St. Catharines DATE: 2022.12.13 ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
MATTHEW MAILHOT
Before Justice Fergus ODonnell
Reasons for sentence delivered orally on 13 December, 2022
Counsel: Vanja Ilic and Darren Anger................................................................................. for the Crown Madalyn Bavaro.............................................................................................. for the defendant,
Fergus ODonnell J.:
Details of the Offence
Matthew Mailhot appears before me for sentencing for possessing fentanyl for the purpose of trafficking.
The facts are relatively simple. In April, 2022, Mr. Mailhot was taken into custody on a surety revocation. He was found to be in possession of 24.5 grams of fentanyl. He was also found to be in possession of 30.2 grams of MDA, 13.2 grams of crystal methamphetamine and 12.5 grams of cocaine.
Mr. Mailhot was found guilty this summer of firearms charges after trial and sentenced in this courthouse to five years in custody. He was sentenced on those charges on 22 August and as of today Mr. Mailhot still has just over forty months to serve on that sentence. On his present plea to the fentanyl charge, the Crown seeks a sentence of eight years consecutive to the five-year firearms sentence Mr. Mailhot just began serving. The defence seeks a four-to-five-year concurrent sentence. Considering the sentence Mr. Mailhot already has left to serve on the firearms charges, the defence position would mean his punishment for smuggling the fentanyl and other drugs into jail would be roughly eight to twenty months.
Mr. Mailhot’s Background
Mr. Mailhot is thirty-five years old. He has a criminal record, which is persistent and serious. It runs from 2005 to 2018 and ends with his firearms convictions this year. Including what I understand to be three convictions on this year's gun case, the plea before me becomes Mr. Mailhot's thirty-fourth conviction. The longest gap in Mr. Mailhot's record would be between an early 2018 conviction for failure to comply and his convictions on the gun charges some time in 2022, although the length of that gap would be reduced substantially by a forty-five month sentence imposed on him for armed robbery in July, 2017, which he would still have been serving in early 2018).
Mr. Mailhot's record has some of the indicia of an addicted offender, in the form of thefts, failures to comply convictions and break and enters. Unlike many other addicted offenders, however, Mr. Mailhot has a significant record for crimes of violence including a robbery conviction in 2006 (an effective sentence of two years and four months), an institutional assault on an officer in 2008, assault in 2009 and robbery in 2010 (two years less a day on top of two-hundred-and-thirty-four days of pre-sentence custody). On that occasion, Mr. Mailhot received a ninety-day concurrent sentence for possession of a controlled substance for the purpose, his only previous drug conviction.
In 2011, Mr. Mailhot received a four-month consecutive sentence for possessing a weapon and a six-month consecutive sentence for assault. In 2013 he received an effective sentence of thirty months for aggravated assault and two years later he received another effective thirty-month sentence for assault causing bodily harm. That was followed in July, 2017 with an effective four-year sentence for robbery with a firearm (forty-five months on top of three months of pre-sentence custody). Ms. Bavaro advises me that this last robbery involved a pharmacy.
Mr. Mailhot's pre-sentence report on the recent firearms sentencing tells us the following about him. He was born in Niagara and his parents divorced after three years of marriage, leaving his mother to raise three children on her own. His father was abusive to Mr. Mailhot's mother, but not to Mr. Mailhot. There was no father figure in Mr. Mailhot's life as his mother's relationships after the divorce were characterized by domestic abuse and substance abuse.
Mr. Mailhot only completed school to grade eight and said he had trouble concentrating. From the age of twelve to about seventeen years old, he worked at racetracks and thereafter for some temp agencies. He has neither a bank account nor a driver's licence and no clear future employment plan other than to work at a racetrack or on an oil rig.
Mr. Mailhot's drug abuse dates back to his use of marihuana starting when he was about twelve years old and quickly becoming habitual. A close relative introduced him to crack cocaine a year later and by the age of sixteen he was using heroin intravenously, as well as other drugs. Mr. Mailhot says that before his most recent arrests he was using fentanyl every day and crystal methamphetamine every couple of days. He describes his addiction as the root of his criminal behaviour. He says he does not have a dependence on alcohol, but alcohol consumption can fuel violence on his part. Mr. Mailhot had some engagement with addiction services from about 2002-2009 including some success with outpatient counselling, but his commitment was intermittent. When the pre-sentence report was written in the summer of 2022, Mr. Mailhot had been on suboxone for a month.
The probation officer describes Mr. Mailhot as cooperative, honest and polite and noted that he takes responsibility for his crimes and professes to be ready to make changes. He did a programme on substance abuse at the detention centre last month.
Around 2020, Mr. Mailhot met his current partner, while he was living in a half-way house on parole and she was visiting the Niagara Region from Alberta. She has returned to visit him in Ontario during his time in custody and he wants to serve his sentences in Alberta to be close to her. He says she is the only support he has in his life. Mr. Mailhot's partner, a nurse, describes him as, "sweet, kind and generous", but, importantly, does not downplay the seriousness of his offences or his challenges. In a letter presented on sentencing, she says that Mr. Mailhot was in particularly bad shape when she met him, close after his mother's death in 2019. It would appear that if Mr. Mailhot and his partner can make their relationship work long-term, this could be the best opportunity he has had in his entire life.
Sentencing Positions
The principal factor in mitigation, says the Crown, is a very early plea to a very serious charge, a plea that has been in the works from the outset. At the same time, the Crown says that the value of the plea is diminished insofar as the Crown's case was very, very strong and this would have been a simple trial. Ms. Bavaro notes, however, that there was a potential Charter issue with respect to filming of Mr. Mailhot while in custody; she does not overstate the likelihood of success on such an application, but notes that his plea included foregoing that possibility. She also notes that he had a trial on the weapons charges because there were serious triable issues on that case. The Crown also stresses that the introduction of controlled substances into a jail, especially fentanyl, is a severe aggravating factor. The Crown also emphasizes Mr. Mailhot's serious and significant criminal record as noted above.
Counsel referred to a number of cases before me, all dealing with fentanyl. The Crown referred to the Supreme Court of Canada's recent decision in R. v. Parranto, 2021 SCC 46 and the Court of Appeal's decision in R. v. Ribble, 2021 ONCA 897. Ms. Bavaro referred to a fairly recent local decision in R. v. Hazell, 2020 ONCJ 358, which also involved a surety revocation smuggling fentanyl (about a third as much by an offender with a much shorter record) into the Niagara Detention Centre. Another fentanyl sentencing decision referred to was R. v. Cardinal, 2017 ABPC 81.
I do not propose to discuss any of these cases in detail, by which I do not mean to diminish the utility of counsel's reference to them. They do provide a landscape against which to measure the appropriate sentence for Mr. Mailhot, but all comparator cases have their distinctions as well. I do not take Mr. Anger’s characterization of Ribble as establishing a highly restrictive Court of Appeal pronouncement on the relevance of an offender's addiction to sentencing to be well-placed. The brief comment in Ribble upon which the Crown places such reliance plainly does not support the weight the Crown puts on it; that comment is simply a case-specific observation by the Court of Appeal panel to the effect that the trial judge's weighting of the relevance of Mr. Ribble's addiction on that particular sentence was reasonable.
With respect to Parranto, upon which the Crown understandably places much emphasis, Mr. Mailhot is no Mr. Parranto and no Mr. Felix; at the same time, Niagara Region is not a place in which the defence should seek to distinguish Parranto on the basis that Alberta suffers from a serious opioid problem--there are precious few areas in this country likely to give Niagara Region serious competition when it comes to the tragic impacts of opioid trafficking. Cardinal is a jail-smuggling case, but involves much less fentanyl, a Gladue offender and a record that is not sufficiently detailed for comparison. As I have said, Hazell also involves less fentanyl, but clearly involves an offender whose background was less dire than Mr. Mailhot's, although few indeed would be envious of either man's upbringing. Ultimately, while these cases help to present an environment for sentencing, every sentencing decision is unique to the offender and his crime.
Sentencing Considerations and Observations
Proportionality requires balancing the seriousness of an offender's crimes with his or her degree of moral responsibility. The seriousness of the present offence is inescapable. Fentanyl is a massively addictive and often fatal controlled substance. As dangerous as it is on the street, it carries greater risks in the custodial setting including the risk of violence related to its possession and trafficking, the risk to the user and the risk to other inmates and custodial officers arising from its consumption. An offender's moral responsibility can involve a variety of considerations. There was necessarily some degree of planning for Mr. Mailhot's offence. At the same time, it was an act committed by an almost life-long addict whose life circumstances have never been other than lamentable. It would be wrong not to take Mr. Mailhot's addiction into account in determining a fit sentence for him.
Courts will typically give some latitude in sentencing to defendants in Mr. Mailhot's situation; his drug dependence is rooted in a lamentable upbringing, beginning with marihuana before he was even a teenager, continuing with crack cocaine provided by a relative when he was thirteen and leading to intravenous heroin use by the time he was eligible to obtain a driver's licence. Two decades later Mr. Mailhot still has the addiction but he does not have a driver's licence.
It can fairly be said that some of the most intelligent things that have ever been said that resonate in relation to sentencing were said in entirely different contexts. One such observation is Frederick Douglass's comment that, "It is easier to raise strong children than it is to repair broken men." Mr. Mailhot's path to where he is today has been a perilous one, lacking in the fundamental building blocks that every child should benefit from. His moral responsibility for these offences cannot fairly be measured without taking that early history into account. A society that fails its children sows the seeds for their ultimate dysfunction and will ultimately reap the whirlwind, with future members of that society suffering the consequences. There is nothing even remotely unpredictable in that. That reality is an essential component in the analysis of his moral responsibility.
Mr. Anger asserts that the amount of mitigation available for commercial traffickers as a result of their own addiction is, "minimal or nil". I have referred above to the case he relies on for that proposition, namely R. v. Ribble.
First, I reject Mr. Anger's assertion that Ribble stands for that proposition; it does not, for the reason I have set out above. That position by the Crown is a house built upon sand; it is definitely not a reasonable position based on the language of that Court of Appeal panel. Rather, it is the unsupported and unsupportable transformation of a fact-specific conclusion about the reasonableness of a specific trial judge's treatment of a specific offender into a universal proposition applicable to all "commercial traffickers", supposedly with the imprimatur of the Court of Appeal. That is quite simply not what Ribble says and no amount of repetition will change that reality.
I reject that proposition on broader grounds also. Whatever may or may not have been said about mitigation on sentence for various classes of traffickers who are themselves addicts must be seen through the lens of the individuality of sentencing, which is a constitutional principle. Even in its relatively short life-span, there seems to be a bit of a tendency for arguments to be made, and sometimes accepted, that water down the definitive language of the Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64, to the effect that, "proportionality is the cardinal principle," in assessing the fitness of sentence (at paragraph 12). Words matter. Words from the Supreme Court in particular matter. "The" is a definite article. It denotes singularity. Proportionality is not "a" cardinal principle of sentencing, it is "the" cardinal principle. The difference between those two formulations is a fundamental difference. Moving on to "cardinal", that is a big word; it is such a big word that in the Catholic tradition it denotes one of the highest echelons of that church, ranking below only the pope himself. Oxford Languages, which has some expertise in linguistic matters, defines 'cardinal' as meaning, "of the greatest importance, fundamental". Larousse, which carries rather a lot of intellectual heft in Canada's other official language, defines 'cardinal' as meaning, "qui est fondamental, essentiel". Accordingly, if proportionality involves balancing the seriousness of the offence and the moral responsibility of the offender as the Supreme Court says, and says with a constitutional dimension, then the moral responsibility of the offender is, in the vernacular, a really big deal. To suggest that Mr. Mailhot's addiction and its roots are of, "minimal or nil" relevance to his moral responsibility cannot, with respect, be seen as anything other than an unacceptable dilution of one half of what the Supreme Court says is THE cardinal principle of sentencing.
One of the "benefits" of being a trial judge is volume. One sees, day in and day out, every level of drug trafficker and every other type of offender, again and again and again and again, sometimes new faces, sometimes the same faces over and over. One sees, day in and day out, the impact of every form of disadvantage on members of the local community, both offenders and victims and people who are simply struggling to survive day by day. One sees it as one approaches the courthouse in the morning, in the downtown nearby if one goes for a stroll at lunch and when one leaves at night. These are the community's visible invisible citizens. Many or most of them never stood a chance of a normal life with the benefits many of us take for granted. To ignore that reality in interpreting and applying the second branch of the proportionality analysis would be odious.
That being said, an offender who struggles with addiction or mental health or other issues that contribute to their offending does not get a free pass. Society is entitled to expect that offenders will make efforts to address the underlying causes of their criminal behaviour and to stick with those efforts. The longer an offender continues to commit offences without making efforts to address his addiction (or mental health issues, or whatever), the more courts will have to weight the sentencing balance to focus more on the seriousness of the offence. In Mr. Mailhot's situation, while it seems clear that he has not succeeded in dealing with his addiction, he has, at least at times, tried, at least to some extent. He is at a point in his life where he professes to be ready to change things and where he actually has a support system available to him that could very well tip the balance if he invests himself heart and soul unflinchingly to changing long-established patterns of behaviour. Those efforts, his remorse, his guilty plea and his prospect for rehabilitation, must play a role in the sentence imposed. So, too, of course, must his criminal record, the amount and nature of the drugs, the need for general and specific deterrence, and the need for a public repudiation for the risk that he, a long-term addict, posed to any other users of the fentanyl and other drugs he was introducing into the jail system.
The Crown and defence are miles apart in their positions, on two fundamental elements. First, the Crown seeks a sentence of eight years compared to the four or five years sought by the defence. Second, the Crown says the eight years should be consecutive to the sentence being served while the defence asks that the four or five years be concurrent to the forty-four month sentence Mr. Mailhot began serving only four months ago. These are fundamental divergences.
The second of these disagreements is easy to resolve. As a general rule, sentences for unrelated matters should be consecutive to one another. I have been given no basis upon which to conclude that these offences are related to one another in any way, other than my assumption that the surety warrant on which Mr. Mailhot surrendered was probably in relation to the firearms charges. That, however, would not make them related offences in the relevant sense for whether a sentence should be consecutive or concurrent. I have no doubt at all that the sentence I impose on Mr. Mailhot must be consecutive to the sentence he is serving.
The length of the sentence is more challenging. In addition to the factors I have listed above, I have to consider totality. I think that it would have been better if Mr. Mailhot had resolved the drug charges at the time he appeared before Justice Calderwood for sentencing on the firearms charges, but whatever the reasons were for that, that ship has sailed.[^1] That, however, does not mean that totality is irrelevant. The Crown recognizes that totality is a factor I must take into account. Against the backdrop of all of the other sentencing criteria, I must make sure that the total sentence is not crushing and does not extinguish any hope of rehabilitation. That is not a matter of diluting Mr. Mailhot's responsibility. Rather it is a recognition that the rehabilitation of offenders, including offenders whose offending is rooted in substance abuse, benefits all of society, a benefit that could continue for the four decades or so that Mr. Mailhot has left on the planet.
I have had the benefit of reviewing Justice Calderwood's reasons for sentence and to some extent seek to place myself in her shoes, of pondering what she would have done if the drug charges had been before her at the same time, or alternatively what I would have done if all of the charges had been before me. Ultimately, though, there is a certain element of informed speculation in all of that, but it must be done because the principle of totality requires it, even though there have been a few months between the two resolutions.
As part of my process, I find it useful to ask myself some questions. Mr. Mailhot has pleaded guilty and it is an early plea, especially given the seriousness of the offence and the Crown's position. He entered his plea about five months after his arrest and about six weeks after his sentencing before Justice Calderwood. Few cases of this severity are resolved that quickly, even by people who are in custody. The value of a plea is variable; one might place it in the general range of twenty-five percent to thirty-three percent. If the Crown's position is eight years on a plea, one wonders, would Mr. Mailhot realistically get ten to twelve years consecutive after a trial? Such an outcome seems unfathomable. When the Crown says that its position takes into account totality, does that mean that but for totality the Crown would have sought nine or ten years? If one works out some realistic scenarios based on the Crown's position, then after trial for a defendant who was not already serving sentence for an unconnected but recently sentenced conviction, would the Crown, even given Mr. Mailhot's record, which is very bad, have sought thirteen or more years for a person who was heavily addicted and who comes from a seriously disadvantaged background? Again, that would never happen.
On the other side of the coin, if I were to accept Ms. Bavaro's position, I would effectively be sentencing Mr. Mailhot to eight to twenty months for a significant amount of fentanyl and other drugs smuggled into a detention centre by a person with a long and serious criminal record, even one with the addiction and background to which I have adverted. Taking everything into account including remorse, the guilty plea, potential for rehabilitation and totality, a number in that range would necessarily fail adequately to address the first half of the proportionality paradigm, namely the seriousness of the offence, which is very high.
The Appropriate Sentence
If Mr. Mailhot had appeared before me, with every element of his case identical to what has been put before me, except that he had not just been sentenced to an effective five year sentence on firearms charges, that is to say, if totality were not a feature, I consider that I would most likely have imposed on him a sentence in the range of five years. If I were to impose a five-year sentence on him concurrent to the firearms sentence, as Ms. Bavaro asks, I have already noted that the effective sentence for the drugs would be woefully inadequate. In my opinion, the principle of totality leads me to impose a sentence of three-and-a-half years for Mr. Mailhot's conviction for possession for the purpose of trafficking in fentanyl at Niagara Detention Centre this past April. That sentence shall be served consecutively to any other sentence he is serving.
There will be a mandatory s. 109 weapons prohibition. As Mr. Mailhot has a previous conviction under s. 5(2) of the Controlled Drugs and Substances Act (albeit very dated and relatively minor), that order will be for life.
Mr. Mailhot shall provide a sample of his DNA for inclusion in the DNA databank, as his offence is a secondary designated offence. Nothing other than a fleeting glance at his criminal record is required to make that order. Indeed, that order would be justified even if this were his first offence.
The victim surcharge for Mr. Mailhot is two hundred dollars. If he makes good use of his time in custody towards rehabilitation and skills development and if he takes advantage of the support he now has in the community, there is no reason to doubt he can be employed. In light of the length of his sentence, he is to pay the victim surcharge not later than 31 December, 2028.
I strongly recommend that Mr. Mailhot be allowed to transfer to a federal institution in Alberta to maximize his potential for rehabilitation and for community support. Community support is something that Mr. Mailhot has lacked for almost all of his life and it would be regrettable if his rehabilitation were jeopardized by perpetuating the geographic gap between him and his new partner.
Justice Fergus ODonnell
[^1]: There was, I believe, a suggestion that, given the position of the Crown on sentence, Mr. Mailhot required a lot of time to make a final, final decision on how to proceed, although resolution was in the cards from early days.