ONTARIO COURT OF JUSTICE

CITATION: R. v. Smyth, 2019 ONCJ 81

DATE: 2019 01 25

COURT FILE No.: 18-5806

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

JOSHUA SMYTH

Before Justice G.L. ORSINI

Reasons for Sentence released on January 25, 2019

D. Ives ................................................................................... counsel for the Federal Crown

R. Ellis .................................................................. counsel for the accused Joshua Smyth

ORSINI J.:

Introduction

[1] Joshua Smyth entered a plea of guilty and is now before the court for sentencing on one count of possession of a controlled substance for purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act. The substance in question was a 41 gram mixture of heroin, fentanyl and carfentanil.

[2] The Crown seeks a custodial sentence of 7 years while the defence urges me to impose a sentence of between 3 and 4 years. Both counsel agree that the sentence should be reduced by 75 days to account for 50 days of pre-sentence custody on a 1.5-1 basis.

Circumstances of the Offence

Facts in Support of Guilty Plea

[3] The circumstances of the offence as read in by the Crown are relatively straightforward.

[4] On February 9, 2018 at approximately 9 PM, a 911 call was received by the London Police Call Centre advising that Mr. Smyth was on his way to the Palasad Restaurant while in possession of two handguns and some heroin. The caller advised that Mr. Smyth would be driving a black Buick Regal.

[5] Officers immediately set up surveillance in the area of the restaurant when, at 9:25 PM, Mr. Smyth was observed driving into the parking lot in a vehicle matching the above-noted description. The vehicle also contained two passengers namely a female and a small child. They got out of the vehicle and entered the restaurant. Mr. Smyth was carrying a backpack.

[6] Police were aware at the time that Mr. Smyth was a suspended driver. His license had been suspended for remedial reasons on December 11, 2013.

[7] Police attended inside the restaurant where Mr. Smyth was seated and arrested him for driving while under suspension. They then searched his backpack which contained two packages of suspected heroin, a small quantity of marijuana, 1 g of methamphetamine, two electronic scales, some new and used baggies and three knives. Mr. Smyth was also in possession of $6,615.00 in cash.

[8] A subsequent analysis of the suspected heroin revealed that it was in fact a mixture of heroin, fentanyl and carfentanil. The total weight was 41 grams.

Evidence of Mr. Smyth

[9] Mr. Smyth also gave evidence at the sentencing hearing in this matter. With respect to the circumstances of the offence, he indicated the following:

(i) He had been trafficking in heroin at the time of the offence in order to support his own addiction, which he estimated to be at 3 grams of heroin per day at a cost of approximately $1000.00;

(ii) He always purchased his heroin from the same supplier and would always sample it prior to selling;

(iii) He did not know that the heroin in question contained fentanyl or carfentanil;

(iv) He was aware that the substance he was selling was not pure heroin i.e., that it would have been mixed or “cut” with other substances including possibly fentanyl and/or carfentanil;

(v) He did not ask the person from whom he purchased the heroin what it was mixed with;

(vi) He was aware that if the heroin in his possession was mixed with fentanyl or carfentanil it could kill those to whom he was intending to selling it;

(vii) That intended to sell the heroin in his possession despite knowing of this risk;

Agreed Statement of Fact on Sentence

[10] Counsel also filed an Agreed Statement of Fact on Sentence. It outlines the nature of heroin, fentanyl and carfentanil, the rate at which these drugs are being detected by Canadian Law enforcement agencies, the dangers associated with their use and the extent to which all of this has contributed to this Canada’s opioid crisis.

[11] In this regard, I note the following agreed upon facts:

(i) Heroin is a semi-synthetic opioid derived from morphine with a street value in London Ontario of $250-$350 per gram or $3,500 - $4,500 per ounce. Until recently, it has not been a commonly found illicit substance in this city;

(ii) Fentanyl is a synthetic opioid drug that can be mixed with or substituted for heroin. While it is similar to morphine, it is 100 times more potent. It has a street value in London of $250 - $450 per gram or $3500 - $5000 per ounce. The lethal dosage of fentanyl is estimated to be 2 milligrams but this will vary depending on the route of administration, the users degree of tolerance, age, bodyweight, general health and the presence/absence of alcohol or other controlled substances;

(iii) Carfentanil is an analogue of fentanyl which was first identified in the London drug market in November 2017. Like fentanyl, it may be added to heroin or sold as heroin without the user’s knowledge. While it is similar to fentanyl, it is approximately 10,000 times stronger than morphine and 100 times stronger than fentanyl. Subject to the factors outlined above, the lethal dosage of carfentanil is estimated to be 2 micrograms. It can be absorbed through the skin thus creating an additional risk to law enforcement officials during drug seizures and emergency responders treating overdose patients.

(iv) Health Canada’s Drug Analysis Services (DAS) operates laboratories across Canada that analyze suspected illegal drugs seized by Canadian law enforcement agencies. Between 2012 and 2017, the number of times fentanyl was identified by DAS increased by 2,867% across Canada and 1,836% in Ontario. During that same period, the numbers for heroin have almost doubled and the number of times fentanyl analogues were identified increased by 3,500% across Canada and 3,691% in Ontario;

(v) Fentanyl and fentanyl analogues are increasingly being used as adulterants to heroin. In 2017, the DAS detected fentanyl or fentanyl analogs in 62% of all heroin samples across Canada and 47% of all heroin samples in Ontario;

(vi) The high potency of fentanyl greatly increases the risk of overdose, especially if the person who uses the drug is unaware that it contains fentanyl. The extreme potency of carfentanil increases the risk even further;

(vii) In 2017 alone, approximately 4000 Canadians lost their lives due to an opioid overdose, the vast majority of which were unintentional;

Circumstances of Mr. Smyth

[12] In addition to hearing evidence from Mr. Smyth himself, the court was also provided with the Pre-Sentence Report dated October 3, 2018.

[13] Mr. Smyth is now 32 years of age. He was 31 years old at the time of the offence.

[14] By all indications, Mr. Smyth had a difficult upbringing. He suffered physical abuse at the hands of his father and his stepfather, both of whom suffered from their own addiction issues. Ultimately, he says he began acting out and was removed from the home by his mother and stepfather who dropped him off at a group home when he was only 10 years of age. He reported that he was in and out of group homes until he was approximately 15 years of age when he secured his own residence with the assistance of child welfare services.

[15] With respect to substance abuse issues, he reported that he first began drinking when he was only 10 years of age, that he “tried it once and didn’t stop” until he began using heroin at the approximate age of 27. He admitted to selling heroin for approximately two years. He testified that he had stopped using heroin for approximately one year but relapsed just prior to being arrested for the offence before the court.

[16] Although now single, Mr. Smyth was previously involved in a relationship which produced one child, a son who is now six years of age. His previous partner confirms that Mr. Smyth maintains a close relationship with her son and stated that he is an “amazing” father. As indicated in the Pre-Sentence Report, it was his son who was in the vehicle when it was observed by police on the date of the offence.

[17] A number of letters were filed on behalf of Mr. Smyth by friends and family members. They describe him as an otherwise generous, kind and caring person who is committed to addressing the issues underlying his addiction.

[18] Mr. Smyth has a criminal record commencing in 2001 as a youth. The majority of his crimes are property related. His longest sentence was as an adult in February 2010 when he received the equivalent of a 12 month custodial sentence. His only conviction since that time was in September of 2017 for Mischief Under $5000 for which he received a suspended sentence and 12 months of probation. He has no prior drug related convictions.

[19] Mr. Smyth was ultimately released from custody following his arrest. As indicated in the Pre-Sentence Report, he has been involved in addictions and mental health counselling since that time. He stated that he has been drug-free with the exception of a couple of “slip-ups”.

[20] Mr. Smyth also provided a letter to the court expressing his commitment to treatment and maintaining a drug-free lifestyle. He expressed regret for having committed the offense and, in particular, the impact that a custodial sentence will have on his relationship with his son. He states, “The fact that I will not be there for my son and will miss out on all this time with him is by far the worst sentence I could possibly receive. It scares me more than jail.”

Analysis

[21] 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.

[22] Given the nature of the offence and the substances involved, denunciation and general 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 heroin for the purpose of trafficking where the substance is also found to contain fentanyl and/or carfentanil.

[23] I note the following mitigating factors in this case:

(i) Mr. Smyth entered a plea of guilty an accepted responsibility for the offence without the necessity of a trial. This is a traditional sign of remorse;

(ii) Mr. Smyth was clearly a heroin addict at the time of this offense and was, in part, trafficking to support his addiction. However, both counsel acknowledged some profit motive given the amount of the substance involved and the fact that Mr. Smyth was in possession of approximately $6600 upon his arrest;

(iii) As indicated above, Mr. Smith has taken steps towards his own rehabilitation. He appears to be genuinely motivated to remaining drug-free and to addressing the issues underlying his addiction;

(iv) Mr. Smyth has supports within the community. Those closest to him described him in positive terms particularly with respect to his commitment to his six-year-old son.

[24] While Mr. Smyth has only one conviction since 2010 for mischief, this must be balanced against his admission to trafficking in heroin for approximately two years.

[25] I do not considered it a mitigating fact that Mr. Smyth had no actual knowledge that the heroin in his possession contained fentanyl or carfentanil. At the very least, he was aware of this possibility and took no reasonable steps in this regard. In R. v. Sidhu (2009), 2009 ONCA 81, 94 O.R. (3d) 609 (C.A.), our Court of Appeal found that the absence of actual knowledge in this context should not be considered a mitigating circumstance.

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

(i) Mr. Smyth was knowingly possessing heroin for the purpose of trafficking. It has long been recognized that possessing heroin for this purpose is itself an aggravating feature.

Heroin is a dangerous and insidious drug with devastating consequences. For this reason, our Courts have found that the sale of heroin, even in small amounts by first offenders who are addicts, will attract penitentiary sentences absent the presence of exceptional circumstances [R. v. Farizeh, [1994] O.J. No. 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].

(ii) Mr. Smyth was well aware of the possibility that the heroin in his possession contained fentanyl and/or carfentanil. The dangers associated with fentanyl and carfentanil are well-known. The fact that he thought the substance was only heroin does not change the analysis in this regard.

In R v. Jenkins, [2018] O.J. No. 4491(SCJ), the court found that the Crown should not be significantly curtailed when relying on fentanyl being found in heroin as an aggravating factor for sentencing purposes. This is in contrast to the earlier decision of Justice Green in R v. Lemieux, (2017) O.J. No. 5465 (OCJ).

At paragraph 51 of Jenkins, Justice Edwards states the following,

While I have no evidence that either Mr. Jenkins or Ms. Morgan knew that the heroin contained fentanyl, whether in a trace amount or otherwise, their possible lack of knowledge is irrelevant. Both chose to participate in an enterprise that regardless of their specific knowledge of the fentanyl must be seen as highly dangerous to the end user. The end user is usually an addict. The end user is in need of the drug to deal with their addiction. The end user assumes that the drug that they are using is the drug that they had purchased. It is highly unlikely that the end user would be seeking to purchase a concoction that contained an unknown amount of fentanyl that could have deadly consequences. At best, Mr. Jenkins and Ms. Morgan could be said to be wilfully blind to the existence of the fentanyl found within the heroin. The fact that fentanyl was found within the heroin is, in my view, an aggravating factor that does not need to be proven by the Crown.

I note that there was no evidence in Jenkins that the accused were aware of the possibility that the heroin in their possession could have contained fentanyl. Nor was there any evidence as to the rate at which heroin was being cut with these substances at the time.

The same cannot be said for Mr. Smyth. He was well aware of this possibility. In addition, he had been trafficking in heroin for approximately two years prior to the offence. These facts, together with the above-noted statistics regarding the rate at which heroin was being cut with fentanyl and/or carfentanil, lead me to the conclusion that Mr. Smyth was wilfully blind to the presence of these substances in the heroin that he was possessing.

At the very least his behavior was reckless. He knew that he could possibly cause the death of those to whom he sold the heroin and was prepared to sell the heroin in spite of this knowledge. In this context, I find the distinction between recklessness and wilful blindness to be of little value when assessing the moral blameworthiness of Mr. Smyth.

(iii) As indicated above, there was at least some profit motive involved in the offence;

(iv) Mr. Smyth has a criminal record and was on probation at the time of this offence.

(v) Mr. Smith had three knives in his possession at the time of the offence. This amounts to an aggravating factor pursuant to section 10(2)(a)(i) of the Controlled Drugs and Substances Act.

[27] Counsel provided me with a number of cases with respect to the range of sentence available this court.

[28] In R v. Cinelli, 2018 ONSC 4983, the court imposed concurrent sentences of 7 years for possessing 80 grams of heroin and 20 grams of fentanyl for the purpose of trafficking. Mr. Cinelli had a lengthy and unbroken criminal record which included two prior convictions for trafficking in Schedule I substances.

[29] In R v. Eyo, [2012] O.J. 5226, a sentence of 7 years was imposed for possessing 114 grams of heroin and 13 grams of MDMA. The offender in that case also had two prior convictions for trafficking in Schedule I drugs.

[30] In R .v Bahari, [1994] O.J. No. 2625 (ONCA), a sentence of 8 years was reduced on appeal to 6 ½ years for four separate counts of trafficking in heroin. The total amount of heroin in that case was 7.4 grams.

[31] In R v. Dhillon, 2018 ONCA 281, a sentence of 7 years was upheld on appeal on a 55-year-old first time offender who had trafficked in 100 grams of heroin. The court found that the sentence was at the high end of an acceptable range.

[32] In R v. Jenkins, supra a global sentence of 6 ½ years was imposed on an offender who was found guilty after trial of trafficking in cocaine, fentanyl and heroin as well as three separate counts for possessing each of those substances for the purpose of trafficking. The total amount of the cocaine was 25 g, whereas a total amount of Heroin which contained Fentanyl was 22.7 g. The offender was on parole at the time for similar offences.

[33] In R v. Loor, (2017) 2017 ONCA 696, O.J. No. 4628, a sentence of 6 years was upheld on appeal for an offender convicted after trial of trafficking 45 fentanyl patches of the highest strength. The offender had a prior criminal record including one conviction for trafficking. In his reasons, Justice Laskin made the following comment:

“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.”

[34] In R v. Selvaratnam, [2018] O.J. No. 3152, the offender was sentenced to a total of 6 years for possessing cocaine for the purpose of trafficking and 3 years concurrent for possessing approximately 70 grams of heroin for the purpose of trafficking. The offender pled guilty and had one prior conviction for possessing a schedule one substance for the purpose of trafficking approximately 11 years earlier.

[35] I appreciate that there is no evidence as to the actual amount of fentanyl or carfenetanil that was mixed into the heroin in Mr. Smyth’s possession. I am therefor not in a position to find that Mr. Smyth was in possession of a “significant amount” of either substance. However, as indicated in Jenkins, this does complete the analysis as it relates to the presence of these substances as an aggravating factor.

[36] In Jenkins, the court found that the presence of fentanyl was nevertheless aggravating given that its presence, even in small trace amounts, can be fatal. In my view, this has particular application to Mr. Smyth’s circumstances given the heroin in his possession also contained the must stronger carfentanil.

[37] Those who choose to traffic in heroin, who are alert to the risk that it may be mixed with fentanyl and/or carfentanil and who appreciate the risk of death this possess to unsuspecting users, represent a significant danger to the community. They need to understand that the risk of death they pose to unsuspecting users will be met with significant penitentiary sentences.

[38] Having considered the principles of sentencing and the aggravating and mitigation factors, I find the amount of heroin involved (41g) is significant and warranting of a significant penitentiary sentence even absent any evidence of contamination by fentanyl or carfentanil. Given that additional aggravating factor, I find that an appropriate sentence is one of 7 years. As indicated above, Mr. Smyth will begin credit for 75 days or approximately 2 ½ months.

[39] I therefore sentence Mr. Smyth to a period of custody of time served of 50 days plus an additional 81.5 months.

[40] For DNA purposes, Possession for the Purpose of Trafficking is a secondary designated offence. Given the nature of the offence and the prior record, it is my view that Mr. Smyth’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. Smyth that are reasonably required for the purpose of forensic DNA analysis.

[41] There will also be an Order pursuant to section 109 of the Criminal Code prohibiting Mr. Smyth from possessing any of the weapons listed therein for a period of life.

Released: January 25, 2019

Signed: Justice G.L. Orsini