ONTARIO COURT OF JUSTICE

CITATION: R. v. White, 2019 ONCJ 191

DATE: 2019 03 21

COURT FILE No.: Central East Region: Oshawa Courthouse 16-33543-00

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

TRISTAN WHITE

Before Justice Peter C. West

Guilty Plea entered July 17, 2018

Submissions as to Sentence Heard on January 28, 2019

Reasons for Judgment released on March 21, 2019

Mr. R. Greenway............................................................... counsel for the Crown

Mr. S. Yeghoyan...................................... counsel for the accused Tristen White

WEST J.:

Introduction

[1] Tristan White pleaded guilty to trafficking in a Schedule 1 substance held out to be heroin before me on July 17, 2018. Trial dates were originally set in the Ontario Court of Justice for a day and a half on July 20, 2017 and July 24, 2017. On July 20, 2017, the trial did not proceed and the matter was adjourned to September 15, 2017 for guilty plea before Justice Block. On September 15, 2017, Mr. White pleaded guilty before Justice Block to the trafficking in a substance held out to be heroin and a presentence report was ordered and sentencing was scheduled for November 9, 2017. The sentencing did not proceed on November 9, 2017 and a further judicial pre-trial was set for March 1, 2018 before Justice Block. On March 1, 2018, it would appear Justice Block struck the guilty plea and the matter was further adjourned to go before a different judge. I was not advised of the reason why Mr. White’s guilty plea was struck.

[2] The matter was brought before me on July 17, 2018, and Tristan White entered a plea of guilty with an Agreed Statement of Facts, Exhibit 1. I was advised a Pre-Sentence Report had already been prepared and both counsel were of the view it did not need to be updated. This position in my view proved to be ill-advised as I will discuss later in these reasons. Sentencing submissions were adjourned to December 13, 2018 at the request of counsel as the Crown intended to provide evidence from a toxicologist at the Centre of Forensic Sciences and a drug expert from DRPS Drug Enforcement Unit.

[3] On December 13, 2018, the sentencing submissions were adjourned at my request because of a scheduling conflict. Mr. White pleaded guilty before me and sentencing was adjourned at the request of counsel. Sentencing submissions were made by counsel on January 28, 2019, after which I reserved judgment until March 21, 2019.

[4] The evidence provided by counsel on sentencing included: Exhibit 1 is an Agreed Statement of Facts; Exhibit 2 is a Pre-sentence Report (PSR); Exhibit 3 is the Victim Impact Statement from Jeff and Melinda Troy, David Troy’s parent; Exhibit 4 is the Affidavit of Dr. Karen Woodall, toxicologist at the Centre of Forensic Science; Exhibit 5 is the Expert Opinion Report of Detective Paul MacIntosh, DRPS Drug Enforcement Unit; Exhibit 6, Texts messages between David Troy and Tristan Whited, dated February 3, 2016 obtained from David Troy’s cell phone and confirmed by Tristan White’s cell phone, which he voluntarily provided to police; Exhibit 7, a Letter of Apology, handwritten, by Tristan White; Exhibit 8, DRPS narrative of Constable Willis, one of the investigating officers; Exhibit 9, the first page of the Report of Postmortem Examination and Exhibit 10, an email from D. Butler, Manager, Social Work Services, Ontario Correctional Institute in Brampton, Ontario.

[5] Detective MacIntosh testified on January 28, 2019, in addition to his report, Exhibit 5. No other evidence was led by either counsel.

[6] I received casebooks respecting fentanyl and other Schedule 1 sentencing cases. I want to thank both counsel for their detailed and extensive submissions and materials. I will indicate at the outset that this sentencing is somewhat unusual in its circumstances and can only be described as a completely unfortunate tragedy.

Factual Background

[7] On February 3, 2016, at approximately 3:23 pm, DRPS officers were dispatched to the area of Harrongate Place and Folkstone Gate in Whitby to respond to an assist ambulance call. Information had been provided David Troy, 25 years old, had possibly overdosed on heroin. Mr. Troy’s mother had found him in her husband’s truck unconscious and unresponsive and she called police because she believed he had overdosed.

[8] Mr. Troy was taken to Lakeridge Health in Oshawa and was pronounced deceased shortly before 4:12 pm, on February 3, 2016. P.C. Van Belleghem attended the scene and he searched the pickup truck. The following items were located within the truck:

1. In Mr. Troy’s wallet, a small plastic baggie with Panda pattern on the face, which contained a white powder residue. The wallet was located in the centre console and this substance analyzed as morphine.

2. Stainless steel spoon containing white powder suspected to be heroin located in centre console close to driver side arm rest in plain view. This residue analyzed as Fentanyl.

3. A blue rubber band tourniquet was in plain view.

4. A block bic lighter on the centre console close to the driver side in plain view.

5. Various packaged syringes located on the rear side of the driver’s seat.

6. 2 capped syringes located in the centre console of the vehicle.

7. 1 syringe containing trace amounts of liquid located on the floor wedged between the driver’s seat and the centre console.

[9] The paramedics on scene provided a cell phone of David Troy to his parents, who turned it over to PC Corner of the Drug Enforcement Unit. The phone was searched and text messages were located between David Troy and “Tristan” dated February 3, 2016 at 1:08 pm.

[10] The text messages indicated that David Troy had reached out to “Tristan” for the purpose of obtaining heroin. Mr. Troy offered “Tristan” $40 or 1 point to get him the heroin and told “Tristan” he needed it right away as he was “hurting” and very “sick.” Mr. Troy told “Tristan” he had $180 and “Tristan” could have $40 or a point and what could he get for $140. “Tristan” told him he could get “4” [points] for Mr. Troy and “1” [point] for himself from $180. The texts between Mr. Troy and “Tristan” commenced at 1:08 pm and ended at 2:07 pm when they must have met up in a parking lot. Mr. Troy was then supposed to drive “Tristan” to Canada Service to pick up his “roe” [Record of Employment]. In the texts “Tristan” tells Mr. Troy its “expensive” but “it’s well worth it gotta be careful tho don’t shoot too much at once for real. He’s doing 4 for 140 for you.” It is my view from the texts that “Tristan” met Mr. Troy in a parking lot, received the money around 1:41 pm and then met up with the third party just after 2:00 pm.

[11] PC Corner determined that “Tristan” was Tristan White, who was associated with the cell phone 289-928-3467. It is clear from the texts that “Tristan” purchased .4 grams of heroin from an unknown third party and received .1 grams for himself.

[12] As a result of determining Tristan White was the owner of the cell phone, Tristan White was arrested on February 4, 2016. Mr. White was provided his rights to counsel but declined to speak to counsel. Shortly after his arrest PC Corner met again with Mr. White, again provided him with his right to counsel, caution and secondary caution. Mr. White again advised he did not wish to speak to a lawyer and wanted to provide a statement, which he did.

[13] Mr. White admitted that he obtained the heroin for David Troy from a third party at a Tim Horton’s on Athol in Oshawa, where he knew he could obtain heroin. After giving the heroin to Mr. Troy he shot up right in front of Mr. White, using a syringe, in Mr. Troy’s vehicle at a McDonald’s on Ritson Road in Oshawa. Mr. White described how Mr. Troy used a spoon and 40 cc’s water to turn the heroin into a liquid to be able to inject it using a needle. After Mr. Troy took the heroin Mr. White started to have concerns for him and asked if he was alright. Mr. Troy told him it was very good and that he’s taken too much.

[14] Mr. White in his statement said Mr. Troy turned white and was having difficulty operating his truck as he almost hit a curb. Mr. White requested he be dropped off before he got to Service Canada due to his concerns about Mr. Troy’s driving. After getting out Mr. White sent texts asking how Mr. Troy was doing but did not receive any responses from him.

[15] Mr. White had no knowledge that the substance he purchased was fentanyl. He believed it was heroin. The Health Canada analysis of the residue in the spoon from in Mr. Troy’s vehicle showed the substance was fentanyl. The coroner’s report reflected the cause of death for David Troy was fentanyl toxicity. The toxicological analysis by the forensic pathologist was positive for lethal concentrations of fentanyl in Mr. Troy’s body.

[16] The Agreed Statement of Facts did not allege Tristan White was a drug trafficker. The allegation accepted by Mr. White is that he was asked by his friend, David Troy, to obtain a quantity of heroin for Mr. Troy, which he did. Mr. White received either $40 or 1 point of what was believed to be heroin. It was agreed Mr. White at the time of this charge was himself a heroin addict.

[17] Dr. Karen Woodall, provided an affidavit, which was marked as Exhibit 4 and Det. Paul MacIntosh, provided a report, which was marked as Exhibit 5. Dr. Woodall in her report indicated fentanyl is a synthetic opioid drug, which belongs in the same class as drugs such as morphine and heroin. Fentanyl is available for oral, transmucosal administration, as an injectable solution, or in a transdermal delivery system, patches of fentanyl contain 2-17 mg of fentanyl and provide a dose of 12.5-100 mcg/hr for 72 hours, providing continuous pain relief. Fentanyl is used medically for the treatment of severe chronic pain. It is also commonly used as a drug of abuse because it creates strong euphoric feelings and also sedation. In addition, long-term use or abuse of opioids may lead to addiction.

[18] I am aware from previous testimony before me on two other cases, R. v. Hillier and Blain, 2018 ONCJ 397, [2018] O.J. No. 3126 and R. v. Digiorgio, [2018] O.J. No. 3113, that fentanyl is a 100 times stronger than morphine and 20 times stronger than heroin. In recent years fentanyl powder has become available from illegal drug labs in China, smuggled into Canada through Vancouver and is sold on the streets. The powder can be snorted, injected or smoked. The fentanyl involved in this case was powdered fentanyl.

[19] In her report dated June 20, 2018, part of Exhibit 4, Dr. Woodall indicated a problem with powdered fentanyl was that it is easier to accidentally expose yourself to it. Fentanyl powder can be inhaled by accident or it can get on the skin and be absorbed. Fentanyl can be more easily absorbed through the skin than other opioid drugs. If someone was close to fentanyl powder it can be accidently inhaled. Those individuals who use opioid drugs on a regular basis can build up a tolerance, however, those using an opioid drug like fentanyl for the first time can put themselves in harm’s way if they have not already built up a tolerance to opioids because fentanyl is so much stronger than morphine or OxyContin for example.

[20] Each year a number of deaths in the province of Ontario are attributed to opioid use, including fentanyl. A lethal dose of fentanyl could not be provided by Dr. Woodall as it would depend on a multitude of factors including tolerance, route of administration and percentage quality or strength. Deaths due to opioid use have increased in Ontario over recent years with fentanyl being the most frequently detected opioid in death investigations.

[21] Detective Paul MacIntosh with Durham Regional Police Drug Enforcement Section since 2009 was qualified as a drug expert in terms of sale and distribution of fentanyl. He provided an expert opinion report in regards to the community impact fentanyl has had in Durham Region. Fentanyl is a synthetic opioid and is approximately 80-100 times more potent than morphine and many times more potent than heroin. A heavy user of fentanyl would use between 0.25 grams to 1 gram of fentanyl per day. Dosages and rate of consumption vary depending on the user’s tolerance to the effects, variance in purity of the fentanyl and the chosen method of consumption.

[22] There has been, according to Detective MacIntosh, a dramatic increase in the use of opioids in Canada and specifically in Durham Region since the introduction of illicitly produced synthetic fentanyl and its analogues were introduced to the “street” market. In 2012 Health Canada tested 217 drug samples across Canada which contained fentanyl and this has increased to 8166 samples in 2017. In Ontario the number of samples in 2012 was 106 and this increased to 2469 in 2017. Traffickers of fentanyl and its analogues have incorporated this extremely powerful synthetic opioid into the heroin and opioid trafficking stream through; the mixing of fentanyl with heroin, using fentanyl as a substitute to heroin, creating counterfeit tablets of Oxycontin, Percocet, and Xanax tablets and more recently have begun selling powder fentanyl to demanding customers.

[23] In 2015, there were 32 drug overdose reports, 16 of which were fatal and 10 of those overdoses were found to be positive for fentanyl. This means fentanyl was found in the system of the person involved in the overdose that was fatal.

[24] In 2016, there were 73 overdose reports, 38 that were fatal and 13 of those overdoses were found to be positive for fentanyl.

[25] In 2017, there were 175 overdose reports, 43 that were fatal and 25 of those overdoses were found to be positive for fentanyl, although the 2017 statistics are not complete due to delays with toxicology reports.

[26] Detective MacIntosh also provided information concerning other crimes being committed to gain access to fentanyl or other opioids, for example, break-ins at pharmacies, robberies, fraudulent prescriptions and removal of fentanyl patches from seniors in long term care facilities or palliative care facilities. There were 52 incidents from 2015 to present, which reflected fentanyl patches being targeted.

[27] In 2016, there were approximately 41 seizures of fentanyl by DRPS. From January to October 2017, there were 82 incidents of drug seizures suspected of being fentanyl. Project Yuma involved an undercover officer purchasing ounces of fentanyl and in a separate investigation DRPS seized approximately 42 kilograms of fentanyl and numerous firearms.

[28] When Detective MacIntosh testified he indicated in 2016 someone purchasing heroin would not be aware of contamination with fentanyl. He testified the awareness of fentanyl in the last three years has increased dramatically with users, police officers and the courts. In the last two years Detective MacIntosh testified he cannot remember when he has only seen heroin in an analysis. Currently, it would be uncommon the purchase heroin without there being some fentanyl in it. On many occasions there can be as much as 50% of a heroin purchase is fentanyl. Detective MacIntosh testified one could not distinguish between heroin and fentanyl today as they are both white powder. Detective MacIntosh agreed with Mr. Yeghoyan’s suggestion that if Narcan, an antidote, had been available three years ago, Mr. White might not have died. Addict users today are getting Narcan from pharmacies for free.

[29] It was agreed by all parties that fentanyl is a serious Schedule 1 substance, which is highly addictive and very dangerous.

Position of the Parties

[30] The Crown is seeking a four year penitentiary sentence for the conduct engaged in by Mr. White, who has no record. It was the Crown’s position that Mr. White’s PSR was a terrible PSR, which did not bode well for his future rehabilitation.

[31] Mr. Greenway focused on the PSR as demonstrating Mr. White has shown no remorse and he pointed to p. 7 of the PSR and the following paragraph:

He indicated not deserving what is now happening to him as he did nothing wrong. He maintained he took the responsibility for giving his friend the drugs but he is not a drug dealer as the Criminal Justice System seems to thin. He reported that his friend begged him to get the drugs for him. He expressed being angry because another person who provided him with the drugs is still out there. The subject admitted to drug use and had friends who were drug users; however, he stated that he has never sold drugs in his life.

[32] Mr. Greenway also pointed to p. 9 in the PSR where Mr. White’s friend, Haley Cochrane, expressed that Mr. White was in need of anger management because of personal family issues and counselling for his drug use. He also pointed to the probation officer’s information on p. 10 from speaking to Mr. White’s methadone doctor, Dr. Kathryn Meunier. I will deal with the comments of these individuals in my discussion of the appropriate, proportionate sentence for Mr. White later in my reasons. Mr. Greenway also pointed to Mr. White’s response to community supervision, which reflected he had not completed his substance abuse and anger management counselling, see bottom of p. 10, PSR. Mr. Greenway’s submissions were based on a PSR prepared a year and a half before Tristan White was sentenced and as will be seen, many of Mr. Greenway’s concerns and criticisms of Mr. White’s professed remorse, his failure of dealing with his substance abuse issue and his underlying personal familial issues, Mr. White has in fact made significant strides in addressing.

[33] I will deal with the PSR in more detail later in my reasons, however, Mr. Yeghoyan advised during his submissions that Mr. White in fact did complete all of his counselling for substance abuse and anger management within the twelve months’ probation he received for the assault charge March 30, 2017. The PSR is dated November 7, 2017 and indicated Mr. White was reporting and was waiting for the programs to commence and the he had registered for them. This is why in hindsight I believe an updated PSR should have been prepared as it would have addressed these issues.

[34] The ancillary orders respecting weapons prohibitions, s. 109 and a DNA order, are agreed to by all parties.

[35] Mr. Yeghoyan is seeking a 13 month sentence and a recommendation that Mr. White serve his sentence at the Ontario Correctional Institute where he would be able to start substance abuse counselling prior to his release from custody. Mr. Yeghoyan pointed to the fact Mr. White was a drug addict himself, David Troy was his friend and was clearly begging Mr. White to help him because he was very sick and needed to purchase some heroin. Fentanyl was not well known in 2016 and the evidence is clear Mr. White and Mr. Troy had no idea the drug dealer sold Mr. White fentanyl rather than heroin. The evidence also supported that Tristan White was not a drug dealer who sold illicit substances for profit and greed. Mr. White co-operated with the police, provided an inculpatory statement, turned over his own cell phone voluntarily and allowed police to search it. The texts confirmed the texts found in Mr. Troy’s cell phone and supported the defence position Mr. White was not a drug dealer. Mr. Yeghoyan submitted the facts and circumstances of this case provided exceptional circumstances, which would justify in the unique facts of this case a lenient sentence.

Circumstances of the Offender

[36] Tristan White was 25 years of age when David Troy died from an overdose of fentanyl, which both he and Mr. White believed to be heroin. He has been lived with his mother since his arrest. He is single and has no children. He has three sisters although he does not know them. He has a sister older than he is and another the same age but they have different mothers. His younger sister has the same mother he has.

[37] At the time of the commission of this offence Tristan White did not have a criminal record. He did not have a youth court record despite the significant difficulties he encountered with drug addiction from a very early age. I was advised there was an assault charge laid after he was on charge with trafficking and he received on March 30, 2017, a suspended sentence and was placed on probation for 12 months.

[38] At age 13 he began to live with his grandparents and until this charge he had very little contact with his mother. He has a very good relationship with his grandparents. His younger sister was nine when he went to live with his grandparents. Mr. White believed his mother loved his sister more than him and always sided with her when there were arguments. Mr. White alleged in the PSR that he was physically and emotionally abused by his mother. His mother, Tammy White, told the probation officer she and Tristan have a good relationship at present. She denied abusing Tristan and indicated Tristan went to live with her parents because she believed it would be better for him to go to high school in Whitby. Ms. White advised she spanked him five times, with the last time being when he was ten.

[39] Mr. White does not have a relationship with his father and this was confirmed by his mother. Teri White, Tristan’s aunt and sister to Tammy, advised the probation officer that Tammy admitted going too far punishing Tristan approximately three times, with the last occasion being when he was ten.

[40] Tristan White completed high school and attended college for advertising completing three years of a four year degree. He described not being able to afford to pay for his final year as the reason he dropped out. His mother confirmed this. In Grade 10 he was sent to Durham Alternative School. His grandparents wanted him to return to his mother’s house when he was expelled from high school but Mr. White went to Oshawa staying with friends or sleeping in parks. Ultimately his grandmother had him come back to live with his grandparents.

[41] Mr. White has had a number of jobs working in warehousing and supermarkets from the age of 16. Since April 2016 he has been receiving Ontario Works. He advised he is not working because of his current involvement with the Criminal Justice System.

[42] Music started as a hobby for Mr. White but since his arrest he has devoted more time to it. He has not made very money from it but he expressed in the PSR he would like to pursue this as a career. His mother described Tristan as a hard worker when he was working from age 16 onwards. She confirmed his love of music and indicated he is very talented. She believed he wanted to move to the next level with his music.

[43] Mr. White began using marihuana at the age of 12 and in Grade 8 began drinking alcohol. He admitted smoking 3.5 grams of marihuana daily because of stress as it calms him down and reduces his anxiety. At the present time he is not using opioids as he is on a methadone program.

[44] He started using ecstasy in Grade 9 and then cocaine in Grade 10. He also admitted to using acid, OxyContin, mushroom, “K”, uppers, ecstasy, Ketamine, and heroin. He began using drugs because it made him feel good and he believed his substance use was a way for him to escape reality. He would use drugs at parties but his drug use increased when he was alone. Mr. White told the probation officer he sought to stop his drug use after his friend died from the fentanyl overdose.

[45] Mr. White believes he has an addictive personality and would use a substance exclusively until he switched the substance. He did not use a variety of drugs at the same time. There would be periods he stopped using but it would only last for short periods of time. When his intimate relationship with his girlfriend ended he started using drugs heavily again. A friend contacted by the probation officer confirmed Mr. White’s drug use and consumption of alcohol.

[46] He has been on suboxone previously but has been using methadone on and off for the past 6 years. He has never attended counselling or treatment for drug use. He recognized his drug use affected his relationship with his family but did not believe it affected his work as he used less when he was working. When he came back to live with his mother he told her about his drug use. His mother confirmed his drug use beginning with marihuana and alcohol when he was in public school. She believed at the time of his friend’s death he was using heroin.

[47] Mr. White told the probation officer he is not a drug dealer as everyone thinks. He got what he believed was heroin because his friend begged him to get it for him. This is corroborated by the text messages, Exhibit 6. He used heroin at that time but he did not sell drugs.

[48] Mr. White was described by his mother, aunt and his friend as having anger issues, which the probation officer indicated she believed were inter-related with his personal family issues, mental health issue and substance abuse issues. Mr. White admitted this to the probation officer but had not sought out any counselling to address things.

[49] Mr. White has attempted to harm himself in the past with the last time being when his friend died. He expressed being sorry about the whole situation. He agonizes over his friend’s death, thinks about him all the time and his mother advised Tristan has nightmares. He is distraught because he believes others believe he is the reason for his friend’s death. He was upset because someone else who is responsible is still out there and was never charged. His aunt expressed Mr. White’s concern and fear because of what he told the police.

[50] Mr. White advised his methadone doctor has recommended he attend for other counselling but he did not want to because he thought he knew what would be asked. He now realizes this was his immaturity stopping him. He recognized the need for him to attend counselling as he feels he is “a lost cause.” He talked to the probation officer about wanting to give up as he feels empty and does not care what happens to him because he has no control, however, in a later meeting he indicated he did not want to harm himself. He is anxious and distressed about being incarcerated.

[51] In 2016 he attended the CAMH emergency but there was no assessment done. He later started to take prescribed medication for anxiety and depression.

[52] His mother confirmed he was on methadone and was trying to reduce his dosage. She was aware he went to CAMH but did not know if a diagnosis had been made. She believed he had mental health issues. She described her son as being helpful, smart, sensitive, emotional and he does not talk much.

[53] The presentence report was completed on September 15, 2017, after Mr. White had pleaded guilty before Justice Block. Dr. Kathryn Meunier, his methadone doctor was spoken to by the probation officer. She said Mr. White refused to attend for counselling with Pinewood. She believed he was relying heavily on her and she reported that he was receiving counselling through her. She believed Mr. White had potential but believed he lacked insight into his own substance problem. She saw Mr. White as being extremely immature and naive. She believed he needed direction and encouragement but he also needed to take ownership of his issues. He used benzodiazepine for anxiety and Dr. Meunier indicated this could affect his mannerisms.

[54] His current methadone doctor is Dr. Daniel Robertson at the First Step Medical Clinic. He has been providing care to Mr. White for the past year. In his letter, dated, January 10, 2019, Exhibit 9, he indicated Mr. White’s dosage of methadone is 47 mg. He has been free from illicit drugs for the past 6 months. I draw the reasonable inference this comment is supported by Mr. White’s weekly urinalysis. Dr. Robertson described Mr. White as “always well-mannered and is actually a quite interesting fellow with a good intellect.” The level of Mr. White’s dosage of methadone in my view is indicative of someone who has been doing well in the methadone program as this amount is quite low.

[55] Other than the assault charge, which was resolved on March 30, 2017, Mr. White has not been in trouble

[56] Finally, Mr. White wrote a letter of apology to Mr. Troy’s family, Exhibit 7. This letter in my view reflects sincere remorse on Mr. White’s part for the role he played in his friend David’s death.

Victim Impact Statement

[57] Jeff and Melinda Troy wrote a Victim Impact Statement, on November 7, 2017, which was marked as Exhibit 3. In their statement they described their son as a “caring, helpful and extremely thoughtful individual.” David Troy was employed full time and had acquired work certificates from several different work industries. They described how the loss of their son has made life hard for them to function in their daily lives. They point to their faith in God as helping them get through and cope. Their son’s loss has caused anguish, sleepless nights and turmoil.

[58] They described how difficult it was for them to work as they are self-employed. Their son was a strong asset to their business and he has been greatly missed. This has caused a financial strain for them.

[59] The Troys reflected that their son died of a fentanyl overdose and they wanted further exposure and possible solutions in light of the current crisis. They do not want another parent to experience the suffering and extreme grief they have in burying their child. They wanted to express to Tristan White that they “wish him no harm and are praying for him.” Their “hope is he is remorseful and as a licensed Reverend my thoughts turn to the spiritual welfare” of Mr. White. They expressed that they have been praying for Mr. White and will be continuing to do so.

[60] Their final handwritten note is significant in its forgiveness offered to Tristan White and I want to set it out in its entirety:

We like to add, that we truly believe that the accused’s intentions was not to harm our son. We hope that this young man will find a better path.

Mitigating and Aggravating Circumstances

[61] It is my view the facts and circumstances that exist in this case are unique and to a considerable extent out of the ordinary from the usual case of trafficking in an illicit substance that comes before the court.

[62] Tristan White’s guilty plea to a charge of trafficking in a substance held out to be heroin is a mitigating circumstance. In my view it is a reflection of Mr. White’s remorse and his acceptance of responsibility for his involvement in his friend’s death. It is my view Mr. White expressed remorse for his involvement in Mr. Troy’s death. I do not agree with the Crown’s characterization of the PSR reflecting Mr. White’s lack of remorse. The following passages in my view clearly reflect his remorse (p. 7):

He confessed that he cried when he heard of his friend’s passing. He stated he told his mother everything; with him acknowledging she always knew how to comfort him. The subject admitted he tried to harm himself in the past and the last time he tried was when he first moved back to Toronto when his friend died.

He mentioned being sorry about the whole situation. He is agonizing over his friend’s death; thinking about him all the time and his mother stated that he was having nightmares. He is distraught because he feels his friend’s family and others believe he is the reason for his death. The subject questioned if he had died also with him, if people would be satisfied. He indicated if it was switched around, he believes that his friend would not be going through what he is going through now as he would have his family and finances to fight but he has nothing. He mentioned there is so much pain and he at times feels he does not have a reason to keep living; however he tried to persevere to live to pull himself out of what is happening to him.

[63] In my view these passages demonstrate the impact David Troy’s death has had on Mr. White. His anger, as reflected in the earlier passage cited by the Crown, was directed towards the fact the dealer he purchased what he believed to be heroin was still not charged. Mr. White’s aunt, Teri White confirmed that Mr. Troy’s death had a significant impact on her nephew and that he has expressed to her suicidal thoughts. I have no doubt from what Mr. White has said to me in court and what he told the probation officer that his friend’s death has had a significant effect on him, to the point he considered taking his own life. Mr. White’s belief and perception of what David Troy’s parents think of his role in David Troy’s death is completely inaccurate. As reflected in their VIS, Mr. and Mrs. Troy believe Mr. White never intended to harm their son and they have been praying for Mr. White and will continue to do so. Their hope for Mr. White is that he will find a better path.

[64] Mr. White’s guilty plea also saved the court time required to conduct a trial in the Ontario Court of Justice. Ultimately Mr. White pleaded guilty prior to the commencement of the trial.

[65] Mr. White has not breached his release from custody since the charge of assault was dealt with on March 30, 2017. He has been on a strict recognizance that required him to be subject to a curfew between 9 pm and 6 am every day unless he was in the presence of his surety. He has not been charged with breach of his recognizance since his release. I was not asked to give any additional credit for being on a strict bail, however, the fact Mr. White has not been in any trouble with the police, either respecting breaches of bail conditions or new substantive charges for two years is a mitigating circumstance.

[66] Mr. White told the probation officer he now recognizes he needs counselling to assist him in dealing with his addiction issues. He admitted he initially was telling his methadone doctor he did not believe he needed counselling but he now recognizes this was because of his immaturity. He indicated to the probation officer his willingness to attend for counselling for what happened in his childhood and his drug dependency. The current letter from Dr. Robertson indicated Mr. White is currently down to 47 mg of methadone, which is a low dosage and in my view reflects Mr. White’s sincere and determined effort in attempting to deal with his serious drug addiction. Dr. Robertson also indicated Mr. White had been, as of January 10, 2019, drug free for six months, which is a positive step in his rehabilitation. I was not provided Mr. White’s urine analysis for the period of time he has been on methadone, which is at least 3 years.

[67] It is interesting to note that in R. v. Greene, infra, the Ontario Court of Appeal recognized that addicts with long standing addictions to hard drugs will often have setbacks in their attempts to overcome their addiction. In paragraphs 5 and 6 the Court indicated:

5 The appellant is addicted to cocaine and has been for a very long time. It is unrealistic to expect that he will succeed at overcoming that addiction either on the first or second attempt or even after many attempts. As Wood J.A. said for a five-person court in R. v. Preston (1990), 1990 CanLII 576 (BC CA), 79 C.R. (3d) 61 (B.C.C.A.) at 74 in relation to a heroin addict:

Indeed, to expect a perfect result would be unrealistic, for it seems unlikely that a pattern of conduct and a lifestyle that has persisted for over 20 years can be changed overnight. There are bound to be relapses on the long road to recovery from any substance addiction.

6 The courts must not be overly critical of an offender in the position of this appellant. What is important is that he has made and continues to make efforts at curbing his addiction.

[68] I am satisfied and I find based on the PSR and letter from Dr. Robertson that Mr. White has made sincere efforts and has had success in overcoming his significant addiction to opioids. I also find he is highly motivated to live drug free regardless of the sentences imposed at the conclusion of these proceedings.

[69] Mr. White does not have a youth record or adult record prior to his being charged on February 3, 2016, with trafficking in a substance held out to be heroin. As such, at the time of the commission of this offence Mr. White was a youthful first offender. In my view this fact can be considered as a mitigating circumstance when determining an appropriate sentence.

[70] When Mr. White was arrested on February 4, 2016, as a result of the text messages found on Mr. Troy’s cell phone, he cooperated with the police and provided an inculpatory statement admitting to his purchase of what he believed was heroin from a drug dealer he knew. Further, Mr. White provided information to the police in his statement respecting the person he purchased the purported heroin from. Despite his cooperation with the police no other person has been charged relating to the sale of heroin that was in reality fentanyl, which was directly responsible and causally related to Mr. Troy’s death. In my view Mr. White’s cooperation is a mitigating circumstance in determining an appropriate sentence

[71] The Crown pointed to the nature of the illicit Schedule 1 substance, heroin that Mr. White trafficked in, as an aggravating circumstance. Heroin is one of the most insidious of controlled substances. It is extremely potent and highly addictive. Opioid deaths in this province and in Durham region are clearly on the rise from the evidence of Dr. Woodall and Detective MacIntosh. The seriousness of heroin was discussed in R. v. Sidhu, [2009] O.J. No. 325 (C.A.), where the Court of Appeal described heroin as the worst of the hard drugs:

11 The trial judge in the instant case questioned that proposition but was prepared, in the end, to assume "that heroin is a marginally more dangerous drug than cocaine", thereby warranting "a marginal increase" in the range of sentences identified for cocaine importation (para. 70).

12 The trial judge's characterization of heroin as "marginally" more dangerous than cocaine finds no support in the record, nor in the existing case law. Time and again, this court and the Supreme Court of Canada have made it clear that heroin is the most pernicious of the hard drugs - it is the most addictive, the most destructive and the most dangerous. Heroin trafficking has been described as a "despicable" crime and one that "tears at the very fabric of our society": see Pushpanathan v. Canada, 1998 CanLII 778 (SCC), [1998] 1 S.C.R. 982 at para. 79; R. v. Nguyen (1996), 1996 CanLII 2487 (ON CA), 92 O.A.C. 200 at para. 9; R. v. Sherman, [2001] O.J. No. 5008 (S.C.) at para. 18; aff'd (2004), 2004 CanLII 17725 (ON CA), 183 O.A.C. 198; and R. v. Osei, [2002] O.J. No. 5601 (S.C.) at para. 7, aff'd 2004 CanLII 25984 (C.A.).

13 The trial judge's treatment of heroin as only "marginally" more dangerous than cocaine led him into error in assessing the appropriate range of sentence for first offender couriers who import large amounts of high grade heroin for personal gain. Specifically, we respectfully disagree with the trial judge's conclusion that the sentencing range for such individuals should only be "marginally" higher than the range of sentences (six to eight years, per Cunningham) for first offender couriers who import large amounts of cocaine for personal gain.

(See also R. v. Farizeh, 1994 CanLII 7552 (ON SC), [1994] O.J. No. 2624 (C.A.), at para. 5; R. v. Turner, [2003] O.J. No. 685 (C.A.))

[72] There can be no doubt the nature of the drug Mr. White believed he was purchasing for Mr. Troy, heroin, is an aggravating circumstance to be considered on sentence. However, his role is considerably less than that of a drug dealer, who is selling heroin for profit and greed. There is no evidence that Tristan White was a commercial drug dealer, not even on a small scale or as a “low level” dealer. There was no evidence provided that Mr. White provided illicit substances to anyone else. The cell phone texts clearly indicate David Troy contacted Tristan White because they were friends, he knew Mr. White was a user of heroin and he knew Mr. White could get Mr. Troy the heroin that he was desperate to get because he was “sooo sick” and needed as soon as possible. In my view this is also a circumstance that lessens Mr. White’s moral blameworthiness as he is not a drug dealer and was not doing this for profit and greed. Mr. Troy offered to give Mr. White $40 or 1 point, which would have been .1 grams of heroin. The Crown provided no evidence of Mr. White selling illicit substances as part of a business or regular activity.

[73] There is evidence from the text messages that Mr. White told Mr. Troy to be careful with the heroin he was getting as “it’s expensive as fuck shit but it’s well worth it gotta be careful tho don’t shoot too much at once for real.” Mr. Troy must have used all of the substance Mr. White purchased for him as none was found on Mr. Troy’s person or his car other than residue in the spoon.

[74] The Crown also pointed to the fact that the illicit substance purchased by Mr. White, which he gave to his friend, David Troy, was actually the more serious, potentially lethal substance, fentanyl. The Crown pointed to the increase in the number of deaths related to overdoses of opioid substances and in particular, fentanyl. However, it was agreed by the Crown that Mr. White had no idea or any knowledge the illicit substance sold to him by the drug dealer was in fact powdered fentanyl. This is a particularly unique circumstance, which occurred specifically because Mr. White was not the drug dealer providing the illicit substance. He was a friend trying to purchase heroin for a friend as a favour and he was given fentanyl instead, completely without his knowledge.

[75] Detective MacIntosh testified fentanyl was not a common drug available in February 2016. Drug addicts would not be aware in 2016 of the contamination of heroin with fentanyl. It was not common and was not well known as it is currently that heroin is often mixed with fentanyl or that fentanyl is in 2019 routinely exchanged or substituted for heroin. Heroin and fentanyl, according to Detective MacIntosh, look very similar in terms of colour and texture to each other and consequently, are difficult to distinguish, even when one is aware that fentanyl is routinely exchanged for heroin or added to it. In my view, these facts, which went unchallenged by the Crown, are important in assessing and determining Mr. White’s moral blameworthiness. Again, it is my view these circumstances are unique to the facts of this case.

[76] This is not a case where Mr. White knew he was obtaining fentanyl for Mr. Troy or selling fentanyl to Mr. Troy, which he knew was capable of causing death, all for commercial gain. There can be no doubt of the tragic consequences that occurred as a result of this drug dealer knowingly substituting fentanyl for heroin without advising the purchaser. Detective MacIntosh testified it is uncommon in 2019 to purchase heroin without fentanyl being present. In fact, Detective MacIntosh described in most cases the ratio of heroin and fentanyl is 50/50. Regular purchasers of heroin (addicts) know of this current situation and act according, however in 2016, purchasers and heroin addicts were not aware of heroin being contaminated with fentanyl. In my view this is a further unique circumstance to be considered in determining an appropriate sentence for Mr. White.

[77] The evidence was clear as to the seriousness and pernicious nature of fentanyl and the danger it poses to drug users, first responders. Fentanyl and other opioid use has reached crisis levels in Canada and the number of opioid-related deaths in the Durham region has steadily increased over the past three years based on the statistics provided by Detective MacIntosh, with the majority of deaths being associated with fentanyl. In my view if the Crown had been able to demonstrate and prove Mr. White knew he was providing Mr. Troy with fentanyl and further he had knowledge it was a substance capable of causing death then this would be a serious aggravating circumstance but that was not the case on the unique circumstances of this case.

[78] The Crown also pointed to the fact Mr. Troy had injected the heroin intravenously using a needle in the MacDonald’s parking lot where he had been waiting for Mr. White to return with the heroin. After Mr. Troy injected the heroin Mr. White was concerned and asked if Mr. Troy was alright. Mr. Troy told Mr. White the heroin was very good and that he had taken too much. While Mr. Troy was driving Mr. White said in his statement Mr. Troy turned white and had difficulty operating the truck, almost hitting a curb. Mr. White asked Mr. Troy to drop him off prior to reaching the Service Canada office because he was concerned about the way he was driving. Mr. White sent several text messages to Mr. Troy afterwards asking if he was alright and asking Mr. Troy to text him back as he thought they were going to be “[ch]illing.” This information about Mr. Troy’s condition after he injected the “heroin” intravenously was provided by Mr. White in his statement. Mr. White and Mr. Troy were completely unaware Mr. Troy had actually ingested fentanyl. Mr. Troy continued to drive his truck. It was clear from the evidence Mr. Troy had arrived at his home in his truck before going into distress, as it was his mother who called for an ambulance and police when she discovered him unconscious. It is my view Mr. White’s exiting the truck when he did was because he was concerned with the way Mr. Troy was operating the truck. Mr. White’s subsequent emails indicate he believed Mr. Troy was going to be fine as they were supposed to get together later that night.

[79] These circumstances in no way reduce the aggravating circumstance of Mr. White’s obtaining heroin for David Troy. While heroin may no longer be the most insidious of controlled substances because of the introduction of fentanyl, it is still to be considered as a serious and highly addictive Schedule 1 substance.

Determining the Appropriate Sentence

[80] In determining an appropriate sentence for Mr. White, regard must be had to the sentencing objectives set out in s. 718 of the Criminal Code, which provides as follows:

718 The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing a just sanction. Any sanction imposed must be the result of a fair and balanced consideration of the need to:

(a) Denounce the unlawful conduct;

(b) Deter the offender, and others, from committing such an offence;

(c) Separate the offender from society, where necessary;

(d) Assist in the rehabilitation of the offender;

(e) Provide reparation for harm done to “victims”, or the community; and

(f) Provide a sense of responsibility in the offender, while acknowledging the harm done to the “victims” and the community.

[81] The "fundamental principle" of sentencing pursuant s. 718.1 of the Code is that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender."

[82] A sentencing judge must also have regard for s. 718.2, which provides: a sentence should be increased or decreased to account for any aggravating and mitigating circumstances (s. 718.2(a)(i) – (vi)); a sentence should be similar to other sentences imposed on similar offenders in similar circumstances (s. 718.2(b); the combined duration of consecutive sentences not be unduly long (718.2(c)); an offender not be deprived of liberty if less restrictive sanctions may be appropriate (s. 718(d)); and all available sanctions other than imprisonment that are reasonable in the circumstances be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders (s. 718.2(e)).

[83] In R. v. Gladue, 1999 CanLII 679 (SCC), [1999] S.C.J. No. 19, at para. 36, the Supreme Court held the application of s. 718.2(e) applies to all offenders:

Section 718.2(e) directs a court, in imposing a sentence, to consider all available sanctions other than imprisonment that are reasonable in the circumstances for all offenders, "with particular attention to the circumstances of aboriginal offenders". The broad role of the provision is clear. As a general principle, s. 718.2(e) applies to all offenders, and states that imprisonment should be the penal sanction of last resort. Prison is to be used only where no other sanction or combination of sanctions is appropriate to the offence and the offender. [Emphasis added]

[84] The Supreme Court held that s. 718.2(e)’s expression of the principle of restraint in sentencing is remedial, particularly when considering this section with the restatement of the purpose of sentencing articulated in s. 718. The new paragraphs (e) and (f) along with (d) of 718 “focus upon the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender” (at para. 43). Restorative sentencing goals do not usually correlate with the use of prison as a sanction. Consequently, the Court held that s. 718.2(e) has a remedial purpose for all offenders, with a particular remedial role for aboriginal offenders. The Supreme Court looked to statements made by the Minister of Justice and others when the amendments were introduced in Parliament as further supporting the remedial purpose of s. 718.2(e).

[85] In R. v. Ipeelee, 2012 SCC 13, [2012] S.C.J. No. 13, the Supreme Court was faced again with considering the meaning of the sentencing principles enunciated in Part XXIII of the Criminal Code, with particular attention to s. 718.2(e). The Supreme Court dealt with the fundamental principle of sentencing of “proportionality” pursuant to s. 718.1, which they held was tied to the fundamental purpose of sentencing – the maintenance of a just, peaceful and safe society through the imposition of just sanctions. The principle of proportionality was defined by the Supreme Court as follows (at para. 37):

First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system…. Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other. [Emphasis added]

[86] The purpose of sentencing under the Controlled Drugs and Substances Act is set out in s. 10 of that legislation. Section 10 reads as follows:

Purpose of sentencing

s. 10(1) Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Part is to contribute to the 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.

[87] In Attorney General of Canada v. PHS Community Services Society, [2011] 3 S.C.R. 13, Chief Justice McLachlin also recognized the “mechanisms embodied in the CDSA – general prohibitions subject to targeted ministerial exemptions – reflect the dual purpose of the CDSA: the protection of both public safety and public health” referring to s. 10(1) of the CDSA. She further observed “the issue of illegal drug use and addiction is a complex one which attracts a variety of social, political, scientific and moral reactions.”

[88] As noted in R. v. C.N.H., 2002 CanLII 7751 (ON CA), [2002] O.J. No. 4918 (C.A.), at paragraph 31:

... the importance of s. 10 is to encourage courts to recognize the particular problem that in many cases persons convicted of drug offences are themselves victims of the drug culture and dependent upon drugs as addicts or users. I think s. 10 recognizes a view that had become increasingly prevalent that, especially for the addict trafficker, the public interest -- including the protection of the public -- is best served by the treatment and rehabilitation of the offender. [Emphasis added.]

[89] In Regina v. Lacasse, infra, at paragraph 4 the court stated:

One of the main objectives of Canadian criminal law is the rehabilitation of offenders. Rehabilitation is one of the fundamental moral values that distinguish Canadian society from the societies of many other nations in the world, and it helps the courts impose sentences that are just and appropriate.

[90] Section 10(2) sets out a number of relevant aggravating factors, none of which appear to be present in this current matter. It is of note that section 10(1) includes as a purpose of sentencing the encouragement of rehabilitation and treatment of the offender in appropriate circumstances.

[91] The provisions of s. 732.1(3)(c.1), (c.2) (g), (g.1) and (g.2); (8) to (12) all relate to probationary conditions addressing treatment for those offenders who have addictions respecting alcohol or illicit substances. Unfortunately, these provisions cannot be imposed as the Ontario governmental authorities have not passed regulations establishing the treatment programs referred to. Consequently, offenders must pursue these goals without the assistance of government treatment programs. This is in many ways unfortunate for achieving protection of the public, recognizing the best way to protect the community from an offender who suffers from a substance addiction is to treat and cure the addiction. Assessments, counselling and treatment programs must be addressed through periods of incarceration in treatment geared reformatories such as Ontario Correctional Institute and St. Lawrence Valley Correctional and Treatment Centre and in probation orders, if they are available.

[92] As indicated above Mr. White was 25 years of age at the time of this offence. Ms. White had never been in trouble with the law and had no criminal record when the trafficking charge took place on February 3, 2017. Consequently, the sentencing principles of rehabilitation and restraint, particularly where the accused is a relatively youthful first offender, must not be discounted or ignored and general deterrence and denunciation should not be over-emphasized. In R. v. Batisse, 2009 ONCA 114, [2009] O.J. No. 452, at paras. 32 to 34, the Ontario Court of Appeal held:

…the appellant was a first offender. As such, the restraint principle requires that a sentencing judge consider all sanctions apart from incarceration and where, as here, incarceration must be imposed, the term should be as short as possible and tailored to the individual circumstances of the accused : see R. v. Priest (1996), 1996 CanLII 1381 (ON CA), 30 O.R. (3d) 538 (C.A.), at p. 545.

…the principle of restraint requires the sentencing judge to consider rehabilitation in determining the appropriate length of the sentence. In lowering a sentence given to a first offender, this court stated in R. v. Blanas (2006), 2006 CanLII 2610 (ON CA), 207 O.A.C. 226, at para. 5:

[G]eneral deterrence cannot be the sole consideration. The appellant is relatively youthful and has no prior record and appears to have the full support of her family and community. Appropriate consideration must be given to the rehabilitation of the appellant.

In serious cases and cases involving violence, rehabilitation alone is not the determinative factor - general deterrence and denunciation are also significant factors to be considered. However, as this court ruled in R. v. Dubinsky, 2005 CanLII 5668, at para. 1, it is an error to focus almost exclusively on general deterrence and fail to consider individual deterrence and rehabilitation, especially when sentencing a first offender.

[93] Although deterrence and denunciation are important sentencing principles in cases involving the trafficking of Schedule 1 substances, those sentencing principles must not exclude consideration of rehabilitation, particularly in the case of a first offender, who will receive a custodial sentence. In R. v. Borde, 2003 CanLII 4187 (ON CA), [2003] O.J. No. 354 (C.A.), at para. 36, the Ontario Court of Appeal held where a youthful offender is to be sentenced to a first penitentiary sentence it should not be determined solely on the basis of general deterrence and denunciation, rather the sentencing court should proceed on the basis that the shortest possible sentence will achieve the relevant objectives. Mr. Borde had a lengthy youth record, which reflect serious charges and sentences. Here Mr. White had no criminal record. (See also R. v. Priest, 1996 CanLII 1381 (ON CA), [1996] O.J. No. 3369 (C.A.), at paras. 23-26 and R. v. Vandale and Maciejewski, 1974 CanLII 1610 (ON CA), [1974] O.J. No. 1047 (C.A.), at para. 4.)

[94] I was provided a number of cases by Crown[^1] and defence[^2] addressing the range of sentences imposed for possession for the purpose of trafficking and trafficking in fentanyl, cocaine, methamphetamine, hydromorphone and heroin (all Schedule 1 substances). The range of sentence is from that of a suspended sentence with probation, although certainly not a regular occurrence and only where exceptional circumstances are found to exist, to sentences involving custodial sentences in the reformatory or penitentiary depending upon the offender’s role in the offence, the nature of the illicit substance, the quantity of the illicit substance, whether the offender is an addict supporting their addiction or involved in the offence for commercial gain. I do not intend to discuss each case other than in the footnotes I have included. I have also added a number of cases I have found when I have been preparing sentencing judgments respecting possession for the purpose of trafficking and trafficking in schedule 1 substances, such as fentanyl, hydromorphone, cocaine, methamphetamine and heroin.[^3]

[95] It is important to note however, that no two cases are exactly alike, and as emphasized by Chief Justice Lamer in R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at paragraph 92:

Sentencing is an individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise or academic abstraction. As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the "just and appropriate" mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred.

[96] There have been a number of subsequent decisions in the Ontario Court of Appeal where the Court has recognized the mitigation created where an accused was an addict trafficker or an addict whose criminal offences were directly related to their addiction and who had made significant inroads in overcoming that addiction (see for example: R. v. Greene, [2002] O.J. No. 5976 (C.A.); R. v. C.N.H, supra, and R. v. Lazo, 2012 ONCA 389, [2012] O.J. No. 2547 (C.A.)).

[97] In Greene, the accused was charged with break and enter into a dwelling house to steal a computer, which he intended to sell to support his drug addiction. Mr. Greene had an extensive criminal record, he was an aboriginal offender although no specific mention was made of Gladue principles being applied, the Court of Appeal reduced a two year less a day sentence to one year and made these comments:

3 The appellant has an appalling criminal record including over one hundred convictions for break and enter. The appellant is of aboriginal descent. He had a very difficult childhood marked by abuse within the family. He was also sexually abused at a training school. He developed a substance abuse problem in his teenage years and he has been unable to break out of the addiction, except for a few short periods. He has attempted some drug rehabilitation programmes. Not surprisingly giving the length and seriousness of his abuse problems he has not succeeded to date. His drug addiction is the root of his problems with the law.

5 The appellant is addicted to cocaine and has been for a very long time. It is unrealistic to expect that he will succeed at overcoming that addiction either on the first or second attempt or even after many attempts. As Wood J.A. said for a five-person court in R. v. Preston (1990), 1990 CanLII 576 (BC CA), 79 C.R. (3d) 61 (B.C.C.A.) at 74 in relation to a heroin addict:

Indeed, to expect a perfect result would be unrealistic, for it seems unlikely that a pattern of conduct and a lifestyle that has persisted for over 20 years can be changed overnight. There are bound to be relapses on the long road to recovery from any substance addiction.

6 The courts must not be overly critical of an offender in the position of this appellant. What is important is that he has made and continues to make efforts at curbing his addiction. A recent report from The John Howard Society of Canada suggests there is some reason for optimism.

[98] Justice Rosenberg in R. v. C.N.H. also cited R. v. Preston (1990), 1990 CanLII 576 (BC CA), 79 C.R. (3d) 61 (B.C.C.A.) with approval when he cited the Court’s view of s. 10(1) of the CDSA that, “especially for the addict trafficker, the public interest -- including the protection of the public -- is best served by the treatment and rehabilitation of the offender,” however, in that case the offender was not an addict trafficker, rather he was an importer of illicit substances for commercial gain.

[99] Although the Court of Appeal in Lazo overturned the sentencing judge’s sentence because he wrongly rejected a joint submission of an eight month conditional sentence for an addict trafficker who trafficked $40 worth of crack cocaine to an undercover police officer, it is noteworthy that Gillese J.A., went on to say:

Moreover, although the sentencing judge acknowledged the appellant's participation in [an addiction treatment program], in my view it was an error on his part to fail to consider that the appellant met the program's expectations and successfully completed it. In so doing, the appellant demonstrated a genuine effort and progress toward his rehabilitation. ... Successful treatment of addiction is the best means of addressing drug crime. The public interest is served by diverting individuals in the appellant's situation into drug treatment programs that address the addictions which fuel their criminal activity. (paras. 7 & 8; emphasis added)

[100] Certainly Mr. White’s efforts over the past number of years since David Troy’s death are a reflection of Mr. White’s desire to be drug free. I agree with the Court of Appeal’s comments in the three cases referred to above respecting the importance of rehabilitation of a drug addict in terms of providing the best means of addressing and preventing drug crime and ultimately to ensuring protection of the public. It is unfortunate that conditional sentences pursuant to s. 742.1 of the Criminal Code are no longer available.

[101] Appellate Courts often set out sentencing ranges or “tariffs” for specific serious offences. In R. v. McGill, 2016 ONCJ 138, [2016] O.J. No. 1346 (OCJ), at para. Green J., made the following observations concerning sentencing ranges:

In the case of drug trafficking offences, as with others for which sentencing ranges have been endorsed, the orthodox sentencing exercise thus involves a judicial evaluation of the gravity of the offence and the moral blameworthiness of the offender so as to most reliably situate the latter along the continuum of penal sanctions that constitutes the judicially approved sentencing range for the offence category or sub-category at play. Aggravating factors, such as the pernicious nature or volume of the seized drugs or the related criminal antecedents of the offender, tend to drag the pointer towards the higher end of the range. Mitigating factors, such as extreme youth, remorse or a crime-free history, edge the marker in the opposite direction. As is well settled, the range for trafficking in "hard" drugs such as cocaine or possessing them for the purpose of trafficking reflects the substantial weight attributed to the principles of deterrence and denunciation in the sentencing calculus that governs such cases. In the result, sentences of imprisonment, frequently by way of penitentiary dispositions, are the norm. [Emphasis added]

[102] I agree with Justice Green’s observations and adopt them. In sentencing cases involving fentanyl or heroin, dispositions in the upper reformatory and in the penitentiary are the norm and these reflect the considerable weight the sentencing principles of deterrence and denunciation play.

[103] The Supreme Court of Canada and the Ontario Court of Appeal have held in a number of cases that trafficking or possession for the purpose of trafficking in Schedule 1 substances, such as heroin or hydromorphone or fentanyl, even for small amounts by first offenders, will “attract” or “call” for a “penitentiary sentence unless exceptional circumstances exist” (see Farizeh, supra, at para. 5 and Turner, supra, at para. 3). Recently in R. v. Loor, 2017 ONCA 696, [2017] O.J. No. 4628, the Ontario Court of Appeal upheld a six year sentence for an accused convicted of 3 counts of trafficking in fentanyl and defrauding a pharmacy using a forged document, after a trial and the accused had a criminal record for trafficking, 45 fentanyl patches (100 micrograms per hour) worth $20,000.00. After the conviction at trial the Crown sought an increased penalty under the CDSA because of Mr. Loor’s previous record for similar offences. On the appeal the Crown invited the Ontario Court of Appeal to establish a sentencing range for fentanyl but Laskin J., for the court, held:

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.

[104] Recently, the British Columbia Court of Appeal in R. v. Smith, 2017 BCCA 112, [2017] B.C.J. No. 471(C.A.), increased the sentencing range for drug offences involving fentanyl from six to twelve months for street-level trafficking in heroin/fentanyl to a sentencing range of 18 to 36 months or higher given the development of the public health crisis associated in British Columbia with illicit fentanyl consumption.

[105] The matter of sentencing ranges was addressed by the Ontario Court of Appeal in R. v. Jacko, 2010 ONCA 452, [2010] O.J. No. 2583, where at paragraph 90, the court held:

Sentencing 'ranges' ...are not immovable or immutable. They are and represent guidelines, of greater or lesser utility depending upon the breadth of the range. Individual cases may fall within or outside the range. To consider a range of sentence as creating a de facto minimum sentence misses the point, ignores the fundamental principle of proportionality... Individual circumstances matter.

See also R. v. D.D., 2002 CanLII 44915 (ON CA), [2002] O.J. No. 1061 (C.A.), where Moldaver J.A., (as he then was) said the following, at para. 33: “[S]entencing is not an exact science and trial judges must retain the flexibility needed to do justice in individual cases. The suggested ranges are merely guidelines designed to assist trial judges in their difficult task of fashioning fit and just sentences in similar cases.”

[106] This issue has recently been revisited by the Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paragraphs 57 to 58 and 60 to 61, where the Court held:

Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered 'averages', let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case...

There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. Once again, everything depends on the gravity of the offence, the offender's degree of responsibility and the specific circumstances of each case. LeBel J. commented as follows on this subject:

A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit. Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community in which the offence occurred. (R. v. Nasogaluak, 2010 SCC 6, [2010] S.C.J. No. 6, at para. 44.)

In other words, sentencing ranges are primarily guidelines, and not hard and fast rules. (Emphasis added)

[107] As discussed above the fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The Supreme Court in Lacasse was clearly indicating a sentence can be imposed that is outside an established range of sentence as long as it is in accordance with the principles and objectives of sentencing. Sentencing is a “highly individualized exercise” and “determining a proportionate sentence is a delicate task.” (Lacasse, at para. 13). In some cases the facts and circumstances will be such that a sentence outside the usual range will be appropriate. Whether a sentence outside the usual range is an appropriate and proportionate sentence will depend on whether “exceptional circumstances” exist (see Farizeh, supra, at para. 5 and Turner, supra, at para. 3).

Sentence to be imposed

[108] Given the fact Mr. White believed he was purchasing heroin for Mr. Troy, which until the introduction of fentanyl was considered to be the most serious Schedule 1 illicit substance, it is my view the sentencing principles of deterrence and denunciation will usually be considered paramount in determining an appropriate sentence. Given the nature of the Schedule 1 substance, heroin, that Mr. White believed he was purchasing for Mr. Troy, the offence portion of the proportionality determination is of such gravity that, considered in isolation, it clearly favours a lengthy custodial sentence. However, given the fact Mr. White is a youthful first offender, he is not a drug dealer, he was a friend of Mr. Troy, who contacted him for assistance in obtaining heroin because he was experiencing symptoms of withdrawal and Mr. White was himself a heroin addict who has been successful in a methadone program; rehabilitation, restraint and reintegration into the community are nonetheless important sentencing principles, which cannot be disregarded and deterrence and denunciation should not be over-emphasized (see Batisse, Blanas, Priest and Dubinsky, supra, referred to in paragraph 91 above).

[109] In fact, the substance provided to Mr. White by the drug dealer was fentanyl, however, Mr. White and Mr. Troy had no knowledge of this substitution. As I indicated above, it is my view this unusual and unique circumstance lessens Mr. White’s moral blameworthiness as it relates to Mr. Troy’s death. On the evidence there is no doubt that Mr. Troy’s overdose and death was directly linked to the fact the substance the dealer sold to Mr. White was fentanyl. However, Mr. White was completely unaware this was the case. Mr. White did receive either $40 or 1 point of the heroin in return for his purchasing the heroin for Mr. Troy. I find this was more in the nature of Mr. Troy giving something to Mr. White for doing him a favour. In my view on the evidence provided in the Agreed Statement of Facts, Mr. Troy was asking Mr. White to do him a favour, to help him at a time when he was feeling “sick.”

[110] There was no evidence provided by the Crown that Mr. White had trafficked in Schedule 1 substances previously to other individuals. There was no evidence he was even a “low level” drug dealer, selling small quantities of heroin for profit and greed. The text messages between Mr. Troy and Mr. White support the finding that Mr. White was doing a favour for a friend who needed a “fix.” There was not found by the police on Mr. White’s cell phone anything that suggested he was a drug dealer.

[111] As I indicated above, this is not a case where Mr. White knew he was obtaining fentanyl for Mr. Troy or selling fentanyl to Mr. Troy, which he knew was capable of causing death and he sold it for commercial gain. Those are not the facts of this case. There can be no doubt of the tragic consequences that occurred as a result of this drug dealer knowingly substituting fentanyl for heroin without advising the purchaser, Mr. White. Detective MacIntosh testified fentanyl was not a common drug available in February 2016. Detective MacIntosh testified it is uncommon in 2019 to purchase heroin without fentanyl being present. In fact, Detective MacIntosh described in most cases the ratio of heroin and fentanyl today is 50/50. Regular purchasers of heroin (addicts) know of this current situation and act according, however in 2016, purchasers and heroin addicts were not aware of heroin being contaminated with fentanyl because it was not something that was occurring. In my view this is a further unique circumstance to be considered in determining an appropriate sentence for Mr. White, which lessens his moral blameworthiness.

[112] Mr. Troy’s parents take the position they believe Mr. White did not intend to harm their son. In my opinion their viewpoint is completely supported by the evidence. Detective MacIntosh also testified if the antidote, Narcan, had been readily available 3 years ago as it is currently, Mr. Troy might not have died from his overdose. As Detective MacIntosh testified, addict users of fentanyl today are able to obtain Narcan for free from pharmacies in the event of overdose. Police officers and other first responders now routinely carry Narcan kits to assist addicts who overdose on fentanyl.

[113] A number of the cases I found in my research and a number of the cases provided to me by counsel were similar in their facts to Mr. White’s case. As I have indicated no two cases are ever identical, however, the following cases were of considerable assistance in arriving at the sentence I believe is the appropriate, proportionate sentence for Mr. White:

1. R. v. Klammer, 2017 ONCA 416, sentence varied to 20 months from Justice Healey’s (SCJ) sentence of 33 months, (trafficking in fentanyl, possession for purpose of trafficking in fentanyl, possession of proceeds of crime, (6-100 microgram fentanyl patches), no record, addict in treatment);

2. R. v. Turner, [2003] O.J. No. 685 (C.A.) (Trafficking in hydromorphone [38-8mg tablets]. Sentence: 12 months sentence upheld, defence appeal dismissed.);

3. R. v. Barham, [2014] O.J. No. 5404 (C.A.) (PFP in hydromorphone, cause disturbance, breach probation, possession of cocaine, possession of stolen property and breach of probation, lengthy criminal record. Global sentence of 14 months and 28 days, less 165 days of pre-trial credit, PFP in hydromorphone sentence was 12 months, less 5.5 months pre-trial credit, sentence upheld and defence appeal dismissed);

4. R. v. Dixon, [2017] O.J. No. 3477 (ONCJ) (PFP (September 1, 2015) heroin, Crystal Methamphetamine and marihuana and possession of a prohibited weapon (Taser), PFP (January 11, 2016) cocaine, fentanyl, methamphetamine and oxycodone (all quantities relatively small), dated unrelated criminal record, drug addict, initially released after 35 days and then released second time after approximately 6 months of pre-trial custody after committing further offences. Sentence: 9 months pre-trial credit reflected on record, suspended sentence with three years’ probation);

5. R. v. S.M., 2016 ONCJ 244 (Hearn J.) family physician but not practicing, opioid addiction, forged prescriptions for fentanyl patches and hydromorphone pills, sentence two years penitentiary and 3 year probation order;

6. R. v. Goncalves, 2011 ONSC 2577, [2011] O.J. No. 2029 (ONSC) (PFP cocaine [898.15 grams] and PFP heroin [39.52 grams], criminal record unrelated, accused drug addict. Sentence: 2 years less a day and 3 years’ probation;

7. R. v. Aviles, [2016] O.J. No. 2 (ONSC) After trial, accused found guilty of PFP in cocaine, heroin, oxycodone, marihuana and carry concealed weapon (knife), commercial crime for profit, dated criminal record. Sentence: 18 months after credit for 3 months;

8. R. v. Slaughter, 2015 ONSC 7869 (3 counts trafficking in hydromorphone, accused drug addict had lengthy record including two convictions for schedule 1 drug (aggravating circumstance, s. 10(2) CDSA), currently serving 17 month sentence for ABH. Sentence: 2 years and 3 months);

9. R. v. Bilodeau, [2015] O.J. No. 3777 (ONCJ) (Aboriginal accused with prior largely unrelated record, PFP in hydromorphone [135 (3 mg), 30 (6 mg), 3 (12 mg), 6 (24 mg), 177 (18 mg) and 58 (30 mg) hydromorphone pills] and PFP in oxycodone [47 (40 mg) and 42 generic (40 mg) oxycodone pills]. Sentence: 22 months for hydromorphone and 14 months concurrent for oxycodone); and

10. R. v. Reis, [2012] O.J. No. 2623 (ONCJ) (PFP in cocaine [2.1 ounces] and PFP heroin [1.22 grams] and PFP in oxycodone [224 pills], commercial crime for profit, no record. Sentence: 11 months and 1 year probation.

[114] A very recent, unreported decision by my colleague, Justice C.M. Harpur, R. v. Walker, sentence released March 12, 2019, dealt with a case where the facts disclosed a youthful offender, Ryan Walker, sold to his friend, Shawn Kelly, heroin and furanyl fentanyl. Both Mr. Walker and Mr. Kelly had been friends for a number of years and both had struggled with opioid addiction. Mr. Walker was a “low level” drug trafficker who sold gram quantities to up to 10 regular customers. Mr. Walker was aware of the extreme health risk associated with the consumption of fentanyl and he advised his customers that “only one line of it can kill you.” Despite this knowledge he sold fentanyl to his friend. Mr. Walker acknowledged that Mr. Kelly’s consumption of fentanyl was a significant contributing factor in Mr. Kelly’s death. Mr. Walker pleaded guilty to trafficking in fentanyl and criminal negligence causing death, which required that Mr. Walker showed a wanton and reckless disregard for Mr. Kelly’s life. Mr. Walker advised the probation officer he had been able to quit opioids and began using methadone six weeks prior to selling Mr. Kelly the fentanyl.

[115] Mr. Walker provided cooperation to the police and identified his supplier, Mr. Tahir Ali, who was still facing charges of manslaughter and trafficking in fentanyl. Mr. Walker was testifying for the Crown at Mr. Ali’s preliminary inquiry. Justice Harpur determined a fit sentence for the criminal negligence causing death was five years, however, he gave Mr. Walker a 1.5 year reduction because of his cooperation, based on Justice Hill’s decision in R. v. John Doe, 1999 CanLII 15051 (ON SC), [1999] O.J. No. 5089 (SCJ). He also gave pre-trial credit of 27.5 months for pre-trial custody based on R. v. Summers. He gave a further enhanced credit of 30 days pursuant to R. v. Duncan, 2016 ONCA 754, [2016] O.J. No. 5255 (C.A.). This left a remaining sentence of 13 months and 15 days, which he recommended Mr. Walker serve at either St. Lawrence Valley Correctional and Treatment Centre or Ontario Correctional Institute for treatment for substance abuse. The sentence imposed for the trafficking charge was concurrent to the criminal negligence causing death sentence.

[116] I have raised this case because although a similar tragic consequence occurred as a result of the consumption of fentanyl, the underlying involvement of Mr. Walker is considerably and significantly different from the case before me involving Mr. White. In my view there are additional serious aggravating factors present in Walker not present in Mr. White’s case.

[117] First, Mr. Walker was a “low level” drug trafficker who sold drugs to regular customers for profit and greed. This was an aggravating factor. Second, Mr. Walker was selling fentanyl to his friend Mr. Kelly. This is completely dissimilar from Mr. White’s circumstance of purchasing heroin from a drug dealer that unknown to Mr. White the dealer had substituted the heroin with fentanyl. Third, Mr. Walker knew about the dangerous risks associated with the consumption of fentanyl yet he sold it to his friend. Justice Harpur made this finding respecting this fact:

…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 to 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.

[118] Fourth, a further difference was that Mr. Walker had recognized the danger and risks associated with taking fentanyl and six weeks before he sold the fentanyl to Mr. Kelly he quit and went on a methadone program. Yet he sold his friend fentanyl. Mr. Walker had been granted bail, which included a term not to possess drugs. He breached this bail and this explained why he spent such a lengthy time in pre-trial custody.

[119] Here the Crown is seeking a 4 year penitentiary sentence for Mr. White, which I expressed to Crown counsel during submissions, in my view this would be a crushing sentence to Mr. White having regard to his youth, the fact this is a first sentence of incarceration and considering the positive steps he has taken addressing his substance abuse. It is my view a 4 year custodial sentence is much longer than is necessary to address the appropriate sentencing objectives applicable in this case. In my view such a sentence is excessively disproportionate in the unique circumstances of this case. Such a sentence ignores the important rehabilitative steps taken by Mr. White in addressing his addiction to heroin during the past three years and frankly, such a sentence would likely have a detrimental and harmful impact on that progress. Mr. White suffers from serious anxiety and depression according to the PSR and it is my view a custodial sentence geared towards continuing Mr. White’s treatment for drug addiction will best serve Mr. White’s rehabilitation and protection of the public. I believe this is the reason the principle of restraint and reintegration into the community should play an important role in determining a proportionate sentence for Mr. White, while still recognizing the importance of deterrence and denunciation.

[120] Considering the totality of the unique circumstances of this case, it is my view an individualized, proportionate sentence for Mr. White would be a custodial sentence of 18 months to be followed by 3 years’ probation with conditions. It is my view such a sentence reflects the lesser moral blameworthiness of Mr. White’s conduct. He believed he was purchasing heroin for his friend who he knew was a heroin addict. There is no doubt heroin use can be a dangerous activity, however, on the evidence provided during this sentencing, including the comments made by Mr. Troy’s parents concerning their son’s addiction to heroin, Mr. Troy was an experienced user of heroin. Unfortunately Mr. Troy was given fentanyl, which he had no experience with. Mr. White, to some extent, had a troubled upbringing as a child and began using illicit substances at an early age, starting with marihuana and by high school he was using ecstasy, cocaine, acid, OxyContin, mushroom, “K,” uppers, Ketamine and heroin. He had been attempting to become free from drug use by involving himself in a methadone program for the past six years. He has had success and failure and until the charge before the court believed he did not need counselling. He now recognizes his need for counselling, both his personal issues with his mother and his substance abuse. His current dosage of methadone is quite low and according to Dr. Robertson’s letter, dated January 10, 2019, Mr. White has been drug free for six months. In my view it is important to build on Mr. White’s successes in his desire to stop taking opioids. This can best be accomplished by a reformatory sentence served at either Ontario Correctional Institute or the St. Lawrence Valley Correctional and Treatment Centre. The email from Donna Butler, who is the Manager of Social Work Services at OCI reflects that for a resident to have the minimum of nine months in OCI the sentence needs to be at least 13 months. I am mindful of the comments by the Ontario Court of Appeal in Greene referred to above and the comments in Preston (BCCA) referred to and adopted by Justice Rosenberg in R. v. C.N.H., referred to above. It is my view the principles of rehabilitation, restraint and reintegration are important sentencing principles for Mr. White considering the fact he is a youthful first offender who has never served any length of time in custody. The position of the Crown of 4 years in my view is completely contrary to those principles and in my view would be a crushing sentence for a first jail sentence. Such a sentence does not take into account the unique circumstances of this case. Such a sentence is more appropriate in the factual circumstances reflected in the Walker decision by Justice Harpur.

[121] Mr. White cooperated with the police upon his arrest. He provided an inculpatory statement and voluntarily provided the police with his cell phone, which corroborated the texts found on Mr. Troy’s phone. Further, Mr. White’s phone supported the inference that he was not a drug dealer of any kind. He did his friend a favour and assisted Mr. Troy in obtaining a “fix” by going to a dealer he knew and purchasing what he believed was heroin. Unfortunately it was not. Given the fact that fentanyl is 20 times stronger than heroin the amount taken by Mr. Troy was fatal. In my view the Crown’s position is contrary to the principles of restraint and restorative justice as reflected in s. 718.2(d) and (e) having regard to Mr. White’s youth and the fact he is a first offender who has never been sentenced to custody.

[122] Finally, in the unique circumstances of this case that I have discussed above it is my view an upper reformatory sentence of 18 months is an individualized, proportionate sentence that satisfies all of the sentencing principles applicable in this case. There is no doubt trafficking in a substance believed to be and held out to be heroin is a serious offence. Farizeh has not been overruled by the Ontario Court of Appeal, so generally “the sale of heroin even small amounts by first offenders who are addicts will call for a penitentiary sentence unless exceptional circumstances exist.” In three Court of Appeal cases, Klammer, Turner and Barnham, a penitentiary sentence for the underlying heroin trafficking offence was not the outcome, even prior to the reduction of credit for time spent in pre-sentence custody. In my view this indicates that "attracting" penitentiary time does not equate to "mandating" penitentiary time. In other words, trafficking in even small amounts of heroin or hydromorphone (synthetic heroin) must be dealt with very seriously by our courts, but there is no effective mandatory minimum sentence of 2 years for trafficking in heroin. In my view it is the very unique, exceptional circumstances demonstrated by the facts in Mr. White’s case that lead to the conclusion a penitentiary sentence will not properly address and balance the applicable sentencing principles.

[123] The sentence imposed therefore is a sentence of 18 months to be followed by 3 years’ probation.

[124] There will also be a s. 109 weapon’s prohibition order for 10 years and a DNA order pursuant to s. 487.04, as a secondary designated offence. There will also be a forfeiture order made respecting anything seized by the police.

Released: March 21, 2019

Signed: Justice Peter C. West

[^1]: Crown R. v. Sidhu, [2009] O.J. No. 325 (C.A.) for general principles in drugs offences involving heroin, importing case; R. v. Farizeh, 1994 CanLII 7552 (ON SC), [1994] O.J. No. 2 (C.A.), endorsement, three counts of trafficking in heroin over 6-day period. Total quantity was 1.59 grams heroin. Two other charges of trafficking in .06 grams for $40 each were withdrawn but part of facts on sentencing. Sale of heroin, even in small amounts by first offenders who are addicts call for a penitentiary sentence unless exceptional circumstances exist and present case did not fall into that exception; R. v. Gatfield, [2015] O.J. No. 5019 (ONCJ) (Trafficking in fentanyl [2 - 100 microgram patches], no record, commercial crime for profit). Sentence: 30 months); R. v. Fyfe, 2017 SKQB 5, Accused sold one fentanyl pill to victim who was found dead next morning. While on release accused again sold two fentanyl tablets, guilty plea two counts trafficking in fentanyl and breach of release. No criminal record. Sentenced five years, 2.5 years on each trafficking charge consecutive, breach charge 60 days concurrent. Accused not an addict himself but low level dealer; and R. v. Haas, [2016] M.B. No. 118 (C.A.). This is only the appeal as to conviction and the sentence decision was not provided. Here the accused brought a woman to his apartment and provided her with morphine (she ingested 16 pills), woman stopped breathing and died, accused charged with two counts trafficking in morphine, criminal negligence cause death and manslaughter. Found guilty of all charges, convicted of one count trafficking morphine and manslaughter, other charges stayed.

[^2]: Defence: R. v. Corbett, 2015 ABPC 212, [2015] A.J. No. 1080 (Prov. Ct), Accused target of undercover operation for three weeks, accused sold to undercover on four occasions, on fifth occasion vehicle stopped and searched, cocaine and cash discovered, on sixth occasion police found accused asleep in car, searched vehicle, 80.6 grams cocaine, 328 Fentanyl pills, loaded sawed-off shotgun found. “Starting point” sentence of three years for trafficking in cocaine and loaded gun found close to drugs pointed to greater sentence than 3 years, however, accused accomplished rehabilitation before sentence, custodial sentence could undo progress, accused no longer drug addict, conduct was to support addiction, not for profit, nine month sentence, which was satisfied by pre-trial custody, two years’ probation; R. v. Derycke, [2016] B.C.J. No. 2053 (Prov. Ct.) Accused pulled over on traffic stop, three 3 baggies out window, contained drugs. Accused searched, money found, and key card to hotel. Police went to hotel, found girlfriend, cocaine, heroin, fentanyl and marihuana. Accused charged possession for purpose of trafficking. Criminal record but no convictions for drug offences. 23 years of age. 12 month sentence for drug charges less 189 days’ time served; R. v. Dixon, [2017] O.J. No. 3477 (ONCJ) (PFP (September 1, 2015) heroin, Crystal Methamphetamine and marihuana and possession of a prohibited weapon (taser), PFP (January 11, 2016) cocaine, fentanyl, methamphetamine and oxycodone (all quantities relatively small), dated unrelated criminal record, addict, initially released after 35 days and then released second time after approximately 6 months of pre-trial custody. Sentence: 9 months pre-trial credit, suspended sentence with three years’ probation; R. v. Hambly, 2016 BCPC 215, PFP 3.18 g heroin, 2 g cocaine, methamphetamine (4 pack), sentence 6 months custody and probation (Crown position); R. v. Joon, 2017 BCPC 301, trafficking in fentanyl and heroin, no criminal record, 19 year old accused, commercial motive, not an addict, sentencing judge found exceptional circumstances and imposed suspended sentence and probation; R. v. Klammer, 2016 ONSC 4038 (Healey J.) trafficking in fentanyl, possession for purpose fentanyl, possession proceeds of crime, (6 100 microgram fentanyl patches), no record, addict in treatment, sentence 33 months on all 3 charges concurrent, on appeal 2017 ONCA 416, sentence varied to 20 months.

[^3]: R. v. White, [2017] O.J. No. 1631 (ONCJ) (Theft of prescription medication, trafficking in Hydromorph Contin [937 pills various strengths], trafficking in ratio-Oxycocet [1043 pills], and in Adderall Contin [300 pills], Aboriginal accused addict, pharmacy assistant stole from her employer, provided some of pills to her boyfriend, no record. Sentence: Suspended sentence with probation for 30 months.); R. v. Goncalves, 2011 ONSC 2577, [2011] O.J. No. 2029 (ONSC) (PFP cocaine [898.15 grams] and PFP heroin [39.52 grams], criminal record unrelated, accused addict. Sentence: 2 years less a day and 3 years’ probation; R. v. Aviles, [2016] O.J. No. 2 (ONSC) (After trial accused found guilty of PFP in cocaine, heroin, oxycodone, marihuana and carry concealed weapon (knife), commercial crime for profit, dated criminal record. Sentence: 18 months after credit for 3 months.); R. v. S.M., [2016] O.J. No. 2278 (ONCJ) (uttering forged prescriptions, theft, PFP of hydromorphone [12,000 pills], and fraud, accused doctor was addict. Sentence: 6 months for uttering forged prescriptions, 6 months concurrent for theft, 18 months consecutive for PFP and 3 months concurrent for fraud, total sentence 2 years with three years’ probation.); R. v. Wilson, [2017] O.J. No. 6069 (ONSC) (Trafficking in cocaine [7 grams] and proceeds of crime [$460], facts included 3 other separate instances trafficking in cocaine [7 grams each time for $500], accused addict who trafficked for profit. Sentence: 90 day intermittent jail followed by two years’ probation, exceptional circumstances.); R. v. Barham, [2014] O.J. No. 5404 (C.A.) (PFP in hydromorphone, cause disturbance, breach probation, possession of cocaine, possession of stolen property and breach of probation, lengthy criminal record. Global sentence of 14 months and 28 days, less 165 days of pre-trial credit, PFP in hydromorphone sentence was 12 months, less 5.5 months pre-trial credit, upheld and defence appeal dismissed.); R. v. Slaughter, 2015 ONSC 7869 (3 counts trafficking in hydromorphone, accused addict had lengthy record including two convictions for schedule 1 drug, currently serving 17 month sentence for ABH. Sentence: 2 years and 3 months); R. v. McGill, 2016 ONCJ 138, [2016] O.J. No. 1346 (ONCJ, Green J.) Aboriginal offender with criminal record, cocaine addict, PFP 300 grams cocaine, suspended sentence and probation 30 months; R. v. Bilodeau, [2015] O.J. No. 3777 (ONCJ) (Aboriginal accused with prior largely unrelated record, possession for purpose of trafficking (PFP) in hydromorphone [135 (3 mg), 30 (6 mg), 3 (12 mg), 6 (24 mg), 177 (18 mg) and 58 (30 mg) hydromorphone pills] and PFP in oxycodone [47 (40 mg) and 42 generic (40 mg) oxycodone pills]. Sentence: 22 months for hydromorphone and 14 months concurrent for oxycodone.); R. v. Azeez, [2014] O.J. No. 3091(ONCJ, Green J.), heroin addict, criminal record (minor), strict bail reduced sentence to reformatory sentence, trafficking in heroin, conditional sentence 2 years less 1 day; R. v. Tanzola, [2015] O.J. No. 7746 (SCJ, Hill J.), 63 year old accused, criminal record with related offences, trafficking in heroin (.4 grams), heroin addict, sharing heroin with fellow addict, suspended sentence and probation; R. v. Abdella, [2017] O.J. No. 1588 (SCJ) No record, low IQ, sold 6.3 grams heroin to individual subject to police surveillance, guilty after trial, sentence of 26 months; R. v. Gerrard, 2017 ONCJ 502 (PFP in cocaine [26.6 grams], PFP in methamphetamine [274 pills], PFP oxycodone [5 pills], also found marihuana [384.9 grams], NDMA [10.8 grams] and oxycontin [4 pills], commercial crime for profit, no record. Sentence: 18 months on PFP cocaine and 18 months concurrent on other 2 counts PFP; R. v. Reis, [2012] O.J. No. 2623 (ONCJ) (PFP in cocaine [2.1 ounces] and PFP heroin [1.22 grams] and PFP in oxycodone [224 pills], commercial crime for profit, no record. Sentence: 11 months and 1 year probation; R. v. Voong, 2015 BCCA 285 and R. v. Smith, 2017 BCCA 112, [2017] B.C.J. No. 471 (B.C.C.A.) PFP cocaine (18 flaps powdered cocaine), PFP fentanyl (13 flaps), increased sentencing range for street-level trafficking in fentanyl to 18 to 36 months or greater, but upheld sentence of six months with probation based on circumstances surrounding fentanyl use that existed at time offence committed, accused was recovered addict at time of sentencing.