Court Information

Ontario Court of Justice

Date: 2019-04-04

Court File No.: Bracebridge 2411-998-684-01

Parties

Between:

Her Majesty the Queen

— And —

Brandon Begin

Judicial Officer and Counsel

Before: Justice E.A. Carlton

Plea Heard: January 29, 2019

Reasons for Judgment Released: April 4, 2019

Counsel:

• Kim Miles, for the Crown
• John Sharkey, for the accused Brandon Begin

Judgment

CARLTON J.:

Guilty Pleas

[1] On January 29, 2019 Brandon Begin pled guilty to two counts of possession for the purpose of trafficking. The drugs identified in the charges were fentanyl and cocaine. Mr. Begin also pled guilty to two counts of possession of a prohibited weapon and two counts of possession of a prohibited weapon while subject to a weapons prohibition order.

[2] The matter was adjourned for sentence. The court now has the benefit of both a presentence report and a Gladue report.

Facts Underlying the Plea

[3] Mr. Begin and his common law partner were the subject of a Controlled Drugs and Substances Act investigation in the summer of 2018. On July 19, 2018 police obtained a warrant and entered his home. In the home they found the following narcotics:

• 1.9 gm fentanyl powder
• 4.6 gm cocaine
• 0.7 gm crack cocaine
• 220 gm cannabis
• 3 MDMA pills

[4] Also found were packaging materials for the narcotics and over $11,000.00 in cash.

[5] The two prohibited weapons found were a Handheld Taser and a "Fighter knife" that opens by centripetal force. Mr. Begin maintained that he possessed these weapons in contravention of a weapons prohibition order for self-defence as he had been the victim of a home invasion in 2016.

[6] It was clarified during submissions that the fentanyl was a mix of fentanyl and heroin. Mr. Begin believed it was heroin but knew that the powder may also contain fentanyl.

[7] Ms. Veinott was charged with the same offence but plead only to the simple possession of the cocaine.

Positions of the Parties

[8] The Crown seeks a global sentence of 21 months consisting of 18 months concurrent on the two CDSA matters and 3 months concurrent on the weapons charges.

[9] Mr. Begin has 226 days of actual pretrial custody to be applied to this sentencing. On a 1.5:1 credit that amounts to 339 days or just over 11 months. A 21 month sentence would leave a remnant of just short of ten months. The Crown also seeks a period of probation, various ancillary orders and an order of forfeiture.

[10] Counsel for Mr. Begin submits that Mr. Begin is now at or close to a time served situation. Alternatively, counsel asks the court to consider a conditional sentence. It is agreed that probation and a number of ancillary orders are warranted.

Background of Mr. Begin

[11] Mr. Begin is now 28 years old. He has lived in Muskoka almost his entire life.

[12] I have a presentence report prepared by his longtime probation officer. I also have a comprehensive Gladue report prepared by Aboriginal Legal Services.

[13] Mr. Begin has a grade 11 education. He has had employment in the restaurant field and intermittent work in construction or landscaping.

[14] He has been in a common law relationship with Ms. Veinott with some interruptions since at least 2010. They have a daughter who was born in 2012. She was taken into care and has now been adopted by another family. It is clear that his relationship with Ms. Veinott is problematic. There have been court orders from both criminal and family courts ordering the two not to have contact that have been breached many times.

[15] Mr. Begin has a longstanding and serious drug addiction. He has been candid with the writers of both reports about the extent of his addiction. While I note this history I underline that I am only sentencing Mr. Begin for the results of the July 2018 investigation. The presentence report sets out concurrent mental health issues of anxiety and depression.

[16] Mr. Begin acknowledges use of drugs, including cannabis, cocaine, heroin and fentanyl going back to his teens. The reports detail little in the way of treatment for this addiction. It is reported that his drug use accelerated in the year leading up to his arrest. Since his admission to CNCC on July 20, 2018 he has been on methadone.

[17] Mr. Begin has a lengthy criminal record as a youth and as an adult. The adult record includes property offences, breaches of court orders and a domestic assault on Ms. Veinott. There is a single CDSA conviction for possession of a Schedule 1 substance in 2017 for which he received a $1,000.00 fine. Mr. Begin did receive a six month conditional sentence in June of 2013 that was completed without any findings of breach.

Section 718.2(e) of the Criminal Code

[18] Mr. Begin identifies as a Metis person although he has not registered with the Metis Nation of Ontario. His mother is a registered Metis person. She and many members of her family are active members of the Metis community. Mr. Begin's father is non-native. It is clear that Mr. Begin intends to register and will then be recognized as a member of the Metis Nation of Ontario. He has participated in indigenous programming while in pretrial custody.

[19] I accept that section 718.2(e) is an important part of the sentencing process and the ultimate decision as to sentence. This section of the Code is intended to be remedial, that is, to make a substantive difference in sentencing and, in particular, directs the court to consider non-custodial alternatives to sentencing.

[20] The Gladue report is a comprehensive one. It was no doubt difficult for many of the persons who provided information to discuss the events described in the report, including for Mr. Begin himself. Mr. Begin also provided a letter to the court that addresses many of the events set out in the report.

[21] I do not intend to discuss in detail each of the events set out in the report. The report clearly sets out intergenerational trauma that has had a direct impact on the life experiences of Mr. Begin. This includes, among other matters, domestic violence and addiction. I accept that this history has played a significant role in bringing Mr. Begin before the court.

[22] Mr. Begin has two older siblings. His parents separated when he was five and his mother moved away from Muskoka. His father experienced related mental and physical health issues and Mr. Begin had to provide care for his father at a young age. He was raised primarily in his father's home. It is clear from the reports that Mr. Begin's home was not structured and that he turned to drugs and to criminal activity at a very early age.

[23] Mr. Begin's relationship with Ms. Veinott is the primary relationship in his life. He has little contact with any other family members. In 2014 he was in a serious motor vehicle collision and sustained a head injury that has not been thoroughly investigated. I am advised Mr. Begin has been experiencing what appear to be concussion related symptoms from an incident in his cell.

[24] The Gladue report does contain a number of recommendations for Mr. Begin including residential and outpatient indigenous programming for drug addiction as well as participating in the culture and programs of the Metis Nation of Ontario. I direct that the recommendations section of this report be attached to the probation order.

Sentencing Authorities

[25] I have reviewed a number of sentencing decisions. It is clear that the possession of fentanyl and/or heroin and cocaine for the purpose of trafficking require a significant custodial sentence. In reviewing the various cases I note that the amounts seized in this matter are less, and sometimes substantially less, than the amounts seized in the other decisions. I accept that Mr. Begin possessed the drugs both for his own use and for the purpose of trafficking. I also note that Mr. Begin was convicted of possession for the purpose of trafficking as opposed to the actual trafficking of the substances.

[26] It is clear from the caselaw that denunciation is a key element of sentencing for possession of fentanyl for the purpose of trafficking. Given that the drug has been admitted to contain fentanyl and Mr. Begin has admitted knowledge that the powder may contain fentanyl I will focus on that drug. I note that the principles relevant to a sentencing for trafficking in heroin mirror those used in the fentanyl sentencing decisions (see R. v. Sidhu, [2009] O.J. No 325 (C.A.)).

[27] Fentanyl is a lethal drug. The Federal Crown relied on, without opposition, statistics from the Simcoe Muskoka Health Unit that show a dramatic increase in deaths from opioids in general and fentanyl in particular in this jurisdiction. Mr. Begin himself has known several people who have died from using this drug. This dire state of affairs is initiated by the possession of this drug for the purpose of trafficking.

[28] Our Court of Appeal has set out some general principles for sentencing for trafficking in fentanyl. In R. v. Loor, 2017 ONCA 696, the Court states that "generally, offenders, even first offenders, who traffic significant amounts of fentanyl should expect to receive significant penitentiary sentences". I accept that the facts in that case are more serious than in the matter before the court.

[29] In R. v. Klammer, [2017] O.J. No. 2605 (C.A.), a case arising from Simcoe County, the Court reduced a sentence of 33 months to 20 months for possession for the purpose of trafficking six fentanyl patches. The appellant was a first-time offender.

[30] This approach is mirrored in other provinces. In R. v. Smith, 2017 BCCA 112, the British Columbia Court of Appeal set out a range of 18-36 months jail for street level trafficking in fentanyl although the majority upheld a shorter sentence imposed at trial (see paras. 43-45; 48-49).

[31] The Federal Crown in her submissions noted the opinion of Dr. Woodall of the Centre of Forensic Sciences as given in other cases. She did not testify in this case although it is clear she has testified in a number of similar cases across the province. No issue was taken by counsel with the Crown's reliance on this opinion.

[32] Other courts have relied on this opinion evidence that fentanyl is 100 times stronger than morphine and 20 times stronger than heroin (see R. v. M.H., 2018 ONCJ 397, at para. 16). Fentanyl powder is particularly lethal as it is hard to determine the quantity of fentanyl in a sample (see R. v. Vezina, 2017 ONCJ 775, at para. 21).

[33] The amount of fentanyl, or fentanyl-heroin mix, is 1.7 g. This is less than in most of the reported cases. A single dose is described as 0.1 mg (see R. v. Vezina, at para. 20) or 0.1 to 0.2 g (see R. v. M.H., 2018 ONCJ 397, at paras. 12, 30).

[34] The closest case on the facts is R. v. M.H., where the offender was found guilty of possession of 3.3 g of fentanyl for the purpose of trafficking. That offence was described as "low level street trafficking". The offender had a minimal prior record and received a sentence of two years less a day and 3 years of probation. The co-accused in that case did receive a suspended sentence.

[35] Lastly, I note two cases in which section 718.2(e) was considered in sentencing for trafficking offences. In R. v. Bilodeau, [2015] O.J. No. 3777 (C.J.) the Court imposed a 22 month sentence for possession for the purpose of trafficking of hydromorphone, or synthetic heroin, and oxycodone. Again, I note that the approach for sentencing for heroin trafficking tracks that of the fentanyl decisions I have discussed.

[36] Section 718.2(e) was also considered in R. v. Smith, [2015] O.J. No. 4385 (S.C.), a case from Simcoe County where the court accepted a joint submission for a sentence of four years for an indigenous offender on three counts of trafficking, including fentanyl.

Application to This Case

[37] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[38] I have already described the need to denounce this conduct. It is clear from the caselaw that given the consequences of this offence that denunciation and general deterrence are paramount (see R. v. Lu, [2016] O.J. No. 3322 (C.A.), at para. 9).

[39] Equally, it is clear that specific deterrence is a relevant goal of this sentencing. Again, I am sentencing Mr. Begin only for the offences before the court. It must be noted, however, that Mr. Begin acknowledges supporting himself and his addiction by trafficking. He has no concrete plan for an alternative means of making a living. The sentence must be such that it deters Mr. Begin from returning to this activity once he is released.

[40] The Gladue report and the pre-sentence report do set out a route for Mr. Begin's rehabilitation. He is only 28 years old. He has a lengthy record but only one prior conviction for CDSA offences. He pled guilty. His participation in the Gladue process suggests that he does wish to make fundamental changes in his life including connecting with his culture as a Metis person.

[41] At the same time, Mr. Begin has a longstanding and serious addiction to hard drugs. He is largely untreated. Other than being on the methadone program he has not been able to access any meaningful treatment while in custody.

[42] Given his record and his plea the offences before the court merit a high end reformatory or low-end penitentiary sentence. The issues raised in the Gladue report militate in favour of a reformatory sentence such that he can access programming in the community while on probation. In my view, the position taken by the Federal Crown is a fair one and does take into account the mitigating aspects of the case, the prospects for rehabilitation and the impact of section 718.2(e) of the Code.

[43] Further, at this stage I cannot rely on Mr. Begin to commence treatment on his own in the community. I appreciate that he has completed a conditional sentence without incident. Mr. Begin does attend for appointments but otherwise his response to community supervision is poor. Given the offences before the court and the personal circumstances of Mr. Begin I am not satisfied that a conditional sentence would not endanger the public having regard the purpose and principles of sentencing.

[44] Given the time served, the position taken by the Federal Crown dovetails with the shortest sentence for which there is a reasonable prospect for treatment within the reformatory system.

Sentence

[45] I impose sentence, therefore, as follows:

Count #1: 12 months jail consisting of 226 actual days of custody with an enhanced credit of 339 days plus an additional 26 days;

Count #2: 6 months consecutive;

Counts 8, 9, 13 & 14: 3 months concurrent but consecutive to the other counts.

[46] The total sentence, therefore is one of 21 months consisting of time served plus 9 months and 26 days. I recommend that Mr. Begin serve his sentence at the St. Lawrence Valley Treatment Centre.

[47] This to be followed by an 18 month probation order with terms of reporting and counselling.

[48] There will also be a 10 year s.109 order and a secondary DNA order.

[49] I will endorse the consent forfeiture order.

Released: April 4, 2019

Signed: Justice E.A. Carlton