Court Information
Ontario Court of Justice
Date: April 10, 2019
Between:
Her Majesty the Queen
— AND —
Trevor Imeson
and
Kimberly Murphy
Before: Justice A.T. McKay
Sentencing Submissions heard on: March 29, 2019
Reasons for Sentence released on: April 10, 2019
Counsel
Amber Paschuk and Sarah Egan — counsel for the Crown
Stephen Proudlove — counsel for the accused Trevor Imeson
Sean Safa — counsel for the accused Kimberly Murphy
INTRODUCTION
[1] On December 18, 2017, Mr. Imeson and Ms. Murphy visited the provincial jail in Gravenhurst. Upon entering the institution, they were subjected to certain procedures. A scan of Mr. Imeson indicated the presence of cocaine. As a result, the vehicle that they arrived in was searched and they were jointly charged with five counts of possession of a controlled substance, one count of possession of methamphetamine for the purpose of trafficking, and one count of possession of Carfentanil for the purpose of trafficking. They were subsequently released.
[2] In 2018, Waterloo Regional Police Service ("WRPS") Drugs and Firearms Branch began an investigation known as Project Variance, which was concerned with alleged drug trafficking by Mr. Imeson and Ms. Murphy, among others. On June 18, 2018 WRPS received judicial authorization to intercept the private communications of Mr. Imeson and Ms. Murphy. Those communications were intercepted between June 18 and June 28, 2018. The interceptions revealed Mr. Imeson and Ms. Murphy making arrangements to traffic controlled substances at the ounce level for further distribution within the community. The substances included fentanyl, cocaine, and methamphetamine.
[3] On June 28, 2018, police arrested Mr. Imeson and Ms. Murphy. Located either on their person or within their vehicle was a total of $7161.90 Canadian currency; 2.58 grams of fentanyl; 7.86 grams of marijuana; four Blackberry mobile devices; two Samsung mobile devices; and two prepaid Visa cards. A search warrant of their residence was executed. Located in the residence were 109.92 grams of Carfentanil, 48.5 grams of fentanyl, 0.4 grams of the mixture of fentanyl and heroin; 240.05 grams of cocaine; 34.89 grams of methamphetamine; 76 grams of marijuana; 16.14 grams of MDMA; five clonazepam pills; debt lists; digital scales; a money counter; currency in a safe located in the master bedroom; 430 grams of cutting agent; and identity documents related to both individuals.
[4] Another search warrant was executed in relation to a trailer owned by Mr. Imeson and Ms. Murphy. That search located 324.38 grams of Carfentanil; 124.69 grams of fentanyl; 258.86 grams of cocaine; 1135.9 grams of methamphetamine; 19 Percocet pills; 18 hydromorphone pills; 285.4 grams of marijuana; 11.4 grams of cannabis resin; eight ecstasy pills; 243.88 grams of psilocybin; drug packaging materials; debt lists; documents in the names of both individuals; and an SVAC extractor.
[5] It is admitted that all of the aforementioned substances were possessed for the purpose of trafficking. It is also admitted that $94,246.42 of seized Canadian currency is proceeds of crime.
[6] Ms. Murphy has entered guilty pleas to all seven counts related to the incident in Gravenhurst. The Crown did not proceed with those charges against Mr. Imeson. With respect to Project Variance, Ms. Murphy and Mr. Imeson both entered guilty pleas to one count of possession of Carfentanil for the purpose of trafficking, one count of fentanyl for the purpose of trafficking, and one count of possession of methamphetamine for the purpose of trafficking. In addition, Mr. Imeson pled guilty to one count of breaching his release conditions. In the fall of 2018, Mr. Imeson suffered an overdose. As a result, police increased their surveillance of him. On November 13, 2018, he was found in possession of a cell phone, which was a violation of his release terms.
[7] The Crown and defence made submissions that a penitentiary sentence of between 10 and 13 years is an appropriate sentence for both Mr. Imeson and Ms. Murphy.
EXPERT EVIDENCE
[8] Pursuant to section 657.3 of the Criminal Code, the Crown filed the reports of two expert witnesses.
[9] Karen Woodall is a forensic scientist in the toxicology field. She provided an opinion regarding the properties of opiates including fentanyl, Carfentanil and heroin. The following comments were included in her report:
"Fentanyl can be up to 100 times more potent than morphine….Carfentanil is a synthetic opiate that is used as a tranquilizing agent for large animals and has never been approved for therapeutic use in humans. It is an extremely potent opiate that has been reported to be up to 10,000 times stronger than morphine and 100 times stronger than fentanyl. In addition to its use in veterinary practices it has also been used as a chemical warfare agent..."
[10] Craig Hudson is an Inspector with the Durham Regional Police Criminal Intelligence Branch. He has more than 30 years of experience in law enforcement, including more than 15 years dedicated to drug enforcement. He provided evidence regarding the use of various illegal street drugs including cocaine, fentanyl, Carfentanil and methamphetamine. His report included a summary of the community impact of various street drugs, public education efforts, along with intervention and overdose prevention efforts. He referred to the dramatic increases of opioid related deaths in the region and the country as a whole, and the prevalence of fentanyl in that issue. He also provided an opinion as to a range of the dollar value of the drugs seized from Mr. Imeson and Ms. Murphy. The dollar value is stated in the range because of the variation in price, depending upon whether the drugs are sold in smaller amounts such as grams, or larger amounts.
[11] In Inspector Hudson's opinion, depending upon the way the cocaine was sold, the seized cocaine would vary in value from a low of $26,400 to a high of $49,891. The value of the seized fentanyl and Carfentanil would range between a low of $53,825 and a high of $305,210. The value of the seized methamphetamine would range between a low of $23,400 and a high of $140,494.80.
POSITIONS OF THE PARTIES
The Crown
[12] The Crown takes the position that an appropriate global sentence for both accused would be 13 years in custody. That position is broken down as follows. With respect to the possession of Carfentanil for the purpose of trafficking, a sentence of 13 years should be imposed. Given totality, a sentence of 10 years concurrent should be imposed on the count related to fentanyl, and six years concurrent should be imposed with respect to the methamphetamine count. With respect to the charges against Ms. Murphy arising in Gravenhurst, a sentence of five years concurrent should be imposed. With respect to the breach of release terms related to Mr. Imeson, a sentence of 30 days concurrent should be imposed.
[13] The Crown submits that both fentanyl and Carfentanil are uniquely dangerous drugs. Even trace amounts can kill. Users of street drugs do not know what they are purchasing when fentanyl and Carfentanil are mixed with other drugs. In addition, both of those drugs are uniquely profitable for traffickers. Given the powerful nature of the drugs, smaller volumes, which are easier to conceal and transport, can provide huge profits to the trafficker. Given the higher profit motivation for traffickers and the danger to the community posed by these substances, a sentencing court should emphasize deterrence and denunciation. Both offenders were on bail for the Gravenhurst charges when the Project Variance charges arose. The wiretaps in that investigation revealed an ongoing, persistent, mid-level trafficking of the most dangerous drugs, in ounce level quantities.
[14] The Crown points out that both offenders have significant criminal records involving previous penitentiary sentences. In the Project Variance investigation, police seized more than $100,000 in cash, showing how lucrative the trafficking operation was. A substantial quantity of drugs was also seized. The attraction of trafficking in both fentanyl and Carfentanil is the massive profit potential. Courts must send a clear message to traffickers of those substances. The Crown also submits that the only significant mitigating factor in this case is the acknowledgement involved in the guilty pleas. However, the Crown submits that the guilty pleas also reflect a very strong Crown case.
The Defence
[15] Counsel for both Mr. Imeson and Ms. Murphy submit that an appropriate global sentence is a period of 10 years in custody.
[16] The defence emphasized that rehabilitation remains a concern when sentencing all offenders. The defence position is that the sentence proposed by the Crown would result in no significant value being assigned to the mitigating factor of the guilty pleas. The Project Variance investigation was complex, including authorizations to intercept private communications. If the case had been litigated, it would have been protracted, and consumed weeks of court time between a preliminary inquiry and a trial. There was an indication in this case from both accused within a few months of their arrest that there would be guilty pleas. That is almost unheard of in a case of this complexity. The defence submits that if courts do not recognize the value of the guilty plea in mitigation, there will be no incentive in this type case for any accused to plead guilty.
APPLICABLE LEGAL PRINCIPLES
[17] The task of a court in arriving at an appropriate sentence was described by Paciocco, J., as he then was, in R. v. Casselman, [2014] O.J. No. 1995, at paragraph 3:
"The fundamental principle of sentencing requires that to be fit any sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender (s. 718.1). This is achieved by examining the aggravating and mitigating circumstances that pertain both to the offence and the offender, bearing in mind established principles of sentencing, including those enumerated in the Criminal Code of Canada (s. 718.2). The sentencing objectives adjusted by this inquiry, selected from the sentencing goals listed in section 718, are then identified. Based on the selected objectives and always mindful of the principles of restraint contained in sections 718.2(c)-(e) of the Criminal Code of Canada the trial judge then selects a fit sentence that will best achieve those objectives and is similar to sentences imposed in similar cases".
[18] Section 718 of the Criminal Code provides as follows:
"The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by an unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community."
[19] The case law continues to develop, particularly in the area of the trafficking of fentanyl. Courts are increasingly recognizing the increased danger presented by fentanyl, and its impact on our communities. Those concerns are magnified with respect to Carfentanil. It is not disputed that in situations of trafficking for profit, particularly involving drugs as dangerous as fentanyl and Carfentanil, the courts will place increased emphasis on sentencing principles such as deterrence and denunciation in arriving at an appropriate sentence. Appellate courts have reinforced the fact that significant penitentiary sentences are the norm for trafficking in dangerous drugs, even in the case of first-time offenders. Counsel referred the court to a significant number of cases. I will only specifically comment on two of them.
[20] R. v. Vezina, 2017 ONCJ 775, [2017] O.J. No. 6027, is a case from this community. Mr. Vezina was found in possession of 204.49 grams of a substance which was a blend of heroin, fentanyl and cutting agents with a street value ranging from $41,000 to $61,500. In addition, he was in possession of 44.74 grams of cocaine; 2907 grams of marijuana; 14.98 grams of methamphetamine; 11.36 grams of cannabis resin; 19.68 grams of psilocybin; and Canadian currency in the amount of $9284. When arrested, he was in possession of a concealed loaded handgun. A sawed-off shotgun was located in his residence, along with shotgun shells, soft body armour, multiple knives and a bow with several arrows. At the time, he was bound by two court orders prohibiting him from possessing a weapon. He had a criminal record which included three prior convictions for possession of a controlled substance for the purpose of trafficking. One of those convictions involved methamphetamine, and he served a sentence of 2-½ years in the penitentiary for that conviction.
[21] The court in Vezina noted the following:
"the enormity of the fentanyl crisis justifies a significant increase in the sentencing range applicable to street level dealing in fentanyl. To strike at the root of the crisis, sentencing must be guided primarily by the principles of deterrence and denunciation to make abundantly clear that our community will not tolerate the illegal distribution of this insidious drug."
[22] The court imposed a sentence of 11 years in custody on the conviction for possession of fentanyl for the purpose of trafficking, and one year consecutive on the conviction related to the handgun. The other convictions attracted concurrent sentences.
[23] R. v. Broderick, [2018] O.J. No. 6278, is another recent case from this community. Ms. Broderick pled guilty to a charge of conspiracy to traffic three kilograms of fentanyl. Her criminal record included convictions in 2014 for trafficking in a controlled substance, possession of a controlled substance for the purpose of trafficking, and a weapons offence. She was sentenced to 30 months in the penitentiary for those offences. The court noted that her actions were driven by greed and loyalty to her co-accused. The court accepted the joint submission for 13 years in custody.
ANALYSIS
[24] With respect to the personal circumstances of Ms. Murphy, she is 37-years-old, with a 19-year-old daughter who is not involved in a criminal lifestyle. She was in a relationship with Mr. Imeson at the time of these offences. She has had addiction issues for many years. She expresses her remorse and presented the court with a number of documents regarding her attempts to deal with her addiction issues and the factors which have led to that issue. She has the support of family members and others in the community. Her criminal record is limited to four convictions. Most relevant is a conviction in January 2014 for possession of heroin for the purpose of trafficking, for which she received a two-year sentence.
[25] Mr. Imeson is 44 years old. He has a 13-year-old child with whom he has not had any contact in approximately 10 years. He has a grade 12 education and varied work history. He also has a history related to addictions. He expresses remorse. The forfeiture of items seized by police will help to minimize profit from this venture. He has the support of family members who attended the sentencing hearing, and intends to participate in rehabilitative programming while in custody. His criminal record contains six previous entries, all in 2009. In November of that year, he received a penitentiary sentence of six years in custody in connection with to robbery charges, break and enter, and wearing a disguise.
[26] There are a number of significant aggravating factors with respect to these offences. As outlined, across this country communities are struggling with the enormous problem of opiate addiction. Opiate overdose-related deaths continue to rise. Lives and families are destroyed. Communities are plagued with the high incidence of property crimes related to the need to feed the addiction. This region is included in that list of communities, notwithstanding a series of lengthy penitentiary sentences being imposed for the trafficking of those substances. Both Ms. Murphy and Mr. Imeson were involved in trafficking significant amounts of a number of dangerous drugs, including fentanyl and Carfentanil. They did so on a commercial scale for a profit motive. Accordingly, there is a significant degree of moral blameworthiness.
[27] The offences related to Project Variance are further aggravated by the fact that they were both on bail for other trafficking related offences at the relevant time. Both individuals have served penitentiary sentences for other offences.
[28] The plea of guilty in this matter is a significant mitigating factor for both Mr. Imeson and Ms. Murphy. The indication of the guilty plea came very early in the proceedings. It is an indication of remorse. By accepting responsibility for the offences, they have allowed the justice system to save significant resources. It is incumbent on the court to ensure that the value of those pleas in mitigation is reflected in the sentence.
[29] These are crimes committed by individuals with significant criminal histories, while they were on bail for similar offences. The nature of these crimes has a devastating impact on individuals, families and communities. The crimes are motivated by greed and a thirst for profit. The opiate crisis, and the dangers of fentanyl and Carfentanil, are increasingly known and publicly discussed. Mr. Imeson and Ms. Murphy engaged in a planned and deliberate course of conduct which they had to have known placed others at risk for their own personal profit. The sentence imposed must reflect the gravity of the offences and their impact on others. The circumstances of these offences call out for double digit penitentiary sentences. In my view, had Mr. Imeson and Ms. Murphy been convicted after a trial an appropriate sentence would have been in the range of 15 to 16 years. Therefore, the range agreed upon by counsel recognizes the significant mitigating value of the guilty pleas.
[30] With respect to Ms. Murphy, as of today's date she has spent 98 days in pretrial custody. Enhanced, that is the equivalent of 147 days. In addition, she has spent more than 6 ½ months on bail conditions amounting to house arrest. She will be given 63 days of additional pretrial custody for that, making the total pretrial custody the equivalent of seven months. Given totality, the following sentences will be imposed:
possession of Carfentanil for the purpose of trafficking, 12 years in custody, less pretrial credit of 7 months, leaving 11 years and five months to be served for that offence;
possession of fentanyl for the purpose of trafficking, 10 years in custody to be served concurrently;
possession of methamphetamine for the purpose of trafficking, six years in custody to be served concurrently;
possession of methamphetamine for the purpose of trafficking (Gravenhurst), five years in custody to be served concurrently;
possession of Carfentanil for the purpose of trafficking (Gravenhurst), five years in custody to be served concurrently;
count two on the Information containing the Gravenhurst charges is stayed pursuant to the Kienapple principle;
on each of the remaining counts on the Gravenhurst Information, a sentence of 45 days in custody to be served concurrently.
[31] As of the date of sentencing, Mr. Imeson has spent 243 days in pretrial custody. Enhanced at a rate of 1.5 to 1, that would be the equivalent of one year. In addition, counsel agreed that an additional modest credit should be granted given the delay in sentencing. Mr. Imeson shall receive total credit for the equivalent of 13 months of presentence custody. Given totality, the following sentences will be imposed:
Possession of Carfentanil for the purpose of trafficking, 12 years in custody, less pretrial credit of 13 months, leaving 10 years and 11 months to be served for that offence;
possession of fentanyl for the purpose of trafficking, 10 years in custody to be served concurrently;
possession of methamphetamine for the purpose of trafficking, six years in custody to be served concurrently;
breach of release terms, 45 days in custody to be served concurrently.
[32] Forfeiture orders have been made on consent. There will be orders under section 109 of the Criminal Code prohibiting both Ms. Murphy and Mr. Imeson from possessing a firearm or any other item listed in section 109 of the Criminal Code for life. With respect to each of the offences under section 5 of the Controlled Drugs and Substances Act, there will be orders compelling Ms. Murphy and Mr. Imeson to provide a sample of their DNA.
Released: April 10, 2019
Justice A.T. McKay