will be sentenced to 7 months in custody to be followed by two years probation on the following conditions:

• Keep the peace and be of good behaviour
• Report to probation once and thereafter as required
• Not purchase, possess or consume any non-medically prescribed drugs
• Continue treatment for drug addiction as directed by probation and sign any releases necessary to monitor your progress
• Not possess any weapons as defined by the Criminal Code

[11] In addition under s.16(1)(b) of the CDSA I order that all drugs and related paraphernalia seized be forfeit to Her Majesty for destruction.

[12] Pursuant to s.109 Mr. Jardenico will be prohibited from possessing any firearms and related items set out in that section for a period of 10 years.

[13] The monies seized will be forfeit to the Crown as proceeds of crime s.462.37. Considering the strong public interest in investigating offences related to drug trafficking, the role that DNA can often play in those investigations and the minimal intrusion on the accused's privacy given the protections in the databank system I will also order that Mr. Jardenico provide a sample of his DNA for registration on the national databank pursuant to section 487.051(3).

Delivered September 1, 2016:

Justice Joseph F. Kenkel