Court File and Parties
Date: April 30, 2019 Court File No.: 2811-998-17-25139 Ontario Court of Justice
Between: Her Majesty the Queen
v.
Christian Rose
Reasons for Sentence
Of the Honourable Justice G. Wakefield
Of April 30, 2019, at Oshawa, Ontario
Appearances
N. Frid – Counsel for the Federal Crown
I. Revutsky – Counsel for Christian Rose
Reasons for Sentence
WAKEFIELD J. (Orally):
This is going to sound a little bit disjointed as I have changed a couple things, and I had anticipated a sentencing jointly with both Mr. Rose and Mr. McLeod. However, Christian Rose entered guilty pleas before me to two counts each of trafficking in fentanyl. These two fentanyl counts were additional charges against this defendant, which only arose after the two undercover purchases of heroin were analysed to have unknown amounts of fentanyl in each. More specifically, the first undercover purchase was purportedly for one half gram of heroin, purchased for $140; the second transaction was for one-tenth of a gram, for $300, according to my notes of the agreed statement of facts, which sounded like a rather substantial increase in the valuation but, in any event, upon the arrest of Mr. Rose, far more disturbingly, the involved officers seized a further 2.6 grams of heroin.
At no time did the officers ask to purchase fentanyl nor did either accused offer to sell fentanyl. Subject to further comments, I accept that the confirmed existence of fentanyl in the heroin came as a surprise to Mr. Rose and, for that matter, to Mr. McLeod.
I have heard expert evidence that fentanyl is an insidious drug, which has killed a multitude of victims in this region and indeed, across the country. It is powerfully more deadly than heroin. It is a scourge that must be deterred in the strongest possible deterrent sentences. The expert also confirmed that it was - actually you know something, have I asked Mr. Rose if he wants to say anything?
MS. REVUTSKY: Your Honour, in my written submissions I believe I stated that whatever was in the pre-sentence report, and Mr. Rose had quite a detailed discussion with the probation officer, so that all of those comments stand as his statement.
THE COURT: The same. That's what I understood from the submissions, but I just need a confirmation there is nothing further Mr. Rose wishes to say to me.
MS. REVUTSKY: I'll just ask him. Well, actually, he does want to say something.
THE COURT: Then he has that right. Would you stand up for a moment, sir? What would you like to tell me?
CHRISTIAN ROSE: Your Honour, I just want to let you know that I understand how serious this matter is.
THE COURT: I'm going to ask you to speak louder, too, so I can hear you.
CHRISTIAN ROSE: Your Honour, I just want to let you know that I understand how serious this matter is. I understand that fentanyl is killing people by the thousands every year, and this is very, very foolish of me. I know that – I know that employment – employment is the key to my stability.
THE COURT: That's it. Thank you. And just going back then, it is, indeed, a drug that is a scourge, and I think that Mr. Rose has acknowledged that in his final statement before me.
The expert I heard from confirmed it was possible for sufficient fentanyl to be present in the sample to register, but insufficient to cause death, though that was followed by Mr. Frid's follow-up question confirming that fentanyl can be in different concentrations in different parts of the heroin samples.
The presence of fentanyl is, itself, an aggravating factor given how pernicious an effect it has had in our community, but that aggravating factor is already set out in the actual charge. Having reviewed the caselaw provided by Crown and defence, I find that there is a tension between the mere presence of this drug being an aggravating, as opposed to how much of the drug is present, being the foundation of an aggravating factor. Of course, the onus is on the Crown to prove any aggravating factors. In this case, they have proven the presence of fentanyl but not the concentration of that drug in the seized heroin. I also note that counsel for Mr. Rose did attempt to gain funding authorization for Legal Aid to obtain a quantitative analysis of a fentanyl percentage and was denied that funding. As such, it is still unknown whether the fentanyl concentration would have been a mitigating or aggravating factor within the context of it being fentanyl.
Clearly, the trafficking in fentanyl is a serious charge which carries with it a wide sentencing range, dependant on aggravating factors, one of which would be the actual amount of the drug trafficked. I have concluded that without an actual quantitative analysis which would be available if the state invested in the necessary equipment, I should only look at the charge as being more serious than trafficking in similar weights of the heroin, which all involved parties believed was the actual transaction and not more aggravating than the fact of mere presence of fentanyl alone. I come to this conclusion partly due to it being the Crown's onus to prove aggravating factors such as the actual weight of the fentanyl or at least the level of concentration of that drug within the heroin. I also take note that, as a sentencing principle, our sentencing regime seldom punishes for the potential for harm as opposed to increased penalties for actually causing harm. An example is sentencing drunk drivers who have the potential to kill and maim due to their impairment, but most of whom receive the minimum sentences available. With drugs, the higher the weight of the drug will normally result in a far more intensive sentence.
However, in parallel with sentencing drunk drivers and the public awareness of the recklessness that they demonstrate to the safety of themselves and others, it is still difficult for me to believe that these two accused were not on some level aware of the risk of fentanyl contamination in street drugs at the time of their transactions, if only from within the street drug user communities. The difficulty for both defendants is that heroin is, itself, a pernicious community-destroying drug for which years of sentencing decisions have attempted to deter with heavy jail sentencings. General deterrence and denunciation are the two most important sentencing principles even if the substances were only heroin, without forgetting the role that the remaining sentencing principles play, especially rehabilitation, must not be forgotten. A rehabilitated criminal is the best way to protect the community from recidivism.
The Crown is seeking a sentence of four to four and a half years for Mr. Rose. Mr. Rose is submitting a sentence of time served. Sentencing cases for heroin are in the penitentiary range absent extraordinary mitigating factors, which is reflective of that drug's danger to the community. Fentanyl sentencing cases can reach double-digit penitentiary terms.
Mr. Rose has pled guilty, albeit not at the earliest opportunity, but still, those pleas have saved further judicial resources had the matter gone to trial and is a very real and concrete expression of remorse. Christian Rose is, frankly, a more challenging sentencing process than that for Mr. McLeod. Mr. Rose is a younger man at 27 years of age and only 24 at the time of these offences. He is not a stranger to the penitentiary, with a significant criminal record, while acknowledging this is his first drug conviction. He has had a challenging upbringing; he does possess positive pro-social values towards his partner and a sense of responsibility toward his children. He professes to have new insight into the dangers of heroin and fentanyl, though one would have thought that given the carnage these drugs have caused over many years, that he would have developed that insight earlier. There is no evidence of his knowing the heroin was contaminated with fentanyl.
Mr. Rose is not an addict and participated in drug trafficking solely for profit. While I acknowledge that there was no actual violence involved in these transactions, I would disagree with the defence submissions that the offence is not a violent one in that the offence here is a violent one due to its impact it has on our community. I also note that while Mr. Rose's transactions were solely for profit, they are not for frivolous lifestyle enhancements that I am aware of but rather, to support his family. While his family has had to relocate to Nova Scotia while Mr. Rose has been incarcerated, there is a very real support in the community for Mr. Rose upon his eventual release together with the prospect of legitimate employment. However, as a commercial trafficker, he took advantage of the weaknesses of addicts and including his own co-accused.
Mr. Rose was also on parole at the time of these offences. Parole is a privilege permitting a convict to serve the balance of his sentence in the community with a promise of good behaviour. In breaching this promise, he betrayed the trust that community places in the parole system. I agree with the sentiments set out in R. v. Robinson, 2018 ONCJ 115, that it should not be double credit for time in custody in the circumstances of that case until the warrant expiry date, after which pre-sentence credit would start to accrue. My departure from that issue is in not crediting an accused with time credits after a full release date given earned permission that would result in credit towards an earlier sentence completion date. In other words, as I understand full parole, an inmate has completed the custodial sentence. To refuse credit until the warrant expiry date would be to order forfeiture of remission credits and force reserving a sentence for the period of earned remission.
In Mr. Rose's case, I accept Ms. Revutsky's assertion that as of October 17, 2017, had Mr. Rose been returned to the penitentiary by way of a new Parole Board hearing, he would have accumulated earned remission for complete release as of the date of October 17, 2017. As such, Mr. Rose, on my calculation – I'll invite both counsel to follow the math for me – has accumulated pre-sentence custody credit of 75 days in 2017, 365 days in 2018, and 120 days in 2019; for a total of 560 real days, enhanced at 1.5 to 1, for a credit of 840 days or the equivalent of 2 years and 110 days.
Additionally, Mr. Rose seeks an enhanced "Duncan" credit due to the conditions at the Central East Correctional Centre, conditions which presumably he would not have experienced had he been returned to the penitentiary for the remaining period in that federal institution. He would have still been subjected to the more extreme difficulties at CECC upon his being released from the penitentiary and returned to Lindsay.
The Crown has conceded the appropriateness of enhanced credit for the pre-sentence custody conditions and proposed a further credit of two to three months. Defence is requesting four to six months. Much of the lockdowns, deprivation of fresh air, showers, restricted access to counsel, to family, and increased tension within the facility would appear to be caused by the ongoing labour disputes within the CECC, including frustratingly long delays in bringing prisoners to court. That latter situation ultimately required intervention by the Regional Senior Justice of the Superior Court of this jurisdiction. However, I also note that some of those lockdowns and restrictions on prisoners were caused by prisoners and the lockdowns were for the safety of the prisoners and staff together.
I now have additional lockdown particulars which the Crown agrees is worth at least an additional three days of credit. Taking all that into account, I have decided to grant a further credit limited to an additional four months which would be a total credit of two years and 230 days to be deducted from the total sentence to be served.
Mr. Rose is in a very different sentencing position than that of his co-accused. Mr. Rose is not an addict but a businessman in the drug trade, albeit in the smallest end of the trade. He has the unenviable prior record, though, for non-cognate offences. They were serious and one would think a strong deterrent message to Mr. Rose in the past to make better choices in his life that would not return him into custody.
Balancing out all of the competing sentencing criteria and noting that Mr. Rose presents as someone whose reclamation is not beyond hope, I note an equivalent pre-sentence custody of two years and 230 days on each charge, concurrent one onto the other, with a further nine months incarceration on each count, concurrent one onto the other, for a total remaining custodial sentence to be served of nine months. That would have been the equivalent of roughly a sentence of three years and five months.
That will be followed by a further probationary period of two years with the following terms, which are: you will keep the peace and be of good behaviour; appear before the court when required to do so; notify the court or probation officer in advance of any change of name or address and promptly notify the court or probation officer of any change in employment or occupation; you will report in person to a probation officer within two working days of your release from custody, and after that, at all times and places directed by the probation officer or any person authorized by the probation officer to assist in your supervision; you will live at a place approved of by the probation officer and not change the address without obtaining the consent of the probation officer in advance.
Is there any reason why there should not be a non-association term with Mr. McLeod?
MR. FRID: I can't think of any.
THE COURT: And while you are getting instructions, are there any other named individuals the Crown is seeking by way of non-association?
MR. FRID: No, Your Honour.
MS. REVUTSKY: There's no need for contact with Mr. McLeod.
THE COURT: As such, you will not associate or communicate in any way by any physical, electronic or other means or be in the company of Andrew Bruce McLeod, and the only exception will be for required court attendances. I will not put a radius in. I think it is quite clear that there cannot be any contact.
Paragraph 9, and I appreciate there are other orders the Crown has requested: do not possess any weapons as defined by the Criminal Code – and I'll use the words "including" as opposed to, for example, BB gun, pellet gun, firearm, imitation firearm, crossbow, prohibited or restricted weapon, ammunition, explosive substance or anything designed to be used or intended for use to cause death or injury or to threaten or to intimidate any person; paragraph 10: you will not possess or consume any unlawful drugs or substances – referring to the Drugs and Controlled Substances Act – except with a valid prescription in your name or those available over the counter.
Are there any other restrictive terms the Crown is seeking with respect to drugs or is that sufficient?
MR. FRID: No.
THE COURT: Mr. Rose is remarkably well spoken. He has potential. I simply do not know what I can open up here that he can take advantage of, but I am going to do the following and hope that there is a connection here that he can build upon: you will attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer; and under "other": any counselling to assist in rehabilitation. You will sign any release of information forms as will enable your probation officer to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed.
Are there any other terms of probation that I have missed that the Crown is seeking?
MR. FRID: No, thank you.
THE COURT: Any concern about the wording of the probationary terms from defence?
MS. REVUTSKY: I don't believe so, Your Honour.
THE COURT: And you know this, sir, any breach of the probation order is a new criminal charge, which if convicted just sets you right back again and, frankly, you have opportunities waiting for you and responsibilities waiting for you. Additionally, I think it is a 109 the Crown is seeking?
MR. FRID: Yes, please.
THE COURT: Pursuant to s. 109 of the Criminal Code, you are prohibited from possessing any firearm, crossbow, restricted weapon, ammunition, explosive substance, for a period beginning today, and I believe it's a lifetime with respect to Mr. Rose.
MR. FRID: I think so as well.
THE COURT: Lifetime duration. As well, after release – sorry, to commence after release from imprisonment, and further, you are prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. I suspect that Mr. Rose is already on the DNA databank, but you are seeking that today?
MR. FRID: Yes, please.
THE COURT: Given the prior record, the circumstances of this offence, the minimal impact on Mr. Rose's personal integrity, I am satisfied it is in the best interests in the administration of justice to make the order. You will provide a sample of your DNA if requested. I don't expect they are going to want to, but if they do, you have to cooperate with them. Does that cover off all aspects of sentencing other than any outstanding charges?
MS. REVUTSKY: Court's very brief indulgence. Thanks, Your Honour. I was just asking Mr. Rose whether he had a preference as to where he served his custodial sentence, but he is prepared to leave it up to the institution.
THE COURT: I'm not sure what choices are left other than perhaps a recommendation to a treatment facility, which I have not heard anything really applies...
MS. REVUTSKY: It doesn't apply.
THE COURT: Were there any other charges with respect to Mr. Rose?
MR. FRID: My understanding was that there are not. I'm looking at this docket now, and I'm seeing multiple charges, though I feel like we've cleared up the replacement info on this about six times.
THE COURT: Some things just don't want to go away.
MR. FRID: I see that. Madam clerk, can you indicate if there's still charges outstanding?
CLERK: There's just the one information before the court. Court's indulgence. I'll just – the other counts if they were withdrawn on a previous day.
MS. REVUTSKY: I think they would have been trafficking heroin charges, possession....
MR. FRID: So, but the previous – the info indicates that the plea was entered on the trafficking...
MS. REVUTSKY: Yes.
MR. FRID: Yes. So, then yes, the remaining charges can be withdrawn.
THE COURT: In respect to Mr. Rose only.
MR. FRID: Yes, please. There will be a s.490 order requested.
THE COURT: Is there anything Mr. Rose wants returned? And I appreciate there are going to be difficulties him getting access to the property bureau, hopefully somebody else that can help him.
MS. REVUTSKY: Yes, the drugs and the seized money is forfeited to the Crown.
MR. FRID: Just to clarify, there was no seized money. They just indicate...
MS. REVUTSKY: Oh.
MR. FRID: ...how much they think the drugs are worth when they seize them.
THE COURT: Oh, okay.
MS. REVUTSKY: Okay, sorry.
THE COURT: Otherwise, they might go after the – the facility. That wouldn't be fair either. Mr. Rose, the Crown position was one in which they had already taken into account the issue of the concentration of fentanyl in the drugs. I appreciate that. I have undercut them. Not as much as Ms. Revutsky and you would like me to, because fentanyl is serious and it was a risk that you took. I have come up with a number, and I appreciate I am not supposed to take into account remission, but I am anticipating you get a release date now of about six months hence. That is six months for you to put into place all the plans you need to put into place so you don't make the choices that bring you back here again, and I truly hope I do not see you again. Good luck, sir.
MS. REVUTSKY: Thank you very much, Your Honour.
THE COURT: Thank you.
MS. REVUTSKY: And I thank my friend for his fairness.
MR. FRID: Thank you.
MS. REVUTSKY: The court officer has asked me a question. What is the pre-trial custody total enhanced credit that Your Honour is prepared to give Mr. Rose? I thought Your Honour said two years and 230 days, if I am not mistaken?
MR. FRID: Yes, I wrote down the same thing.
THE COURT: It will be on the warrant of committal. Good luck, madam clerk, trying to figure that out with enhanced credit, the Duncan credit, on a warrant of committal, but what I had is that when all is said and done, two years and 230 days. Is that what each of you has noted down from my judgment?
MR. FRID: Yes, and I have within that four months of the enhanced credit for the lockdown and two years and 110 days, and I checked the math confirm it.
MS. REVUTSKY: I didn't check the math, but I am content. Thank you very much, Your Honour.
MATTER CONCLUDED
