Court Information

Ontario Court of Justice

Date: 2017-11-23

Court File No.: Newmarket 17-04015

Parties

Between:

Her Majesty the Queen

— AND —

John Moore

Before the Court

Justice: David S. Rose

Heard: November 20, 2017

Reasons for Judgment Released: November 23, 2017

Counsel

For the Crown: J. Arvizu

For John Moore: P. Genua

Reasons for Judgment

Introduction

[1] On July 27, 2017 I convicted Mr. Moore of trafficking in fentanyl and his co-accused Mr. Abbott of simple possession of fentanyl: see R. v. Abbott and Moore, 2017 ONCJ 513. These are my reasons for sentencing Mr. Moore. Mr. Abbott was sentenced on October 10, 2017: see R. v. Abbott, 2017 ONCJ 678.

Facts

[2] To summarize the evidence and findings, 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] After Mr. Abbott's arrest at 3:00 pm Mr. Moore left 263 Pharmacy with a dog and was arrested. He identified himself, and had the key to unit 1415 at that building. He said his name was "Sweets". He asked the police to return the dog to apartment 1415 while he was in custody in front of the building. The police ultimately executed a search warrant on apartment 1415 that evening.

[4] Upon entry into unit 1415 the police found the following:

• Packaging material;
• $2,636.00 in money;
• A digital scale;
• Two plastic bags which were tested and found to have residue with a mixture of fentanyl and caffeine;
• A cell phone contract for the number 647 767-7474;
• A Canada Post document with the name John Moore;
• A Black cell phone and a letter from Canada Revenue Agency addressed to John Moore at 1415 - 263 Pharmacy Avenue.

[5] Two cell phones were seized by the police: one from Mr. Abbott; and one from Mr. Moore's apartment. 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.

[6] 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.

[7] 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 263 Pharmacy Avenue between the time Mr. Abbott entered the building and left it again minutes later.

Fentanyl

[8] Trial evidence heard two expert witnesses about fentanyl. One of them was Dr. Karen Woodall, a toxicologist from the Centre 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 powder. 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 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.

The Offender

[9] Mr. Moore has a criminal record:

Date	Offence	Sentence
2003-03-21	Assault	Suspended Sentence and Probation
2004-07-16	Mischief Under $5,000	Suspended Sentence and Probation
	Fail to Comply with Probation	Suspended Sentence and Probation
2005-01-27	Possession Substance FTP
	Trafficking	30 days
	Obstruct Peace Officer	30 days
	Possess Proceeds of Crime	30 days
	Assault	30 days
	Fail to Comply Recognizance	30 days concurrent and probation
2006-09-07	Possess Firearm or Ammunition Contrary to Prohibition Order	80 days and probation (153 days PTC)
	Possess Prohibited Firearm with Ammunition	80 days concurrent and probation
	Delivery of Restricted Weapon To person without permit	80 days concurrent and probation
	Possess Schedule Substance	7 days concurrent
2011-02-25	Possession Substance FTP
	Trafficking	2 years (10 months PTC)
	Trafficking in a Scheduled Substance	2 years (10 months PTC) concurrent
	Fail to Appear	30 days concurrent
	Fail to Comply Recognizance	30 days concurrent
2012-08-16	Obstruct Peace Officer (inst. Fenbrook)	30 days concurrent to sentence serving
2012-08-16	Obstruct Peace Officer	30 days concurrent to sentence serving
2013-03-08	Possession Sch. II Substance (Inst. Millhaven)	1 day

[10] The criminal record shows that, for a 34-year old, Mr. Moore has a lengthy and serious record for offences of violence, guns and drugs. His last entry was 3 years before the occurrence which yielded the charges before me. This is a gap, but not a big one. I would describe Mr. Moore as having consistently committed serious criminal acts for most of his adult life.

[11] Mr. Moore has not had an easy life. His upbringing was from a broken home. The Pre-Sentence Report (PSR) describes Mr. Moore's relationships in transitory terms. Mr. Moore told the writer of the PSR that he is very active in his children's lives. He has a grade 12 education obtained while in prison, and a spotty work record. In the PSR Mr. Moore spoke of himself as being an honours student in school but without ambition.

[12] Mr. Moore self-describes as an opioid addict. That said, the PSR identifies that in 2005 – 2006 he failed to provide his probation officer with confirmation of counselling programs. In 2007 he failed to report twice to an assigned Justice and Mental Health program at a hospital. The PSR notes that "…the subject has not been amenable to attending psychiatric/psychological counselling or treatment in the community". Furthermore, Mr. Moore told the Probation writer that "…he has never participated in any community based substance abuse counselling or treatment programs".

[13] Mr. Moore testified himself at the sentencing hearing about his addictions. He testified that he started doing crack cocaine in high school and graduated to Oxycontin. When the supply of Oxycontin pills which could be crushed and ingested stopped he graduated to other forms of opiates. He developed a leg problem and was the victim of a criminal incident which resulted in being put through a glass window. His injury got infected and he became depressed. In his evidence he was using fentanyl and other drugs up to the point of his arrest on these charges. Mr. Moore spoke knowledgably about his drug use. I find that he is a drug addict, and was at the time of the offence.

[14] Mr. Moore testified about his efforts to get treatment for substance abuse. As I understood his evidence he took a program while in the penitentiary which involved talking about the problem in a group setting and also with a single counsellor. I take this to be the only substance abuse program Mr. Moore was enrolled in. He was candid that every attempt to break with drug use was short lived. This fits with the PSR which notes that Mr. Moore has not taken community based treatment programs, despite them being part of a probation order in 2005. From this I find that Mr. Moore has little genuine or long standing interest in curing his addiction.

[15] In the sentencing hearing Mr. Moore spoke of his 2011 convictions for drugs which landed him in the penitentiary. His answer was ambiguous in the sense that he said that he pleaded guilty to take the charge for a family member. In cross-examination he did not admit to being responsible for the offence. Similarly, when cross-examined on the cash seizure of $2,636 from his apartment Mr. Moore said that he could not remember the money. It wasn't his savings and a portion was his aunts, but he could not remember how he got it. He had stolen money from his aunt before to buy drugs but wasn't doing it when he was arrested. Cast against his evidence that he was using about $20.00 - $40.00 per day of fentanyl, selling drugs to feed his habit, and living on welfare, I easily conclude that the money seized was proceeds of crime from selling drugs. There is no other real explanation for the cash on the evidence, and Mr. Moore's failure to explain a substantial amount of cash is a frailty in his evidence, as is his failure to accept responsibility for his 2011 drug convictions.

Legal Principles

[16] 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. Section 10 of the Controlled Drugs and Substances Act outlines specific sentencing principles for drug charges. These include "… 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".

[17] There is a growing body of sentencing cases for fentanyl trafficking. They demonstrate a wide range of jail terms, from upper reformatory: see R. v. Reid, 2015 CarswellNS 802; R. v. Klammer, 2017 ONCA 416; and low penitentiary sentences: see R. v. McArthur, 2016 ONCJ 244; R. v. Rak, 2015 CarswellOnt 15163; to mid-level penitentiary sentences: see R. v. Sean Holmes (Unreported decision of Dwyer J.) Aug. 28, 2017; R. v. Boateng, [2012] O.J. No. 6384 (S.C.); R. v. Mitchell, [2014] O.J. No. 2556; R. v. Baks, 2015 ONCA 560; and R. v. Loor (supra). In Loor the Court was asked to establish a range of sentence for fentanyl trafficking cases, but they declined saying it was too early. Perhaps that is because the current fentanyl abuse epidemic has yet to crest, and therefore the Court has an insufficient body of cases with which to completely assess the scope of the problem. Writing for the Court Laskin J.A. did, however, say that "…offenders – even first offenders – who traffic significant amounts of fentanyl would expect to receive significant penitentiary sentences". That said, Justice Laskin reminded trial judges that sentencing is an individualized exercise varying from individual to individual.

[18] Many of the cases referred to by counsel were fentanyl patch cases, ie, cases where fentanyl patches were sold illegally. Recall that fentanyl in the patch form is a lawful distribution method up the point when it leaves the hands of the patient who lawfully possesses the prescription. Fentanyl powder, on the other hand, is just that. Even a single grain can cause an overdose in the patient, or first responder attempting to rescue the overdosing patient. Because it presents as a ubiquitous powder as opposed to a pharmaceutical patch, and because the entire chain of delivery, from production to sale is illicit, fentanyl in its powder form is more dangerous than fentanyl patches. Put another way, a first responder looking at a fentanyl patch is in a different, slightly less dangerous position than a first responder dealing with ubiquitous but potentially deadly grains of powder on a prostrate patient. In my humble opinion, trafficking in fentanyl powder should attract slightly longer sentences than trafficking fentanyl in patch form. This is to reflect the enhanced denunciatory and deterrence objectives required in sentencing powdered fentanyl traffickers.

[19] In this case Mr. Moore's co-accused Mr. Abbott was convicted of simple possession of fentanyl and received a suspended sentence. Parity between offenders is a guiding principal, but is not to be applied in an absolute fashion. The parity principal does not preclude disparity. In other words it is not determinative: see R. v. Mann, 2010 ONCA 342; R. v. Rawn, 2012 ONCA 487. In this case Mr. Abbott was convicted of a much less serious offence than Mr. Moore. Notably, Parliament has dictated that simple possession of a Schedule 1 substance carries a maximum sentence of 7 years, while Mr. Moore was convicted of an offence which carries a maximum sentence of life. Aside from that, and their different personal circumstances, Mr. Moore has been convicted of being the dealer, and Mr. Abbott the user. Mr. Moore's personal responsibility is at different ends of the spectrum from Mr. Abbott. For these reasons I find that parity is not applicable in the case.

[20] There is evidence that Mr. Moore is an opioid addict. Based on the evidence I find that Mr. Moore was trafficking not just to feed his habit but also for profit. I base this finding on the substantial amount of cash found in his apartment and no real explanation for it. Addicts who traffic to feed their habit are entitled to some mitigating benefit because of that: see R. v. Ward (1980), 56 C.C.C.(2d) 15 (Ont. C.A.). Offenders in that category are treated differently than commercial traffickers, but only if the offender has taken genuine efforts to deal with his substance addiction: see R. v. Poirier, 2014 ONSC 5200. Because of the failure of Mr. Moore to voluntarily address his stated addiction problem in any meaningful way over the last several years I would assign only minimal weight to the mitigating effect of his addiction problems.

[21] In Mr. Moore's case it is aggravating that he sold fentanyl powder for several hundred dollars. He profited by distributing an unregulated poisonous substance to an addict for human consumption. His criminal record is serious and lengthy. Only 6 years ago he served a penitentiary term for a similar offence. He appears to have no method of supporting himself other than dealing drugs. Mr. Moore has sparse roots in the community. Those around him appear to be entirely passive with this drug use. It is also an aggravating factor that he sold fentanyl in an apartment building. The building Mr. Moore was living in, and trafficking out of, is located in Scarborough. Although there is no specific evidence on how many persons lived in the building, there was evidence that it has as many as 14 floors, from which I infer that it is like many such buildings in Scarborough, which is to say home to dozens of families. I found as a fact in this case that Mr. Abbott bought the fentanyl from Mr. Moore on a different floor than the one his unit was on. Mr. Moore lived on the 14th floor but sold on the 11th. Using the hallways and stairwells of an apartment building introduces a criminal element to a place in which the other occupants are entitled to peaceful crime free occupation. Selling drugs involves the spectre of violence and unsavoury persons needlessly occupying the communal areas of a place that families live in. This is a distinct element calling for denunciation and deterrence.

[22] Mr. Moore has only a limited number of mitigating factors. These include his addiction, the 3 year gap in his criminal record between his last entry and the facts of this case.

[23] The Crown asks for a sentence of 6 years for Mr. Moore. Mr. Genua argues that a sentence of 2–3 years is appropriate. Given that Mr. Moore served an effective sentence of 2 years and 10 months in 2011 for the same offence, and the fact that he acquired two criminal convictions while in the penitentiary, a similar sentence for this offence would be inadequate to fulfill the sentencing objectives stipulated by Parliament. I therefore reject the submission that 2–3 years is an appropriate sentence. That said, it is not a question of accepting either the Crown submission or the Defence submission. The question is what is the appropriate sentence taking everything into consideration.

[24] Sentencing is not an exercise in precision. In the case of Mr. Moore denunciation and deterrence play a dominant role, and rehabilitation less so. Mr. Moore's sentence must also promote a sense of responsibility in him. Illicit trafficking in fentanyl one of the reasons why there is an epidemic of opioid overdoses. I see no evidence that Mr. Moore understands the risk that he poses to the community at large. There is no acceptance of responsibility. I see no evidence that Mr. Moore understands that the fentanyl he sold to Mr. Abbott could have resulted in Mr. Abbott overdosing.

Sentence

[25] In submissions I asked counsel if the Crown position of 6 years was too light, given Mr. Moore's lengthy, serious and related criminal record, the fact that this was selling powdered fentanyl out of an apartment, and the presence of over $2,000 dollars in cash without a lawful explanation. Mr. Arvizu suggested that a 6 year sentence is one of restraint, taking into consideration Mr. Moore's personal circumstances. On reflection I agree. This conviction could have attracted a longer jail term, but the Crown suggestion is still in the appropriate range of sentence. The sentence will be 6 years less Mr. Moore's pre-trial custody which is 120 days. He will be credited for that period at the rate of 1.5:1 for an effective pre-trial credit of 180 days, or 6 months. The remaining sentence will therefore be 5.5 years. There will be a DNA order, s. 109 order for life. The cash seized in Mr. Moore's apartment is ordered forfeited.

Released: November 23, 2017

Signed: Justice David S. Rose