Ontario Court of Justice

Date: 2020-02-19

Court File No.: Kitchener Info #19-3056

Between:

Her Majesty the Queen

— AND —

Abraham Mesfin

Before: Justice Scott Latimer

Heard on: November 20, December 19, 2019

Reasons for Sentence released on: February 19, 2020

Counsel:

• Scott Wheildon, counsel for the Crown
• Misha Feldmann, counsel for Mr. Mesfin

LATIMER J.:

[1] Introduction

Abraham Mesfin has pleaded guilty to possessing fentanyl and cocaine for the purpose of trafficking. Following his plea, a Gardiner hearing was held to determine what level of knowledge, if any, he had about the fentanyl in his pocket at the time of arrest. At the conclusion of the hearing I advised the parties that I was satisfied that Mr. Mesfin, in these peculiar circumstances, believed he was only in possession of cocaine. I choose to explain the result in this case by way of a one-paragraph summary before moving on to more expansive reasons explaining the sentence to be imposed:

Abraham Mesfin is a young man with a prior youth record who has accepted responsibility for trafficking in cocaine, a serious drug. He believed he possessed almost fifty grams of cocaine, but as it turns out twelve of those grams were a different drug, fentanyl. I am satisfied he did not know he was possessing fentanyl, nor was he wilfully blind in the circumstances. His level of responsibility is that of a cocaine trafficker, but one who factually possessed a certain amount of fentanyl by virtue of reckless criminal conduct associated with drug trafficking. Having regard to all relevant principles of sentence, it is necessary to impose a two-year total sentence, as well as certain other ancillary orders.

I. FACTS

[2] As stated above, I have received both admitted facts and litigated evidence during this hearing. The following factual review is intended to summarize the facts that I accept for the purpose of this sentencing.

[3] Abraham Mesfin is a nineteen-year-old man who moved to Kitchener from Toronto in June 2018. At first, he worked and attended school in order to obtain his remaining high school credits. Work, however, at a certain point ran dry and, at the suggestion of an acquaintance, Mr. Mesfin began selling crack cocaine in early 2019.

[4] On April 16, 2019, Mesfin attended at the home of Robert Brazeau, an acquaintance who was also a client. Mesfin's attendance related to money owed for a past drug transaction. He knocked at the front door, but no one answered. Familiar with the residence, Mr. Mesfin walked to Brazeau's bedroom window and looked inside. He did not see anyone but did notice a crack pipe and a grey grocery bag sitting on a bedside table. Mesfin believed the bag contained cocaine and chose to take it as satisfaction on the outstanding debt. He reached in the window, picked up the bag, put it in his pocket and returned to his vehicle. [1]

[5] Unbeknownst to Mesfin, the police had been alerted to his presence at Brazeau's residence and, minutes later, he was detained and subsequently arrested. Twelve grams of fentanyl was found in his right rear pocket during an incidental search. This is the bag that was taken from Brazeau's night table. A second plastic bag was found secreted near Mr. Mesfin's groin, containing approximately thirty-seven grams of cocaine. Other items, such as baggies, cell phones and Canadian currency, were also found during various searches of Mesfin and the vehicle that he had occupied.

[6] In summary, I accept that upon arrest Mr. Mesfin was in knowing possession of cocaine for the purpose of trafficking it, as he had been doing in our community for several months. I further accept that he possessed a schedule I substance (the fentanyl) that he believed was cocaine and was intending to traffick it to others. During this short period of possession, Mesfin did not have the opportunity to investigate the substance and ascertain its true nature. Notwithstanding his lack of knowledge about what drug was in his pocket, both parties submit that the elements of both possession for the purpose charges have been established: see R. v. Williams, 2009 ONCA 342, 244 C.C.C. (3d) 138, at para. 19; R. v. H. (C.N.), [2002] O.J. No. 4918, 170 C.C.C. (3d) 253, at para. 46. I agree. The guilty pleas in this case are well founded. Mr. Mesfin's lack of specific knowledge, however, is relevant on sentence. I will address this relevance later in these reasons.

[7] I have also received other evidence during this proceeding, related to both Mr. Mesfin personally and the impact of fentanyl on the Waterloo community. Regarding the latter, I readily accept that the illicit sale of fentanyl has wrought havoc both locally and across the country: see R. v. Sidhu, 2019 ONCA 880, at para. 4; R. v. Fuller, 2019 ONCJ 643, at paras. 23-40. Unlawful possession of fentanyl, in almost any circumstance, presents a credible risk of harm and is a serious offence.

[8] Regarding Mr. Mesfin, his pre-sentence report reveals an intelligent young man who benefits from strong family support. He has a prior youth finding of guilt for robbery, the facts of which I was not provided. He accepts responsibility for his conduct, both in the report ("the decisions I made were mine, the fault is mine", p.4) and in his testimony during the Gardiner hearing. I found his testimony credible, and largely unshaken by cross-examination. He is not addicted to drugs; he sold cocaine purely for profit. He plans to return to school after serving his sentence.

II. POSITIONS OF THE PARTIES

[9] The prosecution recommends a sentence in the range of four to five years incarceration, leaning heavily on the developing fentanyl-related sentencing jurisprudence. The defence, pointing to Mr. Mesfin's age, early guilty plea and lack of actual knowledge regarding the fentanyl, submits that an eighteen months sentence is appropriate. Such a sanction falls within the range commonly imposed for cocaine trafficking of this approximate weight.

III. LAW & ANALYSIS

[10] The Criminal Code and the Controlled Drugs & Substances Act both instruct that the goal of any criminal sentence is to protect society, contribute to respect for the law and help maintain a just, peaceful, and safe society": s. 718 of the Code; s. 10(1) of the CDSA. Sentencing judges attempt to achieve this goal by imposing just sanctions on offenders that address one or more of the traditional sentencing principles contained in the Code. These include denunciation, general and specific deterrence, rehabilitation, making reparation to victims of crime, and promoting a sense of responsibility in offenders and an acknowledgment of the harm they have caused the community, and specific victims in our community: s. 718(a) – (f) of the Code.

[11] Ultimately, the fundamental principle of sentencing is to impose a sanction that is proportionate to the gravity of the offence committed, and the degree of responsibility of the person who committed it: see s. 718.1. For the sentence I impose to be appropriate, it must be tailored to Mr. Mesfin's circumstances, and the circumstances of the offences that he has committed.

[12] Determining an appropriate sentence requires considering what aggravating or mitigating circumstances are present before me: s. 718.2(a). These circumstances include features of Mr. Mesfin's background, features of the crimes he has committed, the timing of his guilty plea, and any other evidence I have received during this sentencing hearing. I accept in this case, as advocated by both lawyers, that the traditional range of sentence for possession of cocaine for the purpose of trafficking is between six months and two years incarceration: R. v. Woolcock, [2002] O.J. No. 4927 (C.A.), at para. 15.

[13] Listing the applicable aggravating and mitigating factors assists me in evaluating this case properly and imposing a sentence that is just and appropriate. I note the following aggravating and mitigating features of this case:

Mitigating Factors

(1) The guilty plea, and accompanying expressions of remorse.

(2) Mr. Mesfin is a young man, and this is his first adult sentence. The restraint principle mandates that, to the greatest extent possible, a sentence for such an offender should focus on his own deterrence and rehabilitation. When jail is required – as it is here – it should be tailored to Mr. Mesfin's circumstances rather than "solely for the purpose of general deterrence": R. v. Priest (1996), 110 C.C.C. (3d) 289 (Ont. C.A.), at paras. 17-23. I accept that Mr. Mesfin is a strong candidate for rehabilitation, given the information contained in the pre-sentence report and his family support.

(3) Mr. Mesfin's belief that all he possessed was cocaine is, in these circumstances, a significant mitigating feature on sentence. The Crown position to the contrary is predicated on a finding that Mr. Mesfin was wilfully blind about the nature of the substance he possessed. I make no such finding on the present record; indeed, I find that he honestly believed he possessed cocaine. Given that he stole the substance from someone he often sold cocaine to, such a belief is not unreasonable in the circumstances.

I distinguish the present facts from R. v. Sidhu, 2009 ONCA 81, where a heroin importer was wilfully blind to the nature of the narcotic that he was importing. Wilful blindness is a substitute for actual knowledge: R. v. Jorgensen, [1995] 4 S.C.R. 55, at para. 103. Mr. Mesfin was not wilfully blind. He did not know precisely what drug he had taken from Mr. Brazeau, nor did he have an opportunity – he was arrested mere minutes later – to make, or expressly decline to make, any form of inquiry: R. v. H. (C.N.), at para. 51. I accept Mr. Feldmann's well-crafted submission that, in such circumstances, Mr. Mesfin's state of mind is relevant to his moral blameworthiness, and the imposition of a proportionate sentence. [2]

Aggravating Factors

(4) The amount of narcotic possessed – approximately forty-nine grams - is aggravating. As a factual matter, the fentanyl in his possession is particularly dangerous, as Dr. Woodall's evidence and the related public health information make plain. I note as well that both fentanyl and cocaine are Schedule I narcotics.

(5) Mr. Mesfin was selling crack cocaine for profit.

(6) The fact that he was attempting to satisfy an outstanding drug debt by essentially committing a break & enter is an additional aggravating factor.

[14] In summary, a remorseful young man has pleaded guilty to trafficking in cocaine and, in so doing, unknowingly coming into possession of fentanyl. A proportionate sentence must acknowledge the seriousness of both drugs, but also advert to the fact that the fentanyl possession was unknowing and brief. A significant jail sentence must be imposed to reflect the dangerousness of these drugs and the seriousness of the drug-trafficking related conduct. However, the mitigating features in this case temper the necessary length of sentence required. Having considered matters as best I can, I conclude that a total sentence of two years should be imposed in the circumstances.

IV. DISPOSITION

[15] The sentence will be apportioned as follows:

(1) For possession of cocaine for the purpose of trafficking, fifteen months jail less pre-trial credit;

(2) For possession of fentanyl for the purpose of trafficking, nine months jail consecutive;

(3) There will be additional orders for a DNA databank sample, a section 109 Code weapons prohibition, and forfeiture of seized items.

[16] I thank both counsel for their helpful submissions in this matter.

Released: February 19, 2020

Justice Scott Latimer

Footnotes

[1] During submissions, the Crown suggested that it was unreasonable to believe that drugs would be left by a user on a table near an accessible ground floor window, and that Mr. Mesfin's testimony on this point is not worthy of belief. I cannot accept this submission. The drugs were present in a bedroom. It appears Mr. Brazeau was somewhere in the home at the time. There is nothing inherently unreasonable about these circumstances that would compel me to reject Mr. Mesfin's testimony. Even if leaving drugs out in this manner is objectively a bad idea, such impaired decision-making is not uncommon in this context.

[2] To be clear, if I believed that Mr. Mesfin knew, or was wilfully blind, that he possessed fentanyl for the purpose of trafficking, this sentence would be significantly longer.