Ontario Court of Justice

Date: 2022 01 04 Court File No.: Newmarket 4911-998-19-01107-00

Between:

HER MAJESTY THE QUEEN

— AND —

JOVANE JOLLY

Before: Justice A. A. Ghosh

Heard on: June 28, July 12, October 12, November 15, December 3, 2021 Reasons for Judgment released on: January 4, 2022

Counsel: D. Morlog ................................................................................................. counsel for the PPSC E. Ghebrai .................................................................................. for the applicant Jovane Jolly

GHOSH J.:

Overview

[1] Mr. Jovane Jolly pleaded guilty before me to two counts of trafficking in fentanyl, contrary to s.5(1) of the Controlled Drugs and Substances Act (CDSA). The facts support that he trafficked over 6 ounces of fentanyl over the course of several transactions with undercover officers.

[2] The Crown submits for a global sentence of 11 years. Defence counsel submits a sentence of 6 years is appropriate. The offender’s experience as a Black man who has encountered discrimination featured centrally at the hearing. I invited and received further submissions regarding recent appellate sentencing guidance for fentanyl trafficking and the potential impact of an offender’s race. These are my final reasons.

Agreed Facts Supporting Guilty Plea

[3] Project Big Car was originally an investigation conducted by York Regional Police into Mr. Jolly. The offender trafficked fentanyl to a young woman, who overdosed on the supplied drug with a friend. The friend died from the overdose. Mr. Jolly and several others involved in the trafficking of illicit substances were arrested and charged.

[4] On February 1st, 2019, C.K. contacted her drug supplier “Asia” (Jovane Jolly) by text message and arranged to buy $30 of a fentanyl and heroin mixture known as “D” (or “Down”). C.K. and her friend, M.H., met at a rental unit and ingested the drugs, after which they both soon overdosed. The homeowners returned to hear C.K. screaming. One of them called 911. C.K. demonstrated signs of an overdose. M.H. had died from carfentanil toxicity. Police collected Mr. Jolly’s contact information from C.K.

[5] On February 5, 2019, an undercover officer (UC) contacted Mr. Jolly and arranged to purchase a half-gram of crack cocaine for $50. Before the transaction was complete, Mr. Jolly was arrested. He was found in possession of half a gram of crack cocaine, $5,025 in cash and the cell phone that had been used to arrange the transactions with C.K. and the UC.

[6] A second UC engaged Mr. Jolly in the holding cells of the police station. Mr. Jolly told him that he had sold fentanyl to someone who died from it. He also advised that he buys an ounce of fentanyl for $2,800 and sells it at $200 per gram. The two exchanged contact information.

[7] On May 4th, 2019, the UC and Mr. Jolly communicated. They talked about the offender’s drug trafficking, and Mr. Jolly advised that he used to buy an ounce of fentanyl and sell it in a week for $1,500 in profit. Mr. Jolly again admitted to selling fentanyl to someone who in turn shared it with a friend who died from consuming it.

[8] The UC asked if this overdose was the first-time someone had died from his drugs. Mr. Jolly “indicated that it was the third overdose death in one year from his drugs.” The offender advised that one could obtain an ounce of pure fentanyl from China and turn it into half a kilogram because it was so pure and that it can kill people. They agreed that Mr. Jolly would provide half a gram of fentanyl to the UC for $100. He did so that day.

[9] Days later the UC arranged to purchase one ounce of fentanyl from Mr. Jolly for $3500. On May 10th they met to complete the transaction. Mr. Jolly told the UC that he had brokered the deal through a friend who would be coming to meet them. Sarah Richer attended as an apparent conduit to the supplier, Daniel Kochanska. Mr. Kochanska soon arrived and Mr. Jolly and Ms. Richer joined him to privately discuss details in the absence of the UC.

[10] Mr. Jolly returned to the UC’s vehicle and informed him that the transaction would go as expected. Mr. Jolly counted the UC’s money. The UC asked Mr. Jolly if he could meet the supplier. They all entered Mr. Kochanska’s vehicle, where Mr. Kochanska provided the UC with an ounce of fentanyl in exchange for $3,300.

[11] On May 15th, 2019, Mr. Jolly sold 3.3 grams (a ball) of fentanyl to a third UC for $675. The offender asked the UC if she had dealt with fentanyl before, as he was not taking chances anymore.

[12] In early June of 2019, the previous UC contacted Mr. Jolly again about purchasing multiple ounces of fentanyl. The offender agreed to traffic 5 ounces of fentanyl to this UC for $2,950 per ounce through another intermediary.

[13] On June 12, 2019, the investigation culminated in a 5-ounce fentanyl transaction for $14,475. Mr. Jolly and the UC waited in the UC’s car together for Mr. Jolly’s supplier, David Winn. Mr. Jolly made the introductions, and Mr. Winn provided 5 ounces of fentanyl to the UC. The YRP Emergency Response Unit descended upon the UC’s vehicle and arrested Mr. Winn and Mr. Jolly. A search of Mr. Jolly yielded 18 grams of crack cocaine.

Evidence of the Dangers of Fentanyl and its Impact on the Community

[14] Dr. Karen Woodall is an Assistant Professor from the University of Toronto and formerly a forensic toxicologist from the Centre of Forensic Sciences. She provided an uncontested expert report regarding the pharmacology and toxicity of fentanyl and carfentanil. Some of this information is known in the public sphere and in the related jurisprudence.

[15] Both drugs belong to the opioid class of drugs. Fentanyl can be prescribed clinically for the management of chronic pain, but it is also a potent drug of abuse. It can be highly addictive. “Toxicity can easily result from opioid use sometimes with fatal consequences.”

[16] Carfentanil is more dangerous than fentanyl. It is used as a tranquilizing agent for large animals and has not been approved for therapeutic use in humans. It is extremely potent and has been reported to be up to 10 000 times stronger than morphine and 100 times stronger than fentanyl. It has also been used as a chemical warfare agent and now it is increasingly abused by humans.

[17] When these drugs are illegally obtained, the user cannot determine the precise nature of the drug based merely on a visual assessment. The user may not be aware of the concentration of the drug or that it contains other potent drugs. This all increases the prospect of toxicity and death.

[18] DC Sean Ricamara of the YRPS provided uncontested drug expert evidence further distilling the dangers of trafficking and using fentanyl. He confirmed that even small amounts of the drug may be possessed for trafficking. He also opined that the amounts seized through the transactions between Mr. Jolly and the UC’s support that the offender possessed the drugs for trafficking.

[19] A community impact statement was submitted by the YRPS outlining the impact of the fentanyl crisis in York Region. Rates of related hospitalizations and death have increased dramatically in recent years, particularly since 2015. In 2019, approximately 250 people had visited an emergency department at a York Region hospital for an opioid overdose. Almost three quarters of opioid related deaths in 2019 were attributed to fentanyl.

[20] The YRPS has noted that drug trafficking and related police seizures in the region has increasingly illustrated the prevalence of illicit procurement and use of fentanyl. Mere contact with the drug can result in toxicity, leading to added risks to attendant officers and members of the public.

Circumstances of the offender – Social Context Evidence

[21] Mr. Jolly is a young Black man who has encountered personal and systemic discrimination in a variety of ways. This has informed his life’s trajectory and his engagement with the criminal justice system. Social context evidence was led in support of these findings.

[22] An enhanced presentence report generated by Michelle Richards of the Sentencing and Parole Project (SPP) was received. Ms. Richards is a registered social worker (RSW) with a Master’s degree in the field (MSW). The SPP is a non-profit organization that “prepares enhanced pre-sentence reports for Black people marginalized by poverty and racial inequality.”

[23] Mr. Jolly is 29 years old and arrived from Jamaica with his family when he was three years old. His home environment was happy in his early years. He was close with his mother and siblings. He was distant from his father who was strict and emotionally remote. They had little money. Mr. Jolly would be spanked when he misbehaved. Both parents were strict and often yelled to resolve conflicts. The household was routinely tense.

[24] He was bullied due to his size and race when he was younger. He would sometimes be called racial epithets on the street by strangers. This all had a significant effect on him. As Mr. Jolly aged, he became physically larger and began defending himself verbally and physically. He is otherwise described as shy, sensitive and quiet.

[25] In elementary school, Mr. Jolly was assessed as a slow learner and placed in an academic stream for students with learning needs. He found this demoralizing. The school recommended that he attend a secondary school for basic level courses. Mr. Jolly knew this school had a poor academic reputation and was designated for youth with learning challenges.

[26] He was upset at being streamed into this secondary school and wished his parents had challenged the recommendation. Mr. Jolly realized this academic streaming was detrimental and limited his trajectory. He found himself surrounded mostly by other Black students and white teachers. Many of the students had learning difficulties and had other troubles. While he did not experience mistreatment from school officials, he was “aware of the broad negative perceptions of Black youth that some teachers held”.

[27] During Mr. Jolly’s teenage years, he began acting out in school and getting in trouble. He would be suspended from school occasionally and had “conflicts with the law”. He would get into fights, primarily to defend himself from bullying. While he had an interest in some classes and occasionally showed academic promise, he continued to engage in antisocial behaviour and his grades suffered. After a consensual fight at school, Mr. Jolly and his opponent were “jailed briefly”. “He explained that he and his peers eventually began living up to the negative stereotypes perpetuated about troubled Black youth at a school for students with low academic skills”.

[28] The school administrators would not present him with post-secondary options that included university, so he focused on the trades. Mr. Jolly was a talented football player with scholarship prospects, but his attention turned to life on “the streets”. He continued to have disciplinary issues and his parents removed him from the home a few times for not complying with their expectations. He stayed with friends during these periods. His parents could not dissuade him from “keeping company with questionable youth”.

[29] Mr. Jolly grew up in various neighbourhoods throughout Mississauga. There were no safety concerns where he lived, and he described that his “overall experience reflected safety”. While his parents did not earn a great deal of money, he did not feel financially deprived. For example, his parents funded school trips and his extra-curricular activities, which included football. The parents shielded the children from the depth of their monetary troubles. The offender did not experience “any financial difficulties as an adult”.

[30] Mr. Jolly moved out of the family home after completing secondary school due to the yelling and the rules he associated with it. At least one of his brothers followed a similar path. His sister focused on her education and moved away to university, partly to escape the challenges at home.

[31] Mr. Jolly continued to interact with persons involved in criminal activity and he began trafficking drugs. He was conflicted at times about it, but moved to Saskatchewan for a time with friends who trafficked drugs.

[32] Mr. Jolly was 22 years old when he was shot in the face as an acquaintance was shot to death. Mr. Jolly lost a cousin and a friend to violence a few years ago. He was diagnosed with PTSD and saw a psychiatrist for some time. He was prescribed medication, which he discontinued due to side effects. The shooting impaired Mr. Jolly’s vision and he continues to have difficulties with his jaw. He has regularly smoked marihuana since he was 12 years old, and he now finds it helps with the pain from the shooting and his PTSD. He states that he does not have any addiction issues.

[33] He has been on ODSP since the shooting. For the past two years, Mr. Jolly had done some work for a family member’s seasonal landscaping business. When he was not working, his main source of income was drug trafficking. He agreed that the violence and negative consequences from some of his adult peer associations did not deter him from continuing to engage in criminality.

[34] He found that it was common for him and his group of Black friends to be detained, questioned and carded by the police while they were hanging out together. Sometimes he would question the police for their actions, but it continued. He, in turn, continued with criminal activity and associations.

[35] Mr. Jolly expressed that he “felt bad” that someone had died from consuming drugs he sold. In the past, he gave little consideration to the harm and death associated with his criminality. His primary motivation was to make money and feeling a sense of accomplishment. He feels differently now.

[36] “Jovane was asked to comment on the remarks noted in the Intercept Summary transcript dated May 4, 2019, where he reportedly admitted that this was the third time someone had died from an overdose from the drugs he sold. Jovane expressed that his remarks were mischaracterized. He explained that he was acknowledging that the death was the third time he had heard of something like this happening in general, not the third time it had occurred with drugs that he had sold.”

[37] Mr. Jolly’s criminal record consists of the following entries:

2011 (Youth) Robbery; Use imitation firearm 6 months custody /supervision 2011 Fail to comply recognizance 1 day (3 days noted) 2012 Theft under $5000 SSP 9 months 2012 Possession of schedule 1 substance 1 day (3 days noted) 2014 Possession of controlled substance (x3) 1 day (6 months noted) 2016 Possession for trafficking of Sch. 1 substance: $400 fine

[38] Mr. Jolly was not always compliant with release orders, describing himself as “young and reckless and not thinking about consequences.” After he serves this sentence, he intends to learn a trade, move outside of the city, and leave his life of criminality behind him.

[39] When invited to speak, Mr. Jolly again stated that he felt a deep sense of regret for the death that was caused by the drugs he sold. He wants to spend the rest of his life atoning for his wrongs and making amends to the family of the deceased.

Social Context Evidence: Assessor’s findings Adopted and Integrated

[40] Ms. Richards’ assessment of Mr. Jolly in her enhanced presentence report is enlightening and instructive. She observed the presentence process “highlighted the confluence of circumstances that may have influenced Mr. Jolly’s involvement in the drug trade.”

[41] Guided by her cogent and nuanced analysis, I share all of Ms. Richards’ findings distilled in the assessment portion of the report. They were not contested. Mr. Jolly did not attempt to justify his criminality, nor did he blame the various interpersonal and systemic factors that informed his path towards drug trafficking. His fraught and volatile household caused him to respond by silence and suppressed emotions. This followed him into adulthood.

[42] Mr. Jolly experienced physical and emotional abuse in the home. Outside of the home, he was bullied because of his race, weight, and size. The consequent alienation was exacerbated by his placement in special education classes in elementary school, which led him to being streamed into basic courses at a specialized secondary school.

[43] “Collectively, these experiences increased Mr. Jolly’s feelings of exclusion and poor self-esteem.” In high school, he sought comfort in similarly disenfranchised youth, many of whom also had learning challenges, behavioural issues and had begun their early forays into criminal activity. As he found a sense of belonging, he abandoned his healthy extra-curricular activities.

[44] As an adult, he chose to remain in the illicit drug trade, despite repeated encounters with the justice system. The compounded impact of his various life experiences instilled in him that the sense of satisfaction and accomplishment that came with drug trafficking could not readily be attained by him through prosocial means.

[45] Among several helpful recommendations, Ms. Richards suggested that “culturally responsive therapy may also provide Mr. Jolly the opportunity to explore and be seen, heard, and validated – essential aspects of the therapeutic process. Culturally responsive therapy, or care, is an intersectional approach to therapy that intentionally explores how aspects of our identities can inform our lived experiences. This approach may assist him in determining his own therapeutic needs and goals, as therapy is more effective when driven by people who take ownership of the process.”

Analysis

Applicable Principles of Sentencing

[46] The objectives of sentencing can be found in section 718 of the Criminal Code. Mr. Jolly trafficked fentanyl by the ounce on more than one occasion, notably after learning the drugs he had supplied had caused at least one overdose death. Deterrence and denunciation are clearly the primary sentencing objectives in such a case. Counsel agree that the offender must be separated from society by means of a lengthy penitentiary sentence.

[47] Despite the related criminal record for commercial trafficking in controlled substances, some restraint must be observed. Mr. Jolly is relatively youthful, so the sentence should not be crushing. It must consider his prospects of rehabilitation and integration into a prosocial life. This is his first significant custodial sentence.

[48] The fundamental principle guiding a fair and fit sentence is that the disposition must be proportionate to the gravity of the offence and the degree of responsibility of the offender. While parity and individuality are also important considerations, they are secondary to the organizing principle of proportionality. [1]

Fentanyl Trafficking – Parity and Sentencing Jurisprudence

[49] The Supreme Court recently in R. v. Parranto [2] provided sentencing guidance regarding fentanyl traffickers. The facts of that case are more aggravating and distinguishable, in that they involved the operating minds of an illicit organization trafficking fentanyl to a vulnerable community in Alberta. There is much to draw from this judgment for this matter.

[50] The Court determined that a national range of 8-15 years of custody is appropriate for “wholesale” traffickers of fentanyl. In its distillation that included cases from our province, the Court cited several cases of ounce-level trafficking. [3] The selected cases were not restricted to the operating minds of larger trafficking operations.

[51] In a concurring decision, Justice Moldaver focused on the immense harm that fentanyl has wrought over the years. [4]

The time has thus come for our perception of the gravity of largescale trafficking in fentanyl to accord with the gravity of the crisis it has caused. Largescale trafficking in fentanyl is not a crime marked merely by the distribution and sale of an illicit substance; rather, it is a crime marked by greed and the pursuit of profit at the expense of violence, death, and the perpetuation of a public health crisis previously unseen in Canadian society. In many ways, "[t]rafficking in fentanyl is almost the equivalent of putting multiple bullets in the chambers of a revolver and playing Russian roulette. It is the most efficient killer of drug users on the market today" (R. v. Frazer, 2017 ABPC 116, 58 Alta. L.R. (6th) 185, at para. 11). Put simply, it is a crime that can be expected to not only destroy lives, but to undermine the very foundations of our society.

[52] Additionally, Justice Moldaver’s observations about carfentanil are apt: [5]

Analogues or derivatives of fentanyl further exacerbate the risks, as these substances can be far more potent than even fentanyl itself, with some estimated to be as much as 100 times more potent than fentanyl. One such analogue, carfentanil, is so toxic that it ‘has no safe or beneficial human use, even within the medical community in highly controlled environments.

[53] As I examine the relevant caselaw, I find it helpful to reiterate that Mr. Jolly continued to traffic in fentanyl after he learned someone had died from consuming a small amount of a carfentanil mixture he supplied. He knew about other similar and recent overdose deaths. Soon after the death, while on bail for trafficking a small amount of cocaine, he sold an ounce of fentanyl to another UC. The investigation culminated in a final 5-ounce fentanyl transaction that Mr. Jolly brokered between the original UC and a supplier. The total amount of trafficked fentanyl was in the range of 168 grams.

[54] While I have considered the jurisprudence submitted, I find appellate guidance from our province on fentanyl trafficking of comparable scope and quantity particularly instructive. In assessing parity, the quantities of the drug and circumstances of the offending obviously matter. [6]

[55] In Disher, [7] the offender’s fentanyl trafficking related sentence was reduced by the Court of Appeal from 9 to 8 years. Over 40 grams of mixed fentanyl and heroin was seized from his hotel room. One of the packets included carfentanil. Mr. Disher had a lengthy and related criminal record and was on bail for similar trafficking offences when he was arrested. He has also suffered from a longstanding addiction to “crystal meth”. Our Court of Appeal found that the sentencing jurist erred in failing to make mitigating findings from a presentence report and to properly consider his rehabilitative prospects. Mr. Disher had demonstrated meaningful progress in addressing his struggles before being sentenced.

[56] In Disher, the Court distilled sentences for comparable quantities of fentanyl mixtures in the range trafficked by Mr. Jolly. The Court distinguished the 12-year sentence in Vezina, [8] given the offender possessed just over 200 grams of mixed fentanyl and heroin. This was 5 times the amount involving Mr. Disher, but just over an ounce more than that trafficked by Mr. Jolly. This sentence will not approach 12 years, but I find this guidance illuminating.

[57] In Sidhu, [9] our Court of Appeal upheld a sentence of over 8 years for various trafficking-related offences involving fentanyl, heroin, and methamphetamine. The key quantity involved 89 grams of fentanyl, which approximated half of the quantities trafficked by Mr. Jolly. Mr. Sidhu had a related criminal record and had been recently released on parole when he committed these offences.

[58] In Baldwin, [10] Justice Katzsch of our court imposed an 8-year sentence for 115 grams of fentanyl, involving quantities of almost 2 ounces less than that trafficked by Mr. Jolly. The offending was informed by drug and alcohol addiction. He had previously received a short penitentiary sentence for a trafficking-related conviction, and he violated his parole with a drug offence.

[59] In Shevalier, [11] Justice Epstein of our court sentenced the offender to 8 years for an ounce of fentanyl. None of the other drugs seized exceeded this quantity. The offender was convicted after trial of several trafficking and weapons offences. The offender had a significant criminal record and had twice been to the penitentiary. This was his first trafficking conviction. He too struggled with addiction.

[60] These trial-level sentences were cited by our Court of Appeal in Disher. While other fentanyl trafficking sentences considered recently by our Court of Appeal are not sufficiently comparable to summarize here, I have considered the relevant guidance. [12]

[61] As I consider parity, I am cautious not to draw too many parallels with the 11.5-year sentence I imposed for Mr. Jolly’s co-accused, Mr. Kochanska. Together, they trafficked an ounce of fentanyl to a UC. Mr. Kochanska had a more aggravating criminal record, as supported by a penitentiary-equivalent sentence for drug trafficking and firearms possession.

[62] Aside from the transaction committed with Mr. Jolly, Mr. Kochanska distinctly acknowledged possession for trafficking of over a kilogram of cocaine, 13 ounces of mixed carfentanil, fentanyl and heroin, almost 2 ounces of a fentanyl and heroin mixture, 7 grams of crack cocaine, and 1 ounce of “crystal meth”. On the other hand, Mr. Jolly is subject to the distinct aggravating fact of continuing to traffic in fentanyl while on bail and after learning someone died from consuming his drugs. He also additionally brokered a 5-ounce fentanyl transaction.

[63] I have considered the recent and related appellate and sentencing jurisprudence, notably from our province. Drawing from the appellate distillations in Parranto and Disher, I am comfortable observing that a review of comparable cases supports a sentence in the range of 8-12 years here. [13]

Social Context Evidence and Sentencing Black Offenders – R. v. Morris

[64] As our Court of appeal recently observed in R. v. Morris: [14]

It is beyond doubt that anti-Black racism, including both overt and systemic anti-Black racism, has been, and continues to be, a reality in Canadian society, and in particular in the Greater Toronto Area. That reality is reflected in many social institutions, most notably the criminal justice system. It is equally clear that anti-Black racism can have a profound and insidious impact on those who must endure it on a daily basis… Anti-Black racism must be acknowledged, confronted, mitigated and, ultimately, erased.

[65] In this seminal ruling, our Court of Appeal clarified the use that may be made of social context evidence for Black offenders during sentencing. As counsel agree as to the import of this ruling, I will not summarize the guidance much further. I will note the principal conclusions of the Court from paragraph 13:

• The trial judge's task in sentencing is to impose a just sentence tailored to the individual offender and the specific offence in accordance with the principles and objectives laid out in Part XXIII of the Criminal Code;
• Social context evidence relating to the offender's life experiences may be used where relevant to mitigate the offender's degree of responsibility for the offence and/or to assist in the blending of the principles and objectives of sentencing to achieve a sentence which best serves the purposes of sentencing as described in s. 718;
• The gravity or seriousness of an offence is determined by its normative wrongfulness and the harm posed or caused by that conduct in the circumstances in which the conduct occurred. Accordingly, unlike when assessing the offender's degree of personal responsibility, an offender's experience with anti-Black racism does not impact on the seriousness or gravity of the offence;
• Courts may acquire relevant social context evidence through the proper application of judicial notice or as social context evidence describing the existence, causes and impact of anti-Black racism in Canadian society, and the specific effect of anti-Black racism on the offender;
• Consistent with the rules of admissibility, a generous gateway for the admission of objective and balanced social context evidence should be provided;
• The Gladue methodology does not apply to Black offenders. However, that jurisprudence can, in some respects, inform the approach to be taken when assessing the impact of anti-Black racism on sentencing.

[66] I take judicial notice of the highly troubling and sadly obvious fact that pernicious anti-Black racism exists, and permeates the justice system. I accept that the sentencing approach towards Indigenous offenders is unique and reflects not only their overrepresentation in the justice system, but our related and contemporary understanding of the continuing impact of our tragic and weighty colonial history. [15] However, among other racialized offenders, the Black experience in our justice system is singularly problematic, painful and in need of correction. [16]

[67] The social context evidence cannot mitigate the obvious seriousness of the offences, but it may inform Mr. Jolly’s moral responsibility for them. As I will discuss, the mitigation to be drawn from this consideration will have to be weighed with the high degree of intention and calculation in the criminal conduct. Ultimately, I am guided and circumscribed by the rigours of the sentencing process, engaging the tenets of criminal responsibility, including free will, and the sentencing principles in the Criminal Code. [17]

Aggravating factors:

[68] The following aggravating factors are established beyond a reasonable doubt:

i. Fentanyl trafficking at the ounce-level: The tragic overdose death and genesis for this investigation initially supported that Mr. Jolly may have been a lower, street level trafficker. However, his representations to the various undercover officers and his timely procurement of ounce-level distribution support that he also sells fentanyl in larger quantities for resale. Fentanyl is one of the most dangerous drugs and carfentanil exponentially so. Overdoses and deaths are commonly associated with unprescribed use of fentanyl. Mr. Jolly also sells a variety of drugs, as illustrated by the transaction for cocaine and the 18 grams of the drug seized upon his arrest. The opioid crisis is accelerating in York Region. I will explore his counsel’s invitation to consider that the police asked the offender to transact in ounces of fentanyl in the final discussion. Mr. Jolly does not sell drugs to support an addiction. He is a commercial trafficker. ii. Related Criminal record – Statutorily aggravating: Most recently in 2016, Mr. Jolly was convicted for possession of a schedule 1 drug for trafficking and received a fine. This is a statutorily aggravating factor. [18] He had previously received four distinct and short jail sentences for simple possession of controlled substances. I note only parenthetically that many of those pleas involved withdrawals of trafficking related charges. The withdrawn charges themselves have no relevance, but they further serve to illustrate that Mr. Jolly remained undeterred by repeated and related engagement with the police and the justice system, notably by the prior trafficking conviction. iii. Disregard for life – Continuing to traffic upon overdose death: This is a relatively unique aggravating fact. Mr. Jolly specifically acknowledged to the police that he knew someone had died from ingesting the drugs he had sold. He was aware of other related overdose deaths. Instead of ceasing to traffic in fentanyl, he then trafficked in multiple ounces of the drug to undercover officers. He described himself as reckless at times and unconcerned with the consequences of his actions. That rings true. His demonstrated and reckless disregard for human life is aggravating. [19] iv. On bail for trafficking offences when these offences committed: Mr. Jolly committed these offences while on bail for trafficking cocaine to an undercover officer.

Mitigating and Contextual Factors

[69] The following mitigating and contextual factors have been established:

i. Guilty plea: Mr. Jolly waived a lengthy trial and accepted a significant penitentiary sentence. I observe that aspects of the Crown case were very compelling, including four transactions with multiple undercover officers and evidence seized proximate to each transaction and the final arrest. Many of the culpable conversations between Mr. Jolly and the UC’s were recorded pursuant to judicial authorization. There is no suggestion the grounds were informed by confidential informant information. Any potential defenses that may have been waived were not readily apparent. ii. Social context evidence - “Impact of Race and Cultural Assessments” (IRCA): I have considered the social context evidence supporting that systemic discrimination has informed Mr. Jolly’s life circumstances and his engagement with the criminal justice system as a young, Black man. iii. Presentence custody: It is agreed that Mr. Jolly should receive enhanced credit for 1.5 days for each day spent in presentence custody. He has served 36 actual days and will be credited for 54 days. iv. Time on restrictive bail conditions – Downes credit: Competing submissions were made as to whether Mr. Jolly should receive any credit for time spent on restrictive bail. [20] There is merit to both positions. A violation of bail terms informed the house arrest condition. He has been granted an exception for employment. Prior to the health crisis, Mr. Jolly had already spent 8 months of house arrest. Since then, he has remained on house arrest for almost 21 further months. Despite submissions and law to the contrary, I do not find that being subject to a house arrest term of bail can be meaningfully analogized to some of the more stringent COVID-19 public health restrictions. I am persuaded to afford Mr. Jolly with 4 months of mitigation for this factor. v. COVID-19 and custody: A fair and fit custodial sentence should also consider the impact of the public health crisis that shows no end in sight. [21] I have also considered the Crown evidence of testing, positivity counts, and vaccine rates and administration in the federal system in Ontario. Counsel agree that some additional restraint is warranted, given the consideration I gave this factor for the co-accused, Mr. Kochanska. While there is no need to quantify it, the final sentence here will already have accounted for a further 6 months of mitigation. vi. Rehabilitative prospects: Mr. Jolly has demonstrated that he has a reasonable prospect to be rehabilitated into a law-abiding life. During his time on bail, he has been employed in landscaping and, more recently, in construction.

Discussion and Conclusion:

[70] Fentanyl trafficking at the ounce level is incredibly serious and attracts a significant and deterrent penitentiary sentence. Mr. Jolly continued to traffic in this drug after being convicted for possession for trafficking of a schedule 1 drug. He continued to traffic in this drug after he learned someone died from his supply. He continued to traffic in this drug after he was arrested and released for cocaine trafficking. He has been undeterred.

[71] I do not find the competing characterizations of the offender as a street-level, mid-level or wholesale [22] trafficker particularly helpful. The quantities and circumstances of the various transactions largely speak for themselves. I would characterize Mr. Jolly as an entrenched commercial trafficker of fentanyl and other serious drugs. He has shown that he traffics at the gram-level for consumption and at the ounce-level for presumptive resale. On short notice, he can draw from multiple suppliers (Kochanska and Winn) to sell significant amounts of fentanyl. While counsel submitted that Mr. Jolly consumes cannabis regularly, it was conceded that he is not an “addict trafficker”.

[72] I do not find it mitigating or unusual that Mr. Jolly only trafficked in ounces of fentanyl upon the request of the undercover officers. I also do not find that this supports that Mr. Jolly was a reluctant ounce-level dealer. It is far from presumptive that Mr. Jolly would offer, unprompted, large quantities for sale to relative strangers. Traffickers may be wary of solicitous strangers and may be calculatingly receptive to the expressed preferences of new buyers. Some may be concerned about undercover officers.

[73] The clandestine nature of drug trafficking is established in the jurisprudence. I find it to be a neutral fact in this case that the undercover officers first asked for higher quantities of fentanyl. Upon mere requests, Mr. Jolly quickly brokered transactions for these amounts through two distinct suppliers. He had mentioned higher quantities and pricing in the exploratory discussions, and he required virtually no persuasion to produce the higher amounts. For the stated reasons, the gravity of Mr. Jolly’s offending is undeniably high.

[74] Assessing Mr. Jolly’s moral responsibility is a more delicate task, particularly as informed by the social context evidence and the consequent findings. While I am cautious not to conflate the two proportionality analyses, many of the factors that inform the gravity of the offence also facially support a very high degree of moral responsibility. The offending involved planning, calculation, and collaboration.

[75] I accept that Mr. Jolly has experienced systemic and personal discrimination as a Black man, and this has informed his trajectory and involvement with crime. There is a reasonable prospect that Mr. Jolly can be rehabilitated, given his relative youth, articulated insight, and that his recent work history has been positive.

[76] While our courts have acknowledged the specific and negative experiences of Black men in the justice system, the distinction between Indigenous and all other racialized offenders has been maintained. Even for Indigenous offenders, our appellate courts have repeatedly held that the Indigenous identity of an offender may not at all mitigate the sentence for particularly serious offences. [23] These offences are so grave and demonstrate such a high degree of moral responsibility for this offender, that I find a proportionate sentence warrants a decade or so in the penitentiary.

[77] I would have otherwise sentenced Mr. Jolly to a total sentence of 9.5 years, but for the agreed upon mitigation quantified for the prospective impact of the COVID-19 crisis on the offender’s custodial term. Mr. Jolly will be sentenced to a global penitentiary term of 9 years, less further credit and mitigation identified.

[78] The sentence will be as follows:

i. Nine (9) years (or 3285 days) to count 11 (5-ounce fentanyl transaction) a. Less 120 days mitigation for time spent on restrictive bail conditions b. Less 54 days enhanced presentence credit (36 actual days) c. Remaining sentence to be served: 3111 days (or approximately 8.5 years) ii. Seven (7) years (or 2555 days) concurrent on count #7 (1 ounce fentanyl transaction) iii. S.109 weapons prohibition for life iv. DNA – secondary designated offence on both counts

Released: January 4, 2022 Signed: Justice A. A. Ghosh

Footnotes:

[1] S.718.1 of the Criminal Code; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, paras. 53-54 [2] R. v. Parranto, 2021 SCC 46, [2021] S.C.J. No. 46 [3] Parranto, para. 68 [4] Parranto, para. 98 [5] Parranto, para. 95 [6] Parranto, paras. 67-69; R. v. Disher, [2020] O.J. No. 4849 (C.A.), paras. 35-36 [7] R. v. Disher, 2020 ONCA 702 [8] R. v. Vezina, 2017 ONCJ 775, [2017] O.J. No. 6027 (C.J.) [9] R. v. Sidhu, 2019 ONCA 880, [2019] O.J. No. 5630 (C.A.) [10] R. v. Baldwin, 2018 ONCJ 2447 [11] R. v. Shevalier, 2017 ONCJ 7247 [12] R. v. Brewster, 2019 ONCA 942, [2019 ] O.J. No. 6098; R. v. Loor, 2017 ONCA 696, [2017] O.J. No. 4628; R v Baks, 2015 ONCA 560, [2015] O.J. No. 3996 [13] Disher, paras. 30-36 [14] R. v. Morris, 2021 ONCA 680, [2021] O.J. No. 5108 (C.A.), para. 1 [15] R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, paras. 57-63 [16] Morris, para. 1; R. v. Anderson, 2021 NSCA 62, [2021] N.S.J. No. 334 (C.A.), para. 3-8 [17] Morris, para. 56 [18] Section 10(2)(b) of the Controlled Drugs and Substances Act [19] Parranto, para. 70 [20] R. v. Downes, 2006 ONCA 3957, [2006] O.J. No. 555 (C.A.); R. v. Ijam, 2007 ONCA 597, [2007] O.J. No. 3395 (C.A.) [21] R. v. Hearns, 2020 ONSC 2365, [2020] O.J. No. 1648 [22] R. v. Felix, 2019 ABCA 458, [2019] A.J. No. 1588 (C.A.), paras. 51-57 [23] R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, paras. 44 and 50