Court File and Parties

Ontario Court of Justice

Date: 2017-10-10

Court File No.: Newmarket 17-04015

Between:

Her Majesty the Queen

— and —

David Abbott

Before: Justice David S. Rose

Heard on: October 6, 2017

Reasons for Judgment released on: October 10, 2017

Counsel

Mr. J. Arvizu . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . counsel for the Crown

Mr. M. Bury, M. McKee . . . . . . . . . . . . . . . . . . counsel for the accused David Abbott

Reasons for Judgment

David Rose J.:

[1] On July 27, 2017 I convicted Mr. Abbott of simple possession of fentanyl after a trial. These are my reasons for sentence.

Facts

[2] To summarize the evidence and findings pertinent to Mr. Abbott, in the winter months of 2016 York Regional Police were investigating fentanyl trafficking by an individual who is not before the Court. On March 15, 2016 that investigation lead them to 263 Pharmacy Avenue in Toronto, which is an apartment building. At about 2:43 pm Mr. Abbott arrived in a car at that building, entered it, and got back in his car a few minutes later. He was arrested and had a cell phone and 14.98 grams of fentanyl on him. It tested as 1% fentanyl.

[3] Cell phones for both Mr. Abbott and his co-accused Mr. Moore were seized. The contents were analyzed and extraction reports filed at trial. Mr. Moore's cell phone had text messages in which the name Sweets was referred to. Those text messages were conversations setting up drug deals. In the hours and minutes leading up to the arrest of Mr. Abbott and then Mr. Moore, Mr. Abbott's phone had a conversation with someone named "sweets" for a "half O". The deal was to take place on "11 left". It was a matter of a few minutes after that text message sequence that Mr. Abbott left the building with the 15g of fentanyl. 15 grams is the metric equivalent of about one-half of an ounce.

[4] Mr. Abbott admitted buying the drugs at 263 Pharmacy Avenue for personal use but denied that he bought them from Mr. Moore. He said he paid $500.00 for them. He admitted to an opiate addiction as the reason for buying drugs that day. I rejected Mr. Abbott's evidence that it was not Mr. Moore who sold him his drugs based on frailties in his testimony. I did accept his evidence that he bought the drugs that day at 263 Pharmacy to serve his opiate addiction. Accordingly he was convicted under s. 4(1) of the CDSA but acquitted of the more serious charge of Possession for the Purpose of Trafficking. I based that decision partly on ambiguity in the Crown evidence regarding whether 15 g of fentanyl was a sufficiently large quantity of the substance that it was clearly for re-sale.

[5] The cell phone from Mr. Moore's apartment contained text messages which identified Sweets as a sender. Based on all the evidence, I found that the Crown had proven beyond a reasonable doubt that Mr. Moore sold Mr. Abbott the drugs in the building at 263 Pharmacy Avenue between the time Mr. Abbott entered the building and left it again minutes later. Mr. Moore has yet to be sentenced.

Fentanyl

[6] Trial evidence included two expert witnesses about fentanyl. One of them was Dr. Karen Woodall, a toxicologist from the Center of Forensic Science. From her evidence there was no controversy that fentanyl comes in two forms. One is a patch, which is prescribed and therefore lawfully available. Because fentanyl patches are prescribed there is a body of medical research which furnishes the physician's decision about their use in therapy. Safety can be assured at the point of prescription. Fentanyl patches can be altered, or re-sold illegally. At that point they pose a significant risk because their ingestion is not within the supervision of a physician. Another form of fentanyl is in the powder form. This is one of those cases. There is no lawful ability to produce or distribute powdered fentanyl. It is a completely illicit distribution network. Accordingly there is no control over supply, quality or dosage. There is no dispute that powdered fentanyl is sufficiently dangerous that it has brought about a public health crisis in Canada. Fentanyl overdoses and deaths are now routine. One of the reasons why is that, as an opioid, fentanyl generates a tolerance in the addict. A recovering addict will lose that tolerance quickly, and if he or she should stop taking the drug and then return to taking fentanyl, overdose is easy because a dosage which was previously tolerated is later fatally toxic. For this reason Naloxone, the first line of treatment in fentanyl overdoses, is now being widely distributed both with first responders and in the wider community. I close this section by observing that Dr. Woodall has acquired her understanding of fentanyl at the CFS from death investigations. Both experts testified that a small grain of fentanyl can be fatally toxic if it comes into contact with the skin. It would be difficult to imagine something so dangerous if it weren't for the daily reports of fentanyl deaths. The evidence heard at trial was similar to that in R. v. Loor, 2017 ONCA 696. In Loor at para. 33 the Court called fentanyl overdose deaths an "every day" tragedy.

Mr. Abbott

[7] A pre-sentence report was prepared for Mr. Abbott. He has a criminal record which begins in 1982 and ends in 1999. Because of the 18 year gap in the record I would summarize his record as having entries for: public mischief; Break and Enter; Robbery; False Pretences: Over 80; Assault, and Fail to Comply. Mr. Abbott has gone to jail four times, with the longest being 9 months, which was in 1984.

[8] Mr. Abbott has had a hard life. He had a difficult upbringing, and completed only Grade 7. He has had difficult marriages. His second wife died 18 months ago from illness. The Pre-Sentence report confirms that Mr. Abbott works part time as a drywaller, making $25.00 per hour. He is now an opiate addict taking methadone from a health professional. His addiction started about 17 years ago. His physician described him as having not just an addiction problem but also mental health challenges. According to the PSR Mr. Abbott has been a patient in a methadone program since approximately 2011, well before this charge.

Legal Principles

[9] Sentencing objectives are statutorily outlined in s. 718 of the Criminal Code. These include: denunciation; deterrence; separation of the offender from society where necessary; rehabilitation of the offender; reparations to the victim of the crime or community; and promotion of a sense of responsibility acknowledging the harm done to victims or the community. The Code outlines other factors in 718.2(a), but I would not find any of those applicable. 718.2(b) mandates proportionality as between the offender and other similar offenders, and the principal of totality where appropriate. Proportionality refers to the offender's degree of responsibility or moral blameworthiness and the gravity of the crime.

[10] There are few sentencing cases to assist in establishing a sentencing range for fentanyl. At one end, simple possession of fentanyl can attract a discharge, see R. v. Marchese, 2015 CarswellOnt 3090, R. v. Potvin, 2017 ONCJ 429; and can go up to jail sentences measured in months, see R. v. Toth Dogaru, 2015 ONSC 480, R. v. Jodoin, [2015] O.J. No. 2149 (S.C.). The most recent decision from the Court of Appeal on fentanyl sentencing is Loor (supra). While a trafficking decision, and so mostly inapplicable to a simple possession case, it is nonetheless important to recall Justice Laskin's reminder in Loor that sentencing is an individualized exercise varying from individual to individual.

[11] In the case of Mr. Abbott it is aggravating that he possessed fentanyl. Mr. Arvizu is quite right in submitting that fentanyl is so toxic that it poses a risk for first responders who come to the aid of an addict in physical distress. The danger is that the addict's personal supply might innocently come into contact with the skin of a first responder and that the first responder might then overdose. This is a real concern. On the other hand, it is mitigating that he took responsibility for possessing fentanyl during the trial. His addiction is a strong mitigating factor, as are his rehabilitative efforts. His work history is also mitigating. Mr. Abbott has good prospects of rehabilitation.

[12] The Crown asks for a sentence of 90 days jail for Mr. Abbott. Mr. Arvizu argues that the sheer toxicity of fentanyl makes deterrence and denunciation paramount concerns. Mr. Bury suggests that his sentence be non-custodial. I have considered the Crown argument, and there is something to it.

[13] After reflection, however, I find that the risk posed by fentanyl is a public health one for all in the community, not just the addict. In other words, Mr. Abbott's addiction is a public health issue first and foremost, albeit one rising in the context of a criminal prosecution. I therefore reject the submission that deterrence and denunciation play a significant role here. The principal objective of Mr. Abbott's sentencing is a rehabilitative order which will do as much as possible to keep him within the care of a health professional for continual care and treatment regarding his addiction. Keeping Mr. Abbott away from unlawful fentanyl is the best way to keep the community safe, and I find that a jail sentence will do nothing to further that. To quote Mr. Abbott's addiction counsellor Dr. Freeman, "from a medical point of view, a period of incarceration would be detrimental to Mr. Abbott's current attempts at recovery".

Sentence

[14] Therefore I will suspend the passing of sentence for Mr. Abbott and place him on 3 years' probation with the following terms:

• Report forthwith, and at least once per month for the first year, thereafter as required by your probation officer;

• Live at an address approved of by your probation officer;

• Not to be in the company of any individuals known to you to have a criminal record, unless approved of in advance by your probation officer;

• Not to possess any controlled substances as defined by the CDSA unless you possess a lawful prescription;

• Take counselling for substance abuse and mental health issues, cooperate with your probation officer, sign all necessary forms to ensure compliance and completion of the programs.

Released: October 10, 2017

Signed: Justice David Rose