Court Information

Date: April 8, 2019

Information No.: 4411-998-18-8763-00

Ontario Court of Justice

Her Majesty the Queen v. Russell Rafferty

Reasons for Sentence

Before the Honourable Justice S. Latimer

on April 8, 2019 at Kitchener, Ontario

Appearances

A. Bain – Federal Counsel for the Crown

S. Safa – Counsel for Russell Rafferty

Reasons for Sentence

LATIMER, J. (Orally):

These are my Reasons for Sentence in Russell Rafferty's matter.

Introduction

The fentanyl crisis wears many faces; some more unexpected than others. This case provided a startling window into the addict population and the insidious way in which this drug has infiltrated our community.

Russell Rafferty is a 44 year old man with no prior criminal record who has been a productive member of our community. Until recently, he worked full-time in the film industry in Toronto. Locally, he belonged to, among other things, a small circle of friends who also held productive jobs and, like Mr. Rafferty, were addicted to fentanyl. One of those friends was Evan Hoegler, who died from carfentanyl poisoning, and whose death triggered a series of events that has brought Mr. Rafferty to this sentence hearing today.

Following an unsuccessful Charter application, he pleaded guilty to providing his friend Evan with what turned out to be carfentanyl immediately prior to his death. Mr. Rafferty believed he was providing or trafficking, in the language of the CDSA, fentanyl.

Having heard all the evidence in this case, I am satisfied that it was this quantity of the drug that killed Mr. Hoegler.

It is important to keep in mind, however, and I do, Mr. Rafferty has pleaded guilty to the only charge he has ever faced – trafficking carfentanyl. He has not pled to, nor has he ever been charged, with a homicide-related offence, such as manslaughter, or criminal negligence causing death. While Mr. Hoegler's death is a relevant aggravating feature, in my view, of sentencing, I must take care not to place excessive weight on this one feature of the case to the detriment of others. This, in my view, distinguishes this case from others that are in the Crown's book of authorities. I adopt the language of Justice Blacklock in case called Burton (1997), Carswell Ont. 3469, at para. 29, a case where a similar act of trafficking also led to an addict's death:

First and foremost, I want to make clear that I am not punishing Mr. Burton for a homicide related offence. He has not plead guilty to such an offence. He is not criminally responsible for such an offence. I am only sentencing him for the offence to which he has plead guilty, namely the act of trafficking in dilaudid, not murder, not manslaughter, not crim negligence causing death. The death is relevant in this case in that it illustrates how dangerous the drug we're dealing with it. But, I bear in mind, that I am not sentencing him for a homicide related offence.

Mr. Rafferty has pleaded guilty to trafficking carfentanyl on one occasion, October 2, 2017. We have conducted a Gardiner hearing on the last date; with the Crown seeking to prove additional acts of trafficking on different dates in the year prior to Mr. Hoegler's death. In aid of this attempt, they called a police officer, who I qualified to provide an opinion in the area of fentanyl trafficking. He examined the bank records and text messages and other evidence that form the core of the Crown's case, and identified language and payments that he believed established acts of drug trafficking.

Having considered all of the evidence, I make the following factual findings in this case:

Factual Findings

1) Friendship and Mutual Support

Russell Rafferty and Evan Hoegler were friends. They were part of a small social circle of friends and addicts. They often consumed fentanyl together. I accept, as indicated, that part of the reason they consumed together was to keep each other safe in the event of an overdose. I should say as indicated in the material. Mr. Rafferty advised, and I accept, that multiple resuscitations had to occur involving him, on one occasion, having once to resuscitate Evan Hoegler on a prior occasion when they consumed fentanyl together. Another member of this social circle, a young woman who works full-time at a local law firm, provided testimony and evidence in this case corroborating this fact. She wrote at sentencing, "It is because of Russ that I am still alive today and was given the chance to overcome my addiction."

2) Pattern of Facilitation

Evan Hoegler did not exclusively obtain fentanyl with Russell Rafferty's help. But he sometimes did. There are examples throughout the evidence, like on October 2, of Mr. Rafferty facilitating Mr. Hoegler's access to the drug. He would buy it at his behest, and then provide it to him. To traffic is defined in the Controlled Drugs and Substances Act as, among other things, to give. That is the form of trafficking that Mr. Rafferty committed. He thought he gave Mr. Hoegler 0.5 g of fentanyl on October 2, 2017. It turned out to be carfentanyl. He also provided it in such a manner on other dates sporadically throughout the year.

3) No Profit or Commercial Motive

I do not accept that Mr. Rafferty made any profit or accrued any meaningful benefit from aiding Mr. Hoegler's access to fentanyl. That potential aggravating feature has not been proven by the Crown beyond a reasonable doubt. Nor is he a party, in my view, to someone else's commercial trafficking, as seems to be the case in the Giroux decision I was provided today. I accept that he was helping a friend, and a fellow addict, in obtaining their shared drug of choice. It was mutual drug-seeking behaviour. I do accept, however, that these acts of facilitation, which make out trafficking, occurred more than just the one time. Indeed, it happened a number of times, in excess of perhaps 20. In some of these instances, Mr. Rafferty's communicating first in the texts, offering to pick drugs, I find, for Mr. Hoegler. Certainly, Mr. Hoegler's access to fentanyl was made greater by Mr. Rafferty's actions. Correspondingly, Mr. Hoegler was exposed to greater risk as a result of his actions.

Background and Character

Mr. Rafferty has no prior criminal record and until recently had been gainfully employed. I have received character letters from friends and family on his behalf. His brother wrote of his own struggles with addiction and Russell's attempts to "pull me out of it and remind me of who I am." He describes being in constant communication with his brother since the present charges, and his brother's understanding of the gravity of the criminal act, and his need for rehabilitation to help him with his addiction.

His mother has also spoken of his conduct as a son, and as a tenant in a shared-living context. She speaks, I think correctly, of a hard working, intelligent man. These statements are corroborated by a letter from a co-worker I received, as well.

Mr. Rafferty described in the presentence report beginning to use opiates in 2015 as a form of pain management from back issues that eventually morphed into an addiction and a desire to "escape from reality."

At present, I understand Mr. Rafferty to have been on methadone for over two years, and has graduated to the point where he has been permitted multiple carries per week. His urine samples have established that he has remained clean of street drugs. He is described as respectful, polite, and courteous by the staff to whom he deals.

Advised further that he is musically inclined, and indeed playing provides him comfort and help with some of his ongoing stress, which I accept is considerable. He describes feelings of anxiety, depression, and guilt as a result of this conduct that has brought him before me, and describes his mental health struggles are described as "debilitating." The presentence report is a positive one from a sentencing perspective, and in my view it is encapsulated in by what the author wrote on page 9:

The subject presented to this writer as a level-headed and genuinely insightful individual, who has not only demonstrated the ability to lead a pro-social lifestyle despite a horrific and debilitating childhood, but the ability to humbly reflect upon his recent faults in a raw and honest manner. The subject is evidently stricken with colossal grief and appears to lack concern for what happens to him moving forward. The subject expresses genuine remorse to this writer for his actions that attributed to the loss of a dear friend, something that may haunt him for the remainder of his life. Subject accepts the fact that he owes a debt to society for his criminality and appears to fully comprehend the harsh and lethal ways in which drugs plague a community. That said, the subject appears to possess the capacity for rehabilitation and the aptitude to use the remainder of his life not only to honour his friend, but to contribute to society in a meaningful and productive manner.

Victim Impact

I have additionally received a victim impact statement from Evan Hoegler's mother, Carol. She describes her world falling apart after the death of her son. There is a void in their family, caused by the death of a young man who will never achieve and experience many of the things, like travel and a family of his own, that his parents thought he would one day achieve. Their pain is the pain of a parent who has lost a child too soon.

Principles of Sentencing

The Criminal Code and the Controlled Drugs and Substances Act instruct that the goal of any criminal sentencing is to protect society, contribute to respect for the law and help maintain a just, peaceful, and safe society. (See section 718 of the Code and section 10(1) of the CDSA.)

Judges in my position attempt to achieve this goal by imposing just sanctions that address one or more of the traditional sentencing principles that are also contained in these two acts in which have been referred to during submissions. They include denunciation, general and specific deterrence, and rehabilitation.

The fundamental principle of sentencing is to impose a sentence that is proportionate to the gravity of the crime committed, and an individual's degree of responsibility. To the greatest extent possible, my sentence must be tailored to Mr. Rafferty's circumstances, and the circumstances of the offence he committed.

In trying to determine an appropriate sentence, I pay attention to the relevant aggravating and mitigating features that are at play. This would include aspects of his background, to which I've referred, the features of the crime, the timing of his guilty plea, and the other evidence I have received during this hearing. It would also include legal direction, either in the Criminal Code or CDSA, or from the higher courts in this province with regards to particular aspects of this case I must give significant consideration to.

Relevant Case Law

1) Fentanyl Trafficking Sentencing Range

The Court of Appeal in a case called R. v. Loor, 2017 ONCA 696, at para 50 said:

Few fentanyl trafficking cases have reached this court. It is thus perhaps too early in our jurisprudence to establish a range [of sentence]. 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.

In referring to that case, I'm aware that what is before me is not significant amounts of fentanyl. And I'm also aware of the particular method of trafficking that I found as a fact.

2) Heroin and Related Opiates

Indeed, today, the Court of Appeal in R. v. Lynn, 2019 ONCA 277 reaffirmed an old principle that "Absent exceptional circumstances, the sale of heroin [or related opiates], even in small amounts by first offenders who are addicts [generally] calls for a penitentiary sentence," citing an older case, Farizeh, [1994] O.J. No. 2624 (Ont. C.A.), at para. 5.

3) Sentencing First Offenders

Mr. Rafferty is a first offender. The Court of Appeal in Priest 1996, 110 C.C.C. (3d) 289, instructed judges in my position:

[That] the primary objectives in sentencing a first offender are individual deterrence and rehabilitation. Except for very serious offences and offences involving violence, this court has held that these objectives are not only paramount but best achieved by either a suspended sentence and probation or a very short term of imprisonment followed by a term of probation.

Even if a custodial sentence was appropriate... it is a well-established principle of sentencing laid down by this court [being the Court of Appeal] that a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence.

How does that sentiment – that statement of principle fit in the context of an offence to which deterrence and denunciation have been giving primary – well, primacy by the Court of Appeal? It may be that what is before me is a very serious offence, which would create an exception in Priest. It seems to me, having considered the matter as best I can, that in Mr. Rafferty's circumstances, I consider all of these principles, general deterrence, specific deterrence, denunciation, rehabilitation, to more or less have equivalent weight.

4) Nature of Trafficking Offence

There has been a lot of discussion in this matter about what type of trafficking offence has been committed. I have found Mr. Rafferty facilitated access to fentanyl, and indeed carfentanyl, on one occasion, and fentanyl on multiple occasions, but he did so by "giving", under the s. 2 definition of traffic. There is no evidence of any profit or material gain. I make no such finding. In my view, he is materially different from the classic drug dealer, and the sentencing in this case that I am about to impose is materially different, and I think a far cry, from what a drug dealer, a classic drug dealer, or a trafficker for profit in a commercial context, would receive. Having said that, I accept the language of the minority of the Supreme Court of Canada in Lloyd, provided to me today. Para. 81:

The act of trafficking will always disseminate the harms and associated miseries caused by illicit drugs to other members of society. Even at the low end of the moral blameworthiness spectrum for this offence [I pause to say where I find Mr. Rafferty resides] there is nothing resembling the responsible gun owner in Nur who mistakenly stores his firearm in the wrong place. All trafficking is serious and involves blameworthy conduct.

Indeed, as the Chief Justice recognizes, Schedule I drugs in particular pose severe health risks to users, including the risk of addiction and overdose. Drug trafficking also leads to serious social harms. For instance, some heavy drug users turn to crime in order to support their drug habits... Drug abuse also imposes "significant if not staggering" societal costs in the form of health care and law enforcement expenses. Trafficking in illicit drugs, especially dangerous drugs such as those listed in Schedule I, is a serious crime.

Turning to 93 of the same judgment, still in the minority opinion:

While the "sharing" trafficker may be somewhat less morally blameworthy than the cold-blooded trafficker of hard drugs for profit, we are not convinced that she is so much less morally blameworthy that a one-year sentence would "outrage standards of decency". Whether the offender traffics by sharing, or to support her own addiction, or purely for profit, she facilitates the distribution of dangerous substances into the community. She may provide drugs to people who would not otherwise have had access to them. The harm to the community — in the form of overdose, addiction, and the crime that sometimes comes with supporting addiction — remains the same regardless of the offender's motivation.

5) Lethality of Fentanyl and Carfentanyl

On the evidence before me, Evan Hoegler was one of 71 drug overdose deaths that occurred in our region in 2017. Fentanyl and carfentanyl are, as other judges have said before me, a "scourge on our community." Their lethality is well-acknowledged in cases. Mr. Hoegler's death is proof of that lethality. Dr. Woodall, from Centre of Forensic Science, provided her opinion in a letter that's been made an exhibit.

Opioid analgesics, for example fentanyl and morphine, are among the most commonly prescribed medications in Canada. Effects of opiate use can include suppression of pain, euphoria, a feeling of well-being and also sedation. In addition, long-term use or abuse of opioids may lead to addiction. The higher the dose of the drug, the greater the physiological effects would be in responses such as shallow breathing and decreased heart rate can occur. Toxicity can easily result from opioid use, sometimes with fatal consequences. The effect of fentanyl can be compared to other opioids. For example, it can be up to 100 times more potent than morphine and 20 times stronger than heroin.

Carfentanyl is a synthetic opioid that is used as a tranquillizing agent for large animals and has never been approved for use in humans. It is an extremely potent opioid that has been reported to be up to 10,000 times stronger than morphine and 100 times stronger than fentanyl.

Aggravating and Mitigating Factors

Further, listing the applicable aggravating and mitigating features in a case assists me in coming to a just and appropriate sentence. I note the following:

1. Aggravating Factors – Death of Victim

First, on the aggravated side of the ledger, as I've said repeatedly, there is Mr. Hoegler's death.

2. Aggravating Factors – Lethality of Substance

There's the lethality of this substance, to which I just referred.

3. Mitigating Factors – Meaningful Plea

On mitigating side, I accept this is a meaningful plea. It is not the earliest plea, but it is after a pretrial motion where the offender established a breach, but I did not exclude under 24(2) of the Charter. It is however a plea, however, that includes a significant expression of remorse, which is evident in the material I've reviewed and referred to. It is further evidence in the look on Mr. Rafferty's face throughout this proceeding. It is, further, a plea that has saved future court time. It is meaningful.

4. Mitigating Factors – Capacity for Rehabilitation

Mr. Rafferty's capacity for rehabilitation is proven by the steps he has taken so far on the evidence before me.

5. Mitigating Factors – Specific Deterrence

I do not believe specific deterrence is a significant driving concern in this case. I accept, based on the information before me, regrettably, that the accumulation of death and tragedy associated with drug use that has followed Mr. Rafferty in his life has reached a point where he has chosen to take active steps to address his addiction. I do not believe Mr. Rafferty will reoffend in this manner again.

Conclusion and Sentence

In conclusion, I find this a difficult sentencing. The drug trafficked is lethal, and I accept the offender trafficked it in this particular social context on multiple occasions. On October 2nd, it was 0.5 grams. The impact was enormous, and Mr. Rafferty's conduct was a substantial cause of Mr. Hoegler's death. But I have to sentence on the offence charged and pleaded to, which is trafficking carfentanyl.

The current climate of opiate death and destruction in this community is worthy of merit. This case forms a part of it. It informs the principles of deterrence and denunciation that I must apply, and which indeed carry significant weight in the sentencing.

The reality, it seems to me, is that the range of sentence for this offence is high. I am imposing a two-year sentence, which I believe, in 2019, is near the bottom of the range, given the mitigating features and facts of this case, by I acknowledge by no means is it a light sentence.

It's two years on top of seven days pretrial custody (credit for 11).

I am also making the ancillary orders requested by the Crown.

I cannot leave this case without referring back, as Justice Blacklock did in Burton, to the tragedy that these facts represent. One young man is dead, and another is losing his liberty for an extended period of time. These men were previously active, contributing members of our community. The fentanyl crisis, having seized them in its grips, has extracted a terrible toll on both of them. If a message to the community cannot be heard on these facts, I do not know what is required for that message to be heard.

Thank you, Counsel, for your help with this matter.

Ancillary Orders

MR. SAFA: Thank you, Your Honour. I ask the clerk to note on the remand that it's a two-year penitentiary, not provincial, please.

MS. BAIN: Your Honour, with respect to those ancillary orders, that ten years if for the clerk's endorsement; ten years for the 109 and then the DNA is secondary.

MR. SAFA: I think it's life for – life for certain restricted weapons. It's ten years for other weapons.

THE COURT: And that is correct.

END OF EXCERPT