Ontario Court of Justice

Date: November 8, 2017

Counsel:

• Michael Robb for the Crown
• Jamie Guggisberg for the Defendant

Hearing Date: Wednesday, November 8th, 2017

Reasons for Sentence

Hornblower, J. (Orally):

Background and Personal Circumstances

Jeffery Chivers is a 47 year old man whose life until approximately eight years ago was relatively benign. At that time he was employed and parenting his seven year old son. His ex-partner had a substance abuse problem, alcohol being the substance in question, and as a result, she relinquished custody of their son to Mr. Chivers. He then acquired a house for the two of them and began to provide a stable home for his son. To that point one might say that his life and their lives were good.

While at work one day Mr. Chivers was electrocuted. In the pre-sentence report prepared for this sentence hearing, this is described as a life-changing, traumatic event that has directly impacted his day-to-day living. As a result of the workplace accident Mr. Chivers began to experience significant pain and was prescribed percocet to manage the pain. Whether because the percocet became ineffective at managing the pain or because his physician thought he needed something more effective, Mr. Chivers was eventually prescribed fentanyl.

Notwithstanding the pain from his injury and the effects of the prescribed pain medication, Mr. Chivers continued to function in as close to a normal fashion as possible. He managed to find employment, and continues to be employed to the present time. He has managed to parent his son in what appears to be a highly effective way, notwithstanding various issues in his son's life. He has managed to maintain his home.

What he was not able to manage to do, however, was to avoid falling into the trap of abusing and becoming addicted to fentanyl. His situation is not unlike many others who, as a result of pain from workplace or other injuries, end up being prescribed the most powerful pain reliever, or one of the most powerful pain relievers developed, all in an effort to control pain. A drug that was developed primarily to address pain in cancer patients is now available for more general use as a pain reliever. Over the last ten years or so many persons have appeared in courts in Sarnia and elsewhere across this country with a similar story, having been lawfully prescribed first oxycodone and more laterally fentanyl in an effort to control their pain: addiction develops, prescriptions run out, and efforts to obtain the drug illegally end up brining people before the court.

The Offence

Mr. Chivers' situation is not unlike those, with one exception in that he is before the court for having trafficked in fentanyl. The circumstances surrounding that are somewhat unique.

To address concerns regarding the diversion of fentanyl patches from people lawfully prescribed the drug, the Patch-for-Patch Program has been developed. It is a simple but effective tool in that used patches must be returned before new patches will be issued.

Mr. Chivers abused his prescription. As he became increasingly tolerant of the drug, he resorted to chewing the used patches to get the last bit of fentanyl from the patch, and in what can only be described as an act, or acts, of utter foolishness, gave patches to his brother-in-law. There was some uncertainty at the time the plea was entered as to the number of patches, but in a letter that Mr. Chivers has now provided to the court, dated the 9th of October, but provided to the court this day, the indication is that there was more than one patch, and it was on more than one occasion that he provided the patches to his brother-in-law because of severe back pain his brother-in-law was experiencing.

In order to cover his tracks, Mr. Chivers attempted to fabricate fake used fentanyl patches so that he had something to hand in at the pharmacy when he went to renew his prescription. The ruse was easily detected. Mr. Chivers was charged with trafficking. He readily acknowledged his guilt, and has pled to the charge.

The Dangers of Fentanyl

I do not intend to recite the harmful effects of fentanyl as outlined in many cases, and most recently highlighted by the Court of Appeal in R. v. Loor, 2017 ONCA 696. In that decision the court dealt at length with the evidence of Doctor Karen Woodall, a Centre of Forensic Sciences toxicologist. Her evidence addresses the dangers of fentanyl abuse and the consequences of trafficking. I am familiar with her evidence. It has been cited in other decisions, and we live the problems of opioid abuse daily in this community and I see it routinely in this courtroom, having dealt with addicts, those who unlawfully possess the drug, and those who traffic in it.

Counsel for Mr. Chivers has spent some time commenting on the origins of the opioid crisis of which fentanyl is a part. As the crisis escalates, questions have been raised with respect to the development of the drug, the purpose behind the drugs, the marketing of the drugs, and the manner in which they are prescribed. There is, perhaps, plenty of blame to go around as society considers how we got into this mess and how we are going to get out of it.

But none of that is of any particular consequence in assessing a fit sentence here. It is of some consequence, however, that for many like Mr. Chivers the initial use of the drug was lawful. That cannot be said for anyone using heroin, cocaine, crystal meth, crack or any of the other number of substances that by their very nature can never be lawfully possessed.

Sentencing Principles and Case Law

In Loor the Court of Appeal ended its decision with the following comment at paragraph 60:

Few fentanyl trafficking cases have reached this court. It is thus perhaps too early in our jurisprudence to establish a range. But I think it fair to say that generally, offenders – even first offenders – who traffic significant amounts of fentanyl should expect to receive significant penitentiary sentences.

That language parallels to a large degree that court's earliest decision on heroin trafficking. In those cases the court held that absent exceptional circumstances, even youthful first offenders trafficking in heroin would receive a penitentiary sentence.

The Crown has also referred me to a decision of Justice Kowalyshyn, R. v. Gatfield. I am familiar with the reasoning in that decision. It is the same reasoning used by judges in this jurisdiction, including myself, in imposing penitentiary sentences and other sentences for fentanyl traffickers.

The following aspects of sentencing are spoken of in Loor: sentences must be proportionate to the seriousness of the crime and the moral blameworthiness of the offender; specific and general deterrence as well as denunciation are important principles in sentencing drug traffickers; aggravating and mitigating circumstances must be taken into account; and, sentencing is a highly individualized exercise.

Against this background, the Crown has argued for a penitentiary sentence in the three to four year range. I am of the view, however, that in the circumstances of this case, a non-custodial sentence is appropriate. By and large, sentencing remains a highly individualized process that takes into account the applicable sentencing principles, the personal circumstances of the offender, and the circumstances of the offence, trying to balance all of those.

While the offender's personal circumstances are always factored into a sentence, the weight that can be attributed to those factors will vary depending upon other factors, namely the sentencing principles and the circumstances of the offence.

It is oft times easy to criticize the actions of an offender who drowns his pain in alcohol or other substances looking for relief, until you have found in your own physical pain or emotional pain that relief sometimes comes from a bottle. It is easy to criticize the actions and judgment of the addict whose life has come crashing down around him or her, until you find your own life circumstances become so overwhelming that your own good judgment begins to lapse. Those unique personal circumstances factor into the moral blameworthiness of an offender and need to be taken into account on sentencing. The weight attached varies, as indicated, based on other factors.

Mitigating Factors

Standing in mitigation of sentence for Mr. Chivers are the following:

1. He has entered a guilty plea in a relatively timely manner.

2. He is genuinely remorseful and understands the seriousness of his actions, as indicated not only in the pre-sentence report, but the letter that was filed this morning.

3. The offence is largely out of character for Mr. Chivers. He has one prior conviction, extremely dated and totally unrelated.

4. He has been a productive member of society. Up to the time of his electrocution he was gainfully employed. Notwithstanding a life-altering injury, Mr. Chivers continues to be employed, and is an otherwise productive member of society. He is described as reliable, hardworking and friendly with co-workers and customers. He is a positive presence in his son's life and the life he has rebuilt for himself he has rebuilt for his son as well.

5. The prospects for his rehabilitation are excellent.

Aggravating Factors

The aggravating circumstances include the trafficking of fentanyl patches to a person to whom no medical assessment of the appropriateness of that drug had been made, and whose use of the drug would be without any medical supervision. As with any inappropriate use of this drug, the consequences could have been fatal.

Analysis of Sentencing Principles

Specific Deterrence

As to the sentencing principles that weigh heavily in this case, given the degree of remorse and the demonstrated understanding of the extent of and impact of his wrongdoing, specific deterrence has largely been met. As indicated, the offence is largely out of character and unlikely to be repeated. In this circumstance, a period of incarceration is not required to meet the end of specific deterrence.

General Deterrence

As for general deterrence, we should not simply cite the principle in circumstances where the prospect for there being deterrence from the sentence is minimal. I say that with the greatest of respect for the principle of general deterrence, but general deterrence should not be the crutch upon which we lean to justify a period of incarceration where the reality is the deterrent message will be lost on those it is intended to deter. As indicated here, the circumstances that relate to trafficking are unique given the context that we usually see them of commercial trafficking.

Loor was involved in a sophisticated scheme involving several others, described by the court as a trafficking ring. The quantity of drug was significant. Loor and the others had set up a potentially lucrative business that had the potential to operate for a significant period of time without detection. It was purely a business venture, commercial trafficking for profit. The deterrent effects of the sentence are obvious when looked at through the lens of others who might be tempted to embark in the business of trafficking. There was an extremely high degree of moral blameworthiness on the part of Loor and of the others who were involved in that trafficking ring.

The same can be said for Gatfield, the decision of Justice Kowalyshyn referred to me by the Crown. Gatfield was involved in an operation supplying the drug to others for sale to their contacts. At the time Gatfield supplied the drug to an undercover officer he indicated a willingness to continue to supply on other occasions. It was purely a commercial operation. The level of moral blameworthiness is far greater there than in Mr. Chivers case, notwithstanding that Gatfield was himself an addict.

Justice Graham recently dealt with a fentanyl trafficking case involving a pharmacist, Yogesh Patel. It is an unreported decision. Mr. Patel abused his position of trust to acquire at least 3000 fentanyl patches worth approximately $900,000. He was involved in a sophisticated and extensive commercial operation. Justice Graham found Mr. Patel's moral blameworthiness to be exceptionally high. A deterrent message to others who are entrusted with the care of the drug can be seen to have an obvious effect, and one for which there is an obvious need.

The matter involving Mr. Chivers is, as indicated, somewhat unique. He was not involved in the sale of fentanyl for commercial gain. Trafficking can occur in any number of ways. The giving of the drug is as much an act of trafficking as is the sale of the drug and the consequences are just as significant, or can be just as significant.

The commercial ventures, however, are by their nature intended to be ongoing schemes, are motivated solely by greed, and reflect an indifference to the plight of the addict and reflect an indifference to society at large. There is nothing to indicate that the giving of the patches here was anything other than isolated, an act of utter foolishness, a characterization that even Mr. Chivers acknowledges. He acknowledges the dangerousness of his actions.

With regard to how poorly thought out his actions were, I would note a comment that Mr. Chivers made at the time the submissions were made on sentence as well as in the letter provided today. While not making an excuse for his actions, he did indicate that the drug had a negative impact on thought processing. The expert evidence of Doctor Woodall cited in Loor makes reference to the effect of drugs on brain function.

Denunciation

Denunciation is the remaining principle for consideration. Incarceration is an effective mechanism by which society can express its denunciation for conduct that needs denouncing. Having said that, however, the need for denunciation must be looked at in light of the entirety of the situation and in that light if a custodial sentence is not otherwise necessary, I do not believe it should be imposed simply to send a denunciatory message, particularly in circumstances where there is, as here, a much lower degree of moral blameworthiness. There are other ways.

Sentence Imposed

I am of the view that a suspended sentence with a lengthy period of probation is appropriate in these circumstances. Through probation, rehabilitation can be undertaken in a way that assists Mr. Chivers in remaining an otherwise productive member of society. Although seldom used in this way, a suspended sentence is just that, suspended. During the period of probation while rehabilitation is being undertaken Mr. Chivers is bound by various conditions, including a general one that requires him to keep the peace and be of good behaviour. Failure to abide by any of the conditions in the probation order renders him subject to being returned before the court for sentence to be imposed on this offence. It is, as indicated, suspended during the period of time that the probation order is in effect.

That is a significant consequence and I believe has a significant deterrent effect.

Accordingly then with respect to the charge there will be an order of probation in effect for three years. I believe the maximum period of probation is appropriate in the circumstances because, as indicated, it is a suspended sentence and this is an effective way to monitor Mr. Chivers' behaviour in the community. I say that with full confidence that his rehabilitation will be successfully carried out and that he is at an extremely low risk, if any risk, to re-offend. Nonetheless, a three year order of probation is in effect. It is a reporting order. During that time, Mr. Chivers, you will have to report to the probation office, today is the first day, after today as directed by the probation officer.

Conditions of Probation

You are not to have in your possession any substances under the Controlled Drugs and Substances Act except for those prescribed for you by a physician. You are not to have in your possession any drug paraphernalia, including but not limited to weigh scales, rolling papers, smoking devices, syringes and the like. You will have to attend for any counselling for substance abuse or other matters. As is often the case where there is substance abuse, there are many factors that underlie the addiction. No doubt you have experienced an extremely traumatic situation in your life where it was entirely upended as the result of a workplace accident totally not of your doing. I suspect there are other issues that will need to be addressed, so in addition to the substance abuse counselling, any other counselling required by the probation officer. There will be an order under section 109, but there is also an order as part of this probation order that prohibits you from having any weapons as defined in the Criminal Code in your possession.

Finally, I believe that community service hours are appropriate. I say that with some hesitation because I believe, Mr. Chivers, that as you continue to struggle with the effects of the workplace injury, continue to be employed and continue to provide for your son in an extremely positive way, that community service will interrupt. However, I do believe that there needs to be some reparation to society, and that can be effectively done through community service hours. It is a three year order of probation. With that in mind then there will be 100 hours of community service imposed to be performed during the first 35 months of that 36 month, or three year, probation order. It is on a project and at a rate and a manner agreed to between you and the probation officer.

You will need to provide consent to release of information and proof of attendance if required. To my mind the most effective manner in which the community service could be carried out if it was somehow involved in substance abuse and the dangers of fentanyl, but I leave that up to the probation officer to determine the appropriateness of that.

Court Proceedings

MR. ROBB: No, Your Honour. Thank you.

THE COURT: All right, Mr. Chivers, do you understand the terms of that probation order?

MR. CHIVERS: Yes, sir. I do.

THE COURT: Failure to follow any of those terms violates that order. That is an offence which could see you charged separately and brought back before the court. As I indicated, and I cannot say it strongly enough, if there is a violation of any of the terms of this sentence it is simply suspended and you should be brought back before the court. I do not believe any of that will occur, but I need to emphasize that.

There will be an order with respect to DNA, that can be taken here at the courthouse. There is an order under section 109 that prohibits you from having in your possession any firearms, ammunition, restricted weapons, prohibited weapons and devices. With respect to the surcharge, the minimum surcharge of $200 applies for which there will be six months for payment.

MR. GUGGISBERG: It is, Your Honour.

THE COURT: Six months for payment. Okay, the probation order will be prepared for your signature down in the court office shortly. That has to be signed before you leave here and then to the probation office.

MR. CHIVERS: Okay, thank you.

MR. GUGGISBERG: Thank you, sir.

CLERK REGISTRAR: There's just the one count, right?

THE COURT: That is all there is.

WHEREUPON THIS MATTER WAS COMPLETED