Ontario Court of Justice

Date: 2022 07 28 Court File No.: 20-8054

Between:

Her Majesty the Queen

— And —

Robert Cada

Before: Justice G. L. Orsini

Reasons for Sentence released on July 28, 2022

Counsel: T. Pellerin, counsel for the Federal Crown M. Barry, counsel for the accused Robert Cada

Orsini J.:

Introduction

[1] Robert Cada, an Indigenous person, is before the court for sentencing following his plea of guilty on Dec 9, 2021, to Possession of Fentanyl for the Purpose of Trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act.

[2] Given the nature and quantity of the substance being possessed in this case (144 grams of fentanyl) and in light of the Supreme Court of Canada’s recent decision in R. v. Parranto, the Crown seeks a custodial sentence of 8 years.

[3] Relying on the parity principle, the defence urges me to impose a sentence of 4 years, given that a non-Indigenous co-accused received a sentence of 6 years in a matter that also included a conviction for possessing a prohibited firearm.

[4] Both counsel acknowledge that Mr. Cada’s moral blameworthiness is impacted by factors related to his Indigenous heritage. Where they disagree is the extent to which this should impact the sentence in this case.

Circumstances of the Offence

[5] The circumstances of the offence are relatively straightforward.

[6] On June 25, 2020, police obtained and executed a warrant to search Mr. Cada’s residence. This was the result of observations they made while conducting surveillance on Mr. Cada after receiving information that he was trafficking in fentanyl. Specifically, the facts disclose that they observed behaviour consistent with trafficking while conducting mobile surveillance of Mr. Cada who was operating a blue Nissan Altima. The facts also disclose that two other individuals were observed consistently accessing his residence with the use of a keypad entry system. Both of those individuals were found in possession of fentanyl - one who was within the residence upon execution of the warrant and the other who was arrested in the vehicle Mr. Cada was operating a short distance away.

[7] During the course of their search of the residence, police located a digital money counter, approximately $50,000 in Canadian currency and 144 grams of Fentanyl.

Circumstances of Mr. Cada

[8] Mr. Cada’s background and personal circumstances are outlined in a Gladue Report previously prepared in 2013. In March of this year, an updated Report was prepared outlining his progress since that time.

[9] Mr. Cada is a 32-year-old member of the Sheshegwaning First Nation on Manitoulin Island. His Indigenous heritage comes from his maternal side.

[10] His grandmother attended a residential school. Although there is little evidence as to her experience in this regard, her life circumstances as well as those of Mr. Cada’s mother and Mr. Cada himself are consistent with the intergenerational trauma commonly associated with residential schooling.

[11] The impact of the residential school system on subsequent generations has been well documented. Canada’s residential school system was designed to assimilate Indigenous Peoples into Canadian society by eradicating their cultural traditions, spiritual beliefs and language. It has led to increased rates of substance abuse, mental health problems, criminal activity, mortality/suicide, poverty, family breakdown and community disintegration. All of this has contributed to cycles of parenting deficiencies.

[12] Those circumstances, as outlined in the Gladue Report, include the following:

(i) Mr. Cada has little if any connection to his ancestral roots. His mother had no ability to pass it on to him given that her mother was raised in the Catholic faith and was never taught about her culture;

(ii) Mr. Cada has been impacted by a family history of substance abuse and violence. Mr. Cada’s mother was candid about the fact that both her biological parents were alcoholics and that she has a dependency on alcohol as well. In addition to being exposed to a party-like atmosphere within the home, Mr. Cada discussed being exposed to significant violence within the home while growing up;

(iii) Mr. Cada’s mother was candid about her inability to properly parent Mr. Cada due to her own addiction issues. She gave birth to Mr. Cada at the age of 14 and for a variety of reasons was unable to maintain a stable relationship with a suitable male role model for Mr. Cada. I have no doubt that his mother’s addiction/parenting issues are the result of her own experiences of parental neglect, exposure to alcohol abuse by her mother (Mr. Cada’s grandmother) and abuse at the hands of her stepfather;

(iv) Mr. Cada was exposed to poverty and violence at an early age as a result of his upbringing in the Regent Park area of Toronto where his mother was also raised. In addition to violence within the home, he disclosed that a childhood friend was shot and killed by police and that he himself had been shot twice while growing up in the Regent Park area; and

(v) not surprisingly, Mr. Cada developed his own addiction issues, did poorly at school, was suspended on numerous occasions and began encountering conflicts with the law at an early age.

[13] Mr. Cada’s personal circumstances also include a significant prior Criminal Record which commences as an adult in 2011 with convictions for violence, breaching court orders and trafficking in a controlled substance. He has since amassed convictions for numerous offences of violence including robbery, aggravated assault and assault with a weapon in addition to numerous other breaches of court orders.

[14] Although Mr. Cada accumulated other convictions since his last Gladue Report in 2013, as indicated in the Updated Gladue Report prepared in March of this year, he followed up on many of the recommendations discussed in the Report prepared at that time. He maintained various periods of employment, the last of which appears to have been interrupted by the COVID-19 Pandemic when he was residing in Toronto. As a result, he transferred to a Union job in London 6 months prior to his arrest. However, upon being granted bail on the matters presently before the court, he returned to Toronto where he accumulated other charges resulting in his re-incarceration.

[15] The Updated Gladue Report also indicates that in 2012, a clinical error resulted in Mr. Cada being released from Toronto West Detention Center following which he was present during the Toronto Eaton Centre shooting, where he witnessed two of his friends pass away from gunshot wounds. In 2014, another close friend was murdered. Finally in 2017, he was stabbed twice in the back on his way home from work resulting in a collapsed lung and stomach surgery to remove a piece of the knife that had broken off into his body.

Principles of Sentencing

[16] The purposes and principles of sentencing are set out in section 718 of the Criminal Code as well as section 10 of the Controlled Drugs and Substances Act.

[17] Section 718 of the Criminal Code provides as follows:

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

(a) to denounce unlawful conduct and the harm done to the victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community.

[18] I am also mindful of the following principles of sentencing:

(a) any sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender having regard to the relevant aggravating and mitigating circumstances related to both the offence and the offender; and

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

[19] Finally, I must also consider Mr. Cada’s Indigenous heritage pursuant to section 718 (e) of the Criminal Code.

[20] As indicated in the Supreme Court of Canada’s decision in R. v. Gladue, section 718.2(e) requires the court to adopt a different approach to the sentencing of Indigenous offenders. The Court must consider the following:

(i) the extent to which factors affecting Indigenous people in Canadian society have impacted upon Mr. Cada’s moral blameworthiness; and

(ii) the types of sentencing procedures and sanctions that may be appropriate in the circumstances for Mr. Cada because of his Indigenous heritage and connection.

[21] This different approach, however, does not necessarily mandate a different result. As indicated in Gladue, "[g]enerally, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing". Ibid., para.79; see also R. v. Wells, [2000] 1 S.C.R. 207 at para. 44.

[22] I also remind myself of the problems caused by unwarranted emphasis on the above-noted passage, something that was addressed by the Supreme Court of Canada in R. v. Ipeelee, and most recently by the Ontario Court of Appeal in R. v. Martin, and R. v. Altiman. See also R. v. Kakekagamick (2006), 81 O.R. (3d) 664 (C.A.), at para. 31, leave to appeal refused, [2007] S.C.C.A. No. 34.

[23] At paragraphs 84, 85 and 87 of Ipeelee, the Supreme Court stated:

84 Numerous courts have erroneously interpreted this generalization [in Gladue para. 79] as an indication that the Gladue principles do not apply to serious offences...

85 Whatever criticisms may be directed at the decision of this Court for any ambiguity in this respect, the judgment ultimately makes it clear that sentencing judges have a duty to apply s. 718.2(e): "There is no discretion as to whether to consider the unique situation of the aboriginal offender; the only discretion concerns the determination of a just and appropriate sentence" (Gladue at para. 82)

87 The sentencing judge has a statutory duty, imposed by s. 718.2(e) of the Criminal Code, to consider the unique circumstances of Aboriginal offenders. Failure to apply Gladue in any case involving an Aboriginal offender runs afoul of this statutory obligation...

[24] Watt J.A. in R. v. Radcliffe, described the proper approach to sentencing Indigenous offenders as follows:

It is now firmly established that when sentencing an Aboriginal offender, a judge must consider:

i. the unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the court; and

ii. the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage and connection.

Courts are required to take judicial notice of the systemic and background factors affecting Aboriginal people in Canadian society. But, on their own, these matters about which judicial notice must be taken do not necessarily justify a different sentence for Aboriginal offenders. They provide the necessary context for understanding and evaluating the case-specific information which counsel have a duty to present, absent express informed waiver of the right to have it presented: Ipeelee, at para. 60.

Although systemic and background factors provide the necessary context to enable a judge to determine an appropriate sentence, rather than to excuse or justify the underlying conduct, it is only where the unique circumstances of an offender bear on culpability, or indicate which sentencing objective can and should be actualized, that they will influence the ultimate sentence. [Emphasis in original.]

Aggravating and Mitigating Factors

[25] I note the following aggravating factors in this case:

(i) The nature and quantity of the substance being possessed in this case is highly aggravating. The scourge of fentanyl is now well known. It is a highly addictive substance that is up to 100 times more powerful than morphine and 20 times more powerful than heroin. For this reason alone, it often leads to death; and

(ii) Mr. Cada has a significant criminal record which includes one prior conviction for trafficking. He has had numerous opportunities to address the issues that have caused him to come into conflict with the law;

[26] The mitigating factors are as follows:

(i) Mr. Cada entered a guilty plea;

(ii) Although hardly a first offender, I find that Mr. Cada’s personal circumstances as an Indigenous offender nevertheless operate to reduce his moral blameworthiness for the reasons discussed above; and

(iii) As indicated in the Updated Gladue Report, Mr. Cada followed up on many of the recommendations made in the earlier report from 2013. To his credit, he has maintained stable periods of employment since that time despite the tragic circumstances outlined above. Accordingly, although not the primary sentencing principle, and in spite of his record, I find that the prospect for rehabilitation is moderate.

Analysis

[27] Given the nature of the offence in this case, counsel agree that denunciation and deterrence are the paramount sentencing principles. The Federal Crown has provided me with a number of cases as to the manner in which they have been applied in cases involving the possession of fentanyl for the purpose of trafficking.

[28] I am mindful of the decision of the Supreme Court in R. v. Parranto and the 8–15-year sentence range for what has been referred to as “wholesale fentanyl trafficking”. For parity purposes, I have reviewed the cases referred to by the court in Parranto.

[29] Neither counsel made extensive submissions on whether the offence before me falls within that class of trafficking cases identified in Parranto and more specifically defined in the companion case of R. v. Felix in the Alberta Court of Appeal.

[30] Counsel for Mr. Cada says his client was a street level dealer and not a wholesale trafficker as evidenced by the police surveillance in this case.

[31] At the same time however, the two other individuals discussed above (and who were arrested in connection with this matter) had unfettered access to Mr. Cada’s residence where the drugs were found. Moreover, in addition to being in possession of 144 grams of fentanyl, Mr. Cada was also in possession of $50,000 in cash and a money counter.

[32] Whether this qualifies as “wholesale” or “commercial” trafficking as opposed to street level dealing is, I find, of little moment. The fact remains that Mr. Cada was conducting a “for profit” operation that involved possessing a substantial amount of fentanyl. The amount of fentanyl seized together with a money counter and a substantial amount of cash separate him significantly from the average addict trafficker whose activities are tailored simply to support a habit and who are generally not trusted to posses the sizeable amount of fentanyl recovered in this case.

[33] Given the amount of fentanyl that Mr. Cada intended to traffic, I find that the offence represents a significant danger to the community similar to other large-scale traffickers described in Parranto and Felix.

[34] In any event, as reiterated in Parranto, starting points and ranges are “tools and not straitjackets”. Accordingly, while they provide some guidance, the Court is free to depart from them in appropriate circumstances. The central focus must necessarily be on the principles outline in the Code and the need to impose a sentence that is tailored to the aggravating and mitigating factors related to the offence and the individual offender.

[35] With this in mind, ranges or starting points are not inconsistent with the principles outline in Gladue and its progeny. As indicated in Parranto, starting points or ranges do not usurp the need to consider the moral culpability of the offender and the degree to which an offender’s Indigenous background impacts this assessment or the sanctions which may be appropriate in the circumstances.

[36] At the same time, the dangers associated with fentanyl and the impact it has had on the London community cannot be overstated. It is inconceivable that those trafficking in this substance are unaware of its consequences. Possessing 144 grams of fentanyl for the purpose of distribution places greed over the lives of the most vulnerable. Having presided in our Gladue Court now for the past several years, I take particular note of the devastating impact that fentanyl has had on Indigenous persons within this jurisdiction.

[37] As indicated by Justice Moldaver in Parranto:

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.

[38] In assessing his moral blameworthiness for the offence, I have considered Mr. Cada’s Indigenous heritage. His ability to remain crime free and make appropriate choices has been negatively impacted by factors related to his Indigenous heritage and Canada’s residential school policy in particular.

[39] This however is not the only factor relevant to that assessment. Balanced against these factors is the fact that that Mr. Cada has been before the court on multiple occasions. As a consequence, he has had multiple opportunities to address the issues underlying his criminal behaviour. This includes the opportunity to access Indigenous based services as outlined in the Gladue Report prepared in connection with other serious offences for which he was sentenced to a significant period of custody in 2013.

[40] With respect to the parity principle and the 6-year sentence received by the co-accused in this case, I note that the record for the co-accused, Ms. Harris, was not as significant as that of Mr. Cada. It ends in 2012 and is largely property related. At the same time however, while she also acknowledged possession of the 144 grams of fentanyl, Ms. Harris was not an Indigenous offender, and the offence was aggravated by her admission to being in possession of a prohibited forearm.

[41] Most importantly, Ms. Harris matter proceeded by way of a joint submission which is not the case before me today.

[42] Taking all of these factors into account, Mr. Cada is sentenced to 7 years or 2455 days less credit for pre-sentence custody.

[43] He has a total of 40 days actual time served prior to his initial release on bail. Although he has been in custody since his arrest in Toronto, his bail on the matter before me today was not cancelled. I will credit him on a 1.5 to 1 basis with 60 days time served.

[44] Accordingly, the sentence will reflect time served of 40 days the equivalent of 60 days, plus an additional 2395 days to bring the total sentence up to 7 years.

[45] For DNA purposes, Possession for the Purpose of Trafficking is a secondary designated offence. Given the nature of the offences and the prior record, it is my view that Mr. Cada’s privacy interests are outweighed by the public interest. Accordingly, pursuant to s. 487.051(3), I am ordering the taking of samples of bodily substances from Mr. Cada that are reasonably required for the purpose of forensic DNA analysis.

[46] There will also be a weapons prohibition pursuant to ss. 109 of the Criminal Code prohibiting Mr. Cada from possessing the weapons listed therein for a period of life.

[47] Finally, on consent of both counsel, I will make the Forfeiture Order as requested by the Crown.

Released: July 28, 2022 Signed: Justice G. L. Orsini