Ontario Court of Justice

Date: January 17, 2019

Court File No.: 18-6041

Between:

Her Majesty the Queen

— AND —

Allan Doxtator

Before: Justice G.L. Orsini

Reasons for Sentence released on: January 17, 2019

Counsel:

• B. Eberhard, for the Crown
• J. Skinner, for the accused Allan Doxtator

ORSINI J.:

Introduction

[1] Allan Doxtator is before the court for sentencing on charges of possessing both methamphetamine and fentanyl for the purpose of trafficking, contrary to section 5, subsection 2 of the Controlled Drugs and Substances Act.

[2] The Crown seeks a custodial sentence of 4 years while the defence urges me to impose a sentence of 2 years. Both submit that the proposed sentence takes into account the relevant aggravating and mitigating factors as well as Mr. Doxtator's Indigenous heritage. Both agree that the proposed sentence should be reduced by 15 months to account for pre-sentence custody calculated on a 1.5 to 1 basis.

Principles of Sentencing

[3] The purposes and principles of sentencing are set out in section 718 of the Criminal Code as well as section 10 of the Controlled Drugs and Substances Act.

[4] Given the nature of the offences, denunciation and deterrence are the paramount sentencing principles. Counsel have provided me with a number of cases as to the manner in which they have been applied in cases involving the possession of fentanyl for the purpose of trafficking.

[5] I am of course required to consider the relevant aggravating and mitigating factors with respect to both the offence and Mr. Doxtator. With respect to the latter, I am also mindful of the need to consider Mr. Doxtator's Indigenous heritage pursuant to section 718(e) of the Criminal Code.

[6] Watt J.A. in R v. Radcliffe, 2017 ONCA 176, at paras. 52-55, described the proper approach to sentencing Indigenous offenders as follows:

It is now firmly established that when sentencing an Aboriginal offender, a judge must consider:

i. the unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the court; and

ii. the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage and connection.

See R v. Gladue, [1999] 1 S.C.R. 688, at para. 66; R v. Ipeelee, 2012 SCC 13, at para. 59.

Courts are required to take judicial notice of the systemic and background factors affecting Aboriginal people in Canadian society. But, on their own, these matters about which judicial notice must be taken do not necessarily justify a different sentence for Aboriginal offenders. They provide the necessary context for understanding and evaluating the case-specific information which counsel have a duty to present, absent express informed waiver of the right to have it presented: Ipeelee, at para. 60.

Although systemic and background factors provide the necessary context to enable a judge to determine an appropriate sentence, rather than to excuse or justify the underlying conduct, it is only where the unique circumstances of an offender bear on culpability, or indicate which sentencing objective can and should be actualized, that they will influence the ultimate sentence. [Emphasis in original.]

Circumstances of the Offences

[7] The circumstances of your offences are relatively straightforward.

[8] On February 8, 2018, I sentenced Mr. Doxtator to a period of custody for assaulting his domestic partner. The matter proceeded by way of a joint submission. Mr. Doxtator was clearly aware that he would be going into custody that day.

[9] While being processed for admission to the Elgin Middlesex Detention Centre, Mr. Doxtator was subjected to the electronic body scanning device which detected items within his abdominal cavity. Upon being confronted, he was cooperative in surrendering those items to correctional officers.

[10] In total, Mr. Doxtator turned over five individually wrapped packages which contained the following items: 20 matches, rolling papers, 167 grams of marijuana, 1 gram of marijuana shatter, 1 gram of cocaine, 2 grams of crystal methamphetamine and 3 grams of fentanyl.

[11] Although he clearly intended to traffic these items within the Detention Centre, Mr. Doxtator was unaware that the one item, which he thought to be heroin, was in fact fentanyl.

Circumstances of Mr. Doxtator

[12] Mr. Doxtator's background and personal circumstances are outlined in a Gladue Report, dated October 11, 2018. The court also gained considerable insight into Mr. Doxtator's life from numerous family members who participated in a sentencing circle.

[13] Mr. Doxtator is a 29-year-old member of the Oneida Nation of the Thames. He has clearly experienced the intergenerational impact of colonialism.

[14] As indicated in the Gladue Report, there is a documented history of residential school involvement on both sides of his family. His paternal grandfather attended the Mohawk Institute located in Brantford while his maternal grandmother attended the Mount Elgin Industrial Institute southwest of London on what is now the Chippewas of the Thames First Nation.

[15] The Gladue Report notes that his maternal grandparents were members of the Chippewas of the Thames First Nations. His great grandmother also attended the Mount Elgin Industrial Institute.

[16] The impact of the residential school system on subsequent generations has been well documented. Canada's residential school system was designed to assimilate Indigenous Peoples into Canadian society by eradicating their cultural traditions, spiritual beliefs and language. It has led to increased rates of substance abuse, mental health problems, criminal activity, mortality/suicide, poverty, family breakdown and community disintegration. All of this has contributed to cycles of parenting deficiencies.

[17] Many of these effects have been felt by Mr. Doxtator. His grandparents and parents suffered from significant addiction issues. His parents separated when he was 2 years old. Growing up, his relationship with his own father was minimal. He was exposed to domestic violence at an early age due to his mother's involvement in a number of abusive relationships. This, in addition to her own addiction issues, left her unable to provide the care and support he required during his formative years. His father provided no financial support and his mother was unable to maintain regular gainful employment. He grew up in extreme poverty as a result. In addition, his mother's frequent absences from the home left him to care for his younger siblings. He spoke of raising his younger sisters and engaging in petty theft to support the family when his mother was incarcerated.

[18] Given his exposure to domestic violence and substance abuse as a child, it is not altogether surprising that Mr. Doxtator has a history of engaging in similar conduct. He has a significant record for assaultive behaviour including domestic violence. Much of this, I am told, was precipitated by the consumption of alcohol. He also has convictions for impaired driving. Notably absent from his criminal record are offences involving drugs.

[19] Mr. Doxtator's younger brother, Cody Doxtator, suffered from similar struggles. Regrettably, the Doxtator family now struggles with the loss of Cody who succumbed to his own addiction issues while Mr. Doxtator was in custody on the matter for which he is now being sentenced. I am told that Cody died of an opiate overdose.

[20] Mr. Doxtator was granted bail for seven days in order to attend Cody's funeral. He subsequently surrendered himself back into custody as promised.

Aggravating and Mitigating Factors

[21] I note the following aggravating factors in this case:

(i) Fentanyl as the Substance

One of the substances that Mr. Doxtator was intending to traffic turned out to be fentanyl. The scourge of fentanyl is now well known. It is a highly addictive substance that is up to 100 times more powerful than morphine and 20 times more powerful than heroin. For this reason alone, it often leads to death.

The fact that he thought the substance was heroin does not change the analysis in this regard, for three reasons.

Firstly, had the drug been heroin, this itself would amount to an aggravating feature. In R v. Tse, [1999] O.J. No. 5787 (SCJ) at para. 8, the court stated, "heroin is one of the most dangerous and insidious narcotics which generally has devastating consequences on the health, social relations and financial circumstances of users and their families." For this reason, our Courts have found that the sale of heroin even in small amounts even by first offenders who are addicts will attract penitentiary sentences outside the presence of exceptional circumstances: R v. Farizeh, [1994] O.J. 2624, at paras. 4 and 5 (Ont. C.A.); R v. Hogan, [1976] O.J. No. 1087, at para. 3 (Ont. C.A.) and R v. Banovac, 2018 ONCA 737.

Secondly, as indicated in R v. Giammarco, [2012] O.J. No. 1053 at paras. 25-31, aff'd 2014 ONCA 242 (Ont. C.A.), being genuinely mistaken about the type of illegal drug in one's possession does not serve as a mitigating factor on sentencing, if the offender knew that he or she was in possession of an illegal drug. In R v. Jenkins, [2018] O.J. No. 4491 (SCJ) the court went further in finding that possession of fentanyl was an aggravating factor even if the accused honestly believed that the illegal substance was something other than fentanyl.

By any measure, Mr. Doxtator knew that he would be trafficking a highly dangerous substance and there is no evidence that he made any effort to determine the precise nature of the substance in question. At the very least, I find that Mr. Doxtator was wilfully blind to the precise nature of the substance he was intending to traffic.

Thirdly, had Mr. Doxtator been successful in his attempt, inmates who purchased what they believed to be heroin would be subjecting themselves to fentanyl, a drug 20 times more powerful. The likelihood of death would be significantly increased.

(ii) Trafficking Within a Custodial Institution

Mr. Doxtator was intending on trafficking this and other drugs within a jail setting. For this reason alone, the offence carries a minimum sentence of two years by virtue of section 5(3) of the Controlled Drugs and Substances Act. The seriousness of the offence is underscored by the issues surrounding the EMDC. Leaving aside the fact that jails are commonly populated by individuals suffering from addiction and mental health issues, the EMDC itself has been the focus of significant publicity due to the number of overdoses and deaths from opioids infiltrating the institution.

(iii) Criminal Record

Although Mr. Doxtator has no prior drug convictions, he has a significant criminal record.

[22] The mitigating factors are as follows:

(i) Guilty Plea

Mr. Doxtator entered a guilty plea.

(ii) Cooperation

He was cooperative with correctional officers and voluntarily surrendered the items when confronted.

(iii) Indigenous Heritage and Systemic Factors

Although he is hardly a first offender, I find that Mr. Doxtator's personal circumstances as an Indigenous offender nevertheless operate to reduce his moral blameworthiness for the reasons discussed above.

Analysis

[23] The cases provided by defence counsel show a sentencing range of between 6 months and 2½ years of custody. None of them however involve an intention to traffic fentanyl within a custodial setting.

[24] With the exception of the decision of the Ontario Court of Justice in R v. Rak, [2015] O.J. No. 5182, where the court imposed a sentence of 21¾ months custody, the remaining cases provided by the defence are from British Columbia where the sentencing range for this type of offence is much lower than those affirmed by our Court of Appeal.

[25] The cases referred to by the Crown show a sentencing range of between 2 and 5 years in custody.

[26] In R v. Kirkton, 2018 BCPC 11, the British Columbia Provincial Court was dealing with an Indigenous offender with no prior criminal record who pled guilty to possessing 5g of crack cocaine and 1g of heroin mixed with fentanyl. A sentence of two years was imposed. Unlike Mr. Doxtator, the offender had no prior criminal record and was not involved in an attempt to traffic drugs within a custodial institution.

[27] In R v. Fisher, 2016 ONSC 3013, Justice Sosna of the Ontario Superior Court of Justice imposed a sentence of 5 years on an offender who, while serving the 3½ year sentence for possession of a narcotic for the purposes of trafficking, arranged for the delivery of 2½ fentanyl patches and 69.5 g of marijuana to the Warkworth Institution. That sentence was upheld on appeal to the Ontario Court of Appeal (See R v. Fisher, 2016 ONCA 938). However, unlike Mr. Doxtator, the offender in that case was not of Indigenous heritage and had a record which included four prior convictions for possession of a narcotic for the purposes of trafficking.

[28] In R v. Dalton, an unreported decision of Justice Edward of the Ontario Court of Justice issued on May 31, 2018, the offender was sentenced to 5 years in custody after pleading guilty to possession for the purpose of trafficking within the Brantford Jail. Like Mr. Doxtator, the defendant in that case was aware that he would be going into custody. While being processed, he was placed in a dry cell where he passed several Kinder Eggs containing 1.8 g of cocaine, 1.3 g of crystal methamphetamine, 1.5 g of powdered fentanyl and 23 g of marijuana. It would appear from the decision the defendant had a prior criminal record although there is no indication as to whether it included drug offences. In any event, the offender was not of Indigenous heritage.

[29] The sentence of 4 years suggested by the Crown is certainly within an acceptable range for this offence and this offender bearing in mind the Gladue factors present in this case. Absent the Gladue factors, I would have no hesitation in imposing a sentence of 5 years.

[30] In spite of the absence of any prior drug-related convictions, the aggravating features discussed above justify a significant penitentiary sentence as a means of deterring others from engaging in similar conduct. Possessing fentanyl for the purpose of trafficking within a custodial institution cries out for a denunciatory and deterrent sentence.

[31] I am mindful of what the Supreme Court of Canada said in R v. Gladue, [1999] 1 S.C.R. 688, that, "[g]enerally, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing" (para. 79).

[32] At the same time, I cannot ignore the mitigating factors and in particular the systemic and background factors discussed above that have played a significant role in bringing Mr. Doxtator before the court.

[33] I am particularly mindful of the problems caused by unwarranted emphasis on the above-noted paragraph in Gladue, something that was emphasised in the Supreme Court of Canada's subsequent decision in R v. Ipeelee, 2012 SCC 13, and most recently by the Ontario Court of Appeal in R v. Martin, [2018] O.J. No. 6591.

[34] Simply put, the above-noted passage in Gladue is not an invitation to ignore my obligation to apply Gladue principles. To do so would amount to an error of law. See also R v. Kakekagamick, 81 O.R. (3d) 664 (C.A.), at para. 31, leave to appeal refused, [2007] S.C.C.A. No. 34.

[35] Further, consideration of Gladue principles is not equivalent to a race-based discount, but rather recognizes the reduced moral blameworthiness resulting from the effects of intergenerational dislocation and trauma, and recognizes that aboriginal persons are disproportionately represented in the prison population.

[36] Taking into account all of these factors, it is my view that an appropriate sentence is one of 3½ years. As indicated above, Mr. Doxtator will be credited with having served 15 months of pre-sentence custody.

[37] I therefore sentence Mr. Doxtator to time served of 15 months plus a further 27 months custody on count 3 in relation to possessing fentanyl for the purpose of trafficking and a concurrent period of 6 months in relation to count 2 for possessing methamphetamine for the purpose of trafficking.

[38] For DNA purposes, Possession for the Purpose of Trafficking is a secondary designated offence. Given the nature of the offences and the prior record, it is my view that Mr. Doxtator's privacy interests are outweighed by the public interest. Accordingly, pursuant to s. 487.051(3), I am ordering the taking of samples of bodily substances from Mr. Doxtator that are reasonably required for the purpose of forensic DNA analysis.

[39] There will also be a weapons prohibition pursuant to ss. 109 of the Criminal Code prohibiting Mr. Doxtator from possessing the weapons listed therein for a period of life.

[40] Released: January 17, 2019

Signed: Justice G.L. Orsini