Court Information

Date: June 20, 2019

Information No.: 2811-998-18-36395-00

Ontario Court of Justice

Her Majesty the Queen v. Thomas Loder

Proceedings and Reasons for Judgment

Before: The Honourable Justice P.C. West

Location: Oshawa, Ontario

Date of Hearing: June 20, 2019

Appearances

Ms. Siddique – Counsel for the Federal Crown

T. Green – Counsel for Thomas Loder

Reasons for Judgment

WEST, J.: (Orally)

Charge and Facts

Thomas Loder was charged that on the 15th day of July in the year 2018 he unlawfully possessed a substance which is included in Schedule I, namely Fentanyl, contrary to Section 4(1) of the Controlled Drugs and Substances Act.

This was a situation where Mr. Loder was stopped by police. They observed him attempt to throw a vial of illicit substance behind his back when he was approached by the police in the City of Oshawa. The vial bounced off the branch of a tree and then came back towards Mr. Loder, landing on the ground a couple of feet behind him. He told the officers that the vial contained Fentanyl and an unknown opiate. The vial was seized and he was charged with simple possession.

Those were the facts that were read to me in respect to this matter. I was told that the quantity of Fentanyl was two grams.

Crown and Defence Positions

The position of the Crown, this being a matter that was pre-tried, was a jail sentence of 30 days with probation to follow of two years. Defence is seeking a conditional discharge and probation, with no objection to the two-year probation.

Pre-Sentence Report and Background

Mr. Loder has no criminal record. I ordered a Pre-Sentence report which is in my view extremely positive. I will not go into all of the details around it, other than to point out that in August of 2010 he was involved in a serious car accident that resulted in a major chronic back injury and a five-year legal court battle that caused him to drop out of university that he was in and involved him taking extensive physiotherapy and rehabilitation, which ultimately led as well to him being prescribed very strong pain medications, most of which were in the form of opiates. He ultimately, after the lengthy legal battle, received a settlement relating to the car accident, but ended up having to pay lawyer's fees and other debts that had accumulated because of his inability to work during that period of time.

In 2016, in December, he was admitted to hospital as a result of a cyst hemorrhaging, which was ultimately diagnosed as polycystic kidney disease. As a result of the pain he suffered from that medical condition, he was prescribed regular Hydromorphone and Dilaudid medication to deal with both lower abdominal and back pain. He began a history at that point, and perhaps prior to this, of cocaine use (which is indicated in his medical records). He had all of those records provided to the probation officer.

After he was discharged in respect of that medical condition in January 2017, he began to run out of his medications and then began experiencing vomiting, sweats, hot flashes, body cramps, severe leg cramps. He was bedridden and experienced severe anxiety for the first time.

He found out when he returned to hospital that he was actually experiencing withdrawal symptoms from the medications that had been prescribed to him. His family doctor, on his release from hospital, again continued to prescribe opiate pain medication until September of 2018, when it was suggested that there was an alternate pain patch that he could utilize to deal with the pain that he continued to face.

He did ultimately graduate from his university degree and has ultimately left Oshawa to get away from some of what he would describe in the Pre-Sentence report as "bad influences". He is currently living with his girlfriend. He apparently attends his church weekly and there is a letter that was provided as part of Exhibit 2 from the parish priest of the Catholic Church in Lindsay indicating his involvement in that faith community.

He ended up attending for counselling as well with the Ross Memorial Hospital in their mental health day program and ended up taking two courses dealing with anxiety, which he still continues to suffer from.

He also began a methadone program in Lindsay and at the time of the writing of the Pre-Sentence report, which was dated April 8th, 2019, he was down to 21 milligrams. I have a letter that is provided by the clinic that he attends to receive his methadone. His dosage is now six milligrams and he currently receives five carries or take-home doses per week. These are significantly low numbers for someone who is addicted to opiates and he is well on his way to becoming completely drug free.

Employment and Educational Prospects

Two other things that are in my view particularly important in respect to this matter is the fact that Mr. Loder has been admitted into a post-graduate degree at Fleming College in Health Safety and Environmental Compliance, which he is scheduled to start in September of 2019, where he will do his first semester and then continue again in January of 2020 where he will do his second semester. He has also received an offer of employment (which I understand he has accepted pending the sentencing and the charge that he has pled guilty to) with the John Howard Society to work as a resource counsellor. This will be weekend days and weekday evenings. He will earn a certain hourly rate and work as I have it from here 16 hours per week.

One of the things that the John Howard Society requires of anyone who works in this program is to complete a criminal conviction declaration form annually and I have been advised by counsel, Mr. Green, that if he receives a conviction for the offence of simple possession, he will end up not being able to continue in that employment because of the requirement to in effect not have any convictions.

Sentencing Principles

As I have indicated, this is a first offence. Mr. Loder has overcome in my view significant difficulties in his life. His addiction to cocaine, as well as his addiction to opiates, which came about as a result of a serious car accident and a serious medical condition later in 2016-2017, ultimately led to him, when he was released from hospital, experiencing withdrawal symptoms from his medication running out, which were Hydromorphone and Dilaudid medications, both of which are very serious opiates. Hydromorphone of course is a synthetic heroin and Dilaudid is not quite as serious as Hydromorphone or heroin, but it is still a very powerful opiate.

As a result of that and as a result of his doctors not providing him with the amount of opiates that he needed to not succumb to withdrawal symptoms, the Pre-Sentence report indicates that is when he began turning to street drugs in order to supplement what he was being prescribed, which ultimately led to the charge that is before the Court.

He has strong support from his family, from his parents. There is an indication in the Pre-Sentence report of their support of him and he has strong support from his partner who is in court today as well.

As I have indicated, Mr. Loder is a relatively youthful first offender. He is only currently 32. At the time of this offence, I believe that he would have been 31. He has no record. I am not going to read the passages that I normally read, but I will indicate in my view I am bound by decisions from our Court of Appeal, like R. v. Stein from 1974, a decision of Justice G. Arthur Martin at page 377 of that judgment. Also Justice Rosenberg, who in making comments about R. v. Stein in a case called R. v. Priest reported in 1996 from our Court of Appeal, indicated:

That it is then an important principle of sentencing in this province that the sentence should constitute the minimum necessary intervention that is adequate in the circumstances.

And finally, R. v. Batisse. This is a principle of sentencing that has not gone away in the province of Ontario. In the case of first offenders, judges are to exercise restraint in respect of sentences imposed. And in R. v. Batisse, a decision from the Ontario Court of Appeal in 2009, there is reference both to Priest, as well as another decision in 2006 of R. v. Blanas of the Ontario Court of Appeal where that Court indicates and it is cited with approval by the Court in Batisse that, where the accused is a relatively youthful first offender with no prior record and appears to have the full support of family and the community, appropriate consideration must be given to the rehabilitation of the accused.

Of course I am going to be basing my sentence on the principles of sentencing set out in Sections 718 to 718.2 of the Criminal Code, as well as the aggravating and mitigating factors which exist in this case.

Aggravating and Mitigating Factors

In my view, the only aggravating factor is that we are dealing with the drug Fentanyl, which is in my view, and I think certainly reported in the press and certainly reported by numerous judgments by various Judges, an epidemic or a crisis in our country, certainly in this province and certainly from my sitting in Oshawa for the past two and a half years, it is a crisis here in the Regional Municipality of Durham.

However, there are circumstances where serious cases of exceptional circumstances exist and judges have to exercise restraint, particularly with first offenders.

I think it is agreed by both counsel that when I am dealing with even a simple possession of Fentanyl, I am dealing with an offence that the paramount sentencing principles applicable are deterrence and denunciation. However, as it is indicated in Batisse and also other cases referred to in Batisse, for example R. v. Dubinski from our Court of Appeal in 2005:

It is an error to focus almost exclusively on general deterrence and fail to consider individual deterrence and rehabilitation when one is sentencing a first offender.

And as I indicated, it is my view general deterrence does not guide the entire analysis; it is only one of the factors that the Court must consider. It comes out of an Ontario Court of Appeal decision from 1978 called R. v. Sears.

In respect of the principle of specific deterrence as it relates to Mr. Loder, in my view this is not a significant factor in this sentencing given the steps that have already been taken by Mr. Loder. To go from an addiction of opiates down to a methadone program when he is seen by the probation officer in March/April of 2019, down to 21 milligrams and he only began that methadone program in October of 2018 and now to currently be down to six milligrams of methadone, these are exceedingly huge steps taken by Mr. Loder in ensuring his rehabilitation and it demonstrates to me a great deal of specific deterrence in terms of the charge that was laid in the summer of 2018.

Sentencing of course is highly individualized and must be proportionate to the gravity of the offence and the degree of the responsibility to the offender and it is to be increased or reduced to account for any aggravating/mitigating circumstances and it should also strive to be similar in relation to other sentences imposed on similar offenders and similar circumstances.

Relevant Case Law on Conditional Discharges

I have a decision of R. v. Adamson, [2017] O.J. No. 1454, where I granted a conditional discharge for a first offender on a charge of assault causing bodily harm where there were seven stitches that had to be utilized to close a cut on the victim's face. The victim had made a derogatory remark to Ms. Adamson about her autistic child, in which case she threw her bottle of beer at him and hit him and struck him in the face and caused the laceration that required seven stitches. She was a cocaine addict. She was an alcoholic and she had also made tremendous strides in overcoming her addictions, such that based on those cases I have referred to and some other cases I am now going to talk about, I granted her the discharge. She also was in a position where she worked in the insurance industry and if she had received a conviction she would have lost any opportunity of continuing employment within that industry because of the criminal record check she was required to comply with and given the nature of the work that she was involved in.

Justice Casey Hill in a case called R. v. Hayes from 1999, substituted a conditional discharge for a suspended sentence and probation where the charges involved mischief, willful damage to property and assault with a weapon. And in addressing whether conditional discharges are appropriate, he cited these cases at paragraph 32 and I am just going to list the cases because I think they are important.

Discharges are not restricted to trivial matters. That is a case called R. v. Vicente from 1975 in our Ontario Court of Appeal.

Where an offender has acted entirely out of character, perhaps in the context of unusual pressure or stress, a discharge may be a fit sanction. That is R. v. Taylor 1975, a decision of the Ontario Court of Appeal and Justice Arnott.

Where a criminal record will have a tendency to interfere with employment, a discharge should be given serious consideration. That is R. v. Myers 1978, a decision of the Ontario Court of Appeal.

Also R. v. Culley from 1977, a decision of the Ontario Court of Appeal, again written by Justice G. Arthur Martin.

A suspended sentence is not necessarily a greater deterrent to others than a conditional discharge. That is R. v. Cheung and Chow from 1976, also a decision of the Ontario Court of Appeal.

And where a discharge is only rarely appropriate in offences involving violence causing injuries, such a sentence is not universally unavailable in such circumstances and that relates to a decision of R. v. Wood from 1975, a decision of Justice Jessup of the Ontario Court of Appeal.

In 2016 in the Superior Court, R. v. Pera, a conditional discharge was granted where the accused's action caused a police officer to break his leg requiring extensive physiotherapy and the accused's pre-trial custody was used in assessing whether a discharge was appropriate. The Crown had sought a conviction and a suspended sentence.

R. v. Menese from 1974, a decision of the Ontario Court of Appeal, a conditional discharge does not mean an accused goes scot-free; they are still subject to terms of probation and have to earn the discharge.

R. v. McGee from 2011, a Superior Court decision, a conditional discharge was granted to a first offender who dealt with alcohol issues where the assault caused a three-inch cut to the chin of a taxi driver.

And then finally, a recent decision in our Court of Appeal, R. v. D'Souza in 2015 where the court held discharges are not restricted to trivial offences and the over-emphasis on the nature of the offence must be avoided. Here an accused was granted a conditional discharge where the sentencing judge placed too much emphasis on general deterrence for trafficking in a Schedule II drug where the first offender had made tremendous progress in overcoming an addiction to marijuana, doing volunteer work and attending university.

Finally, a decision of R. v. Neundorf, 2011, also a decision of the Ontario Court of Appeal, an accused was convicted of abduction respecting her children and contravention of a custody order and sentenced to a 12-month conditional sentence which was substituted with an absolute discharge on appeal where a conviction placed undue hardship to the accused's travel to the United States for employment and to see her family.

Decision

It is my view based on the totality of the facts presented by the Crown in this case that a custodial sentence of 30 days is completely disproportionate having regard to the cases that I have just cited in our Court of Appeal and in the Superior Court. I am required to consider every available sentence other than incarceration for a first offender and particularly someone who is youthful or relatively youthful. I recognize that there are circumstances surrounding serious offences that often require a custodial sentence to be imposed despite the accused being a first offender. This is not one of those cases.

I have already mentioned the decisions of Myers, Culley and Neundorf from our Court of Appeal which recognized that a conditional discharge was an appropriate consideration in deciding whether to impose the discharge as opposed to registering a conviction where employment would be jeopardized and that is a factor that is before me in this case.

As a result, in light of the exceptional circumstances of this case, it is my opinion a conditional discharge is not contrary to the public interest. Informed members of the public would support the granting of a discharge to Mr. Loder having regard to the nature of his possession of Fentanyl. The fact that he was addicted to Fentanyl as a result of the medications that were provided to him because of medical conditions, both of the serious car accident as well as a serious medical condition, and also the efforts of Mr. Loder that he has already undertaken to rehabilitate himself. His loss of an employment opportunity if he was convicted is also an appropriate consideration in not registering a conviction and I am satisfied that an informed member of the public would consider this outcome to be appropriate in all the circumstances of this case and that Mr. Loder should be given a second chance as a first offender.

In my view, right-thinking members of the public would be offended if I convicted Mr. Loder or if I put him into jail for this simple possession of Fentanyl—two grams.

Sentence

So in all of the circumstances I will be granting a conditional discharge, placing him on probation for a period of two years. Terms of that conditional discharge and probation will be as follows.

Released: June 20, 2019