Court File and Parties

Ontario Court of Justice

Date: 2020-03-19

Court File No.: Kitchener 19-7638-01

Between:

Her Majesty the Queen

— and —

Derrick Shand

Before: Justice W. G. Rabley

Heard on: February 6, 2020

Reasons for Judgment released on: March 19, 2020

Counsel:

• A. Pashuk & K. Ramchand, counsel for the Crown
• A. Dresser, counsel for the accused Derrick Shand

Judgment

RABLEY J.:

Facts

[1] In March 2019, the RCMP began Project O'Woodcraft, which was a four month investigation into drug trafficking in Ontario. A police agent was deployed to investigate the importation and trafficking of fentanyl, heroin, methamphetamine and cocaine. Derrick Shand was one of the main targets of this investigation.

[2] On May 22nd, 2019 the police agent met with Mr. Shand for the purpose of arranging a buy of half a kilogram of fentanyl, methamphetamine or cocaine. Mr. Shand's stated objective was to try to obtain a source who could provide a cutting agent for an associate of his.

[3] The two men made arrangements for the police agent to purchase heroin and methamphetamine the following day. On May 23rd, Mr. Shand sold the police agent a half kilogram of heroin and one kilogram of methamphetamine for $49,000. The purity of the two samples of heroin sent to Health Canada were 32% and 49%. The purity of the methamphetamine was 99%.

[4] On July 11th, 2019 Mr. Shand sold the police agent 374 grams of heroin for $30,000. He also gave the police agent 0.8 grams of fentanyl as a sample. The purity of the sample of heroin submitted was 31% and the purity of the fentanyl was 2%.

[5] Then on July 22nd, 2019 Mr. Shand and the police agent made arrangements for the purchase of a kilogram of heroin for $70,000. At that time, Mr. Shand's suppliers were unable to complete the deal for that amount but agreed to supply 300 grams of heroin for $21,400. The police called for a takedown before the deal was completed. Mr. Shand fled on foot and discarded a bag containing 278 grams of heroin before he was arrested. The police seized the bag and sent a sample to Health Canada for analysis. The purity was 38%.

[6] An Agreed Statement of Facts was filed by counsel. It was agreed that Mr. Shand received a nominal amount in the low thousands of dollars, not exceeding $6,000, for his role in the transactions. He pleaded guilty and the matter is now before me to determine what a fit and proper sentence should be.

Position of the Parties

[7] It is the Crown's position that Mr. Shand was a trusted member of an organization that was supplying significant amounts of serious drugs. This was evidenced by the fact that Mr. Shand had direct contact with the supplier, had knowledge as to how the drugs were entering Canada, was negotiating the prices for the drugs and was trusted with significant amounts of cash.

[8] The Crown submits that there is a high level of moral culpability for Mr. Shand and that he should receive a sentence in the range of 11 years.

[9] The Defence submission is that Mr. Shand was driven by desperation and not by greed. As a result, Mr. Shand agreed to arrange the transactions through an associate and received very little compensation for his efforts.

[10] The Defence submits that there are significant mitigating circumstances that need to be factored into the ultimate sentence and that an appropriate sentence would be in the range of 7 years.

[11] On behalf of Mr. Shand, counsel also seeks a reduction in the sentence of an additional 15 days to reflect the hardship that her client had to endure while serving pre-trial custody.

Personal Circumstances of the Offender

[12] Derrick Shand is 43 years of age and is from Jamaica. He came to Canada in 1995 when he was 19 years of age. He is the father of 6 children ranging from 10 to 15 years of age. He and his wife have 3 daughters who reside with them. He gets along well with the mothers of his other children and provides them with support when able to do so.

[13] Mr. Shand has been involved in several work experiences. He has been employed as a barber, he ran a small cleaning company, he worked as a mechanic's labourer and helped his cousin in Jamaica run a small trucking business.

[14] Although he was actively looking for better employment when he was arrested, Mr. Shand was having some difficulty in doing so because of his criminal record.

[15] Mr. Shand's partner was really the breadwinner for the family. Tragically, she was diagnosed with breast cancer and in 2019, around the time of these offences, she had to stop working to recover from reconstructive surgery.

[16] As a result, the family was in dire financial circumstances and Mr. Shand was looking for a way to relieve the financial pressure that they were experiencing. According to Mr. Shand, he became involved with a friend who was looking for a cutting agent. This led to the contact with the police agent and ultimately Mr. Shand's participation in these offences.

[17] Mr. Shand regrets his decision to broker the three deals with the supplier and the police agent. Counsel on his behalf suggests that he was not driven by greed, but by financial desperation. It was never really explained how it is that the police agent targeted Mr. Shand in the first place.

[18] I am told that Mr. Shand is not a Canadian citizen and that he will be deported once he has served his sentence. A letter of opinion setting out his immigration situation was filed on his behalf. He will be removed and then denied entry back into Canada to see his family as he will be deemed "inadmissible". These are very tragic consequences for Mr. Shand. He says that he is very sorry for his participation in these events. I accept his expression of remorse as genuine.

Aggravating Factors

[19] There are a number of aggravating factors that need to be taken into account. They are:

(a) The drugs themselves. Heroin, methamphetamine and fentanyl are some of the most serious and destructive drugs available in our community. They are highly addictive and put people's lives at risk every day. Heroin trafficking has been described as a "despicable" crime and one that "tears at the very fabric of our society": see Pushpanathan v. Canada (Minister of Citizenship and Immigration). Many would say that fentanyl trafficking is even more destructive. I see no reason to part ways with the denunciatory approach echoed by many others to reflect societies abhorrence to those who would traffic in these types of drugs;

(b) The quantities, varieties and quality of the drugs involved. These transactions were not for small amounts of the drugs involved. The deals were for 1/2 kilos or more. The quantity of drugs offered by Mr. Shand was escalating in a very short period and there was very little suggestion that the suppliers were unable to meet the demand. The quantities and purity of the drugs reflect a more serious level of drug trafficking and a tie to a more organized criminal organization;

(c) The fact that the drugs were being sold for profit. This was not a situation where a user/dealer was trying to support his or her own habit by selling small quantities of drugs. Mr. Shand was motivated by money. Therefore, the decisions were not made by an individual who was involved in a lifestyle blurred by the addiction to drugs. Mr. Shand made these decisions rationally and with the knowledge as to the consequences of so doing;

(d) A prior criminal record. Although Mr. Shand does not have a lengthy criminal record, he is not a first offender. He has several entries beginning with an assault with a weapon in 1995 through to 2010 when he had fraud related matters and received 1 day in addition to 8 1/2 months of custody. More relevant are the convictions in 2003 where Mr. Shand served the equivalent of 5 months for charges of possession for the purpose of trafficking and breach of his weapon's prohibition;

(e) Mr. Shand's involvement in the offences. The Crown suggests that although the first transaction occurred between Mr. Shand and the police agent on May 22nd, there was 'coded language' between the two of them commencing as early as April 8th. Mr. Shand was well connected with at least one major supplier and knew how the drugs were being brought into the country. This demonstrated that he was not nominally involved in these matters; and

(f) The location of the transactions. The purchases were made in public settings putting others at risk should things go wrong resulting in violence.

Mitigating Factors

[20] There are a number of mitigating factors that also need to be taken into account. They are:

(a) The plea of guilty. Even though the case against Mr. Shand is strong, he still deserves credit for a guilty plea: R. v. Santos, (1993) 67 O.A.C. 270 at para. 2. The plea was entered relatively early in the process and Mr. Shand did not set trial dates. His plea of guilty is an important factor because of the savings of resources and his acceptance of responsibility;

(b) The motivation for the offences. The position of Mr. Shand is that he was not motivated by greed but by desperation brought about because of the financial hardships caused when his wife was unable to contribute to the family finances;

(c) The gap in his record. Counsel for Mr. Shand submits that there was a substantial gap in her client's record between related offences and that the charges for which he pleaded guilty to in 2010, were committed significantly before that date. Therefore, there is a sizeable gap in his record;

(d) The prospects for rehabilitation. Mr. Shand has been a productive member of society. He volunteered in sports, was able to work and supported his family to the best of his ability. He was not motivated to participate in the offences because of his own personal addiction and therefore is more readily able to rehabilitate himself with the skills he has; and

(e) The support of his family. Mrs. Shand continues to support her husband as do their children even though he is likely to be deported with little, if any, ability to return to Canada to be with them. In her letter to the court, Mrs. Shand describes a gentle, caring and kind man who eagerly took on the responsibilities of helping the children and her when she was recovering from her illness.

Applicable Legal Principles

[21] Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. This is done by examining the seriousness of the offence, the personal circumstances of the offender as well as the aggravating and mitigating circumstances.

[22] The offences before the court are very serious. The trafficking of significant amounts of these types of drugs calls for a significant sentence. Denunciation and deterrence must be the primary sentencing principles when determining an appropriate and fit sentence.

[23] In my view, the appropriate range of sentence for possession for the purpose of trafficking in significant amounts of heroin for a first offender is 6 to 12 years: R. v. Newke, 2019 ONSC 2299.

[24] In R. v. Pannu, 2015 ONCA 677, a sentence of 9 years was imposed by the trial judge after a trial. Mr. Pannu had no previous record. He had a kilogram of heroin for the purpose of trafficking. He appealed his sentence to the Court of Appeal. Justice Watt speaking for the court dismissed the appeal and stated:

"Second, the sentences imposed are within the range of sentence the appellants themselves concede is appropriate for first offenders convicted of possession of heroin for the purpose of trafficking. The sentences sit at the mid-point of the range the appellants say is apt, although some authority suggests that the appropriate range is nine to 12 years for similar amounts of heroin: R. v. Shahnawaz (2000), 149 C.C.C. (3d) 97 (Ont. C.A.), at para. 6."

[25] In R. v. DiBenedetto, 2016 ONCA 116, the Crown appealed a sentence of 3 years' incarceration for possession of a 1/2 kilogram of heroin and proceeds of crime. The Court of Appeal noted that the range of sentence was between 6 to 12 years and imposed a sentence of 6 years. In that case, the offender was noted as relatively youthful, had an unrelated record and positive prospects for rehabilitation. He had also completed his original sentence by the time the appeal was heard.

[26] In R. v. Pearce, [2007] O.J. No. 1597 (S.C.J.), the accused pleaded guilty to charges of conspiracy to traffic and trafficking. The case is summarized by Justice Pringle in R. v. Berquas, 2018 ONCJ 623, as follows:

"The counts pled to were conspiracy to traffic and trafficking heroin, but the facts established seven temporally separate acts of trafficking in heroin and cocaine, the possession of slightly over 1 kilogram of heroin when arrested, a search warrant seizure of 191.76 grams of heroin and a search warrant seizure of ½ kilogram of marijuana. The accused had a criminal record which included three prior convictions for trafficking, one of which had attracted a six year sentence."

[27] In Pearce, Justice Drambot indicated that the appropriate range of sentence would have between 12 and 15 years, but given the plea of guilty, imposed a sentence of 9 years. Justice Pringle adopted this approach with respect to the value of a guilty plea in Berquas and imposed a sentence of 6 years for trafficking 3 kilos of heroin.

[28] Counsel provided me with other decisions which I found to be helpful. Included in them was the sentencing by Justice Spies in R. v. Ramos, 2014 ONSC 6822. In that case, the two defendants were found guilty by a jury of trafficking in almost a 1/2 kilo of heroin. Although each accused had a criminal record, it was unrelated. The court imposed a sentence of 8 years and considered that to be at the bottom of the appropriate range.

Analysis

[29] There is no question that the consequences of these offences will be catastrophic for Mr. Shand. He is likely to be deported. He will be torn away from his family and not allowed to return to Canada. That will happen no matter what the sentence is because of the practical realities of the range of sentence involved.

[30] The sentence must reflect the serious aggravating factors. Mr. Shand has a criminal record. Although there is a gap involved, he does have a related record for which he has already served a period of incarceration. This should have put Mr. Shand on notice that such conduct would not be tolerated in our society. Evidently it did not.

[31] As my brother Justice McKay said in R. v. Imeson, 2019 ONCJ 245:

"across this country communities are struggling with the enormous problem of opiate addiction. Opiate overdose-related deaths continue to rise. Lives and families are destroyed. Communities are plagued with the high incidence of property crimes related to the need to feed the addiction."

[32] These transactions were completed by Mr. Shand for financial gain. His personal circumstances are unfortunate, but they do not make his situation exceptional such that they would reduce the sentence from what should ordinarily be imposed.

[33] In my view, it is a significant factor that Mr. Shand was prepared to traffic in a variety of drugs including fentanyl. Heroin is already considered to be one of the most destructive drugs available in society. If Mr. Shand had been found guilty after a trial, in my view the appropriate range of sentence would have been between 10 to 12 years for the heroin alone.

[34] The sale of the methamphetamine at the kilogram level must be an aggravating factor and although the fentanyl trafficked was only a sample, the fact that Mr. Shand was dealing in such large quantities of other drugs suggests that he was well connected and prepared to sell a drug that others have been receiving double digit penitentiary sentences for. In my view, this is also an aggravating factor.

[35] Mr. Shand pleaded guilty and has shown genuine remorse for his wrongdoing. He did so at an early stage in the proceedings and saved the court valuable resources. This is an important factor as echoed by others and I believe that a significant discount should be given to take this into account. In my view, the appropriate global sentence in this case is one of 9 years in the penitentiary.

[36] I would therefore impose the following sentences:

• Count #5: 9 years (trafficking in heroin and fentanyl);
• Count #9: 9 years concurrent (possession for the purpose of trafficking in heroin);
• Count #1: 4 years concurrent (trafficking methamphetamine);
• Count #10: 18 months concurrent (proceeds of crime).

[37] Mr. Shand has been in custody 243 days. He is entitled to credit on a 1.5 to 1 basis which equals 364 days or 1 year. That would leave a total sentence of 8 years.

[38] Counsel for Mr. Shand has also asked for a further reduction of 15 days to account for the hardship caused to her client as a result of the partial and full day lockdowns experienced. The Maplehurst Correctional facility provided a "Lockdown Summary" which set out that Mr. Shand was fully locked down for 32 days and partially locked down for 5 more. He was not subject to triple booking. Under the heading "Summary of Privileges and Access" it is noted:

"I/M had limited access to all privileges (Showers, Dayroom, Phone and Television Access) even when on Full Lock-Down."

[39] Mr. Shand kept his own notes and reported that he had been fully locked down for 40 days and partially locked down for 30 more. In his Affidavit, Mr. Shand explained that his telephone privileges were compromised during lockdowns and his ability to stay in touch with his family was often denied because of long lines and the inability to get to the phone.

[40] In R. v. Duncan, 2016 ONCA 754, the Ontario Court of Appeal recognized that judges continue to have discretion to provide enhanced credit in appropriate cases. This is particularly so when it can be established by an individual that he or she has suffered unduly harsh conditions during pretrial custody and that the consequences of these conditions have significantly impacted on them.

[41] It is important that courts continue to be vigilant in this area in order to protect individuals from suffering unduly harsh conditions in our jails, but in my view, in this case the defence has not met its burden. In cases where such relief has been granted, there has often been a ratio of 35 to 40% of lockdowns to days served. In this case, although Mr. Shand has certainly had his ability to maintain his relationship with his family curtailed, this is not the kind of 'unduly harsh' circumstances the court contemplated in Duncan. I would therefore dismiss the application.

[42] With respect to ancillary orders, I would make a s. 109 order for life. I will also make an order that Mr. Shand provide a sample of his DNA on those offences that are eligible. With respect to the Victim Surcharges, given the extended sentence and the likelihood that Mr. Shand will be removed from Canada, I would waive any that are applicable.

[43] I would like to thank counsel for their assistance in this matter.

Released: March 19, 2020

Justice W. G. Rabley