ONTARIO COURT OF JUSTICE

DATE: June 29, 2022

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

Gilbert Anishnabie

Before: Justice R. Grinberg

Heard: Sentencing circle on October 22, 2021 and Oral submissions on November 19, 2021 and June 9, 2022 Reasons for Sentence released on: June 29, 2022

Counsel: Mr. A. Schultz, counsel for the Crown Ms. V. Ropchan, counsel on behalf of the accused

Grinberg J.:

Introduction

[1] This case has a lengthy history. On October 11, 2019, after a preliminary hearing involving numerous accused persons, Mr. Anishnabie pleaded guilty to possession for the purpose of trafficking 1 ounce of fentanyl and 3 ounces of cocaine. Due to the Covid-19 pandemic, his sentencing hearing was delayed for a substantial period of time.

[2] Mr. Anishnabie is Aboriginal. A sentencing circle was held on October 22, 2021. Formal sentencing submissions were heard in the courtroom on November 19, 2021. Thereafter, Mr. Anishnabie requested time to attend a residential treatment centre. Therefore, sentencing was adjourned to allow for participation in that program.

[3] More recently, at my request, the parties returned to court on June 9, 2022, to provide an update with respect to Mr. Anishnabie’s personal circumstances. Mr. Anishnabie, his mother, his Addiction Counsellor, Tyler Dokis, Gladue worker, Kathy Priolo and employer, Adam Dietrich, were all in attendance and updated the Court.

[4] The following materials were made Exhibits at the sentencing hearing: 1) a Gladue Report authored by Michael MacDonald from Aboriginal Legal Services, dated January 20, 2020; 2) a Psychological Report authored by Dr. Pomichalek, dated March 10, 2020; 3) a letter from Gwekwaadziwin Miikan Mental Health and Addiction Program, dated June 6, 2022; 4) a Press Release, dated November 15, 2017, from the Mushkegowuk Council, outlining a state of emergency declared on illegal drugs and alcohol.

[5] I am grateful to counsel for the high level of advocacy they demonstrated in this case.

Facts Relied on to Support the Guilty Plea

[6] On March 28, 2018, intercepted communications revealed that Mr. Anishnabie and another individual, drove from their home in North Bay, Ontario, to Toronto. They were tasked with picking up substances at various locations in the Greater Toronto Area (GTA), for three males from Toronto, who were trafficking substances in North Bay. The three traffickers remained in North Bay waiting for delivery.

[7] The conversations between the three (Toronto traffickers) and Mr. Anishnabie, disclosed the following: 1) Mr. Anishnabie did not know his way around the GTA; 2) he did not know who he was picking up the substances from; and 3) he did not know what substance he was picking up at each location.

[8] Mr. Anishnabie was to receive $250.00 for this road trip. Due to the intercepted conversations, police stopped the car on Highway 400, as it was leaving Toronto. Upon searching the car, they found 1 ounce of fentanyl and 3 ounces of cocaine and other substances.

[9] The parties agree that Mr. Anishnabie was not aware that the drug was fentanyl, but, rather, he believed it was a schedule 1 substance, he was picking up. Notwithstanding his lack of knowledge that the drug was fentanyl, both parties submit that the elements of the offence of possession for the purpose of trafficking fentanyl has been established. Based on submissions from both counsel, I am satisfied that Mr. Anishnabie did not know he was possessing fentanyl, nor was he wilfully blind.

[10] At the sentencing circle, Mr. Anishnabie explained that he believed the drugs in his possession were cocaine at most. He is grateful he was arrested, so that he was not responsible for bringing fentanyl into his community.

Personal Circumstances of Mr. Anishnabie

[11] Mr. Anishnabie is now a 25-year-old first offender. At the time of his arrest, he was 21 years old. Mr. Anishnabie is Ojibwe. He is registered with the Nipissing First Nation. He was raised in Jocko Point, which is part of the Nipissing First Nation Reserve. He derives his Aboriginal status from his father. His mother, who is non-Aboriginal, was born in France and moved to Canada at a young age with her family. When she married Mr. Anishnabie’s father, she moved to the reserve and Mr. Anishnabie was raised there.

[12] Mr. Anishnabie’s father had knowledge in Indigenous culture and practiced his spirituality in ceremonies. Although his father did not attend residential school, his sister and nieces and nephews were apprehended and did attend. Mr. Anishnabie’s senior’s parents escaped to the deep woods, to hide from the residential school agents.

[13] Mr. Anishnabie attended Catholic Schools in North Bay and graduated from high school in 2014. He was diagnosed with a learning disability and Autistic Disorder. He had an Individual Education Plan (IEP). He experienced bullying at school. He described his life in Jocko Point as isolated. As a teenager, he skipped school, smoked marijuana and drank beer, as a way to fit in.

[14] Mr. Anishnabie’s father died in 2015, when Mr. Anishnabie was 18-years old. Shortly, after the death of his father, he and his mother moved off the reserve. His mother had to sell the house on the reserve, as she could not assume ownership of it. Mr. Anishnabie was too young, and he was not ready to take on the responsibility. They moved to North Bay, Ontario. He lived with his mother for two months and then moved out on his own. Then he rented a room with roommates, where drugs were regularly used. During this period, he moved rooms a few times.

[15] Mr. Anishnabie obtained a high school diploma. He received an Ontario Youth Apprenticeship Award. From 2014-2018, he worked primarily in labour-related jobs, including a grocery store.

[16] Mr. Anishnabie suffered gravely as a result of his father’s passing. He described the loss as follows: “my dad’s passing away really messed me up, I am not gonna lie…and moving out on my own really did not help”.

[17] In 2016, he began to use hard drugs including speed, methamphetamine and eventually became dependant on cocaine. He got involved in trafficking drugs in order to support his addiction. Since his arrest, he has not associated with any individuals involved in the drug trade. He has also abstained from using substances apart from cannabis.

[18] He attended Canadore College in North Bay. He did not complete a plumbing program, as he was experiencing grief and depression due to the recent death of his father. In 2019, he attended counselling to deal with his loss. He is taking prescription medication to deal with depression.

[19] Mr. Anishnabie has a number of supports in his community of North Bay. These supports travelled from North Bay to Toronto to participate in the sentencing circle. These individuals include his mother, who has been his surety and with whom he has been living since his arrest. His mother is a significant and unwavering support in his life.

[20] Another support is Dorothy Kennedy Beaucage, a well-respected Elder in the North Bay community who knows the Anishnabie family very well. She was able to advise the author of the Gladue Report and the participants at the sentencing circle that there was a history of alcohol abuse in Mr. Anishnabie’s family.

[21] Also, in attendance at the sentencing circle was Larry McLeod, an Elder in the North Bay community that shared the struggles of young Indigenous men like Mr. Anishnabie. As well, in attendance was Tyler Dokis, a drug counsellor working in North Bay. He has been assisting Mr. Anishnabie with his addiction issues for a number of years.

[22] Everyone participating in the sentencing circle, which spanned a few hours, agreed that Mr. Anishnabie was polite, respectful, open, honest, remorseful, insightful, and accepted responsibility for his actions.

[23] Since his arrest, Mr. Anishnabie has continued to connect with his Indigenous heritage. His Gladue worker, Kathy Priolo, shared that Mr. Anishnabie consistently and reliably connected with her over the last few years. She is confident he will continue to do so in the future.

[24] Both the Gladue Report and the Psychological Report were thorough and comprehensive. They were helpful to the Court as was the sentencing circle. The Gladue Report provided an in-depth account of Mr. Anishnabie’s Indigenous roots. The Psychological Report concluded that that while there were some problems with self-regulation secondary to his developmental condition, there was no evidence of anti-social personality pattern. Furthermore, due to protective factors, such as positive supports, motivation for treatment, positive life goals, his risk of reoffending is low.

[25] As I previously mentioned, since the sentencing circle and submissions on sentence, heard on November 19, 2021, Mr. Anishnabie participated in a Mental Health and Addiction program at Gwekwaadziwin Miikan, from January 21, 2022 to April 18, 2022. This 90-day, co-ed, land based treatment program, weaves traditional culture with therapeutic best practices and outdoor experiential learning.

[26] Mr. Anishnabie was discharged three days short of completing the program successfully. I am satisfied, the reason he was discharged, does not impact his success in the program. The letter of support from the program, outlines Mr. Anishnabie’s honesty, motivation and desire to recover. His learning in the program was described in a very positive light by the clinical director. Since his discharge from the program, he has remained connected to the after-care worker, through one-to-one phone sessions and group zoom.

[27] His Addiction Counsellor, Tyler Dokis, reported on June 9, 2022, that he continues to work with Mr. Anishnabie since his discharge from the treatment program. He reflected that Mr. Anishnabie is a person of high integrity.

[28] Recently, Mr. Anishnabie completed a semester at Nipissing University in North Bay. He intends to complete university. He aspires to be a social worker and help others with their life challenges.

[29] Since April 2022, he has been working full-time in construction. His employer informed the Court that Mr. Anishnabie was both a reliable and hard worker.

Position of the Parties

[30] It is the Crown’s position that a sentence of 4 years is appropriate. The fentanyl and cocaine were bound for northern communities, which are vulnerable and are in the midst of a drug crisis, as are many communities in Canada. The Crown concedes that although a conditional sentence is permissible for this offence, the range of sentence for possession for the purpose of fentanyl is in the penitentiary range, not the reformatory range.

[31] It is the defence position, that Mr. Anishnabie’s personal circumstances are exceptional. Counsel asks me to consider a conditional sentence.

Cases Relied on by the Crown

[32] To assist the Court in determining the appropriate sentence in this case the Crown relied on the following cases:

a. R v. Cinelli, [2018] O.J. No. 4490, 2018 ONSC 4983, in this case the accused received a 7-year sentence for 20 grams of fentanyl and 63 grams of heroin. He had a lengthy and unbroken criminal record, which includes convictions for trafficking in a schedule 1 substance. In addition, he committed further trafficking offences while on highly restrictive bail conditions.

b. R v. Thorn, [2017] O.J. No. 5021, the accused in this case was the girlfriend of a mid-level trafficker, she was not the main target but, a participant. She pleaded guilty. She had a prior criminal record, which was not related. She was 20-years old, Aboriginal, with a very difficult upbringing. She trafficked for profit and had very little insight into the issues. She received a 6-year sentence for 72 grams of fentanyl, 42.8 grams of heroin, and 213 grams of methamphetamine.

c. R v. Moore, [2017] O.J. No. 6122, the accused trafficked 14.98 grams of fentanyl to Mr. Abbott. When arrested, he had a large amount of cash and digital scale. He had a lengthy, and relevant criminal record. He was an opioid addict. Mr. Moore was sentenced to 6 years. Mr. Abbott, who was convicted of simple possession of 14.98 grams of fentanyl, received a suspended sentence. R v. Abbott, 2017 ONCJ 678.

d. R v. Duregger, [2018] O.J. No. 1443, when arrested this accused was in possession of 49.3 grams of fentanyl, 51 grams of cocaine and 103 grams of methamphetamine. He was 33-years old, a father of 5 children with a long criminal record, with one drug conviction for simple possession where he received a fine. He was addicted to crystal meth and fentanyl. This accused was sentenced to 5-years in custody.

e. R v. Fuller, [2019] O.J. No. 4702, the accused in this case was the mastermind of a high-level drug trafficking enterprise. The accused was in possession of approximately 3 kilograms of fentanyl, as well as ½ a kilogram of methamphetamine and 5.8 grams of cocaine. He was a 35-year-old offender with two prior drug trafficking entries. He was sentenced to 15-years in custody.

f. R v. Imerovik, [2019] O.J. No. 1820, this accused participated in a fentanyl trafficking scheme with a doctor and a pharmacist for a 6-month period on a weekly basis. It involved thousands of fentanyl patches. The accused was a youthful first-time offender, addict. He suffered two seizures after his arrest and had limited range of motion in his shoulders, therefore, incarceration would be more difficult for him. This accused was sentenced to 6-years in jail.

g. R v. Boardman, [2016] O.J. No. 4379, where the accused an addict, mid-level drug dealer was found in possession of 84.51 grams of cocaine, 19.78 grams of fentanyl, and 27.99 grams of methamphetamine. The accused was 45-years old with a lengthy criminal record with numerous drug convictions and convictions for other offences. He received a 6-year global sentence.

h. R v. Ribble, [2019] O.J. No. 4686, this 29-year-old, accused, addict, mid-level drug dealer, was convicted after trial of possession for the purpose of trafficking in 17 grams of fentanyl mixed with caffeine and heroin, .82 grams of cocaine, and 16.35 grams of methamphetamine, possession of a loaded prohibited weapon, and four counts of breach of firearm prohibition orders. This accused has a long related criminal record. He received a global sentence of 8-years.

i. R v. Felix, [2019] A.J. No. 1588, 2019 ABCA 458, the accused, a 38-year-old first offender, directed a sophisticated fentanyl and cocaine trafficking operation in Fort McMurray. He was considered a “wholesale commercial trafficker”. In six transactions, he provided 2,388 fentanyl pills, and 2.5 kilograms of cocaine for an agreed total price of $173,400.00. The Alberta Court of Appeal increased his sentence from 7 years to 10 years.

j. R v. Parranto, [2019] A.J. No. 1587, 2019 ABCA 457, this accused, an addict, Indigenous man, with a lengthy criminal record, was designated a “wholesale” fentanyl trafficker. He was found in possession of 27.8 grams of fentanyl, 182.5 grams of methamphetamine, 82.6 grams of cocaine, 396 morphine pills and 168 oxycodone pills. In addition, he was in possession of a loaded handgun, and police recovered $55,575.00 in cash. While on bail, he continued to sell drugs. When arrested for the second time, another loaded gun was found in addition to 485.12 grams of fentanyl. On appeal, his sentence was increased from 11 years to a global sentence of 14 years. Seven years on each count of possession for the purpose of fentanyl. The sentences for the other offences ran concurrently.

k. R v. Giammarco, [2012] O.J. No. 1053, the two accused in this case were convicted after a trial of possession of 3,848 grams of heroin for the purpose of trafficking. They were both first time offenders with good prospects of rehabilitation. Mr. Giammarco who played a minor role in the transaction was sentenced to 5 years. Mr. Burchell received a 6-year sentence. On appeal by Mr. Burchell, the Ontario Court of Appeal upheld the 6-year sentence.

Cases Relied on by the Defence

[33] Counsel for Mr. Anishnabie relies on R v. Gladue, [1999] 1 SCR 688, 1999 SCC 679; R v. Ipeelee, [2012] 1 SCR 433, 2012 SCC 13; and R v. Sharma, 2020 ONCA 478, to highlight the principles when sentencing an Indigenous offender. In addition, counsel relied on R v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 61, and s. 742.1 of The Criminal Code, which codifies conditional sentences. Some cases relied on by the defence are briefly summarized as follows:

a. In R v. Sharma, 2020 ONCA 478, the accused was a 20-year- old, Indigenous, single mother with no prior criminal record, who experienced many challenging personal circumstances. She imported two kilograms of cocaine into Canada. She confessed to the authorities, upon arrest, that she had been paid $20,000 to transport the drugs for her boyfriend. After pleading guilty, she received an 18-month jail sentence. The Ontario Court of Appeal, reduced her sentence to a 24-month less one day conditional sentence.

b. In R v. Morton, 2021 ONSC 5706, the accused was convicted of possession for the purpose of trafficking 520 grams of cocaine. He was caught while re-supplying a drug house in Thunder Bay, Ontario. The trial judge considered him a courier. At the time, he was 28-years old, no criminal record, no history of drug abuse. He was raised in what is described as high risk subsidized housing in Toronto. He was involved in the drug trade for financial reasons. He pleaded guilty after an unsuccessful Charter application. He was sentenced to 2 years less one day to be served in a reformatory.

c. R v. McGill, 2016 ONCJ 138, the accused was a 40-year-old Indigenous man, characterized as a mid-level trafficker who possessed 139 grams of powder cocaine, and 167 grams of crack cocaine for the purpose of trafficking. He had a dated criminal record for violence and weapons offences. He turned his life in a positive direction. At the time of his sentencing, a conditional sentence was not an available sentence. Mr. McGill received a suspended sentence and probation. The Court concluded that Mr. McGill’s circumstances were exceptional.

d. R v. Gagnon, 2017 ONSC 7470, the accused after a trial was sentenced to 4-years in custody for possession for the purpose of trafficking 43.76 grams of methamphetamine, 12.34 grams of fentanyl. This accused at the time was 39- years old with 11 prior criminal convictions including drug offences and breaches of court orders. He had a history of drug addiction, mental health issues and was at an increased risk to reoffend, as he did not have a realistic discharge plan.

e. R v. Joumaa, 2018 ONSC 317, this youthful accused, pleaded guilty to possession for the purpose of trafficking 2.55 grams of cocaine and 139 fentanyl pills. While possessing these drugs, he breached his curfew bail. Police discovered 40 text messages setting up drug deals for the evening of his arrest. He told the Court, he believed the pills in his possession were Oxycodone not fentanyl. He had a prior youth record, which included convictions for assault, criminal harassment and failure to comply. He was sentenced to a global sentence of 4-years in custody.

f. R v. McGinn, 2019 ONSC 4499, the accused, a 27-year-old Indigenous man, pleaded guilty to possession for the purpose of trafficking 33 grams of cocaine, 10 grams of heroin and fentanyl mixture and possession of a knife. He had a lengthy youth and adult criminal record, which included, multiple assaults, numerous failures to comply with court orders and a drug possession offence. He received a global sentence of 3 years and nine months.

g. R v. Mesfin, 2020 ONCJ 93, the accused, a 19-year-old man with a prior youth record, was a cocaine trafficker. He was not an addict, but, sold drugs for profit. Mr. Mesfin was owed money for a previous drug transaction. Believing that a bag in the debtor’s room was cocaine, he helped himself to the bag in satisfaction of the debt. Unbeknownst to him, the bag contained 12 grams of fentanyl and 37 grams of cocaine. After a Gardiner hearing, the Court found, that although he possessed fentanyl by virtue of reckless criminal conduct associated with drug trafficking, the Court was satisfied that the accused did not know he was possessing fentanyl, nor was he willfully blind in the circumstances. He was sentenced to 15-months in jail for possession of cocaine for the purpose of trafficking and 9-months in jail for possession of fentanyl for the purpose of trafficking.

h. R v. Allegro, 2022 ONSC 529, this accused was prosecuted at the same time as Mr. Anishnabie as part of Project Patton. While incarcerated in a federal penitentiary in Quebec, police intercepted telephone conversations that revealed Mr. Allegro was involved in a commercial enterprise with another individual. This operation involved the sale of 2.5 ounces of cocaine. This accused was 24-years old. He had a lengthy, violent, youth and adult criminal record, which also includes a conviction for possession of a schedule 1 substance for the purpose of trafficking. He had a difficult childhood. He was released on bail on December 21, 2020. Since that time, he has abided by terms of house arrest while subject to electronic monitoring. He was sentenced to a 2-years less one day, conditional sentence.

Sentencing Principles

[34] Section 718 of The Criminal Code of Canada states that the fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, a respect for the law and the maintenance of a just, peaceful and safe society. The paramount objectives of sentencing in this case include: general deterrence, denunciation and rehabilitation and the promotion of the sense of responsibility and acknowledge harm done to the community.

[35] Ultimately, the fundamental principle of sentencing is to impose a sanction that is proportionate to the gravity of the offence committed, and the degree of responsibility of the person who has committed it. In order for the sentence I impose to be appropriate, it must be tailored to Mr. Anishnabie’s circumstances and the offences he has committed.

[36] The principle of restraint, as reflected in s. 718.2 (d) and (e) of The Criminal Code, directs that a first period of incarceration imposed on a young first offender should be as short as possible, while giving adequate weight to the principles of general deterrence and denunciation: R. v. Rocchetta, 2016 ONCA 577 at para. 35. As s. 718.2(e) specifically directs, while the restraint principle should be considered for all offenders, particular attention should be given to the circumstances of Aboriginal offenders. Sentencing judges are to give effect to the principles in s. 718.2(e) even where the offence is serious and the sentence involves imprisonment: R. v. Batisse, [2009] O.J. No. 452, 2009 ONCA 114 at para. 36.

[37] The parity principle codified in s.718.2(b) of The Code states: “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

Aggravating and Mitigating Factors

[38] Determining the appropriate sentence requires considering the aggravating and mitigating circumstances in this case.

Aggravating Factors

[39] The aggravating factors in this case include: the substance involved is fentanyl. Fentanyl is sufficiently dangerous that it has brought about a public health crisis in Canada. Tragically, fentanyl overdoses and deaths are now routine. Even a single grain of fentanyl, can cause an overdose in a user or jeopardize the life of a first responder, attempting to aid an overdosing patient.

[40] The crown filed as Exhibit 3 at the sentencing hearing, a Press Release dated November 15, 2017, from the Mushkegowuk Council, outlining a state of emergency declared on illegal drugs and alcohol. The council states “this pandemic has reached serious levels where it’s clearly destroying our people and communities”.

Mitigating Factors

[41] Mr. Anishnabie pleaded guilty. He is remorseful. He is insightful.

[42] He has no prior criminal record, or involvement with the law.

[43] He is a young man. He committed this offence when he was 21-years old. He is now 25-years old. The restraint principle mandates that, to the greatest extent possible, a sentence for such an offender should focus on his own deterrence and rehabilitation. I accept that Mr. Anishnabie is a strong candidate for rehabilitation, given the information I learned at the sentencing circle, the information contained in the Gladue Report, psychological report and the letter from the Treatment Centre.

[44] He has been on bail for over four years and has not breached any terms of his bail. He has no outstanding charges pending.

[45] He has supports in his community. Including his mother, Elders, his addiction counselor, his Gladue worker and his employer.

[46] An in-depth psychological report concluded he was a low risk to re-offend.

[47] In circumstances where the facts, like in this case, establish a causal connection between drug addiction and trafficking narcotics, courts have recognized the addiction as a mitigating factor. R v. Barham, 2014 ONCA 797 at para. 8.

Gladue Factors

[48] In R v. Gladue, [1999] 1 SCR 688, 1999 SCC 679, para. 65 the Supreme Court of Canada states that sentencing judges are among those decision-makers who have the power to influence the treatment of Aboriginal offenders in the justice system. They determine most directly whether an Aboriginal offender will go to jail, or whether other sentencing options may be employed, which will play perhaps a stronger role in restoring a sense of balance to the offender, victim, and community, and in preventing future crime.

[49] In paragraph 40 of R v. Gladue, the Court states, that s. 718.2(e) is notably relevant to the sentencing of an Aboriginal offender like Mr. Anishnabie. That provision codifies the principle that "all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community, should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders". The Supreme Court has held that s. 718.2(e) specifically instructs courts to consider whether to impose a conditional sentence, namely a sentence served in the community under strict conditions, pursuant to s. 742.1 of The Criminal Code: Gladue.

Conditional Sentences

[50] Conditional sentences allow a sentencing judge to impose a sentence to fit the circumstances of the offender and further the goals of denunciation and deterrence but, permit the offender to serve that sentence in the community on conditions including a form of house arrest. The statutory scheme sets out certain mandatory conditions in s. 742.3(1) and confers discretion on the sentencing judge to impose further conditions in s. 742.3(2).

[51] In paragraph 33 of R v. Sharma, the Ontario Court of Appeal reminds judges that Parliament recognized the significant problem of overrepresentation of Aboriginal people in prisons in Canada, and, enacted both a directive to sentencing judges in s. 718.2(e) and, most importantly, a real tool to address the problem in s. 742.1: the conditional sentence.

[52] Paragraph 70 of R v. Sharma, states that Aboriginal offenders start from a place of substantive inequality in the criminal justice system. The over incarceration of Aboriginal people is one of the manifestations of that substantive inequality, which prompted Parliament to create the community-based conditional sentence and direct sentencing judges to consider that sanction, along with all others that do not involve imprisonment, when determining an appropriate punishment for Aboriginal offenders. The conditional sentence is one means of redressing the substantive inequality of Aboriginal people in sentencing. It is certainly the case that conditional sentences are available to all offenders, not just Aboriginal offenders. However, the legislative history and jurisprudence demonstrate that conditional sentences take on a unique significance in the context of Aboriginal offenders by conferring the added benefit of remedying systemic over incarceration.

Analysis

[53] I am mindful that there exists a wide range of sentences for possession of fentanyl for the purpose of trafficking, almost all of them involving significant penitentiary sentences. Fentanyl is highly addictive, and an exceedingly dangerous drug. A very small amount of fentanyl can be fatal. Fentanyl is associated with numerous deaths in Ontario and across Canada.

[54] I am also cognizant that the Supreme Court of Canada has repeatedly mandated that a fundamental principle of sentencing is to impose a sanction that is proportionate to the gravity of the offence committed, and the degree of responsibility of the person who has committed it. In order for the sentence I impose to be fitting, it must be tailored to Mr. Anishnabie’s circumstances and the offences he has committed.

[55] In my view, the facts of this case are distinguishable from other cases involving possession of fentanyl for the purpose of trafficking. Mr. Anishnabie took a road trip to Toronto from North Bay, at the request of drug traffickers from Toronto, who were trafficking substances in North Bay. He was directed to pick up various drugs for a fee of $250.00. I am satisfied, that Mr. Anishnabie did not know, he was possessing fentanyl, nor was he wilfully blind.

[56] The degree of responsibility of Mr. Anishnabie is not dissimilar to the circumstances in R v. Mesfin. Where the Court found that the level of responsibility of Mr. Mesfin was one of a cocaine trafficker, who factually possessed a certain amount of fentanyl by virtue of reckless criminal conduct associated with drug trafficking.

[57] I also find that Mr. Anishnabie’s personal circumstances are highly distinctive from other cases, they include: a youthful, first time, Aboriginal offender, who is insightful, remorseful, with strong rehabilitative prospects, and community supports.

[58] The four plus years that have passed since the commission of this offence are strong indicators of Mr. Anishnabie’s positive re-integration into the community, and his commitment to living a pro-social life, and contributing to his community.

[59] In deciding whether to impose a conditional sentence, I must at the first stage consider whether to exclude a penitentiary term or a non-custodial term. A non-custodial term for possession for the purpose of trafficking substances such as fentanyl and cocaine does not align with the principles of and purposes of sentencing. On the other hand, a penitentiary term, does not reflect the unique facts of this case, or Mr. Anishnabie’s personal circumstances.

[60] Having determined that the appropriate range of sentence is a term of imprisonment of less than two years, I must consider whether it is appropriate for Mr. Anishnabie to serve his sentence in the community.

[61] I am satisfied that the safety of the community would not be endangered by Mr. Anishnabie serving his sentence in the community. His conduct over the last four plus years, while on bail for these offences, support this conclusion.

[62] Furthermore, I am satisfied that a conditional sentence is consistent with the fundamental purpose and principles of sentencing. In Proulx, paras. 41, 67, the Supreme Court explained that a conditional sentence, unlike a suspended sentence, is a jail sentence, but served in the community. It serves the functions of deterrence and denunciation. Indeed, conditional sentences may be available even in cases where deterrence and denunciation are the paramount sentencing objectives: R. v. Wells, 2000 SCC 10, at para. 35.

[63] A conditional sentence is punitive. House arrest is a significant restriction on an offender’s liberty. While subject to a conditional sentence, an offender is not eligible to earn remission. He will be required to serve the entirety of his sentence and then be subject to a lengthy probation term.

[64] In my view a sentence of two years less one day to be served in the community with strict conditions make for a just and appropriate sentence in this case. It strikes the balance between punitive measures to address denunciation and deterrence and restorative measures to achieve rehabilitation. It is also consistent with the principle of restraint. Furthermore, a conditional sentence in this case, is one means remedying systemic over incarceration of Aboriginal people.

Conditional Sentence Terms

[65] I impose a sentence of two years less one day to be served in the community.

The conditions of the sentence are as follows:

1. Keep the peace and be of good behaviour.

2. Appear before the Court when required to do so.

3. Report to your conditional sentence supervisor within two working days (at the following phone number) and thereafter as required by your conditional sentence supervisor.

4. Remain in Ontario unless you have the prior written permission from the Court or the supervisor to leave the province.

5. Reside with your mother, at (address) or at an address approved of by your conditional sentence supervisor.

6. Notify your supervisor in advance of any change of name or address and promptly notify your supervisor of any change in employment or occupation.

7. Co-operate with your supervisor. You must sign any releases necessary to permit your supervisor to monitor your compliance and you must provide proof of compliance with any condition of this order to your supervisor on request.

8. Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by your supervisor and complete them to the satisfaction of your supervisor.

9. Sign any release of information forms necessary to enable your supervisor to monitor your attendance and completion of any assessments, counselling, or rehabilitative programs.

10. Do not possess any weapons as defined by The Criminal Code.

11. For the first 12 months of your sentence, you will be subject to house arrest. You must remain in your apartment or in the common areas or on the property of (address) at all times except: i. for medical emergencies involving you or any member of your immediate family; ii. for going directly to and from or being at your place of employment or education, court attendances, traditional healing ceremonies, and scheduled legal or medical or dental appointments; iii. for going directly to and from and being at counselling sessions approved of by your conditional sentence supervisor; iv. with the prior written approval of your supervisor, which must be carried with you during these times; v. for four hours once per week on a day approved of by your supervisor for acquiring the necessities of life; vi. for completion of community service hours

12. Confirm your schedule in advance with your supervisor setting out the times for the activities in paragraph 11.

13. For the remainder of your sentence, you must remain in your home or in the common areas or on the property, daily between the hours of 10:00 p.m. and 6:00 a.m. except in the event of a medical emergency affecting you or a member of your immediate family or with the prior written permission of your supervisor.

After the expiration of the conditional sentence, you will be on probation for two years. The terms of your probation order will include: terms 1-10.

Over the course of your conditional sentence, you will perform 100 hours of community service. This is imposed as a restorative measure to give back to your community which you harmed by your criminal conduct.

[66] It is also my intention to have you report to me during your conditional sentence and even perhaps through the period of probation. My goal is to provide you with accountability to yourself and your community and to provide encouragement to help you stay on track, and to keep true to your goals of recovery.

Finally, I make a weapons prohibition order pursuant to s. 109 of The Criminal Code and a DNA order.

Released: June 29th, 2022 Signed: Justice R. Grinberg