ONTARIO COURT OF JUSTICE
DATE: November 2, 2021
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
JAKE HILLIER
Before: Justice F. Javed
Sentencing submissions heard on: October 20, 2021 by videoconference Reasons for sentence: November 2, 2021
Counsel: Mr. Greenway, counsel for the Federal Crown Mr. Green, counsel for Mr. Hillier
F. JAVED J.:
A. Introduction
[1] Jake Hillier (“Mr. Hillier”) pled guilty to the offences of possession for the purpose of trafficking in methamphetamines and possession for the purpose of trafficking in fentanyl contrary to s.5(2) of the Controlled Drugs and Substances Act(“CDSA”).
[2] The parties made sentencing submissions by videoconference. At the conclusion of the remote proceedings, the court invited written submissions, if any, to supplement the oral submissions. Mr. Hillier appears in-person in the courtroom and must be sentenced for these two offences.
[3] As an overview of the positions of the parties, Mr. Greenway on behalf of the Federal Crown seeks a jail sentence of 5.5 years less credit for pre-sentence custody and various ancillary orders. Mr. Green on behalf of Mr. Hillier joins the Crown on the ancillary orders but argues the court should impose a 3-year jail sentence less credit for pre-sentence custody, which includes additional credit for harsh conditions suffered during lockdowns at the Central East Correctional Centre (“CECC”).
B. Circumstances of the Offence
[4] On January 25, 2021, members of the Durham Regional Police Service (“DRPS”) conducted surveillance on Mr. Hillier as he was bound by a release order for an unrelated matter which required him to abide by terms including a house arrest condition. The police observed Mr. Hillier operating a motor vehicle at a time which contravened his house arrest term, thus formed reasonable grounds to arrest him for this offence.
[5] The police effected a traffic stop and arrested him for failing to comply with his release order. Mr. Hillier was searched incident to arrest and the police located a large knife and a small baton in the vehicle. A more fulsome search of Mr. Hillier at the police station revealed approximately 1 ounce or 28.1 grams of powdered fentanyl, 19.7 grams of methamphetamines, 9.2 grams of cocaine and $1098.60 in cash.
[6] Mr. Hillier acknowledged through his guilty pleas that his possession of the fentanyl and methamphetamines was for the purpose of trafficking even though there is no evidence that he did, in fact, traffic the substance(s). I advert to this because Mr. Green submitted there was “not much” indicia of a commercial enterprise which should temper the sentence. With respect, I disagree. Although there is an absence of proof of trafficking, the guilty pleas amount to an implicit admission that this was Mr. Hillier’s purpose: to traffic the substances to others, ostensibly, for a profit. In my view, the only reasonable inference to be drawn from the factual admissions which includes possession of significant quantities drugs is that Mr. Hillier was, as the Crown correctly submits, a mid-level drug trafficker.
C. Circumstances of the Offender
[7] The defence requested a Pre-Sentence Report (“PSR”) which has been filed as Exhibit 2.
[8] Mr. Hillier is 26 years old. He is single with no dependents and is presently unemployed. He is not a first offender and has a criminal record which I will discuss below.
[9] Prior to his arrest, he resided with his family in Oshawa. He is a single child and has two older half siblings from his father’s relationship who are 30 and 28 years old. His parents have been involved in a long-term common law relationship spanning 30 years. His father cannot work due to medical reasons and his mother has been a homemaker. Both his parents and half-brother have prior involvement with the criminal justice system.
[10] It would appear Mr. Hillier benefited from a pro-social upbringing and was supported by his parents. His mother was quoted as telling the PSR author “… I admit that I have spoiled him his entire life and I will always treat him the same way”. His mother advised he had a normal upbringing as a child and was not excessively disciplined nor did he act out in school or with his peers.
[11] Mr. Hillier quit school during Grade 10 and started to work. He has held various jobs but most of them have been sporadic. While in custody, Mr. Green advises Mr. Hillier upgraded his education and is at the cusp of completing Grade 12. While his work ethic is much to be desired, it is the courts’ view upgrading his education or acquiring new vocational skills will help him secure more lasting and fulfilling employment and avoid the temptation of turning to a life of crime.
[12] Mr. Hillier reported he uses controlled substances socially. He tried oxycodone in 2020 and began to purchase them off the street along with percocets. He specifically told the PSR author he was not addicted to substances but rather used them for non-medicinal purposes for about 6 months until he was incarcerated. He acknowledged his use of drugs was “problematic” and “led to his current legal situation”. Unfortunately, the record on this issue is scant because the court does not know about the nexus between the drug use and the commission of the offence. It is well understood that opioids are highly addictive and potentially deadly if abused. To Mr. Hillier’s credit, he appears to have some insight into this issue and is amenable to taking substance abuse counselling if ordered. I agree with the Crown’s submissions that Mr. Hillier does not present as an “addict-trafficker” which sometimes courts have treated as an important mitigating factor on sentence. Rather, he presents as a “user-trafficker” which means he both consumed drugs and sold them. There is a gap in the record about whether Mr. Hillier was trafficking drugs to support his opioid use which separates him with other similarly situated offenders. Based on this record, I find his opioid use was a secondary purpose in committing the offences with the primary purpose being earning a profit.
[13] Further, I accept Mr. Hillier has some insight into situation. This is evidenced by his comments to the court when he apologized stating he made “wrong decisions in [his] life” and to his comments to the PSR author by stating: “I messed up and have learned my lesson. I will accept whatever sentence the Judge passes down on me.” … “[M]y main problem has been never setting goals for myself and basically lacking strive and commitment to achieve a goal. Growing up, I actually wanted to be a police officer, but I got lazy in life. I’m not a violent or hurtful person but immature and selfish at times.” In my view, this level of introspection represents some maturity and speaks to an important sentencing objective of taking responsibility for his actions. To his credit, Mr. Hillier is not making excuses for himself or blaming others. This self-awareness speaks to specific deterrence and the reality that he controls his fate in the future and must make pro-social decisions.
[14] Mr. Hillier presents with a criminal record, which include entries in 2019 for possession of a schedule 1 substance, 2020 for a similar offence as well as breaching court orders for which he received an approximate 5-month jail sentence and an entry in 2021 for breaching court orders and possession of property obtained by crime over $5000 where he received a 90-day jail sentence with a period of probation. The net effect of the criminal record means Mr. Hillier is no stranger to the criminal justice system. The PSR author notes Mr. Hillier has been supervised by probation since June 2019 and his overall response to probation has been poor. Mr. Hillier failed to follow through with required substance abuse program which calls into question the sincerity of his comments he is prepared to take counselling. The author notes he was referred to a 5-week in-patient counselling program but missed the first session and was discharged in January 2021.
[15] Overall, I remain guarded about Mr. Hillier’s prospects of rehabilitation. I agree, in part, with the observation of the PSR author that Mr. Hillier’s actions in the past (as opposed to his words) have not proven to be successful in making pro-social decisions. This may reasonably cause the court to doubt the sincerity of his commitment to self-improvement. However, given his youthful age, positive family support and history of employment, it would be improper to close the proverbial door to rehabilitation. As I will discuss below, Mr. Hillier’s current legal predicament will represent a significant increase in moral and legal severity and will attract a significant sentence which may be enough to deter him in the future. It is my view a proportionate and individualized sentence must have a rehabilitation component despite the severity of the criminal conduct.
The Pre-Sentence Custody & Credit for Lockdowns
[16] Mr. Hillier has been in custody since January 28, 2021. As of the date of delivering these reasons on November 2, 2021, this translates into 277 days of pre-sentence custody. Of these 277 days, the parties agree that Mr. Hillier spent 146 days where he was “locked down” which resulted in extra punitive conditions, for which he should receive additional discretionary credit. The defence left the amount of discretionary credit to the courts’ discretion while the Crown submits it would be appropriate to assign an additional .5 days of credit on top of the 1.5:1 ratio, totaling 2 days of credit on the days Mr. Hillier suffered lockdowns. Mr. Green filed a lockdown report which shows approximately 52% of Mr. Hillier’s time spent in pre-sentence custody or approximately 1195 hours, was during lockdowns: Exhibit 1. As a result, the parties jointly submit that Mr. Hillier is entitled to 131 days credited as 195 days at the rate of 1.5:1 pursuant to the principle in R. v. Summers, 2014 SCC 26 (“Summers credit”). Further, the Crown agrees that the court should afford additional credit for 146 days were he was locked down under extra punitive conditions which should be credited as 292 days pursuant to the principle in R. v. Duncan, 2016 ONCA 754 (“Duncan credit”). According to the Crown, the total pre-sentence custody should therefore be 277 days credited as 487 days or approximately 16.2 months which is to be deducted from the appropriate jail sentence. Again, the defence left the calculation of lockdown credit to the courts’ discretion.
[17] I agree with the Crown as to the calculation of credit for both pre-sentence custody and lockdowns, but in my view, it should be assessed and apportioned differently to reflect the legal principles in R. v. Marshall, 2021 ONCA 344. In Marshall, Doherty J.A. cautioned that sentencing courts should not conflate Summers credit and Duncan credit. He held that Summers credit is a deduction from what the trial judge determines to be the appropriate sentence for the offence. It is statutorily capped at 1.5:1 and it is wrong to think of it as a mitigating factor: at para. 51. Duncan credit on the other hand addresses exceptionally punitive conditions in the jails and is not a deduction but rather one of the factors to be taken into account in determining the appropriate sentence: at para. 52. Further, Doherty J.A. held quantifying Duncan credit in mathematical terms (as the parties chose to do in this case) is not necessarily inappropriate as long as it doesn’t skew the calculation of the ultimate sentence: at para. 53. In this case, it is appropriate to enhance the entire amount of pre-sentence custody of 277 days of pre-sentence custody as 415 days to reflect the Summers principle and provide mitigation for an additional 73 days as Duncan credit due to lockdowns. Mr. Hillier spent a significant amount of hours “locked down” largely due to staffing issues at CECC. This time was also spent during the pandemic which courts have recognized can take a psychological toll and stress on inmates and may lead to feelings of depression and hopelessness. See R. v. Rajmoolie, 2020 ONCA 791; R. v. M.W., 2020 ONSC 3513 at para. 43. As Mr. Green said, “it [has been] the worst time of his [Mr. Hillier’s] life”. Accordingly, adding Summers and Duncan credit, the total deduction from the appropriate sentence is therefore 488 days.
D. Discussion
[18] Section 718.1 of the Criminal Code provides that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender." Under s. 718 of the Criminal Code, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing a just sanction. Any sanction imposed must be the result of a fair and balanced consideration of specific purposes set out in s.718 (a) to (f) which I have considered and need not repeat. Further, the Criminal Code sets out various objectives of sentencing in s.718.2 (a) to (e) which must be considered and balanced by a sentencing court.
[19] When sentencing a drug offender, the purpose of sentencing under the Criminal Code must be read together with the purpose of sentencing enunciated in s.10(1) of the CDSA which includes the encouragement of rehabilitation and treatment of the offender in appropriate circumstances. In R. v. C.N.H., Justice Rosenberg (as he then was) explained:
...the importance of s. 10 is to encourage courts to recognize the particular problem that in many cases persons convicted of drug offences are themselves victims of the drug culture and dependent upon drugs as addicts or users. I think s. 10 recognizes a view that had become increasingly prevalent that, especially for the addict trafficker, the public interest -- including the protection of the public -- is best served by the treatment and rehabilitation of the offender.
[20] The Court of Appeal in R. v. Greene, [2002] O.J. No. 5976 (C.A.) recognized that drug addicts with long standing addictions to hard drugs will often have setbacks in their attempts to overcome their addiction. In Greene, the offender was addicted to drugs and committed criminal offences to support his addiction. The court observed: “[T]he courts must not be overly critical of an offender in the position of this appellant. What is important is that he has made and continues to make efforts at curbing his addiction”: at para. 6. As previously noted, given the record before me, I must sentence Mr. Hillier as a drug user who possessed drugs for the purpose of earning a profit by trafficking the drugs, not a drug addict who possessed the drugs to feed an addiction. This is an important distinction because sentencing courts have treated addict offenders differently than users acknowledging that the moral blameworthiness of an addict offender may be less than one who is partly or purely motivated by profit. As such, some courts have been inclined to impose exceptional sentences to account for this important factor. I advert to this at this juncture to provide some context to the ensuing discussion because while rehabilitation and treatment cannot be completely ignored given the principles in the CDSA and Criminal Code, it is my view the record before me supports the Crown’s position that deterrence and denunciation must be the paramount sentencing principles, with rehabilitation taking a less prominent role.
[21] Courts across Canada have repeatedly discussed the perils of fentanyl and the credible risk of harm it presents to communities: R. v. Sidhu, 2019 ONCA 880 at para. 4. While I did not have the benefit of hearing evidence about the impact of fentanyl in the Durham region, I have drawn on my judicial experience sitting in the Durham region for 8 years and have carefully reviewed decisions decided in this community which have undertaken this analysis. For example, in R. v. Hillier and Blain, 2018 ONCJ 397, my colleague Justice West considered evidence from Dr. Karen Woodall, from the Centre of Forensic Sciences on the nature of fentanyl (at paras. 17-20) and Detective Craig Hudson from the DRPS about the harm caused by fentanyl to the local Durham community (at paras. 21-27). Fentanyl is a synthetic opioid which is commonly found on the street in patch and powder form. Courts have accepted that fentanyl can be up to 100 times stronger than morphine and 20-50 times stronger than heroin. Put simply, it is a devastating and deadly substance and wreaks havoc. I am persuaded by the findings of Justice West as they relate to the mischief caused by fentanyl in the Durham community. The Supreme Court has held that sentencing courts should consider the particular circumstances and needs of the community where the crime was committed: R. v. Lacasse, 2015 SCC 64 at para. 48 and R. v. M. (C.A.), [1996] 1 S.C.R. 500 at para. 91. Justice West held that deterrence and denunciation will usually be the paramount sentencing principles when sentencing an offender for a crime involving fentanyl: at para. 148. I agree.
[22] In R. v. Loor, 2017 ONCA 696, the Ontario Court of Appeal made it clear to sentencing courts that anyone convicted of trafficking in “significant” amounts of fentanyl should expect to receive a significant penitentiary sentence: at para. 50. In Loor, the offender was convicted of using a forged prescription to obtain 45 patches of fentanyl from a pharmacy in Barrie. He was sentenced to 6-years in the penitentiary which was upheld by the Court of Appeal. The Court was invited by the Crown to establish a range of sentence for the offence, but Laskin J. declined stating it was “too early” in the jurisprudence. The direction in Loor would apply to this case because Mr. Hillier possessed fentanyl for the purpose of trafficking.
[23] The range of sentence for a fentanyl related offence was aptly discussed by Justice Davies in R. v. Oksem, 2019 ONSC 6283 at para. 19, a case that was cited to me, where she held:
[B]ecause of the dangers associated with fentanyl, convictions for possessing even small amounts of fentanyl for the purpose of trafficking can attract very long sentences in the range of 5 to 7 years: for example, R. v. Cinelli, 2018 ONSC 4983, R. v. Prestula, 2018 ONSC 4214. There have also been cases where courts have imposed sentences in the range of 12 months to 2 years less a day: R. v. Derycke, 2016 BCPC 291 and R. v. M.H., 2018 ONCJ 397. In very exceptional cases involving small amounts of fentanyl, suspended sentences have been granted; R. v. Dixon, [2017] O.J. No. 3477 (Ont. C.J.), R. v. M.H., [2018] O.J. No. 3126.
[24] Mr. Hillier possessed a significant amount of fentanyl (28.1 grams) which is approximately 1 ounce and therefore must be sentenced on this basis. I am persuaded by the discussion of Davies J. in Oksem as well as the analysis of an appropriate range of sentence by Bawden J. in Cinelli who held “… [it] can be safely said that the range (for trafficking in fentanyl) is no less than it would be for comparable amounts of heroin and the trend is clearly towards higher sentences for fentanyl. This is particularly true for trafficking in fentanyl powder”: at para. 22. In Cinelli, the offender was in possession of 20 grams of powdered fentanyl and 80 grams of heroin. He was deemed a mid-level trafficker and the court did not depart from the Crown’s recommended position that the appropriate range of sentence was 7 years imprisonment: at paras. 33, 34. There are some parallels in this case with the exception of almost 3 ounces of heroin that the offender in Cinelli possessed which supported a 7-year sentence.
[25] Mr. Green reminds the court that sentencing ranges are not set in stone and the court must craft an individualized sentence. This submission is well supported by the cases because sentencing ranges are not “hard and fast rules” and provide guidance to sentencing courts: R. v. Friesen, 2020 SCC 9 at para. 37. In R. v. Ipeelee, 2012 SCC 13, Justice Lebel writing in the Supreme Court observed that the fundamental duty of a sentencing judge is to engage in an individualized assessment of all of the relevant factors and circumstances, including the status and life experiences of the person standing before them. In R. v. Nasogaluak, 2010 SCC 6, the Supreme Court said: “[The] relative importance of any mitigating or aggravating factors will then push the sentence up or down the scale of appropriate sentences for similar offences.” It is by giving due regard to these factors that I can ensure the sentence imposed is proportionate. I now turn to the aggravating and mitigating factors in this case.
[26] Section 10(2)(a) to (c) of the CDSA sets out a number of relevant aggravating factors that a court must consider when sentencing drug offenders, if they exist. These relate to the circumstances of the offence and whether they involve young persons or trafficking drugs near schools, as examples. None of these factors are present in this case. Instead, I find the aggravating factors on this record to be:
(i) The amount of the controlled substances which included approximately 1-ounce or 28.1 grams of fentanyl is highly aggravating. Courts have recognized that even small amounts of fentanyl can be deadly and here Mr. Hillier had enough fentanyl to provide multiple doses to addicts and users. As a result, the risk of harm to a person and the community is much higher than a person who possesses or traffics smaller amounts. Mr. Hillier also possessed a large amount of methamphetamines (19.7 grams) which is a highly addictive stimulant and cocaine (9.2 grams) which like fentanyl is a dangerous and addictive Schedule I substance,
(ii) The nature of the fentanyl as powdered fentanyl as opposed to for example, fentanyl patches, is also aggravating because courts have recognized that powdered fentanyl is easily absorbed through the skin. It is therefore more potent and deadly. Courts have treated powdered fentanyl as an aggravating factor. See for example, R. v. Piri, 2020 ONSC 920 at para. 20,
(iii) Mr. Hillier was a mid-level commercial trafficker motivated by profit,
(iv) Mr. Hillier was in possession of weapons in his motor vehicle which can sometimes be considered as tools of the drug trade which poses additional risks to members of the community,
(v) Mr. Hillier was on a release order at the time of the offences, and
(vi) Mr. Hillier has a criminal record for drug offences and breaching court orders. He does not stand in the same shoes as a first offender where the principle of restraint would play a greater role.
[27] The mitigating factors are:
(i) Mr. Hillier pled guilty to the offences which reflects a genuine expression of remorse. I am satisfied he was motivated to plead guilty early and take responsibility for his actions as noted during the Judicial Pre-trial. This takes on some greater prominence as courts wade through the backlog created by the pandemic which would inevitably put a strain on resources,
(ii) I find Mr. Hillier has insight into his offending conduct because he accepted responsibility for his actions by acknowledging he was acting “selfish” and is prepared to live with the courts’ sentence. He did not deflect responsibility for his actions,
(iii) Mr. Hillier has positive pro-social supports in the community which includes a supportive mother. He is fortunate to have her unwavering support which will help him reintegrate into the community,
(iv) He presents with a work ethic which suggests he is amenable to pro-social activities and not just a life filled with crime,
(v) I am satisfied on a balance of probabilities that Mr. Hillier presents with a drug problem and this merits some mitigation but only to a degree. Despite the limited evidence on this point, I accept based on his self-report to the PSR author that he had been struggling with opioids for 6-months before he was arrested. Based on his previous criminality, his probation officer had arranged in-patient treatment which suggests the drug use was indeed a problem and needed intervention. It is regrettable Mr. Hillier didn’t follow through with this support which does not mean it’s an aggravating feature, but rather, the extent of his drug use acts a limited mitigating factor on sentence. It is relevant to consider as part of a proportional sentence because it is unique to him: R. v. Davies, 2017 ONCA 467 at para. 5 and
(vi) Mr. Hillier spent a significant portion of his pre-sentence custody at CECC while being locked down largely due to staffing issues as noted in Exhibit 1. Courts have recognized that lockdowns are an ongoing problem and need to be rectified. To be clear, I did not hear viva voce evidence relating to this issue, thus I am reluctant to make any specific findings above and beyond the general observation, that inmates have to suffer the brunt of lockdowns caused by staffing and other issues. It is not lost on the court that Mr. Hillier’s experience was also felt during the midst of a public health crisis which reasonably added to his psychological stress: R. v. Morgan, 2020 ONCA 279. See also R. v. Marshall, supra at para. 50.
[28] I agree with the Crown that the extent of the drug use does not amount to an “addiction” factual scenario where Mr. Hillier committed the offences to support a drug habit, which therefore might merit additional mitigation based on the principles in R. v. Greene and R. v. Lazo, 2012 ONCA 389. When this issue was raised in submissions, Mr. Green fairly conceded Mr. Hillier is not addicted to controlled substances but rather is an opioid user which became a problem over time. Again, it’s unclear how it may have led to the commission of the offences as Mr. Hillier recounted in the PSR. I am satisfied Mr. Hillier was motivated by profit to earn a quick buck as both fentanyl and methamphetamines are lucrative but deadly, commodities on the street. While he might have been trafficking drugs to also support his opioid use, this factor only acts a limited mitigating factor given the state of the record.
Principles of Parity, Proportionality and Totality
[29] A fit and proportionate sentence is informed by s.718.2 (b) of the Criminal Code which requires courts to consider the principle of parity. In R. v. Friesen, Justice Wagner writing on behalf of the Supreme Court explained: “[P]arity and proportionality do not exist in tension, rather, parity is an expression of proportionality. A consistent application of proportionality will lead to parity. Conversely, an approach that assigns the same sentence to unlike cases can achieve neither parity nor proportionality”. At para. 33, he added: “[A] proportionate sentence for a given offender and offence cannot be deduced from first principles; instead, judges calibrate the demands of proportionality by reference to the sentences imposed in other cases. Sentencing precedents reflect the range of factual situations in the world and the plurality of judicial perspectives. Precedents embody the collective experience and wisdom of the judiciary. They are the practical expression of both parity and proportionality.”
[30] Mr. Hillier must be sentenced for two separate offences committed on the same date which engages the principle of totality. Section 718.2 (c) provides that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh: R. v. Ahmed, 2017 ONCA 76, 346 C.C.C. (3d) 504 (C.A.). As appellate courts have held, where an accused is ordered to serve consecutive sentences for multiple offences, the offences are not looked at in isolation. The cumulative sentence must not exceed the overall culpability of the offender. In R. v. R.B., 2014 ONCA 840, 327 O.A.C. 20, the Court of Appeal referred to the proper approach in such cases, at para. 8:
Second, from reading the sentencing proceedings, we think the sentencing judge followed the approach endorsed by this court for sentencing for multiple offences – that is, first determine a global sentence and then assign sentences for each offence and designate each as concurrent or consecutive to fit within the global sentence.
See also R. v. Jewell, 100 C.C.C. (3d) 270 (Ont. C.A.), at p. 279.
[31] Using the above framework, I propose to focus on Mr. Hillier’s overall culpability by examining the more serious fentanyl related offence. Mr. Greenway filed three cases which he argues supports his position for a 5.5 year jail term. I have reviewed them carefully and they can be summarized below:
In R. v. Jenkins, 2018 ONSC 5078, Justice Edwards sitting in the Superior Court of Justice in the Simcoe region sentenced an offender to a global jail sentence of 6 years and 6 months imprisonment. The offender was found guilty after trial for three counts of trafficking in cocaine, fentanyl as well as three counts of possession for the purpose of trafficking in cocaine (25 grams) and heroin (22.7 grams) which contained unknown amounts of fentanyl. The offender was investigated by the police after conducting drug transactions on at least six occasions. The court held there was insufficient evidence that the offender was in possession of a “significant” amount of fentanyl because it was mixed with heroin and the Crown did not lead any evidence to prove how much fentanyl was in his possession. That said, the court held … “[there] can be no dispute that any amount of fentanyl even small trace amounts, can have potentially fatal results”: at paras. 47, 58. This issue does not arise in this case because there’s no evidence to suggest the fentanyl was mixed with another substance. It was in powder form. It is relevant that Mr. Jenkins was not a youthful offender and had amassed a penitentiary sentence for 3.5 years for similar conduct and was violating his parole at the time of his current offences. There was also no evidence that he was an addict-offender and was purely motivated by commercial profit.
In R. v. Blair, 2021 ONCJ 111, Silverstein J. sitting in the Ontario Court of Justice in the Toronto region, sentenced an offender to possessing fentanyl for the purpose of trafficking along with other offences including possession of a loaded restricted handgun after a preliminary inquiry. As part of the agreed facts, the offender admitted being in possession of 2.28 grams of heroin mixed with fentanyl, 4.97 grams of heroin mixed with fentanyl, 10.61 grams of fentanyl cut with caffeine and dimethylsulphone and 37.61 grams of crack cocaine. The court sentenced the offender to 65 months or 5.4 years for the fentanyl related offence after noting that fentanyl is “without question, the most dangerous of the illegal drugs pedaled in Canada”, Cinelli, supra. It is noteworthy that the offender was sentenced for a number of offences where the totality principle tempered a fit disposition. The offender was youthful but presented with a serious criminal record including a 5-year prison term after being convicted for the offence of conspiracy and armed robbery.
In R. v. Piri, 2020 ONSC 920, Kelly J. sitting in the Superior Court of Justice in the Toronto region, sentenced an offender to 4-years and 359 days (reduced from 6-years) for the offences of trafficking in fentanyl on six occasions, the most serious of which included 34.19 grams. The offender was 39 years old and presented with a similar cognate criminal record as Mr. Hillier which spanned about 8 years. The court provided a helpful summary of sentencing decisions at paras. 17 to 18, which I have reviewed in arriving at a fit sentence in this case. In the end, the court grappled with the offender who admitted being a drug addict but was presented with evidence that he was committed to overcoming the addiction (at para. 24). Justice Kelly settled on a 6-year jail sentence applying the principle of restraint. It is my view, the greatest value of this thoughtful decision is the careful review of the cases which highlights a theme in the jurisprudence that significant sentences will be expected where fentanyl is involved given its pernicious quality to destroy lives and communities.
[32] Mr. Green relied on the following cases in support his position for a 3-year jail sentence:
In R. v. Meslin, 2020 ONCJ 93, Justice Latimer sitting in the Ontario Court of Justice in the Waterloo region sentenced the offender to global jail sentence of 2-years less a day and a period of probation. The offender was 19 years old and pled guilty to possessing 12 grams of fentanyl and 37 grams of cocaine for the purpose of trafficking. An important distinguishing factor in this case is that the court found that the fentanyl possession was “unknowing” and “brief” which may have attenuated the moral blameworthiness of the youthful offender. This is not the case before me where Mr. Hillier possessed a substantial amount of fentanyl, along with other drugs where the same conclusion does not arise. Mr. Hillier’s moral blameworthiness is much higher.
In R. v. Broderick, 2020 ONSC 7434, Justice Spies sitting the Superior Court of Justice in Toronto, sentenced the offender to 3.5 years less credit which resulted in a reformatory sentence where a probation order could be attached. Spies J. agreed with the Crown’s submission of a 4.5 years sentence but reduced the sentence on account of serious mitigating factors. The offender was 38 years old and was convicted of possessing 6.79 grams of fentanyl mixed with heroin for the purpose of trafficking. The offender was addicted to crystal meth for years and a doctor opined he suffered from schizophrenia and his substance abuse likely worsened his psychotic symptoms (at para. 7). Mr. Hillier does not present with acute mental health and substance abuse issues, thus is not similarly situated to this offender.
In R. v. Willis, 2019 ONSC 7324, Justice Andre sitting in the Superior Court of Justice in the Peel region, sentenced the offender to 2.5 years imprisonment less credit for pre-sentence custody. The offender was 42 years old and pled guilty to possessing 6.2 grams of fentanyl mixed with heroin for the purpose of trafficking. He was addicted to heroin but did not seek treatment and had a long criminal record. This case can be distinguished based on the finding that the offender had a long-standing addiction to heroin and possessed a smaller amount of fentanyl, neither of which are present in this case.
In R. v. Oksem, 2019 ONSC 6283, Justice Davies sitting in the Superior Court of Justice in the Toronto region, sentenced the offender to 18 months imprisonment less credit for pre-sentence custody. The youthful first offender pled guilty to offences arising out of two incidents and included possessing 7.64 grams of cocaine and 5.62 grams of fentanyl for the purpose of trafficking. The court found that the offender had very good rehabilitation prospects because he completed courses while in custody dealing with substance abuse and life skills. He also upgraded his education and was well supported by his family. In my view, this case is different because Mr. Hillier is not a youthful first offender and his rehabilitative prospects are not as strong. There were several factors that motivated the court in Oksem to grant an exceptional sentence which are not present in this case.
In R. v. Peric, 2021 ONCJ 458, Justice Band sitting in the Ontario Court of Justice in the Toronto region, sentenced the offender to a 4-year prison sentence less credit for pre-sentence custody. The offender pled guilty to two offences which involved possessing a total of 82.63 grams of fentanyl for the purpose of trafficking. The case was unusual because at the time of sentencing the offender was serving a 4-year prison sentence for similar offences (albeit involving lower quantities of drugs), thus the courts’ analysis of a fit sentence was motivated, in part, by the principle of totality. The Crown submitted the appropriate sentence was 6-years for the current offence that should be served consecutive to the earlier offence. The court noted that the offender had a very troubled background after immigrating to Canada from post-war Serbia and became a Crown ward at the ages of 16 and 21. His lifestyle was unstable and he was admitted to a hospital a number of times for alcohol abuse and drug overdose. Band J. after reviewing the authorities, held a proportionate sentence for possessing almost 3 ounces of fentanyl would have been 6 to 8 years imprisonment for an offender with a criminal record and who struggles with addiction. In the end, the court settled on a 4-year sentence to be served consecutively to the earlier offence which amounted to an overall sentence of 8-years for the two sets of offences. In my view, while this decision is helpful given the thorough review of the authorities, it has limited application to me because of the nuanced operation of the principle of totality which resulted in a sentence adjustment. The same legal issue does not apply in this case. Nor is Mr. Hillier similarly situated to the offender in Peric who had a very unfortunate and sympathetic background.
[33] I have also reviewed other relevant decisions on my own including some from the Durham community including the decision in R. v. Michael Hillier and Brittny Blain. In that case, both defendants were youthful first offenders plagued with a serious drug addiction. Mr. Michael Hillier trafficked in small amounts of fentanyl (3.5 grams) to earn a profit so his partner Ms. Blain could remain on maternity leave. Ms. Blain had aspirations of working as a nurse but was also battling a serious drug addiction. Mr. Michael Hillier was deemed a street-level trafficker motivated by profit. He was also found to be an opiate addict and was motivated to deal with his addiction. The court sentenced him to 2-years less a day with a probation order for 3-years. Ms. Blain’s background was even more challenging, riddled with a family history of substance abuse and addiction. Her role in the offences committed by Mr. Michael Hillier was minimal in so far as she drove him to the drug deals. She did not actively traffic the substances. Justice West in a thoughtful decision settled on an exceptional sentence for her involving a suspended sentence and a 3-year probation order, noting it was a proportional and individualized sentence to reflect the gravity of her conduct and the circumstances of the offence.
[34] I have adverted to the decision in Hillier and Blain largely because it helps to situate the moral blameworthiness and extent of legal culpability of Mr. Hillier in this case – and in this community. While recognizing the pernicious impact of fentanyl in Durham, Justice West settled on an upper reformatory sentence for Mr. Michael Hillier because of many mitigating factors which are simply not present here. The offender in this case is not a youthful first offender, he did not traffic in small amounts of fentanyl and did not do so to support a serious drug addiction. The offender in this case is a youthful repeat offender who was a mid-level fentanyl and methamphetamine trafficker who possessed drugs in order to sell them for profit with some modest prospects of rehabilitation. Mr. Hillier is a much different offender than the offenders in R. v. Hillier and Blain and therefore must be treated differently to account for parity and proportionality.
[35] Having carefully reviewed the cases and considering the circumstances of the offence and Mr. Hillier, I am satisfied that a significant jail sentence is required but I am mindful of the advice from the Court of Appeal in R. v. Borde that Mr. Hillier’s first penitentiary sentence must not solely be based on general deterrence and denunciation and instead should be the shortest possible jail sentence that achieves the relevant sentencing objectives. In this case, the court must deter like-minded offenders who choose to possess and traffic large amounts of fentanyl and methamphetamines because even a small amount of fentanyl can kill. The longest time Mr. Hillier has spent in custody prior to these offences was 5-months. I have considered the defence submission for 3-years, but respectfully, there are simply not enough mitigating factors that compel me to this result. In my view, the Crown’s submission for a global sentence of 5.5 years imprisonment is well within the appropriate range of sentence. It is well supported by the authorities and could on its own be a fit disposition for the fentanyl related offence alone.
E. The Sentence
[36] After carefully balancing all the sentencing principles in this case, including recognizing that this will be Mr. Hillier’s first penitentiary sentence, I find a global sentence of 4.5 years is the shortest jail sentence that reflects Mr. Hillier’s overall culpability as a mid-level fentanyl dealer. See also R. v. Thorn, [2017] O.J. No. 5021 involving a mid-level fentanyl trafficker motivated by greed with a limited criminal record where the court in an oral judgment imposed a 4.5-year jail sentence. I have arrived at this sentence considering that I will also impose a separate sentence for the methamphetamine related offence but I will permit him to serve this on a concurrent basis to account for the totality principle, so the overall sentence does not crush him. I have also considered Mr. Hillier’s background including his strong family support, work ethic, genuine expression of remorse and insight into his criminal conduct. Mr. Hillier’s desire to plead guilty and accept responsibility for his “selfish” actions deserves considerable mitigation. In view of the current fentanyl sentencing decisions in Ontario, I realize this sentence may be viewed by some as being on the lower end of the acceptable range of sentence given the sheer quantity of fentanyl, but I am prepared to give a youthful offender the benefit of the doubt that he is prepared to leave crime behind and live a pro-social life. This sentence is meant to encourage him with this goal.
[37] I will deduct 488 days from the overall 4.5 years sentence (approximately 1642 days) which leaves a sentence of approximately 1154 days or 37.9 months or approximately 3 years and 2 months. As a result, I do not have to consider Mr. Green’s submission for a probation order as it is not legally available. It is hoped Mr. Hillier will seek and obtain suitable substitutes for his rehabilitation in the penitentiary.
[38] The information will be endorsed as follows:
(i) Possession of fentanyl for the purpose of trafficking: 4.5 years imprisonment (1642 days) less pre-sentence custody of 277 days credited as 415 days as Summers credit and 73 days as Duncan credit for a total credit of 488 days, leaving a remnant of 1154 days imprisonment or approximately 37.9 months.
(ii) Possession of methamphetamines for the purpose of trafficking: 12 months imprisonment to be served on a concurrent basis.
[39] On consent, I will make the following ancillary orders:
(i) a weapons prohibition Order under s.109 for 10 years,
(ii) a DNA Order in relation to both offences, and
(iii) an Order of forfeiture in respect of all items seized.
[40] I will waive the two victim fine surcharges on account of undue hardship as Mr. Hillier will be spending a significant portion of his life removed from the community and not earning an income.
[41] Mr. Hillier has a debt to pay to society. The court hopes he uses his time in the penitentiary wisely to upgrade his education and address his opiate use and returns to his mother a new man motivated to live a pro-social life and make meaningful contributions to his community.
[42] The court would like to thank counsel for their material and submissions.
Released: November 2, 2021 Signed: Mr. Justice F. Javed
