Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2022 03 10 COURT FILE No.: Hamilton INFO.: 20-6182 and 21-1451

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

JUSTIN THOMBS

Before: Justice P. H. M. Agro

Heard on: 21 January 2022 Reasons for Sentence released on: 10 March 2022

Counsel: Jason Little, for the Public Prosecution Service of Canada Robin McCourt, counsel for the accused Justin Thombs

AGRO, J.:

[1] After trial Justin Thombs was convicted of five counts of possession for the purposes of trafficking under the Controlled Drugs and Substances Act, possession of the proceeds of crime & possession of stolen license plates contrary to the Criminal Code of Canada.

Drugs and Seized Property

[2] These were the drugs found in Thombs’s possession:

• Methamphetamine: 20.63 grams
• Hydromorphone: 9 capsules: 3.2 grams
• Oxycodone: 22 pills: 4.9 grams
• Fentanyl: 54.35 grams
• MDMA: 37.73 grams

each of them being Schedule 1 substances for the purpose of the Controlled Drugs and Substances Act.

[3] According to the testimony of Crown expert Detective Constable Michael Dougherty of Hamilton Police Services Vice & Drug Squad, the total estimated value of the drugs at the time of trial was in the range of $8,326 to $15,406.

[4] It was estimated by Dougherty that this quantity of fentanyl was sufficient to last 45 days if used continuously every 2 hours.

[5] Dougherty testified that fentanyl, a synthetic opioid, is the most dangerous of the seized drugs for its users. It is 100 times more potent than morphine. The potency for each dose cannot be guaranteed by a dealer due to the use of cutting agents intended to dilute potency; however, that process does not guarantee even distribution of the drug throughout all doses.

[6] Hydromorphone, is a synthetic drug similar to heroin. As was noted by Nelson, J. in the decision of R v Medeiros-Sousa, 2014 ONCJ 626, at para 9.

[7] The property in Thombs’ possession was $110 in proceeds of crime and a set of stolen Ontario license plate markers on the vehicle I found Thombs to be driving at the time of his arrest.

Positions of the Parties

[8] Mr. Little, for the PPSC, is seeking a penitentiary term of 9 years, less time served, submitting that denunciation and deterrence drive the sentence for mid to high level dealers who traffic in large quantities of drugs particularly fentanyl. He also seeks an order under s. 109 of the Criminal Code for life, an order that Mr. Thombs provide a sample of DNA and forfeiture of seized items including the Canadian currency, cell phone & digital scale.

[9] Ms McCourt characterizes her client as a low to mid level dealer and urges me to impose a penitentiary term of 3 to 4 years taking into account that there is no evidence that Thombs held a leadership role in his trafficking endeavours, and that he has good prospects for rehabilitation.

Applicable Principles

[10] Of all opioid related sentencing, fentanyl has overtaken heroin as the category of drug that attracts the highest of sentences.

[11] The dangers of fentanyl patches were described by the Crown expert in this trial, and referred to in the appeal decision by Laskin, J.A., R v Loor, 2017 ONCA 696, at paragraph 39:

39 When abused, fentanyl patches are especially dangerous. People can abuse a patch in many different ways. They can inject the patch contents intravenously, cut up the contents and chew small portions at a time, inhale it, smoke it, and even make tea with it. What makes the patch particularly dangerous is the medication’s location within the patch. The medication is in a matrix, essentially buried inside the patch. To get the medication out of the patch a person has to chop it up or melt it down or heat it up. But then the person does not know how much fentanyl has been released. Its potency for an individual is thus often unpredictable. And so, Dr. Woodall concludes, a lot of deaths have been associated with the abuse of fentanyl patches.

[12] More recently, fentanyl powder has flooded the illicit drug market and the number of fentanyl powder cases is rapidly increasing across the province and notably in this region.

[13] In his 2017 sentencing reasons in [R v Clark and Shevalier, (Unreported) ONCJ March 16, 2017], at page 5, Epstein J., noted the widespread reporting throughout Canada of the dangers of powdered fentanyl and the “astounding” number of deaths that have resulted.

[14] That theme was repeated in R v Cinelli, 2018 ONSC 4983, when discussing the dangers of synthesized powdered fentanyl from China.

[15] The Supreme Court of Canada in R v Parranto, 2021 SCC 46 has provided the most recent pronouncement on the approach to sentencing by trial judges. That appeal dealt with the sentencing of wholesale traffickers, and that fact and others distinguish it from the case at bar.

[16] However, the comments of Moldaver, J. are most useful in setting out the “real and deadly impact” of fentanyl on the lives of Canadians, supra at para 96 et seq., the costs to our society in terms of health care and law enforcement (and inferentially to the administration of justice in our courts), lost productivity and sadly, most directly, the impact on children whose parents are users.

[17] These are not matters that have escaped me or my colleagues in this jurisdiction. In Hamilton, I see fentanyl abuse regularly identified as underlying many of the offences committed in this region; possession of fentanyl charges have increased in plea and trial courts and fentanyl users are the new norm in drug treatment court. Sadly, our detention centre is notorious for drug overdoses, including fentanyl.

[18] These are matters that I can properly take into account in fashioning an appropriate sentence: R v LaCasse, 2015 SCC 64.

[19] The Ontario Court of appeal recently approved the 9 year sentence (of which 8 years was attributed to the possession for the purpose of trafficking in 27.93 grams of fentanyl) imposed by this court in the matter of R v Ribble, 2021 O.J No.7137. Similarly, Ribble was also in possession of a number of other drugs.

[20] The defence provided a number of authorities, all of which were distinguishable on their facts.

[21] In Petrowski, 2020 MBPC 125 a fentanyl importer of 51 gms was sentenced to 10 years.

[22] In Smith, 2017 BCCA 112 the offender was a 59 year old first offender street trafficker of a small amount of fentanyl. Although the court upheld the 6 month sentence imposed by the trial judge it identified a higher sentencing range of 18 to 36 months and possibly higher given the development of the public health crisis associated with fentanyl use.

[23] The decisions of Banayos, 2018 MBPC 231 and Bisson, 2018 MBPC 244 both dealt with cocaine traffickers. That drug is by no measure comparable to fentanyl.

[24] In Gagnon, 2017 ONSC 7470 the court imposed a 4 year sentence for the possession for the purpose of trafficking in 43.76 grams of methamphetamine and 12.34 grams of fentanyl, considerably less than the quantity found in the possession of this offender.

[25] Similarly in McGinn, 2019 ONSC 3968 the offender was in possession of 10 grams of fentanyl and 33 grams of cocaine and received a sentence of 3 years and 9 months.

Circumstances of the Offender

[26] A pre-sentence report was filed. The author of that report found Thombs to be “respectful, forthcoming and co-operative” in the preparation of the report.

[27] Thombs is soon to be 31 years old. At age 1 ½ years, his parents separated and he was raised thereafter by his mother as a single parent. He has had no relationship with either his sister or his father for several years. He regards his maternal grandfather as the father figure in his life.

[28] Thombs’ upbringing was challenging for his mother but there were no other significant disruptors in his life.

[29] He suffered from Attention Deficit Disorder but completed Grade 10 high school credits and has some Grade 11 credits. At age 15 he left school to work and at age 19 left home to work in Alberta as a heavy equipment operator. From approximately 2006 to 2018, Thombs has had other employment in roofing, general labour and drywalling and as an automotive dismantler.

[30] Thombs is the biological father of a six year old son, who lives with his mother, a woman with whom Thombs had a 4 year relationship. They maintain a civil relationship, sharing decision making regarding the child, with Thombs exercising access and financially supporting the boy when he is not incarcerated. Thombs’ mother continues to enjoy access with her grandson.

[31] Alcohol was a significant problem for Thombs in 2018 when he was involved with his most recent girlfriend. That relationship was toxic with both parties abusing alcohol and becoming addicted to drugs. According to the pre-sentence report he considered himself a “full blown alcoholic” by the time that relationship ended after two years.

[32] His criminal record began during those tumultuous years.

[33] After detaching from that relationship Thombs lived with his grandparents and more recently with his mother.

[34] The defence sentencing brief contained a letter from Thombs as well as four other letters of support from long term friends. All speak of a kind, responsible Justin Thombs who is quick to assist friends in need with his time, skills, and emotional support and who is a devoted father to his son. All are aware of these charges and are baffled by his behaviour.

[35] This characterization was confirmed independently by the author of the pre-sentence report who contacted other collateral sources.

[36] Justin’s grandfather, though in poor health, remains a stalwart of emotional and financial support as does his mother.

[37] While in detention Thombs completed four counselling sessions in the month of November 2021, including anger management, goal settings, anti-criminal thinking, and self-esteem. Certificates of completion were provided.

[38] In his letter to the court, Thombs acknowledged his bad behaviour and apologized for his mistake. He accepts responsibility for having failed himself, his family and his community, and expressed that he now knows to exercise more caution about the company he keeps.

Aggravating Circumstances

[39] There are aggravating circumstances, the first of which is Thombs’ criminal record.

[40] Although brief in length, with four conviction dates from 2018 to January of 2020, the record does include two prior convictions for possession of drugs for the purpose of trafficking, both in January of 2020. The second of those two convictions included two counts of failure to comply with recognizance and one count of failure to comply with probation, along with a breach of a firearms prohibition order.

[41] The second of those offences was committed while on release for the first.

[42] Thombs committed the offences before the court 2 ½ months after his release on parole for the January 2020 convictions. It was noted by Crown witness PC Starr, that Thombs was wearing an ankle bracelet when arrested on these matters.

[43] Initially denied bail on these charges, Thombs was later released on house arrest bail only to incur subsequent CDSA 5(2) charges on 30 December 2020 involving cocaine, methamphetamine and fentanyl, as well as proceeds of crime under $5000, and breaches of both probation and release orders. He has remained in custody to this date.

[44] The nature and quantity of drugs are aggravating.

[45] Powdered fentanyl is a particularly potent and potentially lethal substance to both users and first responders, particularly when in powdered form.

[46] Given the veritable pharmacy of drugs in Thombs’ possession and the number of doses for each of them as extrapolated by the expert, I find that Thombs can be characterized for sentencing purposes as a mid level dealer.

[47] The possession of the stolen license plates was to facilitate and in furtherance of a serious criminal offence.

Mitigating Circumstances

[48] There are mitigating circumstances.

[49] For the most part of his adult life Thombs, while suffering from an alcohol addiction, was a productive member of society, maintaining employment, supporting his young son and participating in his parenting.

[50] Despite the gravity of these offences, his family and friends remain supportive.

[51] While in detention he has made some use of rehabilitative programming, limited as it is because of COVID restrictions.

[52] He acknowledges the impact of toxic relationships and poor choices on his behaviour. This bodes well for his rehabilitation.

[53] The defence submits that Thombs’s own addiction is a mitigating circumstance.

[54] While his personal background and a clearly toxic relationship may explain his introduction to and initial drug use, his continued use of illicit substances was a lifestyle choice on his part. His addiction is not a lawful excuse for immersing himself in the drug subculture and becoming a not so minor part of the supply and demand continuum.

[55] Nor was there any evidence of a causal connection between Thombs’s addiction and his trafficking. He is not the typical street sale addict trafficker who sells a product for a higher level dealer so that he might “chip off a piece” for his own consumption.

[56] I ascribe only minimal weight to the mitigating circumstance of his addiction.

Conclusion

[57] An appropriate sentence must reflect the circumstances of these offences and those of the offender, send a clear communication of denunciation and deterrence to Thombs and other like-minded individuals, and protect society from drug dealers and their toxic wares.

[58] The position taken by the defence for a 3 to 4 year sentence minimizes the serious nature of these charges and the aggravating circumstances, putting too much emphasis on the mitigating circumstances.

[59] Reflecting on the purposes and principles of sentencing, and the presenting aggravating and mitigating circumstances, the global sentence sought by the PPSC of 9 years is not excessive and is the sentence I impose globally on all counts on information 21-1451 with a concurrent sentence of 2 years on count 1 of information 20-6182.

[60] Applying the customary 1.5 to 1 credit for the 578 days time served, there is a total credit of 867 days or 2 years and 4 ½ months, for a remainder of 6 years, 7 ½ months to be served.

[61] Notwithstanding the accused’s affidavit attesting to conditions in the various institutions in which he has been held in detention, I do not consider it appropriate to grant any further credit as he was released on 11 December 2020 and rearrested 19 days later for similar offences and breaching his terms of release & probation.

[62] Ancillary orders have been agreed upon. A section 109 prohibition order for life and DNA order will issue on all counts in information 21-1452. The forfeiture order is granted in the form presented by the PPSC.

Released: This 10th day of March 2022. Signed: Justice P. H. Marjoh Agro