Ontario Court of Justice

Date: 2021 10 05 Court File No.: Halton 19-4304

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

GARNETT AKEELE GRANT

Before: Justice Ann-Marie Calsavara

October 5, 2021

Reasons for Sentence

Counsel: Robert Kraska, for the Crown Trudi Newby-Parkes, for Garnett Akeele Grant

Calsavara J.:

Overview of the Offences

[1] Following a trial, I found Mr. Grant guilty of five offences:

• Possession of fentanyl for the purpose of trafficking (9.5 grams in total);
• Possession of crack cocaine for the purpose of trafficking (26 grams in total);
• Possession of powdered cocaine for the purpose of trafficking (13.2 grams in total);
• Possession of methamphetamines for the purpose of trafficking (4 grams in total);
• Simple possession of oxycodone (1.5 pills in total)

[2] Garnett Grant was a driver of a motor vehicle and arrested during a traffic stop near the QEW in Oakville on Wednesday December 4, 2019. His older brother, Garret Grant was a passenger in the car. Garret Grant had a loaded semi-automatic pistol tucked into his waistband. Following a multi-day joint trial, I found Garret Grant guilty of a number offences related to his possession of this firearm and sentenced him on March 3, 2021 to three years’ jail less pre-sentence custody. The brothers were jointly charged with the CDSA offences, but I acquitted Garret Grant. Although I found Garret Grant was probably involved in a joint operation with his brother, I had a doubt that he had knowledge and control of the substances. The facts I found and my reasons are outlined in a written decision, R. v. Grant, 2021 ONCJ 90, and I do not propose to repeat them here.

[3] The police discovered the controlled substances in question in two places: (i) wrapped in several ripped pieces of plastic inside of a backpack on the backseat of the car and (ii) down the front of the driver, Garnett Grant’s underwear, including 1.7 grams of powdered fentanyl, purple in colour and packaged similar to purple powdered fentanyl in the backpack – that is, in a ripped piece of plastic knotted shut.

[4] The phone next to Garnett Grant in the car on the console contained SMS messages indicative of drug trafficking over the course of three days leading up to the arrest.

The Position of the Parties

[5] The Crown seeks a global sentence in the 3.5 to 4 year range. The defence asserts that the circumstances are exceptional and warrant a Suspended Sentence. The Crown provided me with a number of cases and a chart focussing on sentencing judgments in Ontario for fentanyl, including: R. v. Loor, 2017 ONCA 696, R. v Oskem, 2019 ONSC 6283, R. v. Broderick, 2020 ONSC 7434, R. v. Salvati, 2021 ONSC 1284, R v. T.G., 2019 ONSC 3057, R. v. Moore, 2017 ONCJ 801. I have reviewed them all.

[6] In Loor, the Court declined to set out a sentencing range for Ontario, noting few fentanyl trafficking cases had yet reached the Court, but noted:

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.

[7] More recently, the Court in R. v. Olvedi, 2021 ONCA 518 repeated its comments in Loor and declined to set a range for cases involving the importation of fentanyl.

[8] The cases clearly support the Crown’s position on sentencing. If anything, the Crown’s position comes in at the lower end of the not quite yet developed range in Ontario for trafficking of fentanyl. The question is, are the circumstances relating to Mr. Grant exceptional?

[9] The defence also provided cases: R. v. Hillier, 2018 ONCJ 397; R. v. White, 2019 ONCJ 191; R. v. Fyfe, 2017 SKQB 5 and R. v Derycke, 2016 BCPC 291. Although the decisions of Justice West in Hillier and White were particularly helpful given his thorough and insightful review of sentencing cases involving fentanyl, the cases were distinguishable. They all involved guilty pleas and offenders who are addict-traffickers.

Garnett Grant’s Circumstances

[10] Mr. Grant was 18 years of age when he committed these offences. He was three days shy of his 19th birthday. He is now 20. He is a first-time offender. The pre-sentence report is a positive one and highlights his rehabilitative potential and tracks the other information presented at the sentencing hearing establishing that these crimes were out of character. Since then he has demonstrated a commitment to returning to the lawful path he was on. The collateral information establishes that Mr. Grant is a good person. He has had challenges which he overcame until the circumstances leading up to his arrest.

[11] Garnett Grant was raised by his mother in Toronto. They have a close relationship. Mr. Grant struggled growing up but reported that he feels grateful to his mother for her hard work and dedication to support the needs of her family. He admires her ethics and wants to follow in her footsteps. In a letter he wrote and filed at sentencing, Mr. Grant expressed his mind set. He is sorry for the stress he has caused his mother and reported that he wants to teach peers that living a fast life is not worth it and to not follow their friends or even family members.

[12] Mr. Grant’s parents divorced when he was two. Mr. Grant reported suffering anxiety and depression as a teenager and contemplated suicide. He reports being bullied in high school because of his black skin. Although he saw his father growing up on weekends, they were not close. His father passed away of cancer in 2015. That life event led Mr. Grant to connect with an older half-brother he never really knew well – Garret Grant. Unfortunately, that connection led Garnett Grant off track and into crime. Before then Garnett Grant had no involvement with the law.

[13] Since his arrest, Mr. Grant completed high school. He has applied to and has been accepted into college. Importantly he has demonstrated he is a hard worker and motivated to achieve in legitimate endeavours. He has held down two jobs. In one he has been promoted two times in the last year and is currently a supervisor. Mr. Grant enjoys the support of his mother, school counsellors who have helped him over the last year and church leaders. He is in a long-term committed relationship. His girlfriend supports him as well in his rehabilitative path. Character letters were filed by some of these supports at sentencing. All speak positively of Mr. Grant and there is a consistent theme in their words: Mr. Grant is kind, dedicated, hard-working and wants to make amends. In 2019 he re-connected with his church and is involved in community outreach. He wants to mentor youths. As he put it, Mr. Grant wants to be the productive and contributing member of society that he was meant to be. In the nearly two years since his release he has shown that he can.

The Gravity of the Offences

[14] By trafficking or intending to traffic in these drugs, Mr. Grant contributed in a real way to the pain and death toll substances like fentanyl, methamphetamine, and cocaine have caused in the community. The opioid crisis is a persistent plague, one that has gained traction through the Pandemic; and although Mr. Grant’s crimes pre-date the Pandemic, the Pandemic has put a spotlight on how pervasive the damage of opioids is in the community.

[15] Fentanyl is a highly dangerous drug. It can be deadly in small quantities. Doses are at the microgram level. It is even more dangerous in powdered form as it is indistinguishable from many other substances, easily mixed in them, and easy to overdose on. In 2017, the Ontario Court of Appeal in Loor at paragraph 33 noted the widespread abuse of fentanyl, though recent at that time, “has quickly become entrenched in our country. Every day in our communities, fentanyl abuse claims the lives of Canadians”. The Court went on to review evidence detailing the potency of fentanyl, revealing it to be up to 100 times more powerful than morphine and 20 times more powerful than heroin.

[16] Similar observations have been commented on by many jurists over the last several years. More recently Justice Monahan in R. v. Salvati, 2021 ONSC 1284, commented on the public health crisis and discussed the deleterious effects of fentanyl, noting the rising number of accidental deaths from overdoses of fentanyl mixed with other drugs and observed that a dose of fentanyl powder as small at two milligrams can be lethal.

[17] Mr. Grant is not a user himself. He was not involved in the trade to fuel his own addiction. One of the motivations had to have been for profit – an easy and fast way to make money. He earned money off desperate addicts. His product poisoned people. It destroys lives. I have no evidence that Mr. Grant was involved in this offence beyond a few days—and I am basing this on the SMS messages tendered at trial—but nonetheless in doing so, he contributed to the supply in the community of several types of opioids – not just fentanyl.

[18] Given the amount of the drugs and the circumstances of the offences, both parties agree that Mr. Grant is a low-end, street level trafficker.

Principles and Purposes of Sentencing

[19] The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

• To denounce unlawful conduct;
• To deter the offender and others from crime
• To separate offenders from society where necessary
• To assist in rehabilitating offenders
• To provide reparations for harm done to the victims and community; and
• To promote a sense of responsibility in offenders and acknowledgment of the harm done to victims and community.

[20] In addition to the purpose and objectives of sentencing contained in s. 718 of the Criminal Code, s. 10(1) of the Controlled Drugs and Substances Act [CDSA] dictates:

Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community.

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

[22] Section 718.2 of the Code sets out principles of sentencing which in addition to setting out statutory aggravating circumstances, essentially prescribes that a sentence should be reflective of all the aggravating and mitigating circumstances in a given case and emphasizes parity and restraint where possible.

[23] Nonetheless, sentencing is a highly individualized exercise. A court must focus on fashioning a sentence that fits with the gravity of the offence, the moral blameworthiness of the offender and the harm caused by the offences: R. v. Nur, 2015 SCC 15, at paragraph 43. It is well established that a trial judge is not bound by sentencing ranges and is required to impose a sentence that is fit in all the circumstances for the individual offender. In R. v. Lacasse, 2015 SCC 64, the Court explained at paras 57-58:

57 …. Where sentencing ranges are concerned, although they are used mainly to ensure the parity of sentences, they reflect all the principles and objectives of sentencing. Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered "averages", let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case:

Even when an appellate court has established a range, it may be that a fact pattern will arise, which is sufficiently dissimilar to past decisions that the "range", as it were, must be expanded. The fundamental point is that a "range" is not a straitjacket to the exercise of discretion of a sentencing judge.

(R. v. Keepness, 2010 SKCA 69, 359 Sask. R. 34, at para. 24)

58 There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit.

[24] In cases involving the possession of various opioids including fentanyl for the purpose of trafficking the objectives of denunciation and deterrence are paramount; however, this cannot overwhelm the analysis. An offender’s prospects for rehabilitation, totality, and restraint must play significant roles in the fashioning of a sentence for a 20 year old first time offender who committed crimes in an isolated circumstance that were out of character during a difficult period when he was 18 years of age – and who has demonstrated his re-commitment to a pro-social lifestyle over the past two years.

Aggravating circumstances

[25] I take into account the following aggravating circumstances:

• Nature of the substances. Fentanyl is notoriously deadly even in small doses and poses a significant risk to the community at large, users, and first responders; methamphetamine, crack and powdered cocaine too are Schedule 1 drugs. There is similarly no dispute that methamphetamine and cocaine are highly dangerous drugs that pose significant risks to the health of individuals and the safety of the community. They are addictive and their proliferation too have led to tragic consequences, addictions, overdoses and ruined lives. In particular, I consider the placement of fentanyl in the spectrum of seriousness among the controlled substances in sentencing at the highest – at or above heroin;
• The variety of substances Mr. Grant possessed for the purpose of trafficking;
• The fact that Mr. Grant was in care or control of a motor vehicle and transporting these substances in public during the day;

Mitigating circumstances

[26] I consider the following mitigating circumstances and background of the offender:

• He was 18 years of age at the time of these offences;
• He is a first time offender and has been on bail for almost two years without incident;
• He has established on the record at sentencing that these offences were out of character and in part brought on by life events that led to a connection to bad influences;
• During that two year period post-offence the offender has matured and made significant gains at rehabilitation and has demonstrated he is capable of leading a prosocial life, without crime. Between the offence and today, he has completed high school, been accepted into college, and has maintained gainful employment. He currently has two jobs in the food service industry. For one, he has been promoted twice in the last year and is a supervisor. Mr. Grant is motivated to continue on this pro-social path and has the support of family and members of the community. I consider that Mr. Grant accomplished all of this during the strains and stress of the Covid 19 Pandemic;
• Mr. Grant’s challenging upbringing which included bouts of depression and anxiety in high school. He faced bullying;

[27] I also consider the eight days of pre-sentence custody Mr. Grant served before being granted a release.

[28] When I balance all of these factors and consider Mr. Grant’s level of moral blameworthiness in the commission of extremely serious offences, I conclude that there are exceptional circumstances warranting a departure from a penitentiary sentence. A quantum of sentence which reflects the balancing of the principles and objectives of sentencing in the case of Mr. Grant is two years less a day followed by a three year probationary period.

[29] Since R. v. Sharma, 2020 ONCA 478—as. 742.1(c) and s. 742.1(e)(ii) were declared of no force and effect—a conditional sentence is now an available option on sentence for these offences. Given Mr. Grant’s background and the significant gains he has made over the last two years since committing these offences, I am satisfied that service of the sentence in the community would not endanger the safety of the community and that service in the community is consistent with the fundamental purpose and principles of sentencing.

[30] I recognize that this is an exceptional sentence and a departure from the usual sentence that can be expected for these offences – however, in my view the circumstances are exceptional: this was an isolated foray by an 18 year old person of otherwise good character who had a challenging upbringing and a difficult life event that led to a familial bond to bad influences. Since then the offender has matured and in the two years since has many achievements and has shown he is re-committed to the right path. For a youthful first-time offender, the restraint principle requires that a sentencing judge consider all sanctions apart from incarceration: R. v. Batisse (2009), 2009 ONCA 114, 93 O.R. (3d) 643 and R. v. Priest (1996), 30 O.R. (3d) 538.

[31] In departing from the usual sentences for these offences, I consider—in addition to the instructive comments from Lacasse in applying parity that I referred to above—that ranges are guidelines, not hard and fast rules. A sentence can be outside the range as long as it is in accordance with the principles and objectives of sentencing: R. v. Nasogaluak, 2010 SCC 6 at paragraph 44.

[32] Moreover, although deterrence and denunciation are paramount objectives in this case, they can be achieved for these offences through a conditional sentence in these exceptional circumstances. As noted by the Court in R. v. Fabbro, 2021 ONCA 494 at paragraph 27:

Even if denunciation and deterrence were the overriding objectives in this case, a sentence of imprisonment was not the only route to achieve them. A conditional sentence recognizes the seriousness of the offences while at the same time acknowledging and promoting the significant strides in rehabilitation that the appellant has made with the help of his family and the medical community. Imposing a custodial sentence was likely to have a serious negative effect on the appellant's progress and would not serve the genuine societal interest.

[33] As in the case of Fabbro, imposing a custodial sentence would have a negative impact on the progress Mr. Grant has made over the last two years toward rehabilitation and in putting his life back on track, on the course it was on before the life events that led him to connect with his half-brother and drug trafficking. Not just Mr. Grant, but society too would be better served by giving Mr. Grant a better chance to continue to follow through with his gains.

[34] The sentence I am imposing is a significant sentence for a man like Mr. Grant with no prior or post involvement with the justice system. He will be supervised under court orders and serving this sentence for the next five years of his life. With the achievements he has made, Mr. Grant has a lot to lose if he does not continue down this path and instead resorts to pressures, or to the lure of a fast life. This sentence gives Mr. Grant a chance. It is his to lose. He must take responsibility for his actions. If Mr. Grant violates this conditional sentence, he faces the prospect of serving the remainder of it in prison.

Summary

[35] In summary, I impose the following sentence on the CDSA, s 5(2) counts—that is count 1, count 2, count 3 and count 4—all concurrent:

• A Conditional Sentence Order for two years less a day, followed by three years probation. I will read out the terms of these Orders momentarily;

[36] On count 6, simple possession of oxycodone, the sentence will be a fine of $300.

[37] In addition, I make the following ancillary orders: (1) A s. 109 Weapons Prohibition Order for 10 years; and (2) An Order for Forfeiture of the drugs and money seized on arrest. I am sure based on all the evidence, including the SMS messages on the phone, that the money seized are proceeds of crime.

Released: October 5, 2021 Signed: Justice A.M. Calsavara