DATE: February 3, 2022 COURT FILE No: 20-1426

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

-AND-

HAYDEN BIEBER

Before Justice M. G. March

Submissions on Sentence heard January 18, 2022 Reasons for Sentence released on February 3, 2022

Counsel: Timothy McCann, Counsel for the Federal Crown Richard Addelman, Counsel for Hayden Bieber

March, M.G., J. :

Introduction

[1] On January 18, 2022, Hayden Bieber (“Bieber”) pleaded guilty before me to:

a) impaired operation of a conveyance by alcohol, drug or both, b) possession of property obtained through the commission of an indictable offence, and c) possession of a weapon dangerous to the public peace

contrary respectively to sections 320.14(1)(a), 354(1)(a) and 88 of the Criminal Code (“the “Code”).

[2] Bieber also pleaded guilty to possession of fentanyl for the purpose of trafficking contrary to section 5(3)(a) of the Controlled Drugs and Substances Act (the “CDSA”).

[3] All of the above offences were committed on November 12, 2020.

Circumstances of the Offences

[4] At 9:45 AM on the day in question, a police officer noticed a motor vehicle travelling westbound on Highway 17 near McCallum Drive outside the Town of Renfrew. The sound emanating from its muffler was extremely loud.

[5] The officer also observed that the vehicle was speeding up and slowing down. On several occasions, it drifted out of its lane and over the fog line of the highway.

[6] The officer attempted to conduct a traffic stop; however, the vehicle continued at an approximate speed of 90 to 100 km/h. Eventually it stopped on Highway 17 near O’Brien Road.

[7] When asked to produce his driving documentation by the officer, Bieber handed over an expired insurance card. He did not have a driver’s licence.

[8] The officer saw a can of Bud Light beer on the floor of the passenger side of the vehicle. He then asked Bieber to exit.

[9] The officer noted that Bieber appeared drowsy. His movements were slow and deliberate.

[10] The officer proceeded to conduct a search under authority of the Liquor Licence Act. Upon so doing, he located a Ziploc baggie containing what appeared to be cocaine near the can. He then arrested Bieber.

[11] On Bieber’s person, the officer located $215 in cash and a set of brass knuckles.

[12] Following his return to the vehicle to continue the search, the officer located a large quantity of white powder, which he believed to be more cocaine, and another substance, which he suspected to be purple fentanyl.

[13] As a result, the officer re-arrested Bieber for possessing fentanyl for the purpose of trafficking. The officer provided Bieber with his rights to counsel and gave him a standard police caution.

[14] Bieber was transported to a nearby Ontario Provincial Police detachment. He was required to do a battery of tests by another police officer, who was qualified as a Drug Recognition Evaluator. Bieber did not perform well.

[15] A more detailed inventory of Bieber’s vehicle revealed the following:

a) three Apple iPhones, b) three Samsung cell phones, c) one rolled cannabis joint, d) 120 g of marijuana, e) 14.1 g of purple fentanyl, f) 57.2 g of methamphetamine, g) 47.4 g of cocaine, h) 3.4 g of an unknown white powder, i) 4 alprazolam tablets, j) 3 hydromorphone pills, k) 76 dilaudid pills and l) $415 cash.

[16] Police later discovered that the vehicle operated by Bieber on the day in question was owned by his grandfather, Carl Bieber.

Circumstances of the Offender

[17] At present, Bieber is 25 years of age. He has no criminal record.

[18] A very thorough Pre-Sentence Report (“PSR”) was prepared on Bieber’s behalf. It chronicled his unfortunate upbringing.

[19] Bieber was born to parents who abused substances and were unable to care for him. He had very limited contact with them growing up. He was raised by his paternal grandparents, who he regarded as his “mom and dad”.

[20] His grandmother, Suzanne Bieber, remembered Bieber to have been an unhealthy baby. He was colicky and exhibited extreme bouts of crying and screaming. She wondered in retrospect whether Bieber was suffering as an infant from symptoms of substance withdrawal.

[21] His grandmother recalled that Bieber had a difficult time in school. He was bullied and beaten. She tried to advocate for him, but lamented that the school could not keep him safe.

[22] She added that her husband and she worked while raising Bieber. As a boy, he was often left on his own.

[23] Bieber considered his grandparents to have been alcoholics. He remembered that often they were intoxicated. When in such a state, they would fight, and Bieber would witness his grandfather hitting his grandmother during heated arguments. Very recently, Bieber intervened to assist his grandmother. He engaged in a fistfight with his grandfather. He told him that he had seen enough of him hurting his grandmother.

[24] At 18 years of age, Bieber met a young woman. She gave birth to a daughter. Bieber questioned her claim that he was the father. As a result, he did not have any involvement with the child.

[25] Bieber moved to Ottawa thereafter for a period of six months. He worked for a while. He rented a room.

[26] Upon encouragement from friends, he moved to Alberta. There he obtained employment selling furnaces. However, he began using cocaine regularly and gambling. He lost his job due to addiction and returned to Pembroke.

[27] He started into another relationship with a young woman, Ainslinn Bonigut. They had a son together. However, their relationship broke down after two years due to Bieber’s substance abuse and infidelity.

[28] In spite of the breakdown, Bieber has a “50/50” shared custody arrangement with Ms. Bonigut in respect of their son. He characterized the new relationship with his former partner as “supportive co-parenting”. That view appears to be shared by Ms. Bonigut. She agreed that they have an amicable relationship, and together they are focussed on the best interests of their son.

[29] Ms. Bonigut added that she is concerned about the impact any absence on Bieber’s part would have on their four-year-old boy.

[30] During a second interview conducted by the author of his PSR, Bieber became emotional at the prospect of going to jail and not seeing his son for a prolonged period.

[31] Bieber denied being a drug dealer, but conceded that he did sell drugs sometimes in order to have enough money to support his own habit.

[32] In 2017, he attempted to address his addiction. He attended a residential treatment program in Belleville but was expelled for trying to obtain cocaine as a patient in the facility.

[33] Thereafter, he attended another residential treatment program in Elliot Lake, which he successfully completed.

[34] Bieber unfortunately returned to abusing cocaine on a daily basis not long afterward.

[35] In 2020, he began using fentanyl. He credits his current set of charges to saving his life. He recalled an incident where Narcan was used on him to revive him after a fentanyl overdose. He has also used Narcan to revive others.

[36] Bieber reported that he has been drug-free for roughly a year. He joined Narcotics Anonymous (“NA”) and attended NA meetings at a local church when he could.

[37] Sarah Haaima, the opioid case manager for Addiction Services in Renfrew County, described Bieber as “very polite and very pleasant”. She believed he was willing to do the work to get himself in a better place. She felt he was sincere and looking for assistance.

[38] Bieber’s ex-partner, Ms. Bonigut, impressed upon the author of the PSR that his entire family and she are very supportive of him. They are proud of the changes he has made in his life over the last year. All of his collaterals have reported that there are at present no concerns over his substance use.

[39] Additionally, he has broken all ties with his negative peer group.

[40] For a period of almost 15 months, Bieber has not breached any of his strict conditions of release. He was not permitted outside his residence unless he was accompanied by one of his grandparents.

Crown’s Position on Sentence

[41] The Federal Crown, Mr. McCann, seeks a period of incarceration of 4 years in total for Bieber.

[42] By way of ancillary orders, the Crown requests that Bieber provide a sample of his DNA to the authorities pursuant to section 487.051(3) of the Code.

[43] The Crown further asks for a weapons prohibition for a period of 10 years under section 109 of the Code.

[44] Lastly, the Crown seeks a Forfeiture and Destruction Order for the substances found on and about the person of Bieber at the time of his arrest on November 12, 2020.

Defence Position on Sentence

[45] Defence counsel, Mr. Addelman, on behalf of Bieber seeks the imposition of a conditional sentence of two years less a day.

[46] The defence argues that restraint ought to be exercised given Bieber’s youth and the absence of a criminal record.

[47] Mr. Addelman contends that due recognition must also be given to Bieber’s active and significant steps toward rehabilitation in the presentence phase.

[48] If, however, Bieber must be incarcerated, the defence submits that the sentence ought to be in the upper reformatory or lower penitentiary range.

Analysis

[49] In arriving at a fit disposition for Bieber, I must, of course, apply the relevant principles of sentencing now codified at sections 718 to 718.3 of the Code. Sentencing is always a unique, individualized exercise. No two cases are completely alike. Nor are any two offenders completely the same.

[50] Bieber’s sentence must be an appropriate one upon consideration of the circumstances of the offences he committed as well as his personal circumstances.

[51] Most importantly, the punishment I impose must be proportionate to the seriousness of his offences and the degree of his responsibility for them.

Denunciation and Deterrence

[52] The principles of denunciation and deterrence are paramount when one sentences an offender who possesses a lethal drug such as fentanyl for the purpose of trafficking.

[53] In Her Majesty the Queen. v. Gagnon (2017), ONSC 7470, Conlan J. wrote:

The Jurisprudence

[35] No two cases are ever the same. Sentencing decisions can always be distinguished on their facts. The following cases filed by counsel are especially helpful.

[36] In R. v. Loor, 2017 ONCA 696, [2017] O.J. No. 4628, filed by the Crown, the Court of Appeal for Ontario, at paragraph 50, held that, generally speaking, even first offenders who traffic significant amounts of fentanyl should expect to receive significant penitentiary sentences.

[37] I agree with Ms. Barefoot that “significant amounts” must be looked upon in the context of the insidious nature of fentanyl. A very small amount of fentanyl can be fatal – that is now well-accepted in the jurisprudence.

[38] Just how much of a problem is fentanyl in this area of Ontario? The evidence filed by the Crown illustrates that fentanyl, more so than any other illegal substance, proved deadly in 2016. Five deaths resulted from its use, according to Grey-Bruce Health Unit records.

[39] In the case of Mr. Gagnon, I am satisfied that he was in possession of a “significant amount” of fentanyl. Although he has not been convicted of trafficking, he has been found guilty of having that fentanyl for the purpose of trafficking in it.

[40] In R. v. Smith, 2017 BCCA 112, filed by the Defence, the Court of Appeal for British Columbia placed the usual range of sentencing for possession of fentanyl for the purpose of trafficking as starting at a low of 18 months in jail.

[41] Very recently, in R. v. Vezina, 2017 ONCJ 775, filed by the Defence, Justice Sopinka of the Ontario Court of Justice in Kitchener provided an exhaustive summary of the relevant case law to date and concluded that there exists a wide range of sentences for possession of fentanyl for the purpose of trafficking, although almost all of them amounting to significant custodial penalties (paragraph 56), and the key principles of sentencing are denunciation and general deterrence (paragraph 58).

[42] I agree with Justice Sopinka on both points.

[54] The facts in Gagnon are similar to those in Bieber’s case. Mr. Gagnon possessed 12.34 g of powder fentanyl for the purpose of trafficking. For that offence, Conlan J. imposed a sentence of four years of incarceration.

Separation from Society

[55] Offenders must be separated from society where necessary. Clearly, incarceration must be the penal sanction of last resort.

[56] Counsel for Bieber urges upon me the longest sentence possible which the offender can serve in his community under, amongst others, a strict condition of house arrest.

[57] Mr. Addelman drew to my attention a decision of the Court of Appeal for Ontario, R. v. Disher, 2020 ONCA 710 and coupled it with R. v. Sharma, 2020 ONCA 478.

[58] In Sharma, the Court of Appeal for Ontario declared unconstitutional section 742.1(c) and section 742.1(e)(ii) of the Code, which respectively rendered unavailable a conditional sentence for any offence where the maximum term of imprisonment was 14 years to life, and for any offence involving the import, export, trafficking or production of drugs, where the maximum term of imprisonment was 10 years.

[59] In Disher, Gillese J.A. reduced a 12 year sentence imposed by the lower court to eight years. Effectively, she held that the sentencing judge fell into error by failing to adequately consider the “rehabilitative potential” of Mr. Disher, and by failing to offer an opportunity to counsel to address his lack of confidence in Mr. Disher’s PSR.

[60] As I will explain later, I have no doubt as to Bieber’s good prospect for rehabilitation. Nor do I question the thoroughness and accuracy of his PSR.

[61] However, in Disher, Madam Justice Gillese went on to observe:

[30] The caselaw on sentences for trafficking in fentanyl is still developing. There are only a few such appellate decisions, which I discuss below. I also set out some relevant lower court decisions. Caution in considering the caselaw is warranted not just because of its inchoate state but also because of the difficulties in comparing quantities of fentanyl given the differences between patches, pills and powder. Bearing in mind these notes of caution, the caselaw indicates that a sentence of eight years is consistent with that received by offenders similarly situated to Mr. Disher, a mid-level recidivist trafficker of heroin adulterated with fentanyl.

[31] The appellant and respondent suggest that the following appellate cases warrant consideration: R. v. Loor, 2017 ONCA 696, [2017] O.J. No. 4628, and the cases of Mr. Loor’s associates in the trafficking ring; R. v. Lloyd, 2019 BCCA 128, [2019] B.C.J. No. 631; and R. v. Sidhu, 2019 ONCA 880, [2019] O.J. No. 5630.

[32] At para. 50 of Loor, this court said that offenders who traffic significant amounts of fentanyl should “expect to receive significant penitentiary sentences”. It upheld a six-year sentence for Mr. Loor, a member of a drug-trafficking ring who had trafficked in 45 fentanyl patches obtained through a forged prescription. Although Mr. Loor was a low-level member of the trafficking ring, he played a necessary role in it. He had a criminal record that included a prior conviction for trafficking. (my emphasis)

[62] Although Sharma technically makes a conditional sentence available as a sentencing option for Bieber, I find that, upon consideration of s. 742.1(a) of the Code, it would not be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2. In my view, Bieber must be deprived of his liberty to denounce his conduct and to deter like-minded others from trafficking in fentanyl. Unfortunately for Bieber, I must place due emphasis on the principles of denunciation and general deterrence, which cry out in this case for a period of incarceration greater than two years to be imposed.

Rehabilitation

[63] I believe what Bieber told his Pre-Sentence Report author when he said he hit “rock bottom”. He reckoned his arrest on November 12, 2020 saved his life. It was the impetus he needed to begin to self-assess. He fully appreciates, in my estimation, the harm substance abuse has caused not only for him, but for those to whom he sold lethal drugs.

[64] This reality bodes well for Bieber’s rehabilitation toward becoming a productive member of society.

Reparations for Harm Done to the Community

[65] Fentanyl deaths have swept our nation. The alarm bells have long been sounding. Opioid addiction weighs heavily upon our health care system. The human toll it has taken is immense. To quote Bob Dylan, “Too many people have died.”

[66] Public awareness as to the dangers of opioid abuse is heightening, but Bieber can do his own small part as someone who has lived the throes of addiction. He is free to share his story going forward. I hope he does. He may continue to save lives by encouraging outright abstinence and avoidance of fentanyl.

Promotion of a Sense of Responsibility and Acknowledgement of Harm

[67] Bieber will, of course, benefit from counselling and treatment that can be offered to him in a correctional facility, or in his community, or both.

[68] While serving his sentence, I urge Bieber to embrace every opportunity offered to him to avoid further relapse upon his release from custody. He has a long road ahead, but he is young. He has insight into the nature of addiction. He has proven to himself that he can abstain from drug abuse. Time will tell if his love for his four-year-old son is the motivation he needs to stay on the straight and narrow path upon his reintegration into the community.

Aggravating Circumstances

[69] Upon review of the offences committed by Bieber, I find the following factors to be aggravating:

a) the significant variety and quantity of drugs Bieber had in his possession for sale, b) the lethal nature of fentanyl and the inevitable risk to human life which accompanies its illegal sale, c) his transportation of those types of drugs while in an impaired state on a major highway, and d) the weapons he had at his disposal to deter anyone inclined to rob him or refuse to pay him.

Mitigating Circumstances

[70] I consider as mitigating that:

a) Bieber has no criminal record, b) he entered a relatively early guilty plea and saved precious court resources in doing so, c) he acknowledged his serious criminal wrongdoing soon after his arrest and is genuinely remorseful for his conduct, d) he has the support of his family and ex-partner, which bodes well for his ability to reintegrate himself into society, e) he has taken important steps toward rehabilitating himself by abstaining from substance abuse and by his attendance at NA, and f) he has abided by stringent conditions of release over the course of some 14 ½ months.

Parity

[71] Section 718.2(b) of the Code provides:

“A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.”

The Case Law

[72] The Federal Crown provided me with a Table of Cases in order to establish, as best one can, a range of sentence for possessing fentanyl for the purpose of trafficking in the quantity which Bieber did. Having reviewed the Crown’s cases, I agree that four years is on the mark.

[73] The defence did not supply me with any authorities to support his argument that a penitentiary sentence could be avoided for Bieber. I offer this not as a criticism of Mr. Addelman’s advocacy. To the contrary, defence counsel fairly highlighted the positive aspects of Bieber’s personal circumstances. He is a young man, who of his own volition, has undergone a dramatic change in the way he wishes to lead his life.

[74] Mr. Addelman argued convincingly for the exercise of restraint in dealing with a first time offender, who has committed a serious offence. Candidly, he offered that imprisonment was warranted, but perhaps a sentence could be crafted which would permit Bieber to serve his sentence in his community. Mr. Addelman’s difficulty laid in the circumstances of the offences committed by his client.

[75] While I accept that Bieber is no longer a danger to society, the gravity of fentanyl trafficking, in particular in the quantity involved in this case, makes it impossible for me to find my way through to imposing a sentence below the penitentiary range.

A Fit Sentence for Bieber in the Circumstances of the Offences He Committed and His Personal Circumstances

[76] I reiterate that the length of time for which I will incarcerate Bieber must pay adequate respect for the principles of denunciation and deterrence. A significant penitentiary sentence must be imposed. However, I must also hearken back to the sage direction offered by Rosenberg J.A. in R. v. Priest (1996) 1381 (ONCA), where he held:

“ . . . it is a well-established principle of sentencing laid down by this court that a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence.”

[77] I will also grant Downes [1] credit for the 14 ½ months during which Bieber was subject to stringent conditions of release. Bieber could not go anywhere without his grandparents over the course of the entire time his charges were outstanding. For that restriction on Bieber’s liberty, I will deduct three months from the sentence I would otherwise be inclined to impose.

Conclusion

[78] Upon consideration of all relevant principles of sentencing and their purpose, as well as the dicta of Rosenberg J. in Priest, I shall impose for the offence of possession for the purpose of trafficking in fentanyl a sentence of 42 months. Further, I will subtract 3 months for Downes credit.

[79] For the offence of impaired operation, I will impose 30 days concurrently and a one year driving prohibition to be served commencing upon his release from custody by virtue of section 320.24(2) of the Code.

[80] For the offence of property obtained through the commission of crime, I shall impose a 6 month sentence to be served concurrently.

[81] For the offence of possession of a weapon dangerous, I shall impose a sentence of 6 months concurrently as well.

[82] I must also account for the fact that Bieber will be forced to serve his sentence in the era of the Covid-19 pandemic. The time he will spend behind bars will be hard. Undoubtedly, he will be subject to varying, yet uncertain periods of lockdown and isolation. It is a collateral consequence which I must consider in determining the global sentence to be imposed. [2] To reflect this reality, I shall apply a further reduction of three months.

[83] Going forward from today’s date, Bieber shall serve a period of imprisonment of 36 months or 3 years.

[84] By way of ancillary orders:

a) Bieber shall provide to the authorities as soon as reasonably practicable a sample of his DNA under section 487.051(3) of the Code, b) Bieber shall, under authority of section 109 of the Code, refrain from possessing a weapon as that term is defined in the Code for a period of 10 years, and c) a Forfeiture and Destruction Order shall issue in accordance with Exhibit 3 to this proceeding.

[85] For the sake of clarity, and if it has not already been done, the vehicle Bieber was operating on the day in question shall be returned to its lawful owner, his grandfather, Carl Bieber.

DATED: February 3, 2022

March, M.G., J.

Endnotes

[1] See R. v. Downes (2006) 3957 (ONCA), paras. 29-37

[2] See R. v. Morgan, 2020 ONCA 279, paras. 8-11, R. v. Reddick, 2020 ONCA 780, para. 11, R. v. L.A.A., 2020 ONCJ 556, paras. 103-1107