ONTARIO COURT OF JUSTICE

CITATION: R. v. Walker, 2019 ONCJ 132

DATE: 2019 03 12

COURT FILE No.: Barrie 17-5202-02; 17-8075-02; 17-2169; 18-2857

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

RYAN WALKER

Before Justice C.M. Harpur

Heard on December 7, 2018

Reasons for Sentence released on March 12, 2019

Phillip Brissette.................................................................... counsel for the Federal Crown

Sarah Tarcza.................................................................... counsel for the Provincial Crown

David O’Connor.................................................... counsel for the accused Ryan Walker

HARPUR J.:

I. The Offences

[1] Some time during the night of April 9/10, 2017, twenty-three year old Shawn Kelly, a beloved son, brother, husband and father, died from the toxicity of four drugs he had consumed – heroin, furanyl fentanyl, chlorpheniramine and dextromethorphan. At least two of these drugs, heroin and furanyl fentanyl, had been sold to Mr. Kelly in the evening of April 9, 2017 by the defendant Ryan Walker, then also twenty-three years old. Mr. Walker and Mr. Kelly had been friends for several years. Both had struggled over those years with drug addictions. In April 2017 Mr. Walker was a “low level” drug dealer, dealing in grams rather than ounces, and having between three and ten regular customers. Mr. Walker was aware of the extreme health risk associated with consumption of furanyl fentanyl; he had advised one of his customers that “only a line of it can kill you”. Nonetheless, on April 9, 2017, Mr. Walker supplied furanyl fentanyl and heroin to Mr. Kelly. Their consumption by Mr. Kelly is acknowledged by Mr. Walker to have been a significant contributing factor in Mr. Kelly’s death. On December 7, 2018 Mr. Walker entered guilty pleas to one count of trafficking fentanyl and one of criminal negligence causing death.

II. The Victims

[2] Mr. Kelly’s death has had all of the tragic repercussions one can imagine when a life fully entwined with the lives of others is suddenly lost. A victim impact statement was presented to the court in person by Ms. Denise Lane-Kelly, Mr. Kelly’s mother, and presented by Ms. Tarcza for the provincial Crown on behalf of Megan Kelly, Mr. Kelly’s sister, on behalf of Colby Kelly, Mr. Kelly’s four year old son and on behalf of Cash Kelly, Mr. Kelly’s three year old son.

[3] The losses suffered by Mr. Kelly’s family are immense and permanent. He was twenty-three, an age when what lies ahead for most Canadian husbands, fathers and brothers is a life full of promise. Mr. Kelly struggled with a drug addiction but there is nothing in the record in this case to suggest that the promise of his life had been lost prior to his death. For that life to have ended so prematurely is indescribably sad.

[4] The sorrow of Mr. Kelly’s family has been exacerbated by their viewing on social media, subsequent to Mr. Kelly’s death, two communications, the first a posting purporting to be from Mr. Walker in which the writer signs off as “manslaughtercrew” and, later, a Facebook text to Megan Kelly purporting to be from Mr. Walker and requesting to become her Facebook friend. In this sentencing proceeding Mr. Walker denies having been the author of either of these communications. However, it is common ground, whoever the writer, that they were viewed by members of Mr. Kelly’s family and added to the terrible grief they were experiencing.

III. The Defence and Crown Positions on Custody

[5] In his guilty pleas, Mr. Walker has taken responsibility for being a significant contributor to Mr. Kelly’s death. Mr. O’Connor for Mr. Walker accepts that, leaving aside Mr. Walker’s lengthy pre-sentence custody and another mitigating factor subsequently discussed, denunciation and deterrence in this case would call for a penitentiary sentence of two to three years.

[6] Ms. Tarcza and Mr. Brissette for the federal Crown submit that Mr. Walker’s was a calculated crime in which he engaged for commercial gain, that the sale of fentanyl had, in April 2017, and has currently taken on the proportions of a lethal plague in Simcoe County, and that Mr. Walker’s moral culpability is extreme for trafficking to Mr. Kelly a drug he knew to involve the risk of death. Leaving aside pre-sentence custody but taking into account other mitigating factors, the Crowns suggest that a penitentiary sentence of four to five years for the offence of criminal negligence causing death and a concurrent three to three and one-half years for trafficking represent the fit custodial aspects of Mr. Walker’s sentence.

[7] With respect to the impact of fentanyl in this jurisdiction, Mr. Brissette notes that, in 2017, 3,996 people died from drug overdoses in Canada and seventy-three percent of those deaths involved fentanyl. He notes as well that, in 2017, the region of Canada suffering the greatest number of opioid abuse deaths was the Barrie/Orillia area of Ontario. Both Crowns say, with reason, that general deterrence must loom large in this sentencing.

IV. Mr. Walker’s Background and Circumstances

[8] A pre-sentence report (PSR) has been filed providing detailed information about Mr. Walker. He and his older sister were raised by their parents until Mr. Walker reached the age of fourteen. His parents then separated. Mr. Walker lived for some time with each parent in the years which followed and was living with his mother at the time of these offences. He attained grade eleven before leaving school and commencing sporadic work interspersed with social assistance.

[9] Mr. Walker began using marijuana at fourteen and harder drugs at eighteen. His use of opioids was daily until at least six weeks prior to his offences when, according the history he gave to the PSR writer, he was able to quit opioids and began using methadone. I note, parenthetically, that his mother reported to the PSR writer that Mr. Walker was continuing to use hard drugs until the time of his offences.

[10] While in pre-sentence custody at Central North Correctional Centre, Mr. Walker has been diagnosed with adult ADHD, Unspecified Trauma-related Disorder, Substance Abuse (opiates), Impulse Control Disorder and Anti-Social Personality Disorder.

[11] Mr. Walker has the benefit of a continuing close relationship with his mother. She has told the PSR writer that, since December 2017, she has visited Mr. Walker weekly while he has been in custody. Ms. Walker has been steadily employed by a marble and granite retailer for almost thirty years. She intends to have Mr. Walker reside with her on his release from custody in a new community in which she and he can start afresh. The PSR writer reports that Mr. Walker’s father is also supportive of Mr. Walker, although it appears Mr. Walker Sr. did not respond to the PSR writer’s attempts to contact him.

[12] The PSR states, alarmingly, that Mr. Walker “is uncertain if he was deserving of the charges before the court, rationalizing that the victim came to him for drugs first, he did not offer it first”. Mr. Walker has said that he, himself, has experienced the ongoing, near-irresistible attraction of opioids, even for one who has become “clean”. His obliviousness to Mr. Kelly’s vulnerability, as reflected in this remark to the PSR writer, bespeaks a puzzling lack of empathy. It also seems to lessen the taking of responsibility which the plea would otherwise suggest. However, Mr. O’Connor submits that Mr. Walker did not and does not now wish to try to minimize the blameworthiness of his sale of drugs to Mr. Kelly and, rather, is simply profoundly sorry.

[13] Mr. Walker was in jail from April 2017 until August 2017 when he was granted bail on his mother’s surety. One term of his bail was a prohibition against possessing drugs. He did not comply; in May 2018, he was found guilty following a trial of possessing marijuana on December 29, 2017. He has been in custody since.

V. Analysis

[14] The Crown and the defence have provided authorities in support of their sentencing positions. The Crown relies on R. v. Haas, 2016 MBCA 42, [2016] M.J. No. 118 (Man. C.A.), R. v. Valiquette, 2017 NBQB 089 (N.B.Q.B. Trial Division), R. v. Knapp, [2018] O.J. No. 2477 (S.C.J.), R. v. Mastromatteo, [2018] O.J. No. 3394 (O.C.J.) and R. v. Allison, [unreported decision of Colette J. in the O.C.J. released September 17, 2018]. The defence relies on R. v. John Doe, 1999 CanLII 15051 (ON SC), [1999] O.J. No. 5089 (S.C.J.), R. v. Dang, [2004] O.J. No. 338 (S.C.J.), R. v. Fyfe, [2017] S.J. No. 27 (Sask. Q.B.) and R. v. Plasil, [unreported decision of M. McLeod J. in the O.C.J. released January 30, 2018].

[15] Much of Mr. O’Connor’s caselaw is directed at the issue of the appropriate credit to be given to Mr. Walker as a result of his provision to the Crown of assistance in the Crown’s prosecution of Tahir Ali, a person also accused in relation to the death of Mr. Kelly. Mr. Ali faces charges of manslaughter and trafficking fentanyl. It is common ground that Mr. Walker has provided assistance to the Crown in its investigation of these charges, as well as providing what Ms. Tarcza has described as crucial testimony at Mr. Ali’s ongoing preliminary inquiry. Mr. O’Connor advises that Mr. Walker will testify for the Crowns at trial in the event that Mr. Ali is committed for trial. I shall return to this factor – sometimes referred to as the “informer discount” – in a moment.

a. The offence of criminal negligence causing death

[16] Leaving aside the matter of Mr. Walker’s assistance to the Crown, the caselaw I have reviewed indicates to me that the starting point for ascertaining the fit custodial sentence for Mr. Walker with respect to the offence of criminal negligence causing death is a period of five years. In his favour, he committed the offence at the age of twenty-three and had had no prior involvement with the criminal courts. He entered his guilty plea prior to the preliminary inquiry, a step on his part toward early closure of this case to the potential benefit of Mr. Kelly’s family. His plea to criminal negligence causing death was entered despite what Mr. O’Connor describes as a significant issue, had the case proceeded to trial, as to whether the drugs supplied by Mr. Walker were a cause of death. He is described in the PSR as having a supportive family. He has cooperated while in custody with the efforts made to treat his substance abuse and mental health issues, including the taking of medication. These are important mitigating factors.

[17] Weighing against them is the fact that Mr. Walker’s single-minded pursuit of a drug sale profit blinded him to the fact that he was furnishing to a friend a substance known by him to be potentially lethal. In the result, Mr. Kelly is dead. All crimes demonstrate, at a minimum, indifference by the criminal to the consequences for the victim. When that indifference extends to the possibility of loss of life, its moral blameworthiness is extreme and the need for denunciation pronounced. The fact that this jurisdiction is in particular need of the discouragement of the sale of deadly opioids reinforces the need for a strongly denunciatory sentence.

[18] Thus, taking the foregoing mitigating and aggravating factors into account, and without more, I would regard five years of custody as the fit custodial sentence with respect to criminal negligence causing death. However, that calculation requires refinement given Mr. Walker’s substantial assistance in the investigation and prosecution of Mr. Ali. As Hill J. stated in the John Doe decision at para. 23:

The entirely utilitarian objectives of uncovering serious criminality and apprehending dangerous individuals means that, in appropriate cases, an offender may justifiably receive a less severe punishment than the objective facts of his or her own offence deserves. While this pragmatic approach may be a high price for information, in the right circumstances, society is prepared to pay such a price.

[19] In John Doe, Hill J. goes on to list factors to be considered in evaluating the extent of assistance the information provides to the authorities, including whether the information was already known, whether the information led to a prosecution in which a conviction was achieved and, if so, whether the information was essential to conviction, and whether the informer testified in the course of the other prosecution.

[20] The prosecution of Mr. Ali is far from complete; the full extent of Mr. Walker’s participation and its effect remain to be seen. Nonetheless, counsel are in agreement that Mr. Walker’s assistance to date has been meaningful and deserves recognition in this sentence. Using as a rough guide the one-half to two-third reductions of an otherwise appropriate sentence noted by Hill J. in John Doe as a “not infrequent…range” for “cooperation of a high order” and bearing in mind the unfinished nature of Mr. Walker’s role in Mr. Ali’s prosecution, I regard a sentence discount of 1.5 years from the otherwise fit five year sentence for criminal negligence causing death as appropriate in this case. The net custodial sentence pertaining to this count is thus 3.5 years or 42 months.

b. The offence of trafficking fentanyl

[21] Apart from the matter of the informer discount, the considerations I have described with respect to criminal negligence causing death seem to me to apply equally to the count of trafficking fentanyl. Those considerations lead me to the conclusion that, before taking into account pre-sentence custody, a three year concurrent sentence would be merited for that offence. The nexus between the two offences to which the pleas have been entered is very strong and the concurrency recommended by all counsel is warranted.

[22] I am mindful of the recent decision of my colleague Bliss J. in Mastromatteo, supra, and his imposition of a seven and one-half year sentence there for the importation of fentanyl. Both Mastromatteo and this case involve participation by the accused in the dissemination in this jurisdiction of the deadliest known street drug. However, Mr. Mastromatteo was on a sentence of imprisonment in the community at the time of his importation of drugs. His involvement in the sale and distribution of fentanyl and other drugs in the Barrie area was extensive – he was connected to five fentanyl overdoses to which emergency personnel had had to respond in October 2016 and the fact that these sales did not lead to a death was only happenstance. In contrast, Mr. Walker had no criminal record at the time of his offence and his participation in this area’s fentanyl crisis was much more limited.

c. Conclusion on custody

[23] The final factor to be applied to Mr. Walker’s concurrent custodial sentences is his pre-sentence custody. As at today, March 12, 2019, that pre-sentence custody, credited at 1.5 days for every actual day served, is 825 days or approximately 27.5 months.

[24] Mr. O’Connor submits that a credit greater than 1.5 days for each day actually served is appropriate with respect to 63 of the actual 550 days served to date by Mr. Walker as those are days involving lockdowns. Mr. O’Connor relies on a letter from the Ministry of Community Safety and Correctional Services in this regard made Exhibit 5 on sentencing.

[25] I pause to say that on my reading, Exhibit 5 indicates 55 days of lockdown, in the sense that the cumulative total of the hours during which normal 7:00 a.m. to 7:00 p.m. conditions of movement for prisoners at CNCC were suspended, has been the equivalent of 55 days.

[26] Ms. Janiuk for the Crown opposes the provision of any credit beyond 1.5 days for Mr. Walker’s presentence custody on the basis that he has not established the sort of particularly harsh conditions of incarceration referred to in R. v. Duncan, 2016 ONCA 754, [2016] O.J. No. 5255 (O.C.A.).

[27] Mr. Walker testified today on this issue. He said that lockdown eliminates all of the customary freedoms, such as daily showers, toilet privacy, yard and movement within the range, normally available from 7:00 a.m. until 7:00 p.m. Rather, during lockdown, he said that one is confined to one’s cell with one’s cellmate – who may or may not be compatible – and must eat, toilet and live with that individual twenty-four hours of the day. Showers and phone calls are a rushed event given only once every three days during lockdowns. Mr. Walker said these lockdown conditions were stressful and disgusting. He did acknowledge having made commendable progress in his school studies during his incarceration despite the lockdowns.

[28] Mr. O’Connor describes the enhanced credit in lockdown circumstances as “standard” and, according to the caselaw obligatory. I do not agree. Even in cases of presentence custody involving lockdowns, particular harshness and consequent adverse effects on the offender must be proven to meet the test in Duncan. Here, that proof is not overwhelming. Much of the stress experienced by Mr. Walker – such as the obligation to use a toilet at night in the presence of a cellmate without being able to flush – was the result of incarceration simpliciter, not lockdown. However, at the end of the day, Mr. Walker spent approximately one-tenth of his presentence custody in lockdown, deprived of such basics of life as regular showers, daytime private toileting, fresh air and some freedom of physical movement. I accept that that deprivation aggravated Mr. Walker’s stress and is appropriately recognized in some enhanced presentence credit. I regard the appropriate “extra” credit as 30 days. In the result Mr. Walker will receive a presentence custody credit of 855 days or approximately 28.5 months.

[29] The principle of totality – ensuring that the cumulative total of the sentences for each offence for which an offender is convicted does not exceed a fit disposition for his culpability considered as a whole – militates in favour of applying the entirety of Mr. Walker’s pre-sentence custody to both the count of criminal negligence causing death and the count of trafficking. The result is that Mr. Walker will serve an additional 13 months and 15 days of custody with respect to the criminal negligence causing death count and a concurrent 7 months and 15 days of custody with respect to the count of trafficking. His request is that he serve his sentence at either St. Lawrence Valley Correctional and Treatment Centre or Ontario Correctional Institute. Given the substance abuse and mental health issues identified in the PSR, I will certainly make this recommendation in the warrant of committal.

d. The ancillary orders

[30] Counsel are jointly suggesting ancillary orders which I will grant, namely:

1. a s. 109 C.C. order prohibiting Mr. Walker from possessing the weapons and ammunition described in that provision for Mr. Walker’s life;

2. an order that Mr. Walker provide a DNA sample for retention on the data bank; and

3. probation for a period of two years. In addition to the statutory terms of probation, Mr. Walker will observe the following additional conditions:

i) report to a probation officer immediately on release from custody;

ii) abstain from the purchase, possession and consumption of controlled drugs except in accordance with a medical prescription;

iii) not associate with any individual who has a criminal record or whom you know to be involved in criminal activity unless:

a. the individual is approved by your probation officer;

b. as may be necessary in the course of your attendances for counselling and/or treatment; and

c. the association is with a person who is a member of your immediate family;

iv) not associate with Denise Lane-Kelly, Megan Kelly, Shawn Kelly Sr., Olivia Dale, Colby Dale-Kelly or Cash Dale-Kelly;

v) not be within 100 metres of Denise Lane-Kelly, Megan Kelly, Shawn Kelly Sr., Olivia Dale, Colby Dale-Kelly or Cash Dale-Kelly;

vi) not to have any contact with Tahir Ali except as may be required for court attendances;

vii) attend and participate in any treatment or rehabilitation program pertaining to substance abuse and mental health concerns, as well as any other rehabilitative programs recommended by the probation officer, signing such releases as may be required by the probation officer to monitor your compliance and progress; and

viii) reside at a place approved by the probation officer.

Released: March 12, 2019

Signed: Justice C.M. Harpur